Volume 31 — Texas Criminal Reports

This appeal is from a conviction for receiving and concealing one certain head of cattle, the same being the property of one S. E. Moore, and wherein the punishment assessed was confinement in the penitentiary for two years.

Appellant was prosecuted by information for the theft of one ton of coal, of the value of $5.50. On his trial he was convicted, and his punishment assessed at a fine of $1 and one hour’s imprisonment in the county jail. The facts are sufficiently stated in the opinion.

<p>Appeal from the County Court of Archer. Tried below before Hon. A. Llewellyn.</p> <p>Appellant was prosecuted under an indictment charging him with unlawfully playing at a game with cards in a public place, and upon trial was convicted and his punishment assessed at a fine of $10.</p>

<p>Appeal from the County Court of Taylor. Tried below before Hon. D. G. Hill, County Judge.</p> <p>This was a prosecution by information in the County Court under the acts of the Twenty-second Legislature, General Laws 1891, page 20, defining and punishing usury.</p> <p>At his trial, appellant was convicted, and his punishment assessed at a fine of $15.</p> <p>By an act passed at the called session of the Twenty-second Legislature, approved April 11,1892, the act under which the prosecution in'this case was had, was expressly repealed.</p>

Tried below before Hon. P. B. Muse. On a trial under an indictment charging him with the murder of one James Isbell, by shooting him with a pistol, appellant was convicted of murder in the first degree and his punishment assessed by the verdict and judgment at death. The murder was committed by defendant while in the perpetration of robbery, in the village of Bells, a railroad station in Grayson County, between 8 and 9 o’clock, on Wednesday evening, January 14,1891.

Appellant was prosecuted under an information seeking to charge him with keeping open a bar room on election day, in violation of article 178, Penal Code. At his trial he was convicted, and his punishment was assessed at a fine of $100. It is unnecessary to state the facts adduced in evidence.

<p>1. Burglary by Discharge of Firearms into a House — Indictment.— Our statute, article 707, Penal Code, in defining an “ entry” which would be sufficient to constitute burglary, among other modes declares, “or it may be constituted by the discharge of firearms or other deadly missile into the house, with intent to injure any person therein.” See an indictment for burglary under the provisions of this article which was held good and sufficient to charge a nighttime burglary by discharging a pistol into a house, with malice aforethought, with intent to kill and murder. Searcy v. The State, 1 Texas Court of Appeals, 440, followed.</p> <p>2. Same—Breaking.—In an indictment for burglary it is only essential to charge an actual breaking where the offense was committed in the daytime. Under the provisions of article 707, Penal Code, as above quoted, to discharge firearms into a house, with intent to injure any person therein, is per se burglary, and constitutes all the force and entry necessary and essential to that crime.</p>

Appellant was prosecuted under an information charging him with an aggravated assault and battery upon a female. At the trial he was convicted, and his punishment assessed at a fine of $300, with six months imprisonment in the county jail. The facts are sufficiently stated in the opinion of the court.

<p>1. Violation of Local Option Law—Information.—An information charging a violation o£ the local option law is not sufficient which simply charges a sale of liquor in contravention of law. To he sufficient, it should allege the particular offense, with such circumstances as will identify it, and so specifically as to enable the accused to plead a judgment of conviction or acquittal thereunder in bar of another prosecution for the same offense. It should allege the name of the person to whom the liquor was sold, or if the name of such person is unknown, that fact should he averred.</p> <p>2. Case Reaffirmed.—Dixon v. The State, 21 Texas Court of Appeals, 517.</p>

Tried below before Hon. H. G. McConnell, County Judge. Appellant was tried under an indictment charging him with drunkenness, to such an extent as to incapacitate him from discharging the duties of such office, he being district attorney of the Thirty-ninth Judicial District of the State of Texas. The indictment was transferred from the District to the County Court for trial.

Tried below before Hon. John L. Sheppard. Appellant was indicted for the murder of one David Morgan, and on his trial was found guilty of murder in the first degree, with the punishment assessed at death. There is no statement of facts in the case, and the only bill of exceptions contained in the record relates to the order of argument, the facts concerning which are fully discussed in the opinion.

<p>1. Assault with Intent to Murder—Indictment—Where an indictment for assault with intent to murder charged that the assault was made “with intent to kill,” instead of with intent “ to murder,” held, that the indictment was sufficient. A party can not. with malice aforethought, make an assault upon another with intent to kill him without intending to murder him.</p> <p>2. Approved form for Indictment for Assault with Intent to Murder.—See the opinion for an indictment for assault with intent to murder which is commended as an approved form for charging that offense.</p>

Tried below before the Hon. B. H. White, County Judge. Appellant was prosecuted under an information charging her with keeping a disorderly house, and upon trial was convicted and her punishment assessed at a fine of $200. In view of the disposition made of this case on appeal, it is unnecessary to state the facts.

Tried below before Hon. J. W. Blankenship, County Judge. The indictment against appellant contained two counts, one for adultery and one for getting drunk and being found in a state of intoxication “ in a certain public place—that is, in a hotel,” etc. The count for adultery was dismissed, and appellant was tried upon the count for drunkenness in a public place, convicted, and fined in the sum of $10.

<p>Appeal from the District Court of Nolan. Tried below before Hon. William Kennedy.</p> <p>The indictment in this case purported to charge the appellant herein with swindling, and at his trial under the same he was convicted, and his punishment assessed at two years in the penitentiary.</p> <p>In view of the disposition made of this ease on appeal, it is unnecessary :to state the facts adduced in evidence on the trial.</p>

<p>Appeal from the County Court of Lamar. Tried below before Hon. John W. Roundtree, County Judge.</p> <p>The complaint and information sought to charge appellant with unlawfully carrying a pistol, on the 8th day of February, 1891. At the trial he was convicted, and his punishment affixed at a fine of $25. He moved in arrest of judgment, because the complaint alleged the .commission of an offense subsequent instead of anterior to its filing, which motion was overruled by the court.</p>

<p>Appeal from the District Court of Wharton. Tried below before Hon. Wm. H. Burkhart.</p> <p>Appellant was indicted for the murder of one Henry Kirby, by beating him over the head with a club, and burning him up in a house. At the trial, appellant was found guilty of murder in the first degree, with the penalty assessed at death.</p> <p>We reproduce the testimony of the State’s principal witness, as to the details of this most horrible murder, observing that in its material features it was fully corroborated by the other witnesses who testified on the trial.</p> <p>Percy Paul testified: I was working in December, 1891, at or near Mr. Kemp’s store, in Wharton County, Texas. I picked cotton about that time fo'r Mr. Rowe. He paid me $3.40 a day or so before the killing of Henry Kirby. I was staying with George Mitchell at' that time. He lived down the lane a few hundred yards from Kemp’s store. On the morning o’f the 24th of December, 1891, Jack Fields, the defendant, and Henry Kirby, the deseased man, came to George Mitchell’s house. George, Jack, and Henry were talking about a game. George said he had no money to play on, and said to Henry Kirby, “ I will pawn you a gun, and play cards with you.” Henry Kirby said, “ No, I don’t want your gun. I took one in pawn, and have it yet.” Then George Mitchell wanted to shoot at a mark with Kirby, to which Kirby said, “ No, I will not shoot with you, I want to play cards.” They all three, that is, Jack Fields (the defendant), Henry Kirby, and George Mitchell, went out of the door. Jack and Henry said that they were going to Kemp’s store, and George said that he was going up the country. I do not know which way they went. I did not see them go off. I only know what they said. I was at home that day. I am a stranger; had not been in that place long. My mother and father live on Bernard, not far away, in Fort Bend County. I came over to Kemp’s to pick cotton for Christmas money. That night, after dark sometime, George Mitchell came home, and asked me to lend him my boots. I told him no, I wanted them myself. He said, “Let me have them, and you stay at home.” I finally let Uncle George have my boots. I went to bed that night, and about 1 or 2 o’clock George Mitchell came and woke me up, and said, “ Percy, come and take a walk with me.” I told him “ No.” He said, “ Oh, come go, I am not going far.” I said, “How can I go? You have on my boots.” He turned back to me, and said, “ Put on my old shoes, and come on; I am not going far.” I got up and put on his old shoes, and went with him. We went down the lane to Kemp’s store. The store is on Caney Creek, a few hundred yards from where George Mitchell lives. As we passed Kemp’s, as we crossed the creek, and were going up the hill, we came upon Jack Fields and Willis Lawson standing in the road. They joined us, and we all went on together. Henry Kirby lived about a mile from Kemp’s store, I reckon. I never was over at his place before that night.</p> <p>We went on, and just before we got to the house Jack Fields stepped to the right hand side of the road and cut a club about three feet long. It was larger around than any of the chair rounds I see. He trimmed it up, and we went on. When we got to the house Jack and George told me to stop in the road; it ran close by the house. They then put Willis Lawson at the door of the house. I did not know what they intended doing. After they had placed Willis at the door they went around to the back of the house, and after they had been gone some little while I saw a light flame up in the house. I then heard three blows. In a little while George and Jack came to the corner of the house and called me and Willis. We went to them. I heard a woman groan. Jack said, “ There now.” They told me to go in and finish her. I said, “ No.” They took me to the window. I saw the woman sitting up in the bed, with blood all running down her face. They said to me, 11 Go in and finish her.” That’s what Jack said. I said “ No.” Then Jack and George caught me low down on my legs, and said, “We will put you in.” I said, “ No, put me down, and I will go in myself.” I then got in at the window. Jack Fields, the defendant, got in after me. The club he cut was leaning up at the right of the window as you get in, and there was a piece of rail that looked like it had been put there for wood, being close to the window. Jack Fields said to me, “ Take that stick of wood and hit her.” The woman was still sitting up, groaning. I said, “No, I can’t hit her.” Jack had his club, and he said, “ Damn you, hit her.” I took the piece of rail and struck her. I did not hit her hard. Jack said, “Hit her harder.” I said, “No, I can’t hit her any more.” He said, “ You won’t hit her, you- damn black son-of-a-bitch?” I said, “ No.” The clothes hanging on the wall, at the foot of the bed, were all on fire; all the wall was ablaze when I told him I would not hit her again. I tried to run around Jack. He caught me in the collar, and .said, “ You won’t hit her ?” and shoved me over into the fire. I caught the walls with my hands. (The witness here exhibited his hands, and showed the burn on the palm of hands.)</p> <p>Jack got out of the window, and I went out after him. When I got out, Jack said, “We had better kill that damned boy; he is young and will tell it.” George said, “ No, don’t kill him; we will give him $5, and if he ever tells it we will kill him.” Willis Lawson said, “ Yes, you give him $5 not to tell, and then if he ever tells we will kill him.” George Mitchell had a boot in his hand when we first went to him and Jack, when they called us after they came to the corner of the house.</p> <p>When I got into that window, and before I struck the woman, I saw Henry Kirby; he was lying on the floor, dead. His head was beat, and so was the woman’s; the blood was on her face, and when I struck her the blood flew on my shirt. I know Henry Kirby was dead. I could see by the firelight; the house was all ablaze. This happened on the night of the 24th of December, 1891; it was the day before Christmas day, and it happened in Wharton County, Texas; and that is Jack Fields, the defendant (pointing him out). We then went away and left the house burning. We came out to the wire fence. They had given me a $5 bill. I held it in my hand until I got home. When we got to the wire fence, Jack left me and Willis and George. He went down the fence. Me, Willis, and George crossed a cornfield and struck Old Caney; went up under the bank until we came to the bridge at Kemps, and crossed and went on to George Mitchell’s house. I did not see Jack Fields any more.</p> <p>When we got home, George Mitchell sat down at the doorstep. I went in the house, and lit the lamp. I then looked at the bill, and saw it was bloody. I said to George, “ This bill is full of blood.” He said, “Well, I will show you how to get it out.” He did not show me. He took the bill and got the blood out himself. I then went and laid down, but could not sleep. It was near daylight. George Mitchell came and laid down. We got up about sunrise. I got up and went to make a fire. I asked George where my boots were. He said, “ I lost one of them last night, but I will make them good.” I said, “ No, you need not mind.” I said, “ I will go down to Mr. Kemp’s store, and get a pair of shoes.” George said, “No, you must not go. Willis wants some tobacco. He can get the shoes.” I then gave Willis some money, S31 got from Mr. Rowe for picking cotton, and he got the shoes and brought them to me. I had lent my boots to George before that day. They were too small for him, and his feet did not go down.</p> <p>George Mitchell, Jack, and Willis made me walk ahead of them as we came back. They talked, but I do not know what they said. When Jack left us he said, “Mind what I told you, and take care of that damn boy,” and George said, “All right.” After I got the shoes, George Mitchell told me I had better go away, and told me to get shed of that shirt. I made him no answer back, so me and George left the house together. We left Willis at George’s house. We went down the road toward Junius Hall’s store. Hall’s is about two miles from Kemp’s store, and about the same from George Mitchell’s. Before we got to the store, George told me to go on, and he would meet me. I went on to the place where he said he would meet me. He did not come. I went on to the store, and bought me a shirt and hat with the $5 bill. I then went on toward Bernard, and on to my mother’s. George told me to go away; it would be best for me. I do not know how much money they got. I never saw any but the bill they gave me. I made a statement to Mr. Hall, the justice. He took it down in writing. This is all I know. That is my boot—the one cut down the foot. I suppose George cut it to get it off that night. I saw it the next morning in the chimney corner, outside of the house, when I went out for wood to build a fire. I don’t know if the other boot is Henry Kirby’s or not. I threw the shirt away (shirt exhibited). That’s the one.</p> <p>S. M. Bowe, a witness for the State, gave this description of the bodies the next morning after the murder. He says: I went to Henry Kirby’s the next morning after he was killed and burnt up. I found the bodies of a man and a woman, and a little babe. I could tell the woman; there was a burnt hole in her stomach, and you could see where the child came from. It was burnt out of her. We found no money. The house was burnt down before I got there.</p>

Tried below before Hon. C. K. Bell. This appeal is from a conviction of appellant, in the court below, on the second count of the indictment, which charged him as an accomplice to arson, his punishment being assessed at five years confinement in the State penitentiary.

Tried below before Hon. E. W. Terhune. The indictment against appellant contained two counts, the first for forgery and the second for uttering the alleged forged instrument.

E. W. Terhune. Under an indictment charging Mm with the murder of one Sylvester Alfino, appellant was, at his trial, convicted of manslaughter, his punishment being affixed at two years imprisonment in the penitentiary.

<p>Appeal from the District Court of Medina. Tried below before Hon. Thos. M. Paschal.</p> <p>This was a scire facias, upon a forfeited bail bond. In answer to the writ, the parties answered that the bond had been altered by some one unauthorized to change the same. The court held the answer insufficient in law, and rendered judgment declaring the judgment nisi final against the principal and sureties for the sum of $500.</p>

The indictment sought to charge the defendant with the offense of swindling. Exceptions were filed to the sufficiency of the indictment which were overruled. At his trial defendant was convicted, and his punishment assessed at two years confinement in the penitentiary. After conviction defendant filed a motion in arrest of judgment which also assailed the sufficiency of the indictment.

Appellant was tried on an indictment charging him with manslaughter, for the killing of one W. R. Garrett. At his trial he was found guilty of manslaughter, and his punishment was assessed at two years confinement in the penitentiary.

Tried below before Hon. E. D. Cavin. Appellant was tried under an indictment charging him with the murder of one James E. Fenn. This is the second time that defendant has been tried under said indictment and convicted of murder in the first degree, the penalty being assessed on both trials at death. An appeal was taken from the first conviction, and the judgment reversed on account of the admission of incompetent and illegal testimony. See McGee v. The State, 29 Texas Ct.

Tried below before Hon. Wm. M. Key. Appellant was tried and convicted under an indictment charging him with burglary, and his punishment assessed at two years imprisonment in the penitentiary. It is not deemed necessary to state the evidence in the case.

Appellant was convicted in the court below upon a charge, by indictment, for horse theft, and given as his punishment a term of five years imprisonment in the penitentiary. It is unnecessary that the facts in the case be reproduced.

Tried below before Hon. W. A. Blackburn. The indictment upon which defendant was tried in the lower court contained five counts, the three first charging her with receiving and concealing stolen property, the fourth with theft of said property, and the fifth with burglary and theft of said property. At the trial the court limited the jury in their findings to the counts of receiving and concealing stolen property.

Tried below before Hon. W. H. Ford. After having been convicted of murder in the first degree, and during the pending of his appeal from said judgment, appellant escaped from custody, and that fact being shown to the Court of Appeals, his appeal was dismissed.

Tried below before Hon. W. A. Blackburn. Appellant was charged by indictment with the murder of his wife, Susan Wilkerson, and at his trial was convicted of murder in the first degree, and his punishment assessed at death.

Appellant was indicted for the theft of one steer, from the possession of Will Roach, the property of J. M. Cardwell. At the trial he was convicted, and his punishment assessed at two years in the penitentiary. The facts are sufficiently stated in the opinion. The record of the brand introduced in evidence was as follows: “ Card-well, J. M.; P. O., Dripping Springs, Hays County; brands ^ on left jaw and left shoulder or thigh. * * * Horses and cattle.

Appellant was indicted for the theft of a horse, the property of one S. B. Pentecost, and at his trial was convicted, with punishment assessed… Held: “ that the evidence was admissible, upon the ground that, when the defendant took the stand, voluntarily, in his own behalf, he was subject to the same rules as any other witness.” In connection with this testimony, defendant also saved a bill of exceptions to the charge of the court, in that it did not limit and restrict said…

The conviction in this case was for perjury, and the penalty assessed against the appellant by the verdict was a term of five years in the penitentiary.

<p>Appeal from the District Court of Stephens. Tried below before Hon. T. H. Conner.</p> <p>Appellant was indicted for the murder of one W. B. Deshazo, who was his father-in-law. At the trial he was convicted of murder in the second degree, with the punishment assessed at confinement in the penitentiary for seven years.</p> <p>After the case was first submitted in the Court of Appeals, the judgment was affirmed in a memorandum opinion, as follows: “ In so far as the exceptions were taken to the charge on the question of manslaughter, they are not valid or good. In this connection it may be also stated that the State’s theory of the killing was murder, and the defendant’s was self-defense, and that (self-defense) based upon the combined attack made by the deceased and Ford. The exception of defendant to the charge on manslaughter was too general. The evidence on the part of the State shows, at least, murder in the second degree. The judgment is affirmed.”</p> <p>A motion for a rehearing was filed, and this motion is disposed of by the opinion of the majority of the court, as given below.</p> <p>Presiding Judge Hurt dissents from this opinion, “ and refers to the record in support of his views.” This necessitates a reproduction of the entire testimony in the case, as the same appears in the transcript of the record, which we give as follows:</p> <p>J. F. Ford testified as follows: I was acquainted with W. B. Deshazo. I lived a neighbor to him, and was an intimate friend. He is now dead. He was shot by defendant, and died in May, two years ago, about the 8th of May, 1889, in Stephens County, Texas. On the day he was killed, near 2 o’clock in the evgning, I went to his house; found when I got there Leonard Maxwell and young Mahan, to whom I was introduced by Mr. Deshazo. They and Mr. Deshazo were on the front porch when I got there. I knew Jim Maxwell, the defendant, at the time. I did not see him, but Mr. Deshazo told me that he was in the house with the ladies. After talking a little while, I asked Leonard Maxwell if lie was a brother to Jim Maxwell. He replied, that he was. It did not seem to me that he wished to converse. He cut me off so short I said no more to him. After remaining there a short time, I said to Mr. Deshazo, that I wished to see him on some business, and have a private talk with him. He said, “ all right, as soon as he could get his shoes on and his hat, he would go with me.” We then went out to the lot, where we talked for sometime; do not know how long, as I had no timepiece. While in the lot I told him I was afraid there was going to be trouble, and mentioned how Leonard Maxwell appeared to me. The old man said he reckoned he was ashamed of Jim’s conduct towards the family, and maybe that was what made him act strange. As we returned to the house from the lot I saw Leonard Maxwell go to the front of his wagon near the gun. I remarked again to Deshazo I was afraid he was going to have trouble, and called his attention to Leonard’s conduct. We started into the gate, and met defendant. I spoke to him, but did not shake hands with him. He said to Deshazo that he wanted him (Deshazo) to look at some horses. That Millie and he could not agree. Deshazo asked Jim Maxwell if he was going to give Millie a horse. Defendant said, “ I thought I would do her right.” They went out to look at the horses.</p> <p>I went on in the house, and found Mrs. Deshazo weeping. Defendant’s wife, Millie, who was Deshazo’s oldest daughter, was also in the room. In a few minutes after I got in there, and while I was in the room where Mrs. Deshazo and Millie, the wife of the defendant, were, which was the north room of the main house, the defendant came in and wanted Millie, his wife, to go out and see the horses. She replied that she did not care about the horses and would not know anything about them if she did. Defendant then remarked, “Millie, it looks like we ought to live together as man and wife,” to which Millie made no reply. Defendant then said to me, “Don’t you think so, Mr. Ford?” I at first excused myself from giving my opinion. He repeated the request more than once, when I said, “ Since you insist upon my opinion, I will say, that if what I have heard is true, I do not think she ought to live with you.” I had heard a good many things, but said to him I had heard you were in the habit of cursing and abusing her, and that you slapped her in the mouth for joining the church. Whereupon defendant denied slapping her in the mouth at any time, when Millie said to defendant, “ Yes, you did, Jim.” Defendant then said, “I did not.” Millie again said, “ Why, Jim! You know you did.” He had his hand on the bedpost, and suddenly, and in an angry manner, drew it back as if to strike her. I thought he was going to strike her. I stepped up to him, caught him by the front of the coat, and said: “Jim, you must not do that; you can not dispute a lady’s word in my presence in her own house. If you are going to do that way you must get out.” I then caught hold of defendant and put him out of the house.</p> <p>When he got out, with one foot on the doorstep, the other on the porch, he said, “ Turn me loose.” I turned him loose, and he jerked out a pistol and snapped it at me. When the pistol failed to fire, he got hold of it with both hands and seemed to be trying to fix it to shoot. I saw he was going to shoot me, and I ran in the house. Just as I turned I saw W. B. Deshazo coming from towards the gate in the direction of the defendant. Just after I got in the house I heard a pistol shot, and possibly two. Millie was standing near the door, on the inside, looking out. Suddenly she jumped aside and exclaimed, “ Oh, Jim, don’t!” at the same time slamming the door to. At that instant the pistol fired again on the outside, and the ball came through the door where Millie had stood. If she had stood still it would have hit her. I asked for a gun, and some one showed me where it was. I heard a struggling noise in the yard, as if some one was breathing hard. When I first saw Deshazo after the firing he was lying on the ground, and defendant going toward the gate. As I came out Leonard Maxwell gave defendant a gun, which he had got from the wagon. He got behind the fence and begun to shoot at me. My first shot at him and his third at me occurred about the same time. I then ran in the house again, and was at the mantle piece, trying to find some ammunition, when defendant shot at me again, the ball brushing close to my head and breaking a lamp on the mantle. I think I shot twice at defendant, and he shot at me three times, in the yard. When I had no more ammunition I went out'the back door and ran over to Mr. Cunningham’s to get a gun and some ammunition. When I returned the wagon of defendant was there with the harness; were left at Deshaz'o’s; but the men and horses were gone.</p> <p>I saw deceased in the house, lying on the bed, and when he was asked how it occurred, he said he was trying to keep Jim from shooting in the house where Manda and the children were, and that he took hold of defendant and intended to tell him what it would lead to, but defendant did not give him time.</p> <p>I went over to Deshazo’s on the day he was killed, at the request of Mr. Fulbright, for the purpose of talking to him about the defendant Maxwell’s children, and to get him, Deshazo, to go and see Jim, and see if he could not get them and have them cared for; and that is what I wanted to talk to him about when I took him off to the lot. Mr. Fulbright had told me that the children were sick and neglected. Mr. Fulbright is akin to Deshazo. This all occurred in Stephen’s County, Texas.</p> <p>Cross-examined: My general business is boring wells. I preach sometimes. I bored a well for defendant six or seven years ago. I stayed at his house while I was digging the well. I know of no cause of enmity between defendant and I. Do not remember how long I was boring the well. When I got to Deshazo’s on the day of the killing I did not see defendant until after Deshazo and I came back from the lot. I saw defendant’s children playing in the yard with Deshazo’s children, and they did not seem to be sick, and I was surprised thereat, having heard that one of them was very sick.</p> <p>It is not true that I ran in the house and called for the gun before defendant shot the first or second shot. On the contrary, defendant’s first shot was just as I got in the house after putting defendant out. I do not remember to have seen Nannie or Lula Deshazo in the yard during the difficulty. I did not tell the witness J. E. Barnes, next morning after the killing of Deshazo, that when I ran in the house just after defendant snapped at me that the door was slammed to by Millie, defendant’s wife. I told him just what I have sworn to about that. I did not tell the witness Goforth, the evening of the difficulity, ánd after Deshazo was killed, near Deshazo’s house, that when I met Jim Maxwell I hated him so much that I would not shake hands with him. I did not, on the road between Goforth’s and D. Morris’, say to Goforth that I would not care so much about the difficulty if I knew that Deshazo’s family would not blame me for it, or think that I was the cause of it.</p> <p>I did not state to W. L. Lamar, on a Saturday two or three weeks after Deshazo was killed, in the gin yard at Wayland, that I tried to get Deshazo to load his gun and have it ready; that there would be trouble in a short time; and that Deshazo told me that if I would let the boys alone they would get through with their business and leave without any trouble. I did not, at the same time and place, and in the same conversation, state to the witness Lamar that if my gun had not snapped Jim Maxwell, the defendant, would never have hurt Deshazo. I do not remember any such conversation with Lamar. If I told him anything, I told him what I have here sworn to. I do not remember stating to A. G. Knight, in a conversation with him at Mr. Hinton’s a few days after the difficulty,■ when I was telling him about the difficulty, and he asked me what called Jim Maxwell’s attention from Deshazo, that I believed Deshazo caught hold of him, Maxwell. If I told him anything it was what I have sworn. I did not say to J. E. Barnes, at D. Morris’ on the next morning after Deshazo was killed, that when I was out at the lot talking with Deshazo that I told Deshazo that he ought to take the children from Jim Maxwell and run him off.</p> <p>Dr. C. W. Trader, witness for the State: Saw Deshazo a short time before he died. He was wounded in the right side of neck. The ball entered the neck a little below and to the right of the protuberance commonly called Adam’s apple. It did not enter windpipe or go out at back of neck, but proceeded through or under the large muscle extending down the neck as if the muscle had been extended or raised above its ordinary position at tlic time of the shot. The ball passed out of the neck first above the collar bone and on into the shoulder and out again a little back of and below the point of the shoulder, the same ball causing the four openings. 1 do not know that I can give a more accurate description of the wound. There was another wound entering about midway between the navel and breast; the exit of this bullet was about one-half inch above the crest of right hip. The right side of the face was badly powder burned. He died in about an hour after I got there, from the wound in the bowels. He was conscious of approaching death. I asked him how he got shot; he answered, it was in trying to prevent a fuss between Maxwell and Ford, or in trying to prevent Maxwell from shooting Ford; don’t remember conversation accurately. He said Maxwell shot him. Did not consider the neck wound necessarily fatal. Right side of face was badly powder burned, the-grains of powder being blown in the face. The wound in the neck could have been inflicted by the party throwing his pistol over his shoulder, if the party wounded was behind him and close to him. It could also have been inflicted if the party wounded was lying on his side or back when the shot was fired.</p> <p>Charles Terrell, witness for the State: I came with Dr. Smilser from Ranger to see Mr. Deshazo. The wounds, as described, were about as described by Dr. Trader. He thinks the one that went through the bowels came out on the left side of the backbone about left kidney. When we got there we gave Deshazo between one-fourth and one-eighth of a grain of morphine, and in about two hours gave him another dose, and left three more doses to be given every two hours until he was easy. On e-eighth of a grain is a minimum and one-fourth a maximum dose of morphine. Don’t think the wound in the neck was necessarily fatal. The right side of the face was badly powder burned, powder grains being driven into the skin. I am a druggist.</p> <p>Mrs. Deshazo, witness for the State: Was wife of W. B. Deshazo. He died 9th day of May, 1889, at home, in Stephens County, Texas. I was at home the 8th, and know defendant, and Mr. Ford. Have eight children living. Millie, Nannie, and Lula were all at home on the day my husband was killed. Millie was defendant’s wife, but not living with him, and had not since October before. She lived with us. Don’t know where defendant lived. He came to our house after dinner. Leonard Maxwell and a man who gave his name as Mahan, Millie, Nannie, and Lula were all there at home. • Ford did not come until after they had been there sometime. Don’t know just when he did come, as we were all—that is, myself, daughters, and defendant—in the house. Jim, the defendant, and Millie, his wife, were in the dining room awhile, with their children. Then they were on the back gallery awhile. Jim wanted Millie to sign a deed to their land. The children were not sick, but were playing in the house part of the time, and out in the yard part of the time, while they were there.</p> <p>After Jim, the defendant, had stayed sometime, he asked Millie to go out and look at the horses, and pick out one. She told him she did not care anything about the horses, and would not know anything about them if she did, and to let her father pick out the horse. Jim left, and went out towards the front gate, and after he went out of the house Ford came in the room where Millie and I were. After he had been in there a short time, the defendant returned, and told Millie that her pa said for her to come and pick out a horse herself, and she turned to get her bonnet, when Jim remarked, “ I think Millie and I ought to get together, Mr. Ford; what do you think about it?” Ford said he did not know anything about it, and did not wish to express himself about it. Defendant insisted that he should give his opinion, when Ford said, “If you insist on my opinion, and as a man’s opinion is public property, I will give it to you. If what I have heard is true, I can not insist that she ought to live with you.” Ford then stated that he had heard that defendant had abused and slapped his wife in the mouth when she joined the Christian Church. Defendant said he did not do that. Millie said, “Yes, you did, Jim.” Jim said, “No, I did not.” Millie replied, 1 ‘ Why, Jim, you know you did;” and Jim looked very angry, and put his hand by his side, and I thought was going to shoot Millie. Ford got up and told him not to do that, that he could not dispute a woman’s word in his presence, in her own house, and took hold of him and put him out of the house. Defendant said, “ Turn me loose,” but Ford did not turn him loose until he got him to the edge of the gallery. As he was putting Maxwell out of the door, I said to Mr. Ford, “ Don’t have any fuss with him. He has come here prepared for war, and we are not prepared.” Just at that time I saw Leonard Maxwell getting the gun from the wagon, and said, “Yonder is Leonard getting the gun now.” I did not notice Mr. Deshazo anywhere.</p> <p>When Ford turned the defendant loose, the defendant snapped a pistol at him, and Ford jumped in the house as Jim was working with his pistol, trying to fix it. The defendant, Jim Maxwell, turned with his pistol in both hands and fired at something. I could not see what he shot at. I was standing just at the side of the door, in the room where Ford was, and could partly see out the door. There was a small room cut off, or on north end of gallery. Ford asked for the gun. Millie was standing by the door. Presently I heard her say, “Oh, Jim, don’t!” and saw her slam the door, another pistol shot and a ball passed through the door. It passed through the door, and would certainly have hit her had she not jumped aside. Ford got the gun and went out on the gallery, and he and Jim shot at each other several times; Jim in the yard and outside the fence and Ford on the gallery.</p> <p>After the shooting was over I went around the back of the house to the north end, and when I got to the corner I met the defendant, with his gun presented. I said, “ In the name of God, are you going to kill us all?” when Jim dropped the point of his gun down, and went out to the wagon, and 'he and the boys with him left shortly afterwards. They jumped on their horses and went off in a fast run. When I went out into the back yard I found Mr. Deshazo lying on his back. His feet were at the step of the gallery and his head towards the gate. I asked him if he was hurt. He said he was killed. He said he went up to keep Jim from shooting Ford, and that he turned around and shot him, and that he did nothing in the world to cause Jim to shoot him.</p> <p>Cross-examined: I remember the justice of the peace, Riley Hodge, coming there the next morning and asking us about the difficulty, and talking of getting out a writ for Leonard Maxwell. I did not state to him, when asked if we were in a position to see any part of the difficulty, that we were all in the house, and did not see anything until all the shooting was over. At the same time and place, and in the same conversation, I did not tell Justice Hodge that I was in a different room from Ford and could not see what was going on outside, where Deshazo and defendant were. Nor is it true that, when defendant returned into the room, Millie, Ford, and I were seated close together in close conversation. Millie (defendant’s wife) and Nannie Deshazo left the house sometime during the difficulty. I do not know exactly at what time they left. They went up to Mr. Cunningham’s and did not return until after the difficulty was over.</p> <p>Miss Nannie Deshazo, witness for the State, testified as follows: I am acquainted with the defendant and Fletcher Ford. I am a daughter of deceased, W. B. Deshazo, and sister of Millie Maxwell, defendant’s wife, and Lula Deshazo, a witness in this case. I was at home on the day of the killing. Defendant and Leonard Maxwell, his brother, and young Mahan came together to our house that day. Defendant brought his children with him in the wagon; all of us went out to meet him and his children at the gate. They got to our house about 1 o’clock, I reckon; it was after dinner. They had been there sometime before Mr. Ford came. Defendant was in the house talking to Millie. I heard something said about a deed, but do not remember what it was. I went out on the gallery from the south room, where I heard Ford say he must not dispute Millie’s word, and he must go out. When Ford got defendant out I heard ma say, “Don’t have any fuss; they have come for a fuss and prepared, and we have nothing to fight with. There is Leonard now getting out his Winchester.” I looked up and saw Leonard getting out a gun. Defendant threw his head back over his shoulder, and saw Leonard, and then jerked out his pistol and snapped it at Ford. Ford jumped back into the house. My father then came "up from behind defendant and barely touched him, when defendant instantly whirled and shot my father. My father had nothing on earth in his hands, and did nothing to the defendant, more than I have stated.</p> <p>Defendant went around the house at the north end, and was gone a minute or a minute and a half, and I had started to my father—just in the act of stepping off the porch—when defendant returned, approaching from the north, and went up and put his pistol. in three or four feet of my father, as if to shoot. I screamed, and told him not to shoot. He turned his head and grinned at me, and turned and fired right at my father’s face. It was powder burned, and his shirt was afire. My father was lying on his back, and the pistol was not over three or four feet away from his face when defendant fired. I was at Cunningham’s house when defendant and Leonard Maxwell left.</p> <p>Cross-examined: Ford was doing nothing when defendant snapped his pistol at him. I was near the door, within twelve feet of defendant. I stood there quietly. The time defendant looked around to see Leonard, Leonard was on the ground, with the gun, beside the wagon. Did not notice Leonard any more, nor see what Mahan done. Did not notice Ford go into the house when defendant snapped at him. I was looking at pa, who, about the time Ford got into the house, came up and merely got hold of the tail of defendant’s coat, just enough to attract his attention, when defendant turned and fired at my father, shooting him in the stomach. When the second shot was fired at my father, he was lying on his back, feet to the east, head to the west, and defendant came up on the north side of him.</p> <p>After defendant shot the second time, Ford came out of the house with gun. Defendant shot at Ford twice, and then Ford shot. This was the first time Ford shot. When Ford and Maxwell were shooting at each other I was standing on the ground in the front yard, near my father, some six or eight feet away from the range of the bullets as they passed from Ford to Maxwell, and from Maxwell to Ford. I was right smart confused. Defendant shot at Ford three times, and Ford shot at defendant twice. I then left and went to Mr. Cunningham’s. No one was with me when I left. Millie came soon after. Lula did not come to Cunningham’s at all. There had been no trouble of any kind on the place before Ford put defendant out of the house. Defendant and his wife, Millie, had been together by themselves part of the time after he had come there. I did not hear the defendant ask Millie to go back and live with him, except when he asked her to go and look at the horses. Don’t know what they were talking about while together, except I heard something about a deed. The gun was up in the rack, on the left side of the door as you went in. Ford had been at our house a number of times; was well acquainted with the house and the effects in it.</p> <p>Just as Ford and the defendant quit shooting I started around the north end of the house, and by the time I got around I saw defendant about the southeast corner of the house, he having come around the south end. I went on to Mr. Cunningham’s. I heard no more shooting after I left the front yard.' Millie came to Cunningham’s after I did, getting there a few minutes after I did. Mother had not come out to my father at the time I left. Did not see defendant and those with him leave. The children’s clothes were in the trunk in the wagon.</p> <p>I do not remember telling Riley Hodge, justice of the peace, the next morning, in the dining room at our house, that I did not see any of the difficulty. I did not, at the same time and place, remember telling him that I was in the back part of the house, where I could see nothing of the difficulty, and that I left for Cunningham’s about the time the difficulty begun. I did not, at that same ¡hace and in the same conversation, or at any other time when he was there, remember his asking me about the facts of the difficulty and what I knew about it, tell him that I was at the front door, or on the front gallery, or in the front yard, or any other place where I could see any part of the difficulty. I do not remember having any conversation at any time with Hodge about it.</p> <p>T. M. Collie, witness for the State, testified as follows: I knew W. B. Deshazo. I had known him for twelve years. I met him frequently. Was not related to him. I was present after he was wounded and before he died. He was in his right mind and realized his condition. Said it . was not necessary to send for a physician; that he was going to die. In answer to a question by Fulbright, what he had done to Jim Maxwell to cause Jim to shoot him, he answered he had done nothing. He then said his time was mighty short, that he would be better off, and asked all to remember him. He then died in a few seconds.</p> <p>Cross-examined: My recollection is, the wound in the stomach entered in line with the navel and about an inch to the left. That ball, I don’t think, came out. If it did, I did not see where it came out. The statement that he made about Maxwell, as I have related, was made just a few minutes before he died. I do not remember to have seen Hodge, the justice of the peace, there that night. Besides the wounds in the neck and bowels, that I have described, there was also a slight wound on the under side of the left arm, as if a ball had just grazed the arm. I do not know how much morphine had been given up to that time. Do not remember that he took any. He was in his right mind.</p> <p>L. S. Fulbright, witness for the State, testified as follows: The day before the killing I went to Ranger. I saw defendant a day or two before, at his camp on his farm; had no tent;, his wagon was at a tree. This was on Monday before the killing on Wednesday. Defendant had his effects in the wagon, which was covered. Defendant was working in new ground when I got there. We went to his camp to see his children. I asked him to let me take his children home with me; that my folks had never seen them. Defendant would not let them go. He said he had lost his wife in going over that road, and it seemed to him they were trying to get his children. Defendant said his children were not well. They did not look well. They were dirty and needed attention. I saw Mr. Ford that day or the next day, and requested him to' go over and see Mr. Deshazo and get him to get Jim (meaning the defendant) to let Deshazo take the children over to his house, and let Aunt Manda (Mrs. Deshazo) take care of them until they would get well. The defendant and I are some kin. I was present with Mr. Collie just before Deshazo died. Mr. Collie was holding his hand, and I was standing behind Collie, with my hand on his shoulder, and I asked Deshazo if he did anything to Jim Maxwell to cause him to shoot him. He said, “ No; that Jim was about to shoot brother Ford, and I guess he would have done so if his pistol had not have snapped. I was just going up to tell him not to shoot, when he turned and shot me before I said a word.” I don’t think that ''Deshazo said that Jim took hold of him. Don’t remember whether Deshazo’s face was powder burnt or not. I was at Deshazo’s the night before he was killed. I did not try to get Deshazo to take the children from defendant.</p> <p>R. M. Cunningham, witness for the State, testified: I knew W. B. Deshazo, I live at this time, and did live at the time he was killed, about 300 yards from his house. On the day of the killing I was plowing about 300 yards from his house. I heard a pistol fire when I was turning at the end of the row. I turned and had gone about fifteen or twenty steps when I heard another shot just like the first; they were pistol shots. In a short time guns began firing right along; heard nine or eleven in all, I think. The next shot after the first two sounded like a Winchester and shot gun, but can’t say which was first, shot gun or rifle; one was sharp and clear, the other dull. I plowed on toward the end pretty fast. Then I saw Nannie Deshazo running to my house. I first saw Nannie Deshazo, and then Millie Maxwell, defendant’s wife. I then went to Deshazo’s. Mrs. Deshazo and Lula were there. Mr. Deshazo was on a bed, on the floor of the room. Neither defendant nor companions were there. Mr. Deshazo was in his right mind. He said he was killed. Deshazo said Jim shot him twice. Said that defendant had snapped his pistol at Ford’s breast, and he (Deshazo) went up to tell him what it would lead to, when defendant shot him in stomach. Said that defendant was on edge of the porch at the time. That he then went off and in a moment or two returned and would have shot him (deceased) in the face but that he turned his head, and Jim shot him in the throat. Deceased’s collar button was cut out by the ball. In a day or so after, found Leonard Maxwell’s hat southwest of the house some two or three hundred yards.</p> <p>Cross-examined: He said, yes; Leonard told me his horse pitched and he lost his hat. I was about 350 yards from the shooting. It was about 3 o’clock in the evening. It was common for people to be strolling in that neighborhood. I don’t remember ever before noticing the time which elapsed between two shots. I thought it about long enough between the two first shots for a person to shoot at a spot on a tree, walk to look at shot, walk back, and shoot again. Nannie Deshazo was at my house when I got there, before I went to Deshazo’s. When I first saw her she was in 50 yards of my house. Don’t remember that I heard any shot after I saw her. When shots ceased I was within 15 or 18 steps of the end of the row. I saw Miss Nannie Deshazo before I got to the end of the row. She was then 250 yards from Deshazo’s, her father’s, house. Heard deceased, Deshazo, state after I got there, that defendant had snapped his pistol at Ford, and he went up and grabbed at the pistol under defendant’s arm, and defendant turned and shot him. Ford got to my house just as I was leaving for Deshazo’s. There was a large gun at my house. I did not see Ford take it away, but it was gone when I got back. We had a warrant for defendant, hunted for him four or five days, but could not find him. We had a warrant for Leonard Maxwell also.</p> <p>J. J. Douglass, witness for the State: I was sheriff of Stephens County when Deshazo was killed. I made no effort to catch Jim Maxwell. I was busy, and heard that parties were scouring the country for him, and was soon afterward assured that he would soon come in. Defendant came in voluntarily and surrendered on June 22, 1889.</p> <p>Cross-examined: Defendant came in and surrendered. I understood that Ford had worked up great excitement in the neighborhood, and as soon as excitement subsided defendant would come in and surrender. I refused to give Ford any papers to go after defendant.</p> <p>The State offered copias for defendant and returns filed May 28, 1889, showing defendant was not found.</p> <p>First witness for defendant, J. D. Alligree, being duly sworn, testified as follows: I am acquainted with the defendant, James Maxwell. A day or so before Deshazo was killed I purchased his place, on condition that his wife would sign the deed. I was to give him stock for the place. I saw him with his wagon, Leonard Maxwell, Mahan, and his two children on the road to Deshazo’s on the day of the killing. He said he was going to get his wife to sign the deed. I never got the place, as she did not sign the deed.</p> <p>A. G. Knight, sworn for the defendant, testified: In a few days after Deshazo was killed I had a talk with the witness Ford, at Mr. Hinton’s, in which he, Ford, stated to me that he believed Deshazo caught hold of defendant the time he was shot.</p> <p>H. W. Morris, sworn for the defendant, testified: That at Ford’s house, when he stayed all night with Ford, a short time after Deshazo was killed, Ford stated to him that he, Ford, went to Deshazo’s to get him to take the children from Maxwell; that when he got to Deshazo’s house he found Maxwell, the defendant, there, and that he took Deshazo out about the lot, and while out there he tried to get Deshazo to go to the house and load his gun and have it ready; that there was going to be trouble there directly. That Ford said that he could not make Deshazo believe there was any trouble; that Deshazo said that Jim Maxwell had not come there for any trouble, and that there was no danger.</p> <p>Witness Morris further testified: “ That at the same time and place, and in the same conversation, the witness Ford stated that he took deliberate aim with his gun at Maxwell, and that he, Ford, was satisfied that he hit Jim Maxwell, and that he believed that he was then in the woods wounded.”</p> <p>Mrs. Conway, sworn for defendant, testified: That she knew defendant, Jim Maxwell; that he passed by her house and stopped on the day of the killing; said he was going to Mr. Deshazo’s to get Millie to sign some land deeds, and that he would divide everything with her. He had his little children, Leonard Maxwell, and Mahan, and his effects in his. wagon. It was about 12 or 1 o’clock in the daytime when defendant. passed the house of witness.</p> <p>F. L. Dupree, sworn for defendant, testified: In May or June, just after the killing, at Ford’s house, the witness Ford stated to him that he advised Deshazo to go and load his gun with buckshot; that those boys were there for trouble. That Ford told witness that he could not make Deshazo believe it, but that Deshazo said there was no danger of the boys making trouble; they were not there for that purpose. At the same time and place, the witness Ford stated to the witness Dupree that he put Jim out of the house and off the gallery, and that Jim snapped his pistol at. him, and he ran in the house after the gun, and that he shot twice at Jim Maxwell. And at the same time and place, the witness Ford stated to this witness that he ran for the gun, and before he could get it he heard two shots in a second or two of each other. And after the second shot, he heard a peculiar noise, and he thought that perhaps Jim Maxwell was crazy and was shooting his own children.</p> <p>W. L. Lamar, witness for defendant, sworn, testified as follows: That the witness Ford, on a Saturday two or three weeks after the difficulty, in a conversation in the gin yard at Wayland, said that he (Ford) tried to get Deshazo to load his gun and have it ready, for there would be trouble there in a short time, and that Deshazo told Ford if he would let the boys alone thej would get through with their business they came to attend to and leave without any trouble; and at the same time and place, and in the same conversation, witness Ford told this witness Lamar that if his (Ford’s) gun had not snapped that Jim Maxwell would never have hurt Deshazo.</p> <p>Witness W. II. Goforth, for defendant, sworn, testified: That on the evening just after the difficulty in which Deshazo was killed, a short distance south of Deshazo’s house, the witness Ford told witness that he went to Deshazo’s to get him tó take the children from Jim Maxwell (defendant) ; he said that he told Deshazo that Jim and the boys with him had come there for trouble. Deshazo said there was no trouble in the boys, that he knew Jim (defendant) had nothing against him, and that Jim (the defendant) had brought his children to see them.</p> <p>Witness further stated, that the witness Ford, at the same place and in the same conversation, stated to this witness that he met Jim Maxwell in Deshazo’s yard near the gate, but that he hated him so much that he would not shake hands with him. That Ford, at the same time and place, told this witness that he heard Jim Maxwell ask Deshazo to go and look at the horses and pick out one for Millie; that he (Jim) liad agreed to give her one; and that he (Ford) was in the house talking to Mrs. Deshazo and Millie, the latter being the wife of defendant, when Jim came in and said, ‘ ‘ Millie, your papa says for you to come and pick out the horse yourself.” And Ford, at the same time and place, said to the witness, that Jim Maxwell remarked to his wife that he thought they ought to quit their foolishness, and live together again as man and wife, and Jim (defendant) turned to-witness Ford and asked him if he did not think so. That witness Ford stated to this witness that he said in reply to Jim (defendant), that “ If what I have heard is true I do not-think she ought to live with you.” That witness Ford said that he had heard that defendant had slapped his wife in the mouth for joining the Christian Church; that defendant denied it. That the witness Ford told this witness that when defendant denied it his wife said, “Yes, you did, Jim,” and defendant said, “Millie, you know I did not;” when the witness Ford said he jumped up and said to the defendant that he could not dispute a woman’s word in his presence, and caught the defendant by both arms and began putting him out of the house, and that Jim (defendant) tried to get loose, but he held him the tighter.</p> <p>At the same place, in the same conversation, this witness says that when he ran in the house to get the gun, he heard one shot, and in a short time he heard another, the two shots being very close together. That he hallooed to the women folks and asked them for a gun. And the witness Ford further stated to this witness that he (Ford) shot at Jim Maxwell. This witness further stated that in a conversation with the witness Ford, between D. Morris’ and his (Goforth’s), house, on the evening after Deshazo was killed, that he would not care so much about the difficulty if Deshazo’s family would not blame him for it, or think that he was the cause of it.</p> <p>On cross-examination, Goforth said he “ did not visit the Deshazos. Lived in one-quarter of a mile of them, but did not neighbor with them. Don’t think I have been to Deshazo’s in two or three years before the killing.”</p> <p>J. E. Barnes, witness for the defense, stated, that the witness Ford, in a conversation with him, Barnes, at D. Morris’ the next morning after Deshazo was killed, said that he, Ford, told Deshazo on the morning before Deshazo was killed, while he and Deshazo were out at the lot together, that he, Deshazo, ought to take the children from Jim Maxwell and run him off. He said that Deshazo stated that he and Jim Maxwell had nothing against each other, and there would be no trouble between them. The witness Ford, at the same time and place, stated to this witness that when he put the defendant out of the house and off the gallery, and defendant jerked out his pistol and snapped at him, that he, Ford, was very much surprised. That he did not have any more fear of him than he did of one of his boys. That the witness Ford, at the same time and place, said that when Jim snapped at him, and just as he turned to rim in the house after the gun, and defendant’s wife slammed the door to, he saw Deshazo coming rapidly from the direction of the gate, up behind Jim Maxwell, and that very soon, before he could get the gun, heard two shots in quick succession, and after the second shot he heard a peculiar noise, and looked out and saw Deshazo lying on his back in the yard, near the steps.</p> <p>J. C. Taylor, witness'for the defendant, sworn, says: That he, witness, had a conversation with the witness Ford, in his garden at Wayland, about ten days after the trouble at which Deshazo was killed, and that the witness Ford said that he was surprised w;hen Jim Maxwell snapped his pistol at him, because up to that time he had considered Maxwell a coward, and did not believe he would shoot a man. That Ford, at the same time and place, further stated to this witness that he could not persuade Deshazo that Maxwell would hurt him. The balance of the conversation is not as you state it.</p> <p>I. H. Thomas, witness for the defendant, testified as follows: That he was at Deshazo’s house on the evening after he was shot, and that Deshazo was lying on the bed, and he was in the room with him. Deshazo seemed to be suffering greatly, and he heard him say, as if communing with himself: “ Law, law, if I had only thought and not run up and took hold of him.”</p> <p>A. N. West, witness, testified: That he was at Deshazo’s on the evening after he was shot, and Deshazo stated to him that he, Deshazo, was a dead man. That he said to Deshazo that he hoped not, and Deshazo said he could not see where he had any hope. That he could have none, or words to that effect. He said he asked Deshazo how it happened, and Deshazo replied that Ford and Jim Maxwell got into a racket, and Ford put Jim Maxwell out of the house, and that he, Deshazo, went up behind Jim Maxwell and took hold of him without speaking to him. Deshazo said he reckoned he did wrong in taking hold of Maxwell without speaking to him; Jim may have thought that he, Deshazo, was helping Ford to get away with him.</p> <p>Dr. J. B. Salmon, witness for defendant, testified as follows: That he is a physician and surgeon, and has been practicing for sixteen years. That he has had considerable experience with gun-shot wounds. That he did not see the wounds in Deshazo, but that he heard the testimony of Dr. Trader, a State’s witness, who had examined the wounds on Deshazo’s body, and described them on the witness stand. That the wound on Deshazo’s neck and shoulder was made by one bullet, and, in his opinion, could be readily inflicted by a man shooting backwards over his right shoulder, if the party wounded was behind the party shooting, and had hold of the party shooting, and was holding him. That the burn on Deshazo’s face with powder, as described by Dr. Trader, could not have been done without the party shooting had the pistol near Desliazo’s face at the time it was fired. That the wound in the neck and shoulder, as described by Dr. Trader, with the ball taking the course described by him, could not possibly have been inflicted upon Deshazo while lying down, by a party standing up in front'and shooting. That a party holding a pistol three feet from the face of Deshazo, when it was fired, could not have powder burned Deshazo’s face, as it was described by Dr. Trader, unless from a veiy large pistol or gun. That if a party was standing on the ground and Deshazo was lying on the ground, and the party had shot Deshazo in the neck, as described by Dr. Trader, the ball would have gone out at the back of the neck, and not have penetrated the shoulder, as described.</p> <p>Cross-examined: He said, “ It was true that there was no absolute certainty in the direction a ball would take after entering the body. ’ ’</p> <p>R. J. Hodge, a witness for defendant, testified: That he was at Deshazo’s house on the evening of the homicide, and found quite a crowd of people there. That he was justice of the peace of that precinct, and issued a warrant for the arrest of Jim Maxwell. That he was a particular friend to Deshazo and family. That Mrs. Deshazo requested him to go after Jim Maxwell. That he told them that the declarations of Mr. Deshazo should be reduced to writing. It was suggested that I then take such statement, but Mr. Deshazo was in so much pain that I told them I would wait until he got easier. I then went down to Bob Maxwell’s, brother to defendant, to look for and try to capture defendant. That before he started he told them at Desliazo’s that he would be at a certain place, where they could find him. That if Mr. Deshazo got worse to send for him at once, as he wished to reduce his dying declarations to writing. They did not send for him, and when he got back to Deshazo’s next morning he found him, Deshazo, dead. That on the morning after Deshazo was killed he was at Deshazo’s, and talking of getting out a warrant for Leonard Maxwell, and as a justice of the peace was trying to get information as to the particulars of the difficulty, as he wished to issue warrants for the arrest of Leonard Maxwell and Mahan, two young men who were at Deshazo’s with Jim Maxwell when the difficulty occurred. That the witness, in the dining room at Deshazo’s house, on the morning after the homicide the evening before, talked with Mrs. Deshazo and one, if not both, of her two daughters. Don’t know which one. That they all at that time stated that they were back in the house and saw no part of the difficulty, except Miss Lula stated that after the second shot she saw her father fall. That Mrs. Deshazo stated that she was in the other room from the one in which Ford was during the difficulty. None of them stated that they were about the front door or on the front gallery during the difficulty.</p> <p>Cross-examined: He said, “Yes, I took complaints against Leonard Maxwell on the testimony of these ladies.”</p> <p>Leonard Maxwell, witness for defendant, testified as follows: I am a brother of the defendant. I was present at the time of the difficulty at Deshazo’s, on the 8th day of May, 1889. On that morning, while out hunting some mules, I met my brother hunting horses. He said he had sold his place if Millie would sign the deed. That he was to get stock for his place; that he wanted to give Millie a horse, or horses, and get her to sign the deed. He wanted a gentle animal for her, and that he might want a grey pony of mine, which was gentle, to let her have, and asked me to go with him to Mr. Deshazo’s. We ate early dinner at defendant’s camp. Myself, young Mahan, and defendant, with defendant’s children, left camp, after eating earty dinner, for Deshazo’s. Defendant had his bedding and trunk, my clothing, and other of his camp effects, in the wagon. Young Mahan rode horseback, and all the rest of us went in the wagon.</p> <p>We got to Deshazo’s, I suppose, about 1 o’clock; did not have any timepiece. They all came out and invited us in. Jim went into the house. Mahan and myself stopped on the porch, where Mr. Deshazo was lying on the pallet. After remaining there sometime, talking to Mr. Deshazo, Mr. Ford rode up to the gate, got down, and came in. Mr. Deshazo, myself, and Mahan spoke to Mr. Ford when he came on the gallery. After talking awhile, Mr. Ford said to Mr. Deshazo that he wanted to have a talk with him on business, and Mr. Deshazo said, all right, as soon as he could get on his shoes and his hat; and they went off together toward the lot. Mahan and myself remained about the gallery awhile, then went to help Will Deshazo to hitch his horses to the wagon to go after a load of wood.</p> <p>As there was no person (men folks) outside of the house for us to talk to, Mahan and I walked around, went down and looked at the tank, and back to the wagon, and lit our pipes and had a smoke, and after we had been at the wagon sometime Ford and Deshazo came back from the lot, and about the same time the defendant, Jim Maxwell, came out of the house and met them near the gate, and defendant asked Deshazo to go out and look at the horses, and pick out one for Millie, as Deshazo was a good judge of the age of horses. Ford went on into the house. Deshazo looked into the horse’s mouth, and Jim, the defendant, requested him to select one of them for Millie. Deshazo said he would rather Millie would make her own selection, and for him (defendant) to get Millie to come and make her own selection. Defendant then returned to the house, and went into the house. In a very short time I saw Ford putting defendant out of the house and off the porch. I heard defendant say, “Turn me loose! turn me loose!” Ford pushed him off the porch with one hand, and kept running his right hand as if trying to get it into his pocket, and defendant drew a pistol and presented it at Ford, who then jumped back into the house. Defendant then backed with face toward the door, and had got about half-way to the gate, or somewhere about that distance, when Mr. Deshazo ran up behind defendant and struck him with a club over the head or shoulder, and seemed to try to strike again. The club or stick dropped, and Mr. Deshazo grabbed defendant with both arms and held him till defendant turned his pistol back over his shoulder and fired back at Deshazo, and then twisted like to the left and shot under his left arm at Deshazo, who was still holding on to him (defendant). After the second shot Deshazo dropped loose from defendant.</p> <p>Ford had got back on the gallery with a gun before defendant shot Deshazo, and fired at defendant just about the time defendant shot Deshazo the first time. As soon as Deshazo fell, defendant backed towards the gate, and Ford, running out again on the gallery, shot at defendant and defendant at him. They then shot several times at each other. I saw the three girls of Deshazo’s get over, or fall off, the back fence, going toward Cunningham’s about the time the shooting began. No ladies or girls were on the front gallery or in the front yard during any part of the difficulty. Defendant remained in the house and on the back gallery with the women from the time we got there until he came out and met Ford and Deshazo at the gate. When we were on the front porch I heard him laughing and talking in the house. When we were helping Will Deshazo to hitch the horses to the wagon, out by the lot, I saw the defendant and Millie out on the back porch, talking to each other. There had been no disturbance of any kind until after Ford came to Deshazo’s.</p> <p>Cross-examination: Malian came from Arkansas with defendant and myself. I think he ran off from his father’s to come to Texas. I have not seen him since a few days after the difficulty. I do not know where he now is. Can not tell where and how the gun was fastened in the wagon, as I did not fasten it. I think it was on the second or third wagon bow from the front, below the top of the bed. There was bed clothing, a trunk, clothing, and some other things, in the wagon. The gun was a Winchester, 38 calibre, and was in a scabbard. Think I went to Eastland sometime before; don’t know whether I bought cartridges or not; know I bought no 38 cartridges, for that was not the size of my gun. I owned a gun, but left it home on that morning. I don’t know the size of defendant’s pistol; think it was 44. I got the gun out of the wagon, and Deshazo ran up and hit defendant over the head with a club. It, the club, looked like a piece of split timber about two and a half or three feet long; don’t know whether it was a piece of rail or not. Don’t remember to have seen any holes in it. When Deshazo struck defendant over the head it sounded like it was a hard lick; it was about as big as that table leg. The table leg is about two inches in diameter. I think Deshazo used both hands in hitting him. Defendant’s back was at Deshazo when he struck him, and defendant was not looking toward Deshazo.</p> <p>I was close to, and in front of, the wagon, and in front of the yard, where I could see distinctly. I could see Deshazo plain. He was between where I was and where defendant was at the time the lick was struck. Í think they were about half-way between the gate and the porch, but can not say for certain. I never measured it, but I think it was some twelve or fifteen steps from the gate to the porch. Can’t say how far exactly defendant was from porch when Deshazo struck him, but he was about half-way. I reckon it was as much as six steps; it might have been more or less. Deshazo was close enough to hit defendant with the stick. Can’t say what defendant did immediately after first lick. Looked as if he was sorter addled; staggered around like, then went to shooting Deshazo loose from him. Defendant shot with his pistol. I think he got it out of his pant’s pocket. He got it out of his right pocket. I think defendant had his coat on. Ford shot just about the same time defendant made his first shot at Deshazo. If there was any difference, Ford shot first. Defendant and Deshazo were scuffling at that time; defendant was then between Deshazo and the house.</p> <p>Ford did not hit me nor defendant, that I know of, during the time of the difficulty. Mahan was at southwest corner of yard. Ford started back in the house, I guess about the time of defendant’s second shot at Deshazo. Can’t say that defendant shot Ford as he ran in house. After this Ford was in and out so much, and there was so much confusion, I can’t tell how the balance of the shooting took place. First I saw of Mrs. Deshazo was after all the shooting was over. She came to bring Mr. Deshazo some water.</p> <p>After the difficulty was over we all took the harness off the horses and went off fast. My horse pitched and I lost my hat, and I went on bareheaded to neighbor Bobs. I did not stop to get my hat. Got it a day or two afterward. Got there, I suppose, about one hour of the sun. As I was not acquainted along the road I do not know what houses we passed. We all stayed together about one hour. Jim then left us and went into a thicket. During the difficulty Jim got the gun from me about the gate. He jerked it from my hands. I had taken it from the wagon. I did not shoot any person; don’t think defendant was ever on porch after the difficulty began. There were three girls falling over the fence, and went off east toward Cunningham’s.</p> <p>Redirect: I did not tie the gun to the wagon bows. Saw girls, Nannie and Lula, daughters of deceased, just about the time of the first shooting, getting over the back fence and run through the field. Saw them no more after that. They were not on the gallery or in the yard at any time during the shooting.</p> <p>G. H. York, sworn for defendant, testified: That he lives in the northwest corner of the county. That he knows defendant, and defendant came to his house about daylight on Friday morning, May 10, 1889, and witness saw blood on defendant’s face, and a small cut above his right ear on his head; the wound was about three-fourths of an inch long. It was just cut through the skin, so as to bleed a little. It looked as if he had been struck with something. He stayed but a very short time, did not eat anything, and soon went in the brush. I live about two and one-half miles this side of where Mr. Jones, the father-in-law of defendant’s brother, lives. This was all that occurred between us.</p> <p>The defendant, sworn in his own behalf, testified: About four months prior to the difficulty in which Desliazo was killed, he returned from Arkansas with his children, to his farm in the southern part of the county. That his place and dwelling house were rented out. He camped on his place, using his covered wagon to shelter himself and children and his camp effects. He began clearing some ground and planting a patch of cotton. Some of his brothers went to Oklahoma, and he wanted to go with them. That he sold his place to old man Alligree for some stock, the sale being conditioned that his wife would sign the deed. On the morning of the difficulty he met Leonard Maxwell, his brother, hunting stock. I told him about the sale, and traded with him, conditionally, for a gray pony, which was gentle, as I might need him to give to Millie, my wife, as some of my horses were not gentle, and I wanted her to have none except gentle horses. I asked Leonard to go with me and take the pony along, which he did. Mahan was working for me at the time, and as I had nothing specially for him to do at camp, and was going to move my camp down near Bob Maxwell’s, my brother, on that evening, where we, myself and brothers, intended to remain in camp until we gathered our stock to start for Oklahoma. We had early dinner at our camp, put all our bedding, camp effects, clothing, etc., that were not already in the wagon, with the children, in the wagon. Leonard and I got in the wagon, Mahan rode a horse, and we all started for Deshazo’s. We arrived there sometime about 1 o'clock; not certain, had no timepiece.</p> <p>When we got there, Mrs. Deshazo, Millie (my wife), the young ladies, and Mr. Deshazo came out to the fence to meet us, and invited us in. We tied the horses to a tree with the lines and went in. Mahan and Leonard Maxwell stopped on the gallery with Mr. Deshazo, and I went into the house with the ladies. We remained there sometime, Millie and I being alone with the children part of the time; and I said to her, when we were on the back gallery and the children were playing in the back yard, that if she loved those children as well as I did, she would come and live with them and take care of them. She said she was willing to do what was z’ight about it. While we were sitting in the back z’oom talking, I saw, through a window, a man ride by towards the fi-ont of the house. At that time I did not recognize who it was. I knew afterwards that it was J. F. Ford. Everything had gone along pleasantly; and as I wished to get down to my brother’s that evening, I told Millie what I had come for; that I wanted to get her to agree to sign the deed, and if she would not live with me I would divide the property with her. I told her I had some horses there, and for her to come out and make a selection of the ones she wanted. She said she knew nothing about horses, and for me to tell her father to select the horses for her. As I went out, when I got on the front gallery, I saw Ford and Deshazo coming from the lot, and Ford seemed to be talking earnestly to Deshazo; they were walking very close together. I met them near the gate; spoke to Ford, and went to shake hands with him, but he refused to shake hands with me, and appeared to be angry. I told Mr. Deshazo what Millie said, and he and I went to the horses to examine them. He looked in their months, and we talked some little time about the horses and their ages. Deshazo said he preferred that Millie (defendant’s wife) should make her own selections, and told me to go into the house and tell her to come out and do so. I went at once in the house, and found Ford, Millie, and Mrs. Deshazo, her mother, in close conversation. I said to my wife, “ Millie, your pa says for you to come out and pick out your own horse. ’ ’ Millie then got up, and turning to her mother, said, “If nothing else will do him, I reckon I’ll go with him.” I then said, “I think that I and Millie ought to quit our foolishness and live together again; don’t you think so, Mr. Ford?” Ford said, “You ask for my opinion, and opinions are free. I don’t think you ought, if what I have heard is true. I heard that you slapped Millie in the mouth for joining the Christian Church.” I replied that I had not done so. Millie then said, “ Yes, you did, Jim.” I replied that “ I never slapped her in the mouth.” Ford jumped up in an angry manner and seized me by each wrist and said, “You can’t dispute a woman’s word in her own house in my presence,” and began to shove me out of the house. I said, “Turn loose, turn loose, turn me loose !” but he held me and pushed me roughly until I was just about off the gallery, when I said again, “ Turn me loose !” Ford then released my right hand, and continued to hold my left hand with his left hand, and was at the same time trying to get his right hand in his pocket, where I thought I saw the form of a pistol or a knife. While he was holding my left hand and trying to get his right hand in his pocket, I pulled my pistol from my left side and poked it up near him and snapped. At that time I was standing one foot on the ground and the other on the step leading on the gallery. When I snapped at Ford he turned me loose and ran in the house and called for a gun. He returned at once with the gun, and snapped it at me, and just about that time I received a lick over the head from behind, and at once some person seized me from behind and I could not shake the party off. I threw my pistol over my left shoulder and shot to. the rear. When the pistol fired, the party seemed to seize me tighter. Just as quick as possible I stuck the pistol under my left arm and fired again to the rear, when the party turned me loose and fell, and I then saw it was Mr. Deshazo. About the time of my first shot, Ford shot at me from the gallery with a shot gun. Neither Mrs. Deshazo nor either of the daughters of deceased were on the gallery, in the yard, or in sight of us during the difficulty at any time.</p> <p>About the time Deshazo fell Ford ran again into the house, and I backed out toward the gate. Ford came to the door, shot at me again, and I shot at him with my pistol. I then got on the outside of the yard and got my gun, jerking it out of my brother Leonard’s hand. Ford and I shot at each other another time or two, when Ford went out of sight toward Cunningham’s, and we took the horses out of the wagon and left. We had no saddles except the one used by Mahan, brother Leonard and myself riding our horses bareback. Brother Leonard’s horse got to pitching and he lost his hat. I told the bo)s that we must get away from there as soon as possible, for Ford, no doubt, had gone to Cunningham’s, which was only about 300 yards away, where Ford had a buffalo gun, and if he got in reach of us with it he would kill us. We went in the direction of Robert Maxwell’s, my brother’s, and I told my brother,and Mahan to go on down there; that I was afraid of Ford and his crowd, and it would not do for me to let him and his crowd catch me. I did not anticipate any trouble when I went to Deshazo’s. I carried my pistol and my gun with my other effects with me wherever I took the wagon. I had the gun scabbard fastened to the bows, and it had been fastened there for months. I carried the pistol in an old trunk in the wagon, which had no lock to it, and on our way over to Deshazo’s the children got into the trunk and I was afraid they would get hold of the pistol, and I took it out and stuck it in the waistband of my pants, on the left side. I had no thought of using it when I did so. I had nothing in the world against Deshazo and we had been friendly all the time. I would not have shot him if I had not thought it necessary to save my own life. If my own brother had been holding me under the same circumstances I would have shot him, because I was very much excited at the time, and did not know who he was, and believed that he was helping Ford, who was in front of me with a gun at that time, trying to shoot me. There was no trouble of any kind at Deshazo’s until after Ford came. They had treated me kindly, and Millie and I were getting along well in the house there together up to that time. I shot at no one in the difficulty in which Deshazo was killed except Ford and Deshazo, and only shot at them because I thought it was necessary, from their acts and conduct, to save my own life. I at no time shot at my wife or any other female on the place.</p> <p>Miss Lula Deshazo. being duly sworn as a witness for the State, testified, in rebuttal, as follows: I am a daughter of W. B. Deshazo, who was killed. At the time the difficulty began I was in the south room of the main building, and my attention was attracted by the loud talking in the next room, and Ford’s statement to defendant that he must go out. I then walked to the south door and stood in the door, looked and saw Mr. Ford push defendant out to edge of porch. Defendant said, “ Turn me loose,” but Ford continued to push defendant, until defendant had one foot on the step and the other upon edge of porch, when defendant jerked out a pistol and snapped it at Ford. Ford then jumped back, and ran in the room from where they all had been. Just about this time my father came up from behind defendant, and I think had just touched him, if at all, when defendant wheeled, and with pistol in both hands, shot my father in the stomach. My father immediately fell back on the ground, on his back, his feet to the east and just about touching the steps to the porch, his head to the west. Defendant then turned and went off around the north end of the house. He returned in a few minutes from the north, and coming up to my father, put his pistol close to his face and fired at him again. In a moment or two, after this, Mr. Ford came back out of the north room with my father’s shot gun, and defendant then shot at him, Ford, and Ford at defendant, several times. Ford again ran in the house, and defendant walked to the southwest part of the yard, and shot through the door at the north room. TherS were several more shots fired, but I do not know that I can tell exactly how they occurred. I am positive that Ford had not shot at defendant or come out on the porch before defendant shot my father the second time. My father had nothing whatever in his hands, and did not strike defendant at the time, on before defendant shot him. The shooting was done in the manner I have stated, and not in any Other. Millie, defendant’s wife, is now here in attendance on this trial.</p> <p>Cross-examined, she said: After the shooting began, I did not notice Leonard Maxwell or Mahan, and do not know what they were doing. I did not leave at all, but remained at the house until after defendant, Leonard, and Mahan all left. Millie and Nannie, I think, left about the time of Ford’s second shot. I was at my father’s body when defendant and the others left. They went off rapidly. I heard of no trouble before Mr. Ford came. I remember Esquire Hodge being at our house the next morning; a great many people were there. Think I may have heard some talk about getting out papers go arrest Leonard Maxwell and Mr. Mahan. I do not remember to have had any conversation with Mr. Hodge about it, but I know1 did not tell him I did not see any part of the difficulty in which my father was shot, for it is not true.</p> <p>In the charge to the jury, the court defined homicide, excusable and justifiable homicide, the law as to retreat, and manslaughter, giving the statutory definitions of this latter grade of crime. The charge then defined murder, malice, express malice, and implied malice. It then applied the law as to the facts, to murder of the first and second degrees, announcing the rules of self-defense with reference to the degrees of murder, and the punishment for murder of the first and second degrees, and manslaughter. Instructing upon defendant’s right to acquittal on the ground of self-defense and reasonable doubt, and also applying the reasonable doubt as between the degrees of homicide.</p> <p>We do not deem it necessary to copy this charge in full. The principal objections urged to it, on appeal, were with reference to those portions relating to manslaughter; and though the charge w0as excepted to, the exceptions were general in their character, and no special instructions were asked. It will be seen from the opinion that a majority of the court hold that manslaughter was not an issue in this case.</p>

This appeal is from a judgment of conviction for rape, wherein the punishment is assessed at death. All the essential facts in the case will be found contained in the testimony of the prosecutrix and her grandmother, which we reproduce in full. Luz Romero, for the State, being duly sworn, testified as follows: I know the defendant.

Tried below before Hon. Felix J. McCord. The indictment charged appellant with assault with intent to murder one M. T. Jacobs. At the trial he was convicted and his punishment assessed at two years confinement in the penitentiary. The rulings of the court in the opinion do not require a detailed statement of the evidence.

Tried below before Hon. W. M. Key. This is a second appeal by the appellant from conviction in second degree for the murder of H. Douglas, in Webb County, Texas, on the 29th day of March, 1886. The penalty awarded on this last trial was a term of five years in the penitentiary.

<p>1. Practice—Recalling Jury and Giving Additional Instructions Ex Mero Motu by the Court.—Under the law as it formerly existed, after the retirement of the jury the trial judge was inhibited in any case from “making any further charge, unless on application of the jury, or a party or his counsel.” Pasch. Dig., art. 1464. This rule, however, was changed on the adoption of the Revised Statutes of 1879, the inhibition having been omitted in the revision.</p> <p>2. Same — Bill of Exceptions to Charge. — Under the practice as it now obtains in this State, it is required that an exception to the charge to the jury must be taken prior to the return of the verdict, and that such exception must point out with particularity the supposed error. Held, that where such bill of exception has been taken, a party has no right to be heard to complain if the error which he thus points out is cured by proper instructions by the court, and by this means his legal rights are secured to him.</p> <p>3. Same.—The judge may, of his own motion, recall the jury and give them further instructions, whenever he considers it necessary to do so; provided always, however, that the defendant is present when such additional instructions are given, or has waived his right to be present.</p> <p>4. Same.—The authority of the court to give additional instructions of its own motion is not abridged by the statute which authorizes the jury to ask further instructions of the court touching any matter of law, as provided in article 1321 of the Revised Statutes.</p>

<p>1. Murder—Special Venire—Practice.—On a trial for murder where, in empanelling the jury, it was ascertained that one of the special veniremen was absent, for whom an attachment was issued instanter, held, that the court properly refused to postpone and delay the proceedings until said attachment could be executed, and said absent venireman be brought in, and properly proceeded with the empanelling and selecting the jury from the remaining veniremen.</p> <p>2. Same—Continuance—Alibi and Mistaken Identity.—See facts stated in the opinion with regard to an application for continuance for testimony by which defendant expected to prove an alibi, and mistaken identity, held, in the light of the evidence adduced on the trial, to be both improbable and untrue.</p> <p>3. Charge of Court—Circumstantial Evidence.—Where the facts attendant upon a homicide are testified to directly and positively by an eye-witness, held, that the court properly refused to charge the law of circumstantial evidence.</p> <p>4. Fact Case.—See a case stated, the facts of which were held by the court to be amply sufficient to support a verdict and judgment of conviction for murder in the first degree committed in the perpetration of robbery, and wherein the penalty was assessed at a life term in the penitentiary.</p>

Tried below before Hon. R. E. Burke. The conviction was for felony theft of cotton seed meal, and the penalty assessed by the verdict was a term of two years in the penitentiary. The opinion fully discloses the case.

This appeal is from a judgment in the court below for incest. The incestuous intercourse, as alleged in the indictment, consisted in the fact that the defendant had married the daughter of his half-sister. Louis Sitterlee, for the State, being sworn, testified substantially: That in September, 1888, he and his wife went with one Hall, who was a justice of the peace of Victoria County, to the house of Louis Budde, in Goliad County, to attend the wedding of defendant.

Tried below before Hon. G. H. Noonan. -This appeal is from a conviction for the theft of a horse, alleged to be the property of one D. A. McCaskell. . At the trial defendant was found guilty, and his punishment assessed at confinement in the penitentiary for a term of five years.

Tried below before Hon. James H. Robertson. The indictment in this case charged appellant by two separate counts, the first for the theft of 416 pounds of coffee, and the second for receiving and concealing said coffee, knowing it to have been stolen. At his trial he was convicted under the second count for receiving and concealing said property, and given as his punishment two years confinement in the penitentiary. The facts are sufficiently stated in the opinion.

<p>Appeal from the District Court of Eastland. Tried below before Hon. T. H. Connor.</p> <p>Appellant was indicted for burglary at night, and theft, and upon trial was convicted and his punishment assessed at three years in the penitentiary. The evidence, in brief, shows, that not only the house mentioned in the indictment, viz., a photograph gallery, was burglarized at the time mentioned in the indictment, but that another photographic gallery, situated in the same town, was also burglarized the same night. It also disclosed that sometime previous a photographic gallery in Colorado City had also been burglarized, and that on the day of this last mentioned burglary defendant was in said gallery, inquiring about matters and things pertaining to the same, and that after said burglary, defendant had disappeared and not been seen in that city since. At the time of his arrest, there was found in the valise of defendant a photographic lens which had been taken from the Colorado City gallery at the time it was burglarized, together with other property belonging to both the galleries that had been burglarized on the same night at Cisco. Defendant testified in his own behalf, and on his examination by the prosecution he stated that he had pnce before been convicted for burglary and the theft of some photographic instruments, for which he had served a term in the penitentiary.</p>

<p>Appeal from the County Court of Bowie. Tried below before Hon. W. W. Dillard, County Judge.</p> <p>Complaint was filed in Justice Court, Precinct No. 2, Bowie County, Texas, charging defendant with failing and refusing to work upon a public road. At his trial in said court, defendant was found guilty, and his fine was assessed by the verdict and judgment at Si. He filed an appeal bond, and the case was taken to the County Court. In the County Court the county attorney made a motion to dismiss the appeal, because the record from the Justice Court contained no notice of appeal. This motion was sustained by the county judge, and the appeal was dismissed. Appellant filed a motion to set aside the judgment of dismissal, and that his cause be reinstated for trial, and for a certiorari to the Justice Court for a more perfect and correct transcript of the proceedings and orders made in said cause in said court; the said motion averring that defendant did give notice of appeal from the justice’s judgment at the time of its rendition. This motion was supported by the affidavit of one W. A. Weaver, which stated that upon the rendition of the judgment in the Justice Court in said cause, he, affiant, “ upon the same day, and in open court, gave notice of appeal from the said judgment therein rendered against the defendant to the County Court of Bowie County, Texas, in behalf of said defendant.” This motion was overruled by the court, and defendant reserved his bill of exceptions, setting out the facts. It is from this judgment that this appeal was prosecuted.</p>

On a trial upon an indictment charging him with burglary with intent to commit theft, defendant was found guilty in the court below, and his penalty assessed at two years in the penitentiary. The testimony, in substance, as it appears in the record, is as follows: Willie Helm, for the State: Am the son of Roe Helm, who was running a saloon in Rhome, Wise County, Texas, in July, 1892.

At the trial he was convicted of murder in the second degree, with a punishment affixed at five years imprisonment in the penitentiary. All the essential facts in the case are sufficiently stated in the opinion of the court.

Tried below before Hon. G. A. Brown. Appellant was tried on an indictment charging him with an assault with intent to murder one E. W. Scott. He was convicted of said offense and his punishment assessed at three years in the penitentiary. It is unnecessary to give a detailed statement of the facts in the case, as the opinion of the court presents the salient features of the evidence in a very concise but lucid manner.

Tried below before Hon. George McCormick. Appellant was indicted for the murder of one Michael Birnes, and appeals from a judgment for murder in the first degree, with the penalty assessed at death. Bias Alderett, for the State, testified, through an interpreter: Knew Mr. Birnes. Found him dead, near his house, in Wilson County, Texas, on the evening of the 16th of May, 1892. Deceased was lying on his face, fifty or sixty varas from his house.

This appeal is from a judgment of conviction for burglary, wherein the punishment was assessed at three years in the penitentiary.

<p>1. Burglary and Theft—Evidence in Identification of Property. The owner of the property stolen after a burglarious entry into his store house having testified to his identification of the property after it was stolen, held, that hearsay testimony of another witness to the effect that the owner identified the property is harmless error.</p> <p>2. Accomplice Testimony—Charge of Court.—It is proper, and the duty of the court, to refuse instructions as to accomplice testimony, where the evidence raises no such issue.</p> <p>3. Practice—Verdict, Change of—Reformatory—Penitentiary.— Two parties being jointly on trial for burglary, and the jury having returned a verdict'finding both guilty, and affixing the punishment at confinement in the reformatory, they were informed that appellant could not be sent to the reformatory ; whereupon they reconsidered their verdict and assessed the punishment of both defendants in the penitentiary. Held, a new trial having been awarded the other defendant, there is no ground for complaint.</p> <p>4. Evidence Sufficient.—See evidence stated in the opinion which is held amply sufficient to support a verdict and judgment for burglary.</p>

<p>1. Fraudulent Disposition of Mortgaged Property—A Minor not Liable.—A minor can not be held criminally responsible for disposing of mortgaged property.</p> <p>2. Same.—An indictment under our statute, Penal Code, article 797, forbidding the sale or disposal of a mortgaged crop, can not be sustained where it appears that the accused is a minor.</p> <p>3. Effect of Disposition of Mortgaged Property by a Minor.— The disposition by a minor is a disaffirmance of his mortgage contract, and renders it void.</p>

<p>1. Burglary—Indictment, Counts in—Charge of Court.—Where an indictment for burglary contained two counts, one for a daytime and one for a nighttime burglary, and the evidence showed the burglary to have been committed in the nighttime, and also showed conclusively that the crime, if committed at all, was committed at night, held, that the court properly limited and restricted the jury, in their findings, to a nighttime burglary.</p> <p>2. Same—Case Followed.—The case of Williams v. The State, 24 Texas Court of Appeals, 69, followed as to the sufficiency of the indictment to charge burglary.</p> <p>3. Same —Motion to Postpone Trial for Absent Testimony.— Where defendant, on a trial for burglary and theft of fifty bottles of beer, of the value of $10, moved to postpone the trial in order to obtain the testimony of two witnesses, by whom he expected to prove that he was in good financial eonditian, and had recently received large sums of money from said witnesses, held, the evidence was immaterial, did not tend to disprove the crime, mitigate the offense, or excuse or justify the act.</p> <p>4. Allegation and Proof—Joint Ownership where Separate Ownership is Alleged.—Where the indictment alleged the ownership to be in one party, and the proof showed that it belonged to a partnership, held, under article 426, Code of Criminal Procedure, which provides, that “ where property is owned in common or jointly by two or more persons, the ownership may be alleged to be in all or either of them,” that there was no variance between allegation and proof, and the court properly charged the jury that the State need not prove want of consent except as to the party in whom ownership was laid.</p>

In this case the relator, who was a practicing attorney of the State of Texas, was arrested under a writ issued from the County Court of Tar-rant County, to answer to a prosecution pending against him for unlawfully engaging in the occupation of practicing law without having first paid the tax and obtained a license therefor. =He applied to the county judge for a writ of habeas corpus, which was refused; whereupon he made application to one of the judges of the Court of…

Tried below before Hon. W. J. Graham. Appellant was indicted for the theft of property over the value of $20, to-wit, a watch and chain valued at $27.50, this being the aggregate value. At the trial he was found guilty and his punishment assessed at two years confinement in the penitentiary. The evidence established that the watch and chain were taken from the possession of O. M. Lawrence, as alleged in the indictment.

<p>Appellant was indicted for the murder of one Z. H. A. Perkins, and lie appeals from a judgment of conviction for murder in the second degree, with the punishment affixed at thirty-five years in the penitentiary. The evidence is, in substance, as follows:</p> <p>John Perkins, for the State: Am the son of Z. H. A. Perkins, who died in Palo Pinto County on the 13th day of June, 1891, from a gunshot wound in and near the left eye. Know the defendant, William Dow. On the day of my father’s death, we lived on defendant’s place, and were his tenants at that time. On that day we had finished hoeing cotton, and had gone over near the fence and were hoeing out a melon patch, which was about 50 yards wide, and was between the oats and corn on one side and the fence on the other, about 150 yards from the house. When we were near where the oats and corn join, about ten steps from the corner, heard defendant speak, and looking up, saw him standing at the corner, and looked like he had just stepped out of the corn. He said to my father, Z. H. A. Perkins, “ Now, durn you, we will settle it.” My father said, “You have got your gun; give me a chance.” Defendant had a double barreled shot gun, and when my father said that, he raised his gun and shot my father down. I was eight or ten steps away; my brother, Avery Perkins, was a little nearer; my brother Judge was stepping out of the corn. After shooting father, defendant immediately turned his gun in the direction of my brother, and said, “I will shoot you, too, Judge.” I ran between them, and as defendant turned his gun upon me, I dodged down, and he shot me in the back, near the top of my shoulders. When defendant shot me, my brother Judge came up and struck him with a pole. Defendant caught the pole with his left hand and pushed, or knocked, my brother down. He then came towards me, and my brother got up behind defendant and knocked defendant down. As defendant got up he was knocked down again; think I knocked him down the second time. I broke my hoe off from the handle over his head. He was knocked down two or three times, and maybe more. About this time mother came running up to where father was and called me, and we quit striking defendant and went to her. Defendant’s wife also came up, and defendant went off with her towards his house.</p> <p>Father was stooping over hoeing a hill of watermelons when defendant first spoke to him. When he raised up, he pushed up his hat; was holding the handle of his hoe in his right hand near the hill of melons, when he was shot. He had a habit of pushing up his hat when he would stop to talk to any one, especially if it was warm weather.</p> <p>About three-quarters of an hour before this, defendant was going up into the field to get a horse, and as he came by where we were hoeing, father called to him and told him that he (father) would want some good, sharp plows to go plowing Monday. Defendant said, “all right,” he would have them ready. The conversation seemed perfectly friendly. Father then said, “ Last Saturday you said my darned little shits ruined your rasp, and this Saturday I say for you to keep your lionies from tearing my corn shoots.” Defendant said, “ I did not say they ruined it, but that they would ruin it.” Father said, “Oh! yes; I thought you would lie out of it.” This was the last I saw of defendant until the shooting. Father died in two or three hours after he was shot, in Palo Pinto County, Texas, June 13, 1891.</p> <p>Cross-examined: Defendant said, “ Now, durn you, we will settle it.” Father said, “ You have your gun; give me a chance.” Defendant said something about a pistol; think he said, “ Last Saturday you carried a pistol for me.” Father said, “You are a liar,” and as he said that defendant shot him. I think it was as defendant came back from looking for his horse, that father told him what he did about his children pulling the corn shoots. On the Saturday before, father and I went to measure the land we had cleared for defendant. Father asked the defendant to go, and he refused. Neither my father nor any of us had a pistol. There was no shooting by any one that day.</p> <p>Judge Perkins testified substantially about the killing as did the previous witness. This witness stated: When I saw defendant turn his gun on my father, and about the time he shot, I picked up a pole about seven feet long, that had been used for a stake to lay off corn rows, and running as fast as I could toward defendant, said, “ Damn you, I will kill you.” After he shot father, he turned his gun on me, when brother John ran with his hoe, and defendant shot him. I ran up and struck at defendant, when he threw up his hand and caught the pole and knocked me down, and ran over me towards John. I got up and knocked him down, and as he got up, knocked him down two or three times. John was also striking defendant, and I think my brother Avery struck him. Then mother and defendant’s wife came up, and as defendant went off with his wife, said, “I will shoot you too, Judge.”</p> <p>Witness here pointed out, on a diagram, which he said was correct, the relative position of the parties engaged in the difficulty, and the position of the various objects of interest connected with the scene of the homicide. Witness’ testimony was similar to that of his brother, as to what occurred on the day that they measured the land. He denied that there was any swearing on that occasion, at the defendant, or in the presence of his family. Witness denied having told Thomas Hammons, on the day of the killing, that defendant came up through the corn, and pointed the gun first at his father, and then at him, and that I told defendant that if he shot my father, God damn him, I would kill him, and that I picked up a pole and was running onto defendant when he shot my father. Witness stated, that on the day of the killing,'and at the place of killing, he did show Hammons where the parties stood. Where he, himself, was when he first saw the fight, and when he first picked up the pole. Told him the first I saw of the defendant he was standing in the edge of the corn and oats, where they made a corner, and that he looked as if he had just stepped out of the corn. I am 20 years old, brother John 16, and Avery 12.</p> <p>Avery Perkins testified substantially as did the other two witnesses to all the facts deposed by them, and to nothing else of any importance.</p> <p>It is unnecessary to give the testimony in detail of Mrs. Perkins, who was the next witness, as she only testified to having heard the shots, went out, saw her sons and defendant fighting, and that as she went by she saw Mrs. Dow, the wife of defendant, in her house, in the dining room, midway between the stove and table. That when she reached the spot she found her husband shot. That he was unconscious and never spoke. That they carried him to the house, where he died after an hour or so.</p> <p>Mrs. Ara Driggers testified: That she was Ara Perkins at the time of the difficulty, and was at home with her mother. Her testimony is substantially the same as her mother, Mrs. Perkins, and in addition, that when she heard the gunshots she went to the door of her mother’s house, and saw Mrs, Dow, wife of defendant, in her (Mrs. Dow’s) dining room. That when she left her mother’s house she saw Mrs. Dow leave her house about the same time.</p> <p>Clark Twitchell, the constable, testified to nothing except to the examination of some tracks found near the scene of the homicide. And the same may be said of the testimony of T. T. Bouldin, W. J. Crayton, and C. L. Walker.</p> <p>S. S. Polk testified, that on the Saturday before the killing, deceased and defendant had some words in the field.</p> <p>A. J. Hopewell: Knew defendant and deceased. On the Thursday before the killing on Saturday, had a talk with deceased, and then went to see defendant. Defendant asked what deceased had to say. Told him that deceased had said that he (deceased) wanted to leave his and defendant’s differences to two disinterested men, one selected by him and one by defendant, and a third to be selected by these two men, to arbitrate the matter. Defendant either said, “Darn his old soul, I wont do it; I’ll settle my own differences;” or, “ I’ll do no such darned thing; I’ll settle my own business.”</p> <p>J. A. Tullís testified, that the night of the killing he was at defendant’s house and asked him why he had killed deceased, and he said, “ I was aggravated into it.”</p> <p>J. H. Baker testified to a conversation with defendant, about a week before the killing, which showed bad feeling on his part toward the deceased.</p> <p>Dr. Johnson: Was a practicing physician, and called to see deceased after he was shot. Described the wounds, and stated that there were no powder burns on deceased. Also examined and dressed the wounds on John Perkins, which he described, and stated that there was no powder burn on them. Shortly after, was called to see defendant; he was suffering from two scalp wounds, made from some instrument that would cut. He also had several bruises on his arms and body. The wounds on the head were not very serious, but were sufficient to produce considerable pain. Defendant was also suffering from concussion of the brain, caused from these wounds.</p> <p>Miss Nora Hammons testified to seeing the defendant get some gun cartridges out of a sock the day of the homicide.</p> <p>Mrs. Tom Hammons, mother of Nora, testified to the same fact, and that defendant said he wanted to borrow the gun to shoot a sapsucker. About twenty minutes after, she heard of the shooting.</p> <p>Here the State’s testimony closed.</p> <p>Inasmuch as defendant testified in his own behalf, and his testimony develops his side of the case and the defense, it is here reproduced, as follows:</p> <p>William Dow, sworn in his own behalf, testified as follows: I am the defendant in this case. P. H. McMillan made arrangements with me to have deceased come from Georgia in the spring or winter of 1891, and for him (deceased) to rent land from me. Deceased came. He agreed to cultivate the “eight” acres of land I had, and put in another piece of land that I had to clear. There was, I think, about 35 acres in the piece to be cleared. When deceased began work, I tried to get him to agree on a price for the clearing, urging him to do so for the reason that he and I were strangers. He said he was a stranger in the country, and did not know what such work was worth, and that he would leave it to me. I afterward tried again to get him to set a price on the work, but he persisted in leaving it to me, stating at the same time that he knew I would do right in the matter.</p> <p>He had gotten most of the land grubbed, when one day he came to me and said he did not have land enough for himself and family, and asked me if I had any objection to his working 14 acres of land in Hammons’ field near by. I told Mm that I thought he had about as much as he could say grace over, and that he was a stranger in the country, and that no man wanted to furnish another a house to live in while they worked some one else’s land. It was agreed in the beginning that I was to furnish deceased team, tools, etc., and was to pay him in the fall for the work of clearing the land. After the talk about renting the Hammons land, deceased got mad and wanted his money for the clearing. I told him that he could not get it till the fall of the year come, and until I gathered my part of the crop, for that was our contract. He demanded a settlement at once. I told him all I wanted him to do was to stick to his contract.</p> <p>The quarrel in the field that Mr. Hammons heard, was over a settlement. I went up to where deceased was to take a doubletree, and deceased commenced on me about a settlement, and he said he was going to have his money, and that he was going to have it right away. I told Mm that was not our understanding in the beginning; he talked very abusive and I left him.</p> <p>Deceased got mad with me also because I did not want him to work my horses all the week and then let his boys run them over the country on Sunday. I told him I did not care for him taking the horses any Sunday and carrying his family to church, but that I did not think it right to work the poor horses all week and have his boys run them over the country on Sunday. He got mad at this, and would not take care of the horses on Sunday, and I had it to do.</p> <p>On the Saturday before the killing, the boys got my new rasp, that I had given a dollar for, and filed their hoes with it. I went to Judge and asked him, in a friendly way, not to let the boys ruin my rasp, and told him that I would file the boys’ hoes for them any time they would bring them around. Judge seemed to take offense, and would not make me any answer, so I thought I would go and tell Mr. Perkins about it. I went to him and told him, in a kind, friendly way, to not let his boys file their hoes with iny rasp, as it would not do to put on a horse’s foot after it had been used for filing hoes. I told him any time the boys wanted their hoes filed, to bring them in and I would file them for him. He flew into a passion and said, “ Damn it, lay it out and I will pay for it.” I told “ No, Mr. Perkins, do not get mad. I do not want you to pay for it; I only wished you to tell the boys not to do so again.” He said, “ Yes, I’ll be damned if I don’t pay for it.” I told no, but he still said he’d be damned if he didn’t, and went off toward the house. In a few minutes he came back, and said, “Here is a dollar to pay for that rasp; now hand it out here.” I told him again, “Mr. Perkins, don’t get in a passion; I don’t want you to pay me for that rasp.” He said he would be damned if I did not have to take it. I said that if nothing else would do him I would take it. I gave him the rasp, and he laid down the dollar, and as he went out he said, “ If you don’t let me and my boys alone, I will kick your God damned ass.” I said, “Mr. Perkins, go on away; I do not want you here.”</p> <p>That evening deceased came back, and had his ax, and said, “ God damn you, go with me to measure that land.” I told him I knew how much there was of the land, and that there was no use for me to go with him. He stuck his ax down in the ground near me. I did not go with him, but took my little girl and went into the house. He and his boys went on and measured the land, I suppose; I heard them shoot as they went up through the corn. After awhile I heard another pistol shot up where they were.</p> <p>On the following Wednesday after this, and on Wednesday before the shooting, I started down to the little pasture near the deceased’s house to get my horses. When I got near the deceased’s house I saw him up the fence, a little way above the gate where I was going through, standing by the fence post. He had a shot gun. He stood there a minute, and then came down the fence toward the gate. I went back to my house and waited till he went into the house, and then I took two of my little children and went and got my horses. I took my children with me because I was afraid of deceased, and I did not think he would hurt me if I had my children with me.</p> <p>On the day of the killing, I went down in the field to get my pony. I passed by where deceased and his sons were hoeing, in a melon patch. Deceased called to me, and said he wanted some sharp plows to plow cotton with Monday. I told him all right. We spoke in a friendly way. I went on and got the pony, and as I came back deceased said to me, “ Last Saturday you said my damned little shits of children ruined your file; this Saturday, I say for you to keep your damned little shits out of my corn patch, and if you don’t do it, I will make you do it.” I said, “ No, Mr. Perkins, I did not say that.” He said, “ Oh, yes, now, damn you, I thought you would try to lie out of it.” I then started off, and he called to me, and said, “ Stop, I want to talk to you;” but I did not stop. I went to the house, and then went and got my other horses, which were over in the pasture, and watered them, and then came back. I got to studying about the way Mr. Perkins was doing me, and so I thought I would go and see him, and if I could not get him to some kind of terms, I thought I would have him put under a peace bond; so I went. I had tried to get Hammons to go with me some days before, and he would not. I was afraid to go down to where they were without something to defend myself with, and so I thought I would go and get Mr. Hammons’ gun, as I did not have any of my own. I knew that Mrs. Hammons knew that I had not been at peace with the Perkins family, and so, in order that I might not arouse her suspicions, and in order to be sure and get the gun, I told her I wanted the gun to shoot a sapsucker with. I feared she would not let me have it if I told her the real reason I wanted the gun. I did not intend to do any of the Perkinses any harm when I got the gun and started down in the field. I only thought I would go and have a talk with them, and try and come to some understanding of our differences.</p> <p>I walked along down the edge of the oats, and then up between the corn and the oats, near where the difficulty occurred. I was in plain view of deceased and his sons from the time I left my house. They saw me coming and all stood and looked at me. I went up the edge of the corn and oats, to where they bordered on the melon patch, and said to Mr. Perkins, “ Now, Mr. Perkins, I want you to stand back and let us talk this thing over. You have been carrying a pistol for me, and now I want us to have some understanding about this trouble.” Mr. Perkins said, I was a liar, and raised his hoe, and started at me. I told him to stand back, and not to come on me with his hoe, but he kept coming, and the boys too. Mr. Perkins struck me with the hoc, and just as he struck me I fired the shot that killed Mr. Perkins. The boys then struck me and knocked me down, and I dropped my gun, and they knocked me down the second time. I finally got hold of the gun, and just about the time I got hold of it, it went off. I am not able to say how it went off. About that time my wife came up, and I went toward her, and they did not hit me any more. I went on to the house with my wife. That night the doctor came and dressed my wounds. I was bruised up all over, nearly. I had two or three wounds on the head, and some on the arms and back, and one on my side. As I went on to the house I feared the boys of deceased might still follow me and hurt me or kill me, and so I reloaded the gun. I was suffering great pain the night Dr. Johnson came and dressed my wounds. Mr. Westdridge was there at the same time.</p> <p>Cross-examined, this witness said: In all the quarrels I ever had with deceased, he (deceased) provoked them. I always spoke kindly to him, and lie spoke to me in an abusive and insulting way. I never had any falling out or short words with the deceased until after he wanted to rent the lands of Hammons, and I told him he had all he could say grace over. After that we got along badly; he appeared mad, and called me Master Billy once after that. Deceased had three boys and a girl who worked in the field. A person can not see another from the front door of deceased’s house to the kitchen door of my house; the peach trees are in the way. I am certain I am correct about this. I did not tell W. J. Creighton, on the night of the killing, at my house, that I had killed deceased because he, deceased, had cursed my children. I did not tell him, on that occasion, that he had cursed my children, and that I could not stand that, and that I had prayed to be delivered from what I had done. That I had prayed over it, but that deceased had cursed my children, and that was the reason I had killed him. I did not tell Mr. Westdridge on the same occasion, and also J. O. Tullís, that I killed deceased because I was aggravated into it. When I shot deceased I was standing in the edge of the oats, and deceased was in the act of striking me with his hoe, and did strike me just as the gun fired. I am 49 years old, and weigh 155 pounds, and a blacksmith by trade.</p> <p>T. I-I. Hammons, for defendant, testified about the differences between defendant and deceased about clearing the land, and efforts of the parties to arbitrate the matter. He also testified to being present at the blacksmith shop at the time of the difficulty between the parties about the file, and his statement corroborates the defendant as to that matter. He testified also that on the Thursday before the killing the defendant tried to get him to go with him to see deceased and talk with him about the matter, saying that he was afraid to go alone; which he declined to do. In several particulars this witness contradicted the testimony of the State’s witnesses. He testified that a person from Perkins’ house could not see into the house of Dow at the time of the difficulty, owing to the peach trees, which were in leaf, obstructing the view. He stated that he would swear a lie to save any of his family if they were in trouble, but that whilst he was a brother in the Masonic order with defendant, he would not vary one iota from the truth to save defendant, or any one but his own family.</p> <p>Mrs. Dow, wife of the defendant, testified to previous troubles between defendant and her husband about the clearing of the land, and to threatening acts and words of deceased toward defendant. She testified that the first she knew of the difficulty was when she heard some loud talking and cursing in the field. That she looked out of the kitchen door and saw deceased and his two oldest boys and Mr. Dow engaged in a fight. Mr. Dow had a gun, and deceased and one of his boys had hoes, and one of the boys had a pole and was striking at Mr. Dow. That she started immediately to run up there as fast as she could, and just about the time she started she heard a gun fire, and very soon a second one. She also stated that a person standing in the front door of Perkins’ house could not have seen into her kitchen. Her testimony also as to what she knew and saw of the difficulty was impeached by contradictory statements made by her to Dr. Johnson and Mr. Wooldrich, who both testified that on the night after the killing they heard her say, the first she knew of the difficulty she heard the gun fire, and that she then went to the door and saw them fighting with hoes. She was also contradicted as to her statement that she had been abused and insulted by Perkins and his boys.</p> <p>The defendant proved by a number of witnesses, who knew him before he moved from Falls County, and by several witnesses who knew him since he had lived in Palo Pinto County, that his reputation as a peaceable and law abiding citizen was good, though he was irascible and quarrelsome.</p>

<p>1. Practice—Bill of Exceptions—When Variant from Statement of Pacts.—When a bill of exceptions contradicts the statement of facts in any-specified particular, the bill will he held to control and correctly state the disputed matter.</p> <p>2. Same — Qualification of Bill of Exceptions.—Where the court qualifies or explains a bill of exceptions, such qualification or explanation will control the recitals in the bill, to the extent to which it modifies such recitals.</p> <p>3. Threats — Admissibility of.—Where on a trial for murder the State proposed to prove by a witness that defendant had said of some party, whose name he did not call, “ he has got my pistol, and if he don’t give it up to me I propose to kill him,” and afterward the evidence adduced connected the deceased as the party indicated by the threat, held, that the evidence was admissible. A threat need not name the party threatened, where the other facts proved give individuation to it.</p> <p>4. Improper Argument of Counsel.—To require a reversal of a judgment on account of improper and unwarranted remarks made by the prosecuting attorney, such remarks and argument must not only be improper, but also of a material character, and such as under the circumstances attending the particular case were calculated to injuriously affect the defendant’s rights before the jury.</p> <p>5. Practice where Court Submits Murder in Second Degree on Evidence Establishing Murder in First Degree.—A conviction will not he set aside because the charge of the court and verdict of the jury are more favorable to the defendant than the testimony would justify. Following Fuller v. The State, 30 Texas Court of Appeals, 559.</p> <p>6. Accidental Homicide.—See a state of facts where defendant’s theory was held not to he sustained by the evidence.</p>

Tried below before Hon. B. B. Beaird, County Judge. On a trial under an indictment charging them with fornication, appellants were found guilty, and each of them fined in the sum of $200. It is unnecessary to state the facts in the case. The questions raised by bills of exception are sufficiently stated in the opinion of the court.

Tried below before Hon. W. H. Burkhart. This appeal is from a judgment of conviction for assault with intent to murder, the punishment being assessed at two years in the penitentiary. A statement of the evidence produced on the trial is rendered unnecessary either to elucidate or illustrate any of the points noticed in the opinion of the court.

Tried below before Hon. T. A. Fuller, Special Judge, who, by agreement of parties, was selected to try the case. Appellant was indicted for illegally altering the brand on twenty head of cattle, alleged to be the property of one W. F. Aaron, and upon his trial was found guilty, and his punishment assessed at two years’ confinement in the penitentiary.

<p>1. Forgery—Evidence — Recorded Instruments.—On a trial for forgery, where the indictment set out the alleged instrument, which was a purported mortgage, and at the trial the State offered the original mortgage in evidence, and its introduction was objected to by the defendant, upon the ground that it had not been filed three days before the trial, and notice given as is provided by the statute regulating the admission of recorded instruments, held, that the statute did not apply, and the objection was without merit.</p> <p>2. Recalling Júry for Further Instructions.—After a jury has retired under charge of the court to consider of the case, they may be recalled for additional instructions at their own request, or ex mero motu by the court.</p> <p>3. Fact Case.—See evidence held amply sufficient to support a conviction for forgery.</p>

<p>Appeal from the District Court of De Witt. Tried below before Hon, H. Clay Pleasants.</p> <p>The indictment in this case charged Samuel Harris, alias Edward Holmes, alias Thomas Hunter, and this appellant, Henry Mason, alias James Smith, jointly with uttering as true a forged instrument, in words and figures as follows, viz.:</p> <p>“82000. No. 3906.</p> <p>“ Galveston, Texas, Jan. 9, 1892.</p> <p>“Pay to the order of Samuel Harris 82000—Two Thousand and no-100 Dollars.</p> <p>“W. L. Moody & Co»</p> <p>“To Messrs. Otto Buchel & Co., Cuero, Texas.”</p> <p>When the case was called for trial a severance was granted by the court,, at the instance of defendants, and appellant Henry Mason was alone placed upon trial. The trial resulted in his conviction, the punishment being assessed at three years confinement in the penitentiary.</p> <p>The testimony shows that a check for 820 was, on January 4, 1892, drawn by W. L. Moody & Co., at Galveston, on the bank of Otto Buchel & Co., at Cuero, in favor of one Samuel Harris. That on January 14, 1892, Samuel Harris cashed, at the bank of Otto Buchel & Co., at Cuero, a check for 82000, which purported to have been drawn by W. L. Moody & Co. in favor of Harris. It was proven that this pretended check for 82000 was the same check which Moody & Co. had drawn for 820, and that it had been most ingeniously altered both in the punched figures and in the writing in the body of the instrument, from twenty to two thous- and. This check was cashed by the cashier of Buchel’s bank about 11 o clock a. m. on the 14tli of January, 1892.</p> <p>L. E. Bergeron testified: That on January 4, 1892, he was the cashier of the Galveston National Bank, at Galveston, and that on that day he drew a draft in favor of Edward Holmes for 820 on the First National Bank of Cuero; and that on the 9th of January he drew another draft for 825 in favor of Thomas Hunter on G. N. Dilworth, a banker of Gonzales, Texas.</p> <p>It was proven, that on the 14th of January, 1892, a man who claimed that his name was Edward Holmes, or who called himself Edward Holmes, at 12 minutes to 12 o’clock presented for payment at the First National Bank of Cuero a check for §2000, purporting to have been drawn on said bank by L. R. Bergeron, assistant cashier of the Galveston National Bank. He failed, however, to get this check cashed.</p> <p>On the 15th day of January, as testified by the cashier of G. N. Dilworth’s bank at Gonzales, a check was presented at his bank for payment for the sum of $2500, payable to Thomas Hunter, and drawn by the National Bank of Galveston. He 'further testified, that the Galveston bank had drawn on them for $25, and had notified them of that fact, and that the number on the check for $25 was the same number as that on the $2500 draft presented by Hunter. He did not pay this $2500 draft.</p> <p>It was proved that Hunter, Holmes, and Harris were all one and the same man, and he was identified by several parties. It was proved that this appellant, Mason, was seen with Hunter, or Harris, at Cuero, on the day that he had the $2000 Moody check cashed. That they left Cuero together; that they were seen together at Gonzales on the 15th. That after failing to get the draft cashed by Dilwortk, they immediately left Gonzales for Harwood, in a buggy, at which place they were arrested together as they were about to take the west bound train. After they were arrested, defendant destroyed some papers by burning them in the stove at the depot, which papers looked like checks.</p> <p>Nicholson, the city marshal of Gonzales, testified: That after the parties had been brought back to Gonzales, under arrest, and turned over to him, he searched them; that they had $2900 on them. Defendant had $2770, and the other man $130. The cashier of the bank of Buchel & Co., of Cuero, identified two of the bills taken from the defendant as part of the money he had paid to the man calling himself Harris, on the check of Moody & Co. There were other facts testified to tending to show that the parties were confederates, acting together during the transactions above set out.</p>

<p>Appeal from the District Court of Bell. Tried below before Hon. James Boyd, Special Judge.</p> <p>Appellant was indicted for an assault with intent to murder one D. C. Walden, alleged to have been committed on the 8th day of March, 1891. He was convicted on his trial and his punishment assessed by the verdict and judgment at seven years imprisonment in the penitentiary.</p> <p>The evidence shows, that prior to the trial in this case, defendant had been tried and convicted upon another indictment, which charged him also with another assault with intent to murder, alleged to have been committed by him on D. C. Walden, on the 19th day of December, 1890, and this indictment, together with the record in the previous case, was read in evidence, over defendant’s objection, on the trial in this case.</p> <p>The State was also permitted to prove, over defendant’s objection, all the attendant facts and circumstances connected with the said shooting on the 19th of December, 1890.</p> <p>The testimony of the State’s principal witnesses, D. C. Walden, Mrs. D. C. Walden, and Miss Pearl Walden, shows a series of wrongs and outrages perpetrated by the defendant and one Jake Rampy, extending over a period of several months prior to the shooting on the 8th of March, and the facts attending the latter shooting are thus detailed in the testimony of the injured party, D. C. Walden, viz.:</p> <p>On the night of March 8, 1891, I was going to bed about 9 o’clock. The house fronts west. My room was the north room. My bed was in the southeast corner of the room, the head of the bed up in the corner, and space to walk between the bed and the east wall of the room. The lamp was on the mantlepiece, in north end of the room. I put my little boy in bed. I undressed and got in on southwest side of the bed. When I got in I was resting on my right elbow, lying somewhat on my right side, and reached down for the cover with my left hand. I was shot twice, and a third shot missed me. The shots came through the window near the portico on west side of the house, or the shots came through the south window of north room (as shown by plat). The first shot struck me in the left arm and broke it all to pieces, and it had to be amputated. The second one hit me in the hip. I fell over on the east side of the bed on to the floor, and the third shot missed me. My wife was between me and the window the shots came through, and the firing stopped. This was in Bell County, Texas, on the night of March 8, 1891. I did not seethe defendant shoot me on that night.</p> <p>Mrs. Walden testified: That after the shooting she called to a neighbor to go for a doctor. That while she was standing on the portico, after the neighbor had left for the doctor, a man rose up from the window from which the shooting was done; he had been squatting down under the window. I did not see him until he got up and walked off to a little oak tree in the yard, where he stopped. As soon as I saw the man I took it to be the defendant, from his size, shape, and general appearance. The next morning saw tracks under the window where the man rose up. The tracks would compare very well with the tracks of defendant.</p> <p>Sam Woodruff, a negro, testified to having been present with defendant and Jake Bampy, on the 19th of December, when defendant shot at Walden the first time. That subsequently defendant told him he could not get rid of that case unless Walden was put out of the way. That he agreed to kill Walden, and defendant furnished him with a pistol and a six-shooting shot gun to do it with. That instead of doing so, he carried the gun up the road, at night, set it up against the side of a tree, and shot the magazine off of it with the pistol; and when defendant asked him, afterwards, how the gun got so torn up, witness told him that he had gone after Walden, and that Walden had shot at him and hit the gun. Defendant said that he would go up there and see if Walden would shoot his gun; that he would kill Walden. Witness stated thatthis conversation occurred just before sundown; that about 9 or 10 o’clock that night he heard two shots in the direction of Walden’s house, and the next morning heard that Walden had been shot. This testimony as to the injury to defendant’s gun, and that the magazine had been shot off, was corroborated by the testimony of other witnesses.</p> <p>W. S. Bose, testified: That from information he had received from Sam Woodruff, he found the piece of gun magazine under Jane Wood-ruff’s house.</p> <p>Scoge Seal testified to defendant’s having admitted to him that he had shot Walden.</p> <p>The defense was an alibi, which was testified to by defendant’s father, mother, and brother. And defendant, as a witness in his own behalf, testified that he had not done the shooting.</p>

This appeal is from a judgment of conviction for perjury, wherein the punishment was assessed at five years confinement in the penitentiary. The perjury was assigned upon the testimony of defendant in a case on trial before a justice of the peace, wherein defendant was being tried upon complaint charging him with playing craps at or near Alex Wilburn’s crib, and wherein he testified that he did not play at said game of craps, as charged.

<p>1. Manslaughter — Insulting Words.—In order to reduce a homicide from murder to manslaughter on account of insulting words, our Penal Code, article 598, declares that the killing must take place immediately upon the uttering of the insulting words.</p> <p>2. Proof of Character of Deceased as Dangerous and Violent, Admissible when.—It is not competent to prove the reputation of deceased as a violent and dangerous man where the evidence has not shown that at the time of the homicide he was doing some act indicating a purpose to take the life of defendant, or to do him some bodily harm.</p> <p>3. Evidence—Hearsay—Exclamation of Third Parties.—On a trial for murder, where it was shown that sometime after the killing, when the deputy sheriff drove up to the house to arrest defendant, and defendant came out of the house with a blanket on his arm, that the haekman who drove the deputy to the house exclaimed, “There he goes! there he runs! catch him!” held, that such testimony was hearsay and inadmissible, and that if the hackdriver saw the defendant making his escape he should have been called as a witness himself to testify to that fact.</p> <p>4. Charge of Court—Drunkenness.—Where on a trial for murder the court charged the statute on drunkenness (Penal Code, article 40a), and then instructed the jury, that “ The law just quoted places a person charged with crime before the law to be tried without reference to his drunkenness, unless said drunkenness goes to the extent of producing temporary insanity. It is therefore your duty, as a preliminary inquiry, to discover the mental status of the defendant at the time of the homicide.” Held, that the said charge was insufficient in failing to define “temporary insanity,” and in failing to instruct the jury that they could consider temporary insanity in mitigation of the penalty, after they had determined the degree of murder. Clore’s case, 26 Texas Ct. App., 624; and Ex Parte Evers, 29 Texas Ct. App., 539.</p> <p>5. Intoxication as an Element in Crime—Article 40a of Penal Code Construed.—By the terms of article 40a two purposes were clearly intended : 1. To eliminate mere intoxication as a defense in any criminal prosecution whatever, regardless, of the. constituent elements of the crime. 2. To prevent temporary insanity thus produced from being used as a defense to any crime, but permitting it to be introduced in murder cases to determine the degree, and in all criminal prosecutions to mitigate or lessen the penalty. The object of the statute was to prevent parties from pleading their own wrong, after voluntarily placing themselves under the influence of intoxicating liquors.</p> <p>6. Same—Common Law Rule.—The underlying principle of our statute is the common law rule, viz., that a sane man who voluntarily puts himself in such a condition as to have no control of his will or actions, must be held to intend the consequences springing therefrom, even though such intoxication rendered him insensible to his surroundings, unconscious of his acts, and deprive him of memory or understanding. See the opinion for a discussion in extenso of the contrariety of doctrine which has been held upon the subject during the past sixty years, in the English and American courts, and the conclusion reached that “ our statute is right in excluding mere drunkenness as evidence in criminal cases.”</p> <p>7. Same—Scope of Our Statute on Drunkenness.—Our statute on drunkenness permits the intoxicated person, when his intoxication is so excessive as to render him unconscious that the act he is doing is wrong, and will subject him to punishment, to plead his condition; and if it appears the design to kill was not previously formed or premeditated, or arising out of a previous difficulty, or from revenge, or executed with cool, deliberate, and passionless action indicating-malice, but was the result of a sudden, rash, and unpremeditated design, springing out of inconsiderate or irrational action or excitement, and originating in a mind so inflamed by intoxicants as to be wholly incapable of reflection or self-control, the jury should find the defendant guilty of murder in the second degree, but nothing less; and may also reduce the penalty they would otherwise attach to the crime but for his condition. It is only in murder cases that a defendant can plead temporary insanity as a reduction of the degree of crime. In no other character of crime is it admissible to change its nature or want of constituent elements. And it was so at common law.</p> <p>8. Insanity.—The settled rule and test as to sanity, is the capacity and power to distinguish between right and wrong as to the particular act charged as an offense, and a person wanting in such knowledge and consciousness is insane and irresponsible for any crime committed by him. It is a full excuse for crime, except when committed by a party in a fit of recent intoxication.</p> <p>9. Drunkenness —"Settled Insanity” — “Temporary Insanity.”— There are two kinds of insanity produced by alcoholism: 1. Delirium tremens, or “ settled insanity,” from long and continued habitual drunkenness. 2. Temporary insanity, or drunkenness, directly resulting from drink. The former is habitual or fixed madness, and though contracted by the will of the party, is a sufficient excuse for crime. The latter is that condition of the mind directly produced by the use of ardent spirits; and where a fit of intoxication is carried to such a degree that the person becomes incapable of knowing the act he is doing is wrong and criminal, he is in that condition referred to by the statute as being “ temporarily insane.’’ The first is from drinking as a remote result. The second is from drinking as a direct result. The first result is involuntary. The second voluntary. In the first there is no criminal responsibility. In the second responsibility never ceases. Following Kelley’s case, ante, page 216.</p> <p>10. Case Overruled.—In so far as the opinion in Lyle’s case, ante, page 103, announces rules in conflict with the rules announced in this case, that case is overruled.</p>

Appellant was indicted on the 22d day of September, 1891, for the murder of Jeff Varner, by shooting him with a Winchester riñe, in the county of Motley, on the 10th day of May, 1891. The court, upon its own motion, changed the venue from the District Court of Motley to the District Court of Baylor County.

<p>1. Practice — Plea of Defendant, when Required. — By article 603. Code of Criminal Procedure, it is provided: “ In all eases less than capital, the defendant is required when his cause is called for trial, before it proceeds further, to plead by himself or his counsel whether or not he is guilty.” And by article 604 it is further provided, that “by the term 1 called for trial,' is meant the stage of the cause when both parties have announced that they are ready, or when a continuance, having been applied for, has been denied.”</p> <p>2. Same—Construction of Statutes.—Articles 603 and 604 of the Code of Criminal Procedure, as above set out, are directory and not mandatory; and held further, that where on a trial for theft of cattle, and after defendant's application for continuance had been overruled, and a jury was empanelled and the indictment read before the defendant was called upon or required to plead, that this was a substantial compliance with the objects, purposes, and intent, as well as spirit of our statutes as to the plea of the accused, and was moreover the uniform practice in this State; and in such case if the defendant refuses to plead, it is the duty of the court to cause the plea of “ not guilty” to be entered for him.</p> <p>3. Brands, Designation of — Horses and Cattle. —Where the record of the brand designated that it was to be placed “ on the ribs and hip” of the animal, held, that such designation was sufficient. Following Harwell v. The State, 22 Texas Court of Appeals, 251; Hayes v. The State, 30 Texas Court of Appeals, 404. And held further, that there is no statute which requires the record of a brand to designate whether it is for horses or cattle.</p> <p>4. Charge— Assumption of Facts in.—Where in the opening paragraph of the charge, the court, in stating the nature of the accusation against the defendant, told the jury that the defendant was charged, in the indictment, with the theft of one head of cattle, the property of one B., held, that such preliminary statement by the court of the nature of the cause was not an assumption and instruction on the part of the court that the stolen animal was the property of B.</p> <p>5. Same — Accustomed Range. —Where the court instructed the jury that “ animals upon their accustomed range are, in law, in possession of the owner,” held, correct both as matter of law and fact.</p> <p>6. Same — Accomplice Testimony. — Where a charge on accomplice testimony announces the rules with regard to such testimony, as provided in approved forms which are well established, it is sufficient, though the jury are not told, in so many words, that any particular witness who has testified in the case is an accomplice.</p> <p>7. Application for Continuance — Admission of Truth of Facts Stated in.—AVhere the facts stated in defendant’s application for a continuance are admitted by the prosecution to be true, and such facts went as evidence to the jury, held, that defendant had no ground to complain that his application was refused.</p>

<p>Appeal from the District Court of Walker. Tried below before Hon. N. G. Kittrell.</p> <p>Upon an indictment which charged appellant with the theft of $35, he was found guilty, and his punishment assessed at five years in the penitentiary.</p> <p>Tucker Miller testified, substantially: That he was drinking in Riverside sometime in the month of November, of last year; that Brother Drew Jackson, the defendant, and Phil Wallace were with him. That he received by express that day $70 in $10 bills, it being the money for which he had sold his cotton. That after Mr. Hill, the express agent, had handed him the money, he, the agent, told Parson Jackson to take him, Miller, home, because he was drunk. That the parties went on to Jackson’s house, and Jackson proposed to take care of both him and his money, and keep it for him until the next morning. That Jackson finally took the money out of witness’ pocket and handed it to his daughter, who counted it and found $70 in the roll. That Jackson insisted on witness staying all night, but witness positively declined and insisted on having his money that he might take it home and give it to his wife. Finally witness started out without his money, and when he got to the yard gate the defendant came out with the envelope in his hand and seemed to be fingering the money. Witness says, “ I said to him, ‘ Parson, don’t you take my money.’ He then called to Phil Wallace, who was standing in a few feet with a lantern in his hand, and said, ‘ See here, Brother Wallace, I call on you to witness that I give Brother Miller his money back.’ ” Witness took the envelope, and folding it up, put it deep down in his pocket, went home, ate his supper, laid down, and went to sleep. Just before day he called to his wife, and told her that he had $70 for her in his pocket. She got the envelope and opened it, and said that there was only $30 in there. I said, “ That nigger got my money,” and got up and went to defendant’s house. Beached there about sunup; called him out. When he came out he handed me a $10 bill, and said he had picked it up where he had handed me the envelope the night before. A day or so afterwards witness complained to the sheriff that he had been robbed, and demanded that he arrest and search defendant, which that officer and his deputy did, and found upon the person of defendant $2.86 in his pocket, three $10 bills in his shoe, and a $5 bill in the sweat band of his hat.</p> <p>It is unnecessary to give a further statement of the facts.</p> <p>While the district attorney was making his closing argument to the jury, the following language was used by him, to-wit: “Counsel for the defense insists that the State has not proved that the money taken from Drew Jackson by the sheriff was the money of Tucker Miller. I say they have not proved that the money was Drew’s money. Why have they not had Drew’s family here, and the other witnesses, to prove that the money was Drew’s money ? Don’t you know that counsel appreciates the importance of the evidence, and if the money was Drew’s money, they ought to have had their witnesses here to prove it ? And nobody has testified to this jury that the money belonged to defendant, and he has never claimed it since the sheriff took it from him.” Which remarks were excepted to by defendant, and are the remarks which are commented on in the opinion, and held not to be improper or objectionable under the circumstances of the case.</p>

Tried below before Hon. W. H. Burkhart. Appellant was indicted for the murder of one Steve Cravey. Upon his trial he was convicted of murder in the first degree, with a penalty assessed at death. There is no statement of facts in the record, and the opinion of the court sufficiently states and discusses the bills of exception which were reserved by the defendant at the trial.

Tried below before Hon. E. D. Gavin. Appellant was indicted for the theft of a watch of the value 875, and at his trial was convicted, the punishment being assessed at two years imprisonment in the penitentiary. The facts of the case are sufficiently stated in the opinion of the court.

Tried below before Hon. W. A. Blackburn. The conviction in this case was for the theft of a watch, of value exceeding $20, and the penalty assessed by the verdict was a term of two years in the penitentiary. For all practical purposes of this report, the opinion of the court sufficiently discloses the evidence.

Tried below before Hon. W. H. Ford. On a trial, under indictment charging him with murder of one W. J. Colvin, appellant was convicted of murder in the second degree, and his punishment assessed at a term of twenty-five years in the penitentiary. In view of the question on which the case was disposed of on this appeal, it becomes unnecessary to give a statement of the facts adduced in evidence in the case.

<p>Appellant was indicted for the seduction of one Willie Nisbett, an unmarried female, by means of a promise to marry her. During the progress of his trial he made offers and overtures, in court, to marry the prosecutrix, which she declined; and his trial being ordered by the court to proceed, he was convicted, and his punishment assessed at confinement for four years in the State penitentiary. The facts and circumstances connected with his offer of marriage during the trial will be found fully stated in the opinion of the court, and is the principal subject discussed in the opinion. It is deemed unnecessary to give a statement of the evidence in detail as adduced on the trial.</p>

Tried below before Hon. L. B. Hightower. Appellant was indicted for a nighttime burglary. The indictment contained two counts, one charging that the burglarious entry was with intent to commit rape, and the other that it was made with intent to commit theft. At the trial he was found guilty, the verdict being a general one, and his punishment was assessed at eleven years in the penitentiary.

<p>1. Murder in the First Degree —Indictment.—An indictment which charged that “ about the 12th day of July, in the year of our Lord one thousand eight hundred and ninety-two, * * * did then and there, with his malice aforethought, kill and murder B. P. Curtis, by shooting him with a gun, against the peace and dignity of the State,” is in conformity with approved forms, and has been repeatedly held amply sufficient to charge murder in the first degree.</p> <p>2. Same—Evidence.—See evidence stated in the opinion held to be amply sufficient to support a judgment of conviction for murder of the first degree, with the death penalty.</p>

<p>1. Special Venire—Practice—Postponement.—On a trial for murder, when the list of the special veniremen, consisting of a hundred names, was called, and it was ascertained that three were absent, defendant moved to postpone the trial; which motion was refused by the court, and instead ordered the issuance of process instanter for the absentees. Held, correct. Hudson’s case, 28 Texas Ct. App., 338; Habel’s case, Id.. 589.</p> <p>2. Same.—When a jury was being selected from the special venire, and it was ascertained that two of the list were absent as jurymen in another case, defendant asked a postponement of the case until the other case had been decided, which motion was refused. Held, there was no error, and especially so inasmuch as these two absent jurymen, before the jury was selected and empanelled, were discharged from the jury upon which they were serving, appeared and were placed on the panel, whereupon one was challenged by the State and the other by the defendant.</p> <p>3. Same.—After the special venire had been exhausted, the court stated to counsel that he would delay the further organization of the jury until the three absent veniremen for whom process had issued could be brought in; whereupon defendant's counsel stated that they were willing to proceed with talesmen, without waiving any previous right under their motion to postpone. Held, no error prejudicial to defendant is shown.</p> <p>4. Charge of Court — Manslaughter—Requested Instructions. — See the opinion for a charge upon the issue of manslaughter as applicable to the facts proven, held, sufficient, especially in the absence of special instructions requested on that subject.</p> <p>5. Same—Requested Instructions — Practice.—Requested instructions, however correct, are not required to be given by the court unless they are written and presented by the party desiring them.</p> <p>6. Evidence.—See evidence stated in the opinion of the court which was held amply sufficient to warrant the jury in disregarding defendant’s version of the homicide, and amply sufficient to support a verdict and judgment for murder in the first degree with the death penalty assessed. Hurt, Presiding Judge, dissenting.</p>

<p>1. Rape—Admissibility of Evidence of Threats to Commit.—On a trial for rape, where it was shown by the testimony that on the day before the rape was alleged to have been committed, the defendant, in connection with remarks made by him of a most obscene and vulgar character, had said that he “ intended to have some skin that night, if he had to kill some of the damned girls” (not naming any girls), and which evidence was objected to, because irrelevant and immaterial, held, that the objection was not maintainable, and that the evidence was competent. The intended victim need not be named, if subsequent facts show, with reasonable probability, to whom reference was made, or the threat was such as to evidence a determination to ravish some female that night.</p> <p>2. Admission of Immaterial Evidence not Reversible Error.— Admission of immaterial evidence, which in the light of other evidence and circumstances of the case had no criminative force, and was not injurious to the accused, will not constitute reversible error.</p> <p>3. Attempt to Rape — Charge of Court. —Where on a trial for rape the court, in its charge to the jury, made the fact of defendant's guilt to depend upon their belief, beyond reasonable doubt, that he had actually ravished and penetrated the injured female, held, that defendant could not be heard to complain that the court had omitted to charge the law with regard to an attempt to commit rape.</p> <p>4. New Trial—Mob Violence.—See a state of facts, set out in extenso in the opinion, upon which it was held, that appellant was entitled to a new trial, because he was deprived of a fair and impartial trial on account of the presence, conduct, and threats of a mob.</p>

Appellant was indicted for the murder of one Polonio Vela. At the trial in the court below he was found guilty of murder of the second degree, and his punishment affixed at a term of twenty years in the penitentiary. A succinct statement of the facts immediately attendant upon the killing will be found in the opinion of the court.

Tried below before Hon. G. A. Brown. Appellant was .indicted at the November Term, 1891, of the District Court of Hall County, for the murder, in that county, on the preceding August 10, of Eugene De Borenfiend. At the May Term, 1892, of the District Court, the judge, of his own motion, changed the venue from Hall to Wilbarger County.

Tried below before Hon. Thomas M. Paschal. The indictment charged the appellant with the theft of four horses, the property of A. Brieden. Upon the trial he was found guilty, and by the verdict and judgment his punishment was assessed at five years in the penitentiary. The testimony in the case is very voluminous.

<p>1. Disbarment of Attorney at Law —Jurisdiction. —A proceeding against an attorney or counsellor at law, charging him with fraudulent or dishonorable conduct, and having for its object to strike him from the roll of practicing attorneys, is a criminal or quasi criminal case, from which an appeal can only lie to the Court of Criminal Appeals. Following The State v. Tunstall, 51 Texas. 81.</p> <p>2. Practice—Writ of Error.—lío writ of error lies from a judgment in a criminal case to the Court of Criminal Appeals. The jurisdiction of such court can alone he invoked by an appeal.</p> <p>3. Practice in Court of Criminal Appeals as to Writs of Error. On a proceeding instituted for that purpose in the court below, where appellant bad been disbarred as a practicing attorney of the law, and he sought to carry the case by writ of error to the Supreme Court, but the transcript had been filed in the Court of Criminal Appeals, and he filed a motion in the latter court to transfer the cause to the Court of Civil Appeals, upon the ground that said court had jurisdiction of the case, held, the case being a criminal case, the Court of Criminal Appeals was without authority to transfer it to the Court of Civil Appeals, and the motion was refused; and because this court has no jurisdiction over writs of error, the case is stricken from the docket.</p>

<p>1. Misdemeanor—Practice on Appeal—Jurisdiction.—Where a transcript in a misdemeanor case was filed in the appellate court subsequent to the day set apart for the submission of causes from the county from which the appeal was taken, held, that under the provisions of sections 34 and 40 of the Act of 1892, creating the “ Court of Criminal Appeals,” the case being returnable to this term, the court had jurisdiction to hear and determine it “ at the earliest time consistent with a due regard for the rights of the parties and a proper administration of justice.”</p> <p>2. Recognizance—Requisites of an Appeal to the Court of Criminal Appeals.—With the adoption of the amendments to the judiciary article of the Constitution, “ The Court of Appeals” passed out of existence, and was substituted, as to its criminal jurisdiction, by the11 Court of Criminal Appeals.” By section 32 of the act creating the 11 Court of Criminal Appeals,” prescribing the form for recognizances on appeals in misdemeanor cases, the form prescribed requires that the cognizor shall obligate himself to abide the judgment of the “ Court of Criminal Appeals,” and section 33 of said act expressly inhibits the Court of Criminal Appeals from entertaining jurisdiction of any case unless the recognizance shall comply substantially with the prescribed form. Held, that a recognizance binding the appellant to “ abide the judgment of the Court of Appeals” is fatally defective.</p>

Tried below before Hon. T. A. Falvey. This appeal is from a conviction for bigamy, wherein the punishment affixed by the court below was three years confinement in the penitentiary. A statement of the evidence elicited in the case is not required, beyond the fact that a valid subsisting previous marriage was proved by the prosecution.

Appellant William Harris, Jr., one Fayette Harris, one Chas. Petty, and one James Stanton were jointly indicted for the murder of one Jo Shields, on the 28th day of January, A. D. 1892, in the County of Shelby, State of Texas. Upon motion of the appellant, William Harris, Jr., the court granted a severance in the case, and by agreement the said William Harris, Jr., this appellant, was first placed upon trial on the 19th day of April, 1892.

Tried below before Hon. A. L. McLaine. This appeal is from a judgment of conviction for robbery, the punishment being assessed at fourteen years in the penitentiary. The facts are sufficiently stated in the opinion. There are no bills of exceptions, and no special instructions asked by defendant shown in the record.

Appellant was indicted by the grand jury of Dallas County, on the 4th day of November, 1892, for the murder of one W. G. Veal, in Dallas County, Texas, on the 25th day of October, 1892, by shooting him with a pistol.

Tried below before Hon. B. S. Gardner, Special Judge. This appeal is from a judgment of conviction for manslaughter, wherein the punishment assessed was five years confinement in the penitentiary. In view of the disposition made of the case by the opinion of the court on this appeal, it becomes unnecessary to give a statement of the facts in the case.

Tried below before Hon. R. E. Burke. Appellant was indicted for burglary with intent to commit theft, by entering, in the nighttime, the store house of one C. W. Faut, by force, and fraudulently taking therefrom two cases of tobacco of the value of $5 each, and 700 cigars, to the value of S3.50 per hundred, same being the property of Faut, and taken from his possession, and without his consent. At his trial he was convicted of theft, and given two years in the penitentiary.

The conviction in this case was for circulating a libel, and the penalty assessed was a term of sixty days in the county jail.

<p>1. Affidavit—Information.—It is not essential to the sufficiency of an information that the affidavit upon which it is based begins, “In the name and by the authority of the State of Texas.” It is sufficient if, as in this case, the information itself begins with those words.</p> <p>2. Practice — Libel—Evidence.—Under our statute the truth of a libel may be proved in defense when it charges a penal offense, specifying the time,place, and nature of the offense. If it charges the penal offense generally, without the required specifications, the truth of the libel can not be offered in evidence, though it may in fact be true. In this case the libel charged the libelee with fornication; with maliciously breaking and destroying the furniture of another; and with drunkenness in a public place—specifying particularly the times, places, and ingredients of each offense so charged. Under the statute, the defendant was entitled to prove, if he could, the truth of the matter alleged, and in rejecting evidence offered for that purpose the trial court erred.</p> <p>3. Same—Privilege of Counsel .—Prosecuting counsel was permitted in his closing argument to comment upon the failure of the defendant to testify in his own behalf. Held, reversible error.</p> <p>4. Same—Libel-^Charge of the Court.—The court instructed the jury to the effect, that “the truth of any statement charged as a libel may be shown in justification by the defendant, where it is charged in the information that the statement is false.” Held error, as subversive of the statute, which clearly defines in what cases of libel proof of the truth thereof may be admitted.</p>

<p>Appeal from the District Court of Dallas. Tried below before Hon. R. E. Burke.</p> <p>This appeal is from a judgment of conviction for murder in the second degree, the punishment being fifteen years in the penitentiary.</p> <p>There is no statement of facts in the case.</p>

Tried below before Hon. B. McDaniel, County Judge. Appellant was prosecuted in the lower court, by information, for unlawfully pursuing and following the occupation of a travelling vender of medicine, without first having obtained a license therefor. At his trial he was convicted of said offense, his punishment being assessed at $262.50.

Tried below before Hon. B. McDaniel, County Judge. This is an appeal from a judgment of conviction, under an indictment charging a violation of the local option law in Justice Precinct No. 6, Ellis County, Texas.

Tried below before Hon. E. G. Bower, County Judge. Appellant was prosecuted by information in the lower court for aggravated assault and battery, committed by him upon one John Annen, with a pistol, a deadly weapon. At the trial he was convicted by the court, a jury having been waived, his punishment being assessed at a fine of $250 and costs, for which judgment was rendered. It is unnecessary to make a statement of facts in the case.

<p>1. Practice—Coni inuance—Difference Between First and Second Application.—The bill of exceptions to the overruling of an application for continuance should show whether it is the first or second application, because the statutory requisites for the two applications are different, as are also the rules which govern in their consideration on motion for new trial.</p> <p>2. Same — Sufficiency of Bills of Exception. — On appeal, the court will not supply omissions in bills of exception, nor aid such bills by inference or presumption. They must show injury to appellant in order to entitle him to a reversal.</p> <p>3. Same—Cumulative Testimony.—It must be made to appear that the application for continuance was a first application, where the absent testimony desired is cumulative.</p> <p>4. Same—Contest over Application for Continuance.—The materiality and truthfulness of the alleged absent testimony is not matter admissible for the consideration of the jury, and is not matter of contest before the court, a contest for continuance being limited by statute alone to affidavits controverting diligence. Code Crim. Proc., arts. 564, 565. Such contest before the court is only permissible on motion for new trial, when the court is determining the probable truth of the application.</p> <p>5. Verdict.—See a verdict held sufficiently intelligent to form the basis of the judgment.</p>

<p>Appeal from the County Court of Kaufman. Tried below before Hon. John Veasey, County Judge.</p> <p>Appellant was tried in the court below upon an information which charged, “ That Dan Foreman did, in the county of Kaufman, and State of Texas, on or about the 24th day of September, A. D. 1891, in the presence and hearing of D. C. Crain, curse, abuse, and use violently abusive language to said D. C. Crain, concerning him, under circumstances reasonably calculated tó produce a breach of the peace,” etc.</p> <p>A motion was made to quash the information, because it did not give the language used by defendant, but states a conclusion. Neither does it state that any language whatever was used towards D. C. Crain. This motion to quash was overruled, and defendant was convicted, his punishment being placed at a fine of $5.</p> <p>A statement of the facts is unnecessary.</p>

Tried below before Hon. Charles Fred Tucker. Appellant was indicted for assault to murder one J. R Brown, and upon his trial was convicted of that offense and given four years in the penitentiary as his punishment. The difficulty out of which the prosecution arose occurred at the Santa Fe depot in the city of Dallas, where the injured party, Brown, had gone to take the train.

Tried below before Hon. Charles Fred Tucker. This appeal is from a conviction for assault with intent to murder one Henry Batchelor, the punishment being assessed at three years in the penitentiary. This is a companion case to the case of Ashton v. The State, ante, p. 479, wherein the same appellant was convicted for an assault with intent to murder one J. R. Brown, and the essential facts in this case are the same as those stated in the former case.

Tried below before Hon. John C. Russell. This appeal is from a judgment of conviction for burglary, wherein the punishment was assessed at two years confinement in the State reformatory. A statement of the facts is unnecessary in view of the rulings of the court in disposing of the case.

<p>Appeal from the District Court of Nueces. Tried below before Hon. J. C. Russell</p> <p>Upon a trial for burglary, appellant was found guilty, and his punishment assessed at two years in the penitentiary.</p> <p>A statement of the facts is unnecessary.</p>

Appellant was indicted for assault to murder one T. G. Beaty, and at bis trial was convicted of said offense, and his punishment assessed at two years in the penitentiary. The evidence shows, in substance, that there had been one or more previous difficulties between defendant and the alleged injured party, T. G. Beaty, and liis brother Bruce Beaty.

The indictment in this case contained four counts—two for theft from the person, one for theft, and one for receiving and concealing stolen property, knowing it to have been stolen. Appellant was convicted upon the first count, which charged him with fraudulently and privately taking from the possession and person of J. F. Findlon S25 in money, and his punishment was assessed at two years confinement in the penitentiary.

Tried below before Hon. E. D. McClellan. This appeal is from a judgment of conviction for horse theft, the punishment being assessed at five years in the penitentiary. A statement of facts is unnecessary, further than the same is made to appear in the opinion of the court.

This appeal is from a judgment of conviction for murder in the first degree, with the death penalty assessed. The indictment charged that appellant did, on the 28th day of April, 1892, with his malice aforethought, kill W. T. Shaman. We produce, with some alterations, the following statement of the nature of the case and summary of the evidence, taken from the brief of appellant on file in this case.

Tried below before Hon. Jas. C. Wilson. This appeal is from a judgment of conviction for murder of the first degree, the penalty being assessed at death. The murdered victim was appellant’s wife, and she was killed with a knife. Palao Gonzales, for the State, testified: I am about 14 years old, and am the daughter of defendant, Augustine Gonzales, and deceased, Tosora Gonzales.

This prosecution was instituted in the Mayor’s Court of the city of Baird, county of Callahan, State of Texas, by a complaint which charged appellant with permitting a nuisance to remain on his premises. At his trial in the Mayor’s Court, he was found guilty and adjudged to pay a fine of $5 and costs. He appealed to the County Court, and was there again found guilty, and his punishment assessed at $5 and costs.

<p>1. Constitutional Law — Statutes for Raising Revenue. — Section 33 of article 3 of the State Constitution, which provides that all bills for raising revenue shall originate in the House of Representatives, has reference to revenue for general purposes, and does not apply to laws of special or local character, nor to police regulations put into operation by vote of the people of particular localities; and such local laws, with taxes incident to such laws, or where taxes are raised under authority of a municipal charter, are not revenue laws within contemplation of the cited provisions.</p> <p>2. Same—The Act of 1891, General Laws of the Twenty-second Legislature, page 133, entitled “An act to authorize towns and villages incorporated for free school purposes only, to levy taxes and issue bonds for free school purposes,” is constitutional, it being authorized by and in conformity with section 10, article 11, of the State Constitution.</p> <p>3. Keeping Open Bar Room on Election Day. — An information brought under article 178, Penal Code, for keeping open a bar room on election day, is sufficiently specific if it alleges that such election was held by lawful authority. Following Janks v. The State, 29 Texas Court of Appeals, 233.</p> <p>4. Same—Election—Regularity of, not Subject to Collateral Attack.—On a prosecution for keeping open a bar room on election day. held, that the validity of the election could not he attacked in regard to the manner of ordering and holding the same, where same was held under the forms of law. Cooper v. The State, 26 Texas Court of Appeals, 575, followed.</p>

Tried below before Hon. B. H. White, County Judge. Appellant was convicted for permitting his premises to be used for gaming purposes, and his punishment assessed at a fine of $25. The testimony showed that the house in which the playing took place had been rented or leased by him to third parties, and that they, and not he, had control of the same at the time the gaming took place.

Tried below before Hon. G. H. Noonan. This is an appeal from a judgment of conviction for false swearing, in order to obtain the issuance of a marriage license, and wherein the punishment assessed by the verdict and judgment was imprisonment for two years in the State penitentiary. Statement of the facts not necessary.

■ On his trial in the court below, for an assault with intent to murder, appellant was convicted of said offense, and his punishment assessed at six years imprisonment in the penitentiary. There is no statement of facts, and appellant’s main insistance for reversal was based upon the fact that he had failed to get a statement of facts in his case.

<p>Appeal from the County Court of Brazos. Tried below before Hon. W. H. Harmon, County Judge.</p> <p>This is an appeal from a judgment of conviction, upon a trial had in the court below, upon an indictment charging John Myatt with unlawfully carrying a pistol, the punishment being assessed at a fine of $25. A statement of the. facts is unnecessary.</p>

Tried below before Hon. H. Teichmuller. This appeal is from a judgment of conviction for theft of money over the value of $20, the punishment being assessed at six years in the penitentiary. J. E. Clark, the alleged owner of the money, testified, substantially: That he had been in the habit of burying his money in his hack house, in a tin box.

<p>1. De Facto Officer, who is.—A de facto officer is one who has the reputation of being the officer, and yet is not a good officer in point of law; in other words, the de facto officer is one who acts under color of a known and valid appointment, but has failed to conform to some precedent requirement—as to take the oath, give a bond, or the like.</p> <p>2. Same—Authority of De Facto Officer. —A de facto officer known to be such, has authority to prevent violations of law committed in his presence, and it is his duty to arrest parties guilty of such violations. He has authority, and it is his duty if necessary, to summon others to aid and assist him in arresting the offender. And a party thus summoned to aid and assist the officer in making such arrest is justifiable in doing so, and can not be held to act at his own peril because of the defective or nonrecord of the officer's right or title to his office.</p> <p>3. Charge of Court—Illegal Arrest—Murder.—On a trial for murder, where the testimony showed that one E. had been acting under written appointment from the sheriff as deputy for some four or five months (which was known to defendant), and that he had recorded his oath of office but not his appointment, and it was further shown that E„ seeing the defendant making a negro-dance at the muzzle of his six-shooter, summoned the deceased to assist him in arresting the defendant, which they attempted to do, whereupon defendant shot the deceased and attempted to shoot the officer, one of the questions being the validity of E.'s appointment as deputy sheriff, and the court charged the jury that the arrest or attempted arrest was illegal: Held, that the charge was erroneous: and the court should have charged the jury that if E. was known and recognized in the community as deputy sheriff, and deceased was summoned by him to assist, and in good faith attempted to assist in the arrest of defendant, deceased was justifiable in making the arrest; and if defendant shot him while so acting in an orderly manner, it could not be less than murder.</p> <p>4. Improper and Illegal Argument of District Attorney.—In his closing speech before the jury, where the district attorney stated that he was informed that defendant had succeeded in getting one of his friends on the jury; that one of the jurors had gone upon the jury to hang it. and had so stated just before he was empanelled; that the juror had his mind made up when he swore on his voir dire that he had formed no opinion; and that he, the district attorney, had only eleven men to speak to, as the other was there to hang the jury: Held, that such remarks, whether true or untrue, must have affected most injuriously the rights of defendant, and constituted in themselves reversible error.</p> <p>5. Affidavit of Jurors to Impeach Verdict.—The rule is well established, that no affidavit, deposition, or other sworn statement of a juror, will be received to impeach a verdict, or to explain it, or to show on what grounds it was rendered.</p> <p>6. Omission in the Charge. — See attention of the trial court called to the fact that a charge upon murder omitted to instruct the jury under the statute (Code of Criminal Procedure, article 728), that they are the exclusive judges of the facts proved and the weight to be given to the testimony.</p>

Omitting formal parts, the charging part of the indictment is as follows, viz.: “ That in said county of Grayson and State of Texas, on the 28th day of April, A. D. 1892, one Charles Luttrell did, with malice aforethought, kill W. T. Sharman, by then and there shooting him with a shot gun; and the grand jurors aforesaid upon their oaths do further present in said court, that one John T. Carlisle, on the 25th day of April, A. D. 1892, prior to the commission of said offense…

Tried below before Hon. S. W. Blunt, Special Judge. Appellant was jointly indicted with Fayette Harris, William Harris, Jr., and James Stanton, for the murder of Jo Shields. On application of defendants a severance was had. William Harris, Jr., was first put upon trial and convicted, his punishment being assessed at a life term in the penitentiary. See his case, reported ante, p. 411.

<p>Sodomy.—Whilst sodomy is punished by article 342 of the Penal Code, it is only generally defined as the abominable and detestable crime against nature, with mankind or beast,” and we must look to the common law for the elements of the crime. At common law, the act in a child’s mouth did not constitute the offense, and such being the nature of the detestable act of which defendant was proven guilty in this case, the conviction can not stand.</p>

Tried below before Hon. J. W. Patterson. Appellant was indicted for the murder of James Hardin, and at liis trial was convicted of murder in the second degree, his punishment being affixed at thirty-five years in the penitentiary. The difficulty which resulted in the killing occurred at a country dance, on Jasper Creek, in Jack County, Texas, on the night of the 15th of December, 1891.

Tried below before Hon. A. T. McKinney. Appellant was indicted for the murder of one J. C. Coleman by shooting him with a pistol, and at his trial was convicted of murder in the second degree, and his punishment assessed at seven years in the penitentiary. The facts of the case are stated concisely and briefly in the opinion of the court, and no additional statement is deemed necessary.

<p>New Trial—Newly Discovered Evidence.—After defendant’s conviction as charged upon an indictment charging him with theft of property over the value of $20, he moved for a new trial, on the ground of newly discovered evidence, by which he proposed to prove that the stolen property was of less value than $20. Held, in the absence of a statement of facts, that the motion showed total want of diligence, and that the same being further an admission of defendant’s theft of the property, was properly overruled.</p>

Appellant was put upon trial upon an indictment in the County Court, charging him with carrying on or about his person “ knuckles made of metal and a hard substance. ’ ’ He pleaded a former conviction for the same offense, before the Mayor’s Court of the city of Vernon, which plea was, on motion of the county attorney, stricken out. The trial in the County Court resulted in defendant’s conviction, his punishment being fixed at a fine of $25.

Tried below before Hon. T. M. Paschal. On a trial in the court below, on an indictment charging him with the-murder of one J. W. Erkles, on the 25th day of September, 1891, in Comal County, by shooting him with a pistol, appellant was found guilty of murder in the second degree, and his punishment affixed at five years-confinement in the penitentiary.

Tried below before Hon. S. P. Greene. Appellant was indicted for assault to kill one Lizzie Hall, his wife, and at the trial was found guilty, and his punishment assessed at six years confinement in the penitentiary. In brief, the testimony shows: That defendant and his wife had had frequent quarrels, and several separations, extending back to 1887, in Kansas. That defendant had assaulted and beaten his wife on more than one of these occasions.

Tried below before Hon. E. G. Bower, County Judge. This is the third of the series of convictions of the defendant as a correspondent of the Kansas City Sunday Sun, and is for publishing a libel on the county attorney of Dallas County and his assistants. The penalty assessed was a fine of 8200. The opinion sufficiently discloses the case.

Tried below before Hon. L. B. Hightower. On an indictment charging him with the murder of James Brown, appellant was convicted of manslaughter, and his punishment assessed at five years in the penitentiary. The evidence is very concisely, but sufficiently, stated in the opinion.

Appellant was indicted for the murder of one Clem Stovall, and at his trial was found guilty of murder in the second degree, with punishment assessed at six years in the penitentiary.

The indictment in this case charged appellant, Warren Harrington, jointly with Tom Sanders, alias Tom Gann, Tass Harrington, and E. D. Harrington with the theft of one head of cattle, the property of one George E. Cowden, in Wilbarger, County, Texas, on or about the 15th day of July, 1892. There was a severance, and appellant was alone placed upon trial, which trial resulted in his conviction, the punishment being assessed at two years in the penitentiary.

<p>Appeal from the District Court of Erath. Tried below before Hon. C. K. Bell.</p> <p>This appeal is from a judgment of conviction for murder in the first degree, the punishment assessed being imprisonment in the penitentiary for life. The murdered party was one R. L. Haley, and the crime was committed in Erath County on the 30th day of July, 1892, about dark.</p> <p>Deceased (Haley) and defendant were neighbors, living but a short distance from each other, and there was a lane that had been left by the deceased between the two places. The parties do not appear to have been upon good neighborly terms for sometime previous. Haley closed up the mouth of the lane between the two places, next to the road which led to the town of Dublin. This appeared to incense the defendant, and he complained that it caused cattle to break into his field. At the time of the killing, which was about dark, or a little after, on Saturday evening, Haley was returning home from town, in his two-horse wagon, and had evidently extended his arm to the gate latch to open it, when he was fired upon and killed. Two buck shot entered a little back of the middle of his right side, without touching his arm.</p> <p>The corner of defendant’s pasture would be on the right-hand side of the gate to a person entering the gate from the direction of Dublin, and all the physical facts and circumstances went to establish the fact, that the shooting was done by a party ensconced behind some brush or bushes in the corner of defendant’s pasture. The neighbors who first reached the scene after t-he killing were prevented, by an intelligent and prudent deputy sheriff, from going over into this pasture that night. The next morning this officer, together with several others, went over into the pasture, and at the corner, near the gate, found where some one had been ensconced, and foot-track and knee-print on the ground, as if some one had taken aim from that position to shoot. They also found a twig that-had been cut off by a bullet fired from this ambush in the direction of where the deceased was found shot. They found fresh-made tracks, which they measured precisely in length and width. One of the heels was slightly run down or careened; on the side of one of the shoes the upper appeared to have been torn from the sole, and was frazzled, was as shown by the track. The officer and his party trailed and followed these tracks up to within 100 or 150 yards in the direction of defendant’s house, when they could follow them no longer, owing to the hardness of the soil.</p> <p>Defendant, under one paltry excuse or another, evaded going down to where deceased had been killed, both on the night of the killing and the" next morning, though he was earnestly requested to go, and did not go to the scene until after he was subpoenaed to go to the coroner’s inquest. At the inquest the deputy sheriff procured a search warrant, and went to defendant’s house, where he found defendant’s double-barreled shot gun, one barrel of which had been recently discharged. He also found, concealed in some rubbish in a box, the pair of old shoes which, it was proved, the defendant wore the day before, and which made tracks corresponding exactly with those that had been found at and that had been trailed from the place of the homicide; even to the run-down heel, the frazzled edge, and turned down part of the sole. Defendant wore a new pair of shoes the day after and at the coroner’s inquest.</p> <p>The above comprises, in brief, the testimony in the case. Defendant did not himself testify at the trial. His defense was an albi; and he also endeavored to show that the probabilities were that one Hughes had committed the murder.</p>

Tried below before Hon. J. L. Sheppard. 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 facts are sufficiently stated in the opinion.

<p>1. Forgery — Order for Merchandise.—An order for merchandise maybe the subject of forgery. Following Hendricks v. The State, 26 Texas Court of Appeals, 176.</p> <p>2. Same—Former Acquittal.—A plea and proof of former acquittal for forgery can constitute no plea or bar to a prosecution for passing or uttering the said forged instrument.</p>

<p>1. Theft—Charge of Court—Explanation of Recent Possession.— On a trial for theft, where the evidence shows that defendant neither gave nor attempted to give any explanation of his recent possession of the stolen property, it was proper and right that the court should refuse to charge with reference to that subject.</p> <p>2. Same — Circumstantial Evidence. — On a trial for theft, where no eye-witness testified directly to the taking, but the criminative facts established are in juxtaposition to the main fact, the court properly refused to charge the law of circumstantial evidence.</p>

Tried below before Hon. J. M. Hall. This appeal is from a judgment of conviction for rape, the punishment being assessed at death. The opinion of the court will be found to contain a concise, but very clear, statement of all the facts in the case.

Tried below before Hon. W. G. Davenport, County Judge. Appellant was tried upon an information for aggravated assault and battery upon one W. C. Benton, committed by him with a hóe, a deadly weapon. At the trial he was convicted of simple assault, and his punishment affixed at a fine of $5. The evidence shows, that the parties had had a previous difficulty or misunderstanding a month or so before with regard to a stray mule.

Appellant was indicted for the seduction of an unmarried female, under the age of 25 years, by means of a promise of marriage. At his trial he was convicted, and his punishment assessed by verdict and judgment at a fine of $2000. The facts are sufficiently stated in the opinion.

The indictment in this case, which was presented in the District Court of Webb County, contained two counts.

On a trial under an indictment charging him with the murder of one Ben E. Page, by shooting him with a shot gun, on the 20th day of January, 1892, appellant, Michael Coyle, was found guilty of murder in the second degree, and his punishment assessed at a term of six years in the penitentiary.

Tried below before Hon. R. E. Burke, Appellant was indicted for the murder of one C. O. Brewer, and at his trial was convicted of murder in the first degree, the punishment being assessed by the verdict and judgment at death. Deceased was a policeman of the city of Dallas, and the defendant a negro who had been arrested by another policeman.