Volume 32 — Texas Criminal Reports

I. J. Thompson was convicted of murder in the second degree. This is the third appeal in this case. Thompson v. The State, 29 Texas Cr. App., 208; 30 Texas Cr. App., 325. As instructed by Presiding Judge Hurt in his opinion, we reproduce the evidence in full as shown by the statement of facts. Dr. L. J. Russell, sworn for the State, testified: I am a practicing physician. I knew W. T. Hall during his lifetime. He is dead.

Appellant was prosecuted by information for violation of local option in precinct number 1, Rockwall County, and on his trial was convicted, his punishment being assessed at a fine of $25 and twenty days imprisonment in the county jail. From this judgment this appeal is prosecuted. The appeal came on for hearing at the Dallas Term, where the judgment was affirmed March 15. Opinion by Davidson, Judge, Judge Simkins being absent.

Tried below before Hon. J. A. Lucky, Special Judge. Appellant and one C. T. Doan were jointly indicted for the theft of one head of cattle, the property of Charles A. Wright and Joe Wright. Appellant Wilson being alone placed upon trial, he was found guilty, and his punishment assessed at two years confinement in the penitentiary. It is deemed unnecessary to state the testimony in the case.

Tried below before Hon. C. K. Bell. ' . Upon his trial, under an indictment charging him with the.murder of J. F. Richardson, appellant was found guilty of murder in the second degree, with his punishment affixed at a period of ten years in the penitentiary. There was no eye-witness to the homicide, and the important facts connected therewith are briefly but sufficiently stated in the opinion of the court, in so far as they are developed by the evidence.

Appellant was indicted for the theft of wearing apparel of the value of over $20, and at his trial was found guilty as charged, with his punishment assessed at two years in the penitentiary. The facts are sufficiently stated in the opinion.

This appeal is from a judgment of conviction for an affray, under an information which charged appellant and one John Moody with fighting together in a public place. There was a severance, and defendant, being alone placed on trial before the court, without a jury, was convicted, and his punishment assessed at a fine of $1. The facts are sufficiently stated in the opinion.

Tried below before Hon. L. W. Goodrich. Appellant was indicted for the theft of lady’s wearing apparel of value amounting in the aggregate to the sum of $111.15, and at her trial was convicted, her punishment being assessed at two years in the penitentiary. A statement of the evidence is not required to further illustrate any of the matters decided by the opinion of the court.

Upon a prosecution on an indictment charging him with unlawfully and knowingly selling liquor to a minor, appellant was found guilty, and his punishment assessed at a fine of $25. A statement of the facts is deemed unnecessary.

Appellant was indicted for perjury, committed before the grand jury of De Witt County, upon an investigation pending before them in relation to a charge of assault with intent to murder, alleged to have been committed by one Frank Lowe upon one Yolney Canfield. At her trial she was convicted, and her punishment was assessed at a term of five years confinement in the penitentiary. It is not necessary to state the facts in illustration of any of the points decided.

Tried below before Hon. O. D. Cannon, County Judge. Appellant was tried and convicted upon an indictment charging him with unlawfully carrying a pistol, and his punishment assessed at a fine of 825. The following is the evidence adduced at the trial: Walter Corn, for the State, said: I know the defendant, L. A. O’Neal; I saw him on about the 15th day of July, 1892, as he came by Acorn School House, in the county of Robertson and State of Texas.

Tried below before Hon. M. Kennon, Special Judge. Appellant was indicted for the theft of a horse from one Vince Janob, and at his trial was convicted, his punishment being assessed at five years in the penitentiary. Under instruction of Judge Simkins, in his dissenting opinion, the evidence is reproduced in full, as follows, viz.: Vince Janok testified: I reside in Lavaca County, Texas, about four miles west of Hallettsville.

Tried below before Hon. T. F. Nash, County Judge. Appellant was prosecuted by information for unlawfully engaging in a performance of prize-fighting, an occupation taxable by law, without first having procured a license therefor; and at his trial was found guilty, with his punishment assessed at a fine of $500. A statement of the facts is unnecessary.

At the trial, on motion of defendants, they were allowed to sever, and under their agreement defendant Minnie Halliburton was first placed on trial, which trial resulted in his conviction for murder in the second degree, with his punishment assessed at twenty years confinement in the State penitentiary.

<p>Appellant was tried under an information charging him with the malicious prosecution of one Tobe Zollicoffer in the Justice Court, precinct number 5, Navarro County, for unlawfully carrying a pistol. At his trial appellant was convicted, and his punishment assessed at a fine of $100.</p> <p>The facts are sufficiently stated in the opinion.</p>

Appellant was tried upon an information charging him with selling liquor in justice precinct number 1, of Hays County, Texas, after the sale of liquor hail been prohibited in said precinct at an election held under the local option laws. A jury was waived and the case submitted for trial to the court, which trial resulted in appellant’s conviction, with his punishment assessed at a fine of $25 and twenty days imprisonment in the county jail.

Tried below before Hon. J. L. Brown, County Judge. The information charged, that defendant “ did, by threatening words and acts of intimidation, prevent and attempt to prevent Willis Lipscomb from engaging and remaining and performing the duties of a lawful employment.” It failed to allege the nature of the lawful employment in which Lipscomb was engaged, and defendant’s motion in arrest of judgment, based upon the insufficiency of the information in this respect, was…

This is the second appeal in this case. On the first trial, which was for murder, appellant was found guilty of manslaughter, and on appeal that conviction was set aside for error in the exclusion of testimony. See the case reported in 30 Texas Criminal Appeals, 92. On the second trial, which was for manslaughter, appellant was found guilty of that offense, and her punishment assessed at confinement in the penitentiary for two years.

<p>Appellant was indicted for forgery of an instrument alleged to be the purported act of one C. F. Hathaway. The instrument alleged to have been forged was a check, drawn the 13th day of January, 1892, in favor of the defendant, or bearer, for $35, on the City National Bank.</p> <p>At his trial defendant was convicted, and his punishment assessed at three years confinement in the penitentiary.</p> <p>The testimony shows, that C. F. Hathaway, the purported drawer of said check, was dead, and had been dead about two months at the time of the date of the check.</p> <p>Sam Dickson testified: I am assistant cashier of the City National Bank, in Paris, Lamar County, Texas. I have known the defendant since about January 13, 1892. My attention was called to him when he presented a check on the City National Bank of Paris, at said bank, in the city of Paris, Lamar County, Texas, on January 13, 1892, for payment. The check was drawn for $35, and purported to have been signed by C. F. Hathaway, who at that time had been dead about two months. (Witness here identifies the check.) This is the check presented by defendant. I am acquainted with C. F. Hathaway’s signature. This is not his signature on this check. I told defendant we could not pay it, and asked him all about where he got it, and he said he got it from a man at the Texas & Pacific depot, for a horse he, defendant, had sold. I asked him if he could find the man, and he said he could, and we went to the court house to see the officers (the county attorney), and at the sheriff’s office we found two deputies, who went with him to look for the man and horse.</p> <p>Testimony of Gf. D. Stephenson, a deputy sheriff of Lamar County: I am deputy sheriff of Lamar County. I know the defendant, Henry Brewer. (Points him out in court.) On the 13th day of January, 1892, Mr. Dickson and defendant came to the court house, wanting to find a man who, they said, had given defendant, at the Texas & Pacific depot, a check for $35 on the City National Bank, for a horse. Mr. Billy McKnight, another deputy, and I went with defendant to the depot to look for the horse and man. He showed us where a horse had been, and told us he had come from Brookston that morning, and that he lived at Brooks-ton, and that Frank lived in Paris, and saw the man give him the check for his horse. He also told us that he had been keeping his horse at a wagon yard on Clarksville Street. We never found the horse or man that defendant was looking for. Then we started to go with defendant from the Texas & Pacific depot to Frank Williams’, and met Frank Williams on the street, and Frank told us, in presence of defendant, that he knew nothing of defendant having a horse, and that defendant had never kept any horse at his house. We afterwards went with defendant to the court house, and he was arrested there and the warrant read to him.</p> <p>Cross-examined: We never warned nor cautioned the defendant. We had not arrested him, nor said anything to him about arresting him, nor charged him with anything till we got back to the court house. We went with him to find his horse and man. Yes, if he had attempted to run we would have tried to prevent his getting away. We were looking for his horse till we met Frank Williams, who told defendant he knew nothing of his (defendant’s) owning a horse.</p> <p>McKnight, another deputy sheriff, testified as did Stephenson.</p> <p>The testimony of the officers as to the statements made to them by the defendant was objected to, because the defendant was under arrest at the time they were made.</p>

<p>1. Theft of a Yearling—Charge of the Court as to what Constitutes.—On a trial for theft of a yearling, a charge of the court which, in effect, instructed the jury, that one falsely claiming to own a certain yearling on the range, which he points out and sells to another, who in good faith appropriates it, is as guilty of theft as if he had first taken possession of it and sold it, held, to correctly state the law.</p> <p>2. Same—Evidence Sufficient.—See evidence held sufficient to support a conviction for theft of a yearling.</p>

Tried below before Hon. F. G-. Morris. The indictment charged appellant in two counts, one for conveying, and the other with causing to be conveyed into the county jail of Williamson County, two bottles containing nitric and muriatic acid, with intent to facilitate and aid Will Ashe, George White, Abe McRae, Hugh Jackson, and J. P. Gibbs, prisoners therein lawfully confined on accusations of felony, to escape from said jail.

Tried below before Hon. O. D. Cannon, County Judge. This appeal is from a judgment of conviction under an indictment for unlawfully carrying a pistol, the punishment having been assessed by the court, without a jury, at a fine of $25. Defendant was deputy postmaster for C. M. Norton, who was postmaster and justice of the peace at Calvert, and he testified, that Norton had advised him to carry a pistol, which he had always done since he had been deputy postmaster.

<p>Appeal from the District Court of Gonzales. Tried below before Hon. AT. Kennon, Special Judge.</p> <p>The indictment charged appellant, James Burnett, and his daughter, Jeanett Burnett, jointly with incest. At the trial appellant was convicted, and his punishment was assessed at two years in the penitentiary, and Jeanett Burnett, the codefendant, was found not guilty and discharged.</p> <p>Defendant’s bill of exceptions was raised to the action of the court in permitting the witness Betty Rogers, over his objections, to testify to an act of carnal intercourse between them (the parties) witnessed by her at a different time and place to the act testified to by the witness Dan Mixon as having been seen by him; the objection being that the second act was a separate and distinct offense from the one charged by the State, and the testimony was calculated to prejudice the defendant before the jury.</p>

Tried below before Hon. Geo. McCormick. Appellant was indicted for the murder of one Jerre Ford, by cutting and stabbing him with a knife. The parties, defendant and deceased, were negroes, and the killing occurred at night at a festival, where a large number of negroes were congregated. As stated in the opinion, there is great conflict in the testimony of the sixteen or eighteen witnesses who testified to the circumstances attendant upon the homicide.

Tried below before Hon. George McCormick. Appellant was indicted for assault with intent to murder one Jesusa Ortez, and at his trial was convicted of this offense and sentenced to five years in the penitentiary. There is no statement of facts or bill of exceptions contained in the record.

Tried below before Hon. George McCormick. Appellant was indicted for the murder of one Mollie Toodle, and upon his trial was convicted of murder of the first degree, the punishment assessed being a life term in the penitentiary. The evidence showed that appellant killed the woman because she refused to marry him.

Tried below before Hon. M. Kennon, Special Judge. Appellant was indicted for fraudulently altering a genuine instrument m writing. The genuine instrument is as follows: • “ The Galveston National Bank op Galveston, Texas. “Jan. 9th, 1892. “No. 20,481. $25.00. “ Pay to the order of Thos. Hunter ($25.00) Twenty-five and Dollars. “L. R. Bebgebon, Asst.

Appellant was indicted jointly with one Dan Jacks for the theft of one head of cattle, alleged to be the property of one L. M. Kokernot. Dan Jacks died, and defendant was alone put upon his trial, which resulted in his conviction, with the punishment assessed at five years in the penitentiary. The facts are sufficiently stated in the opinion.

<p>On his separate trial under an indictment charging him and one W. J. Sprouse jointly with the murder of one John Webb, appellant was found guilty of murder in the second degree, with punishment assessed at twenty years confinement in the State penitentiary.</p> <p>The record is quite voluminous. In brief, the substance of the testimony is, that defendant was a bartender in Dillard’s saloon in the town of Garland, Dallas County, Texas. Webb, the deceased, lived in the neighborhood of the village, and was in the habit of getting drunk every time he came to town. Two or three weeks, perhaps a month, before the killing these parties had had a difficulty, which was occasioned by defendant’s refusing to let deceased have whisky at his bar unless he paid for it in advance. In this difficulty, defendant threw deceased, who was drunk, out of his bar room into a mud hole in the street, and shot at him once with his pistol while he was upon the ground. On the day of the homicide deceased and one Harbinson were drunk, at Jackson’s saloon, which was across the street from Dillard’s saloon, kept by defendant. The barkeeper of Jackson’s saloon was one Sprouse. Harbinson and deceased got to quarrelling and bantering each other about playing cards, and Sprouse told them that they could neither play cards nor quarrel in his saloon, and ordered them out.</p> <p>They went across the street, still quarrelling and bantering each other, and finally went through the Dillard saloon, kept by defendant, into a back room in the rear of the saloon. Deceased had a long-bladed knife in his hand and was whittling a pine stick. There were several parties in the back room of the saloon, and they all testified, that Harbinson and deceased continued to curse each other from the time they first entered the room .</p> <p>In a very short time after they had gone into this back room, Sprouse, the bartender of the Jackson saloon, came over to the Dillard saloon on some matter of business, and hearing the loud talking and quarrelling in the back room, he went in there, and seeing the deceased with his open knife still in his hand, he ordered him peremptorily to put it up, which deceased refused to do, and when, according to the testimony of most of the witnesses, Sprouse collared and struck him. Deceased returned his blows, and while the parties were scuffling around, the defendant Healer, with pistol in hand, fired the fatal shot which killed deceased. According to the testimony of some of the witnesses, Healer was in the back room looking on and listening to the altercation between Harbinson and deceased, and at the time that Sprouse interfered, and witnessed the difficulty between the latter and deceased. This testimony tended to show that he knew and saw everything up to the time he fired the fatal shot. On the other hand, there was testimony to the effect, that Healer, hearing the quarrelling and evident difficulty in the back room, rushed in, with pistol in hand, and seeing deceased with uplifted hand, in the attitude of striking Sprouse with his knife, immediately fired upon him. There is yet other evidence which would establish the fact, that at the time the fatal shot was fired, two of the persons in the room had hold of deceased, one by each arm, and that he was powerless to inflict injury upon any person at that moment.</p> <p>This is a very brief statement of the essential facts in the case. We deem it unnecessary to state the facts bearing upon the questions discussed in the opinion of the court, since they are sufficiently stated in the opinion.</p>

Tried below before Hon. O. D. Cannon, County Judge. Appellant was prosecuted under an indictment charging him with knowingly selling to one Willie Brennan, a minor, intoxicating liquor, without the written consent of the parent, guardian, or some one standing in the place of such parent or guardian, etc., and at his trial his punishment was assessed at a fine of $25. A statement of the facts is unnecessary.

Tried below before Hon. J. L, Browne, County Judge. Appellant was indicted for unlawfully carrying on and about his person a pistol, and at his trial was found guilty of said offense, and his punishment assessed at fifteen days imprisonment in the county jail. There is no statement of facts, and the only question on appeal is as to the sufficiency of the motion in arrest of judgment.

<p>The indictment contains three counts: first, theft from J. N. Brooker, who was alleged to be the owner and in possession of the property; second, theft from William Thomas, who was in possession and holding the property for J. N. Brooker; and third, theft from William Thomas, alleged to be owner and in possession of the property.</p> <p>On his trial, the verdict was a general one for theft, and appellant’s punishment was assessed at a term of two years in the penitentiary, and judgment accordingly.</p> <p>William Thomas, a boy 15 years old, was a clerk in the store of Jeb Brooker, and defendant got him to change an old Confederate $20 bill, for which Thomas gave him one $10 and two $5 greenback currency bills. The other facts are sufficiently stated in the opinion.</p>

Appellant was indicted for the burglary of the store house of one A. B. Flowers, with intent to commit theft, and on his trial was convicted, his punishment being affixed at four years in the penitentiary.

<p>1. Recognizance—Disturbance of Religious Worship.—A recognizance on appeal from a judgment of conviction for willfully disturbing a congregation assembled for the purpose of religious worship, which fails or omits to state that the congregation were conducting themselves in a lawful manner, is fatally defective.</p> <p>2. Same.—Disturbance of religious worship not being an offense eo nomine, it is essential that the recognizance must set out the constituent elements of the offense as stated in article 180 of the Penal Code.</p>

<p>1. Local Option in Towns.—While it is true that the local option law ("Revised Statutes, article 3229) declares, that local option may he adopted by the qualified voters of any town, held, that it clearly means an incorporated town, with fixed and defined limits.</p> <p>2. Same.—A town in this State which has never been incorporated, has no legally defined boundaries, and there is no way of ascertaining who would be qualified voters at any local option election held therefor.</p>

<p>Appellant was indicted for the murder of Jane Wilkins, by striking and cutting her with an axe. At his trial he was found guilty of murder in the first degree, and his punishment assessed at death.</p> <p>Defendant filed a plea to the jurisdiction of the court, in which he attacked the constitutionality of the Act of the called session of the Twenty-second Legislature, organizing and establishing the Twenty-first Judicial District of the State of Texas, and transferring the county of Bastrop from the Twenty-second Judicial District, to which it belonged, and making it a part of the said Twenty-first Judicial District.</p> <p>The constitutional objections were: first, that the act does not express in its title the real purpose thereof, or the real subject matter contained therein; second, that the proclamation of the Governor calling the special session of the Twenty-second Legislature, which passed said act, did not present to said Legislature the matter contained in said act as subject for legislation; third, that said act being void, no legal term of court could be held at the time said case was called for trial.</p> <p>This plea to the jurisdiction was overruled. The same matter was again presented on motion to quash the indictment in the case; and another ground set up in said motion to quash was, “ because the defendant was not allowed an opportunity to challenge the array or any member of the grand jury that returned the indictment against him, he being, at the time said grand jury was empanelled, confined in the county jail, and not being present in person or represented by counsel, and not knowing' that the said grand jury was being empanelled.”</p> <p>This motion to quash having been overruled, appellant filed a motion for a continuance, that an opportunity might be afforded him of having certain blood spots, which were found upon his clothing and introduced in evidence by the State, subjected to chemical analysis and microscopic examination, in order that it might be ascertained whether the blood found was that of a human being or of some other animal; his application alleging that the blood was from a squirrel which he had dressed the day of and before the homicide.</p> <p>The evidence adduced in the case is as follows, viz.:</p> <p>J. F. Nash, witness for the State, being duly sworn, testified as follows: I hold the position of marshal of the town of Bastrop. I heard of the killing of Jane Wilkins, who was Oliver Wilkins’ wife, on the night of October 15, 1892. It occurred in the town and county of Bastrop, in the State of Texas. It was sometime about 10o’clock when I heard of it. When I got there I found the body lying in the yard, between the two doors on the south side of the house. It was lying on the face, with the hands under it. There were two deep gashes in the head, and one in the shoulder. There was an axe lying beside the body, and covered with blood. There was blood on the ground around the body, and blood on the wall of the house near the body, as high as five feet from the ground. There was also a bloody axe lying on the ground, near the body. Ben Holiday lives in the southwest corner of the block on which the Wilkins house is situated. Darcas Gage lives on the northeast corner, and the Wilkins house is on the northwest corner. Ann Morrison and her husband, Frank Morrison, live across the street from Oliver Wilkins— directly north. I think the street is about 15 feet wide, and Morrison’s house is some 10 feet from the street. Oliver Wilkins’ house faces south. It is about 60 or 70 yards from deceased’s house to Ben Holiday’s. It is about 75 to 100 yards to John Kerr’s from Oliver Wilkins’ house. There was some blood on a top plank of Wilkins’ yard fence, south of the gate, made by finger prints. The finger prints, in blood, were about two inches below the top edge of the plank, and the plank was broken. Aleck Brown, the defendant, was arrested sometime in the summer before the killing occurred, for disturbing the peace, and he pleaded guilty, and paid part of his fine, and worked the rest out on the street. He was charged with disturbing the peace.</p> <p>Cross-examined: Oliver Wilkins, the husband of Jane Wilkins, the deceased, made the complaint against Aleck Brown, for disturbing the peace. The body of Jane Wilkins was found on the south side of the house, a few feet from the door of the main room, nearest the door of the east room. This east room is an old room, not used much. There was nothing in it. The feet were directly under the eaves of the house. The head was directly south, as though she had been standing with her back to the wall. I don’t think it was over five minutes after I heard of the killing until I got there. There were a good many there when I got there. Aleck Brown, John Kerr, Ben Holiday, and Aunt Barcas Gage were there when I got there. Aleck Brown went after Oliver Wilkins, the husband of the deceased. I think he went after him of his own accord. When Oliver got there I noticed him, and he seemed very much excited. He went and got his gun and went out in the garden. Aleck Brown lives 200 yards or more from Wilkins’ house, a little west of south of Wilkins’ house. The blocks are divided into squares of three acres tracts. Oliver Wilkins’ house, where deceased was killed, is in the northwest corner of one three acres block, and Barcas Gage’s house is near the southeast corner of the same block, and about 45 yards distant. Frank Morrison’s house, where Ann Morrison lives, is on the block immediately north of Oliver Wilkins’, and Ben Holiday’s house is on the same block the Wilkins house is on, and in the same southwest corner. Bally Nunn’s house is on the same block with Frank Morrison’s house, and in the northeast corner of same. Kerr’s house is a little south of east from Wilkins’ house, and between 75 and 100 yards distant. Aleck Brown’s house is a little west of south from Oliver Wilkins’ house, and about 200 yards distant. In going the most direct route from Oliver Wilkins’ house to defendant’s, you would pass by the Ben Holiday house. In going from the Ben Holiday house to the Taylor house, in the most direct route, you would pass by Oliver Wilkins’ house. Maria Gage lives about one-quarter of a mile from Ben Holiday’s house, a little east of north. These three acres blocks are surrounded by streets. Ben Holiday’s house is the only one you would necessarily pass in going from Oliver Wilkins’ to defendant’s, by the most direct route. Immediately north of defendant’s house is an enclosed three acres block, with no houses or improvements on it.</p> <p>The following is a correct plat of the grounds and houses, and was introduced in evidence by the State:</p> <p> </p> <p>Darcas Gage, for the State, being sworn, testified as follows: I am the mother of Jane Wilkins, the deceased. The first time I knew Jane was dead, Ann Morrison came to my house and called me, and said, “I think some one has killed or hurt Jane.” I went up there, and found her lying on the ground, with her head cut open, and a bloody axe lying near her. I screamed, and kept a-screaming. No one came, and I went back and put on my clothes. When I came back, John Kerr came. His nephew, Walter Wheeler, came with him, and shortly afterwards Aleck Brown came, and he stooped over Jane and said, “ Yes; sure enough, she is dead.” Aleck said to John Kerr, “ Let’s put her in the house.” Kerr said, “ No.” Aleck walked off, put his elbows on the fence, and leaned his head on his hands. I said, “Who will go after Oliver Wilkins ?” and Aleck said, “I’ll go.” Before cotton picking time, Aleck and Jane had trouble, fussing and quarrelling. Aleck was frequently at Oliver Wilkins’ , both in the day and at night, while Oliver was absent, and no one at home.</p> <p>Cross-examined, witness testified: Ann Morrison called me three times. I was asleep when Ann called me. When Oliver came up, he said, “ There is my poor wife.’ ’ After Ann Morrison called me, I went right up, in my night linen. I put my hands on her head, and I thought she said, “Ma.” The body was still warm. I screamed, and kept hallooing, “ Some one has killed my poor child!” I went back, and dressed. I don’t think it took me fifteen minutes. I went just as quick as I could. Jane Wilkins married Tobe Cook’s father the first year of freedom. Aleck Brown was then only a baby.</p> <p>Re-examined by the State: About four months before the death of deceased,-the defendant and deceased were at Oliver Wilkins’ house, quarrelling, and I went to them and tried to stop it, and defendant started off, and then stopped, and picked up a big stick of wood, and threw at deceased, and hit the fence; and I said, “Aleck, I am going to make your pócket blue for that; ” and he said, “ G-od damn you! I will make your heart bleed in less than six months,” and then left. Oliver Wilkins’ family consisted of only himself and wife, and a little 5 or 6-year-old boy, and no one lived at his place except this family.</p> <p>J. F. Nash, recalled for the State, testified: He arrested the defendant on this.charge on the night of the murder. Very shortly after witness got to Wilkins’, being shortly after 10 o’clock, he had on no hat or coat or overshirt, and only a clean undershirt on the upper portion of his-body. ! The sleeves he had on when arrested had some spots of blood on them at the time he was arrested. I went that night to defendant’s house, and found a white straw hat and a pair of pants of defendant’s, both of which had some spots of fresh blood on them; but I did not notice the blood on the hat and pants of defendant until the next morning, but noticed it on the shoes that night. The blood on the hat was a small spot on the under side of the brim, and a large spot on the band, and there were large spots on his shoes. The blood has faded away some, but I can see it on the hat and pants and shoes now. The deceased had been struck three times in the head and once in the shoulder, with the axe or some sharp, cutting instrument. The wounds were all deep ones, and the head was cut to pieces, and had to be tied up for burial.</p> <p>Cross-examined, the witness J. F. Nash testified: The blood is plainer now on the hat band than it is now on the shoes and pants. When I first saw it, it was red, and looked like fresh blood. I could not tell the difference between blood put on the clothes at 10 a. m. and 7 p. m.</p> <p>John Kerr, for the State, being sworn, testified: I live a little distance from the house of Jane Wilkins, the deceased. About 10 o’clock on the night Jane Wilkins was killed, I heard Aunt Darcas, the mother of deceased, screaming. I ran up there. When I got there, there was no one there but Jane’s mother. The deceased was lying in a pool of blood, dead, and a bloody axe was lying near her. Her head was cut all to pieces with the axe, and I joined the pieces of her head together with my hands, and there was nothing holding together but a piece of skin. Aleck Brown was the fourth man there. Darcas asked Aleck to go and get Oliver. When Oliver got there, he walked around the yard, wringing his hands, and said to defendant, “Aleck, you have killed my wife,” and defendant made no reply, and walked off. When Aleck Brown came, he said, “ What’s the matter ?” It was 10 o’clock, by my clock, when I left home. When I got there, about three minutes afterwards, I heard Darcas scream.</p> <p>Re-examined: The defendant had no hat on his head there that night, and he was the only person there I saw without a hat on his head. I was there the whole time defendant was there that night, and he never inquired anything about who committed the murder or who was suspected with it.</p> <p>Oliver Wilkins, being sworn for the State, testified: I am the husband of Jane Wilkins, the deceased. I last saw her alive on October 15, 1892, about 4 o’clock in the afternoon. From sundown until Aleck Brown came after me to tell me of my wife’s death, I was at the white folks’ gambling joint at the Home Saloon. John Majors, Warren Flemming, Joe Sims, and others were there. I went out once to go to the market to borrow 50 cents, and at this time also went to the negro joint, and was gone not over ten minutes. I went out only one other time, to go to the saloon, a few feet from the white folks’ joint, to get a drink of whisky, and returned as soon as I got the drink.</p> <p>Cross-examined: When Aleck Brown came in, he said, “ Oliver, somebody has killed your wife with your own axe.” I think I got to the house in about fifteen minutes before Aleck got there. When I got there, I said, “Ain’t it a pity my poor wife is here, dead ?” I got my gun, but there was no load in it, and it wouldn’t shoot anyhow, for the breech pin was out. I kept my axe under the house, with the handle lying straight with the side of the house. You could not see it without stooping down.</p> <p>Re-examined: I was not at home any time that night between sundown and the time I was informed of the death of my wife. I gave Mary Brown, daughter of defendant, a squirrel on the day of the death of my wife. The squirrel was dressed and cleaned on the day I gave it to her.</p> <p>George Davis, being sworn, for the State, testified: I am sheriff of Bastrop County. I examined the hat and shoes and clothes referred to by the witness J. F. Nash, and saw the spots of blood on them. I examined the hat and shoes and pants the next morning after the murder. The blood was fresh, red blood.</p> <p>H. N. Bell, being sworn, for the State, testified: I examined the spots of blood on the hat and pants and shoes of the defendant on the morning after the murder, and the blood was red and fresh.</p> <p>Pearson Hill, being sworn, for the State, testified: A few minutes before 9 on the night Jane Wilkins was killed, I met Aleck Brown at Dally Nunn’s corner, which is the northeast corner of the block north of Oliver Wilkins’ house. I said, ‘ ‘ Halloo, old boy! Where are you going? ’ ’ He said, “I am only walking around.” We talked a short time about the supper, and about the folks passing up town, when I told him I must be going, and bid him good night.</p> <p>Cross-examined: He had a white straw hat in his hand when I met him. I think he had on an old pair of rickety-looking brown jeans pants. Where I met him was northeast of Oliver Wilkins’, and Aleck lives southwest from Oliver’s. Aleck said he believed he wanted to go up town. I told him not to go up there; the negroes were fussing in that joint, and some one had to go to hell out of that hole, and he had better keep away. I said, “I must be going. I promised my wife to be home early to-night. If I don’t go, I will have a fuss on my hands.” Aleck laughed, and said, “ Yes, that’s so. We do sometimes get those on our hands when we go home late.” When I bid him good night, Aleck went west, and I went east. Immediately after I left defendant, and went about 100 yards, and crossed the railroad, the town clock struck 9. When I first saw defendant, he was coming from between two seed houses on the railway reservation, near Dally Nunn’s corner.</p> <p>Dally Nunn, being sworn, for the State, testified: I live northeast from Oliver Wilkins’ house. On the night Jane Wilkins was killed, I heard Pearson Hill and Aleck Brown on the north side of my house, talking. It was about 9 o’clock. About an hour afterwards I heard Aunt Darcas. scream.</p> <p>Ann Sims, being sworn, for the State, testified: In the spring of 1892 I went to Aunt Jane Wilkins’ house. Aleck Brown, the defendant, was-there, and she and Aleck were quarrelling and fussing, and Aleck called her a damned bitch. Aleck was cursing, and Jane was hallooing. At another time after this I was passing by Wilkins’ house, and heard defendant and deceased quarrelling, and I heard the deceased say, “I will not do it;” and the defendant then said to the deceased that he would kill her. He said, “ Nigger, I will show you. I will kill you.” This, was at night, and there was no one there except defendant and deceased. I have heard Aleck Brown curse Oliver Wilkins, too.</p> <p>Tishie Kerr, having been sworn, for the State, testified: About 9:30 o’clock on the night that Jane Wilkins was killed, I heard four or five-licks struck, and heard Jane scream. The licks sounded like some one cutting wood. There wasn’t five seconds between the licks. I live at John Kerr’s. The licks sounded like they were at Wilkins’ house, and I recognized deceased’s voice, in a scream, following immediately after I heard the first blow, and heard the scream only one time. The voice was-a scream as if in distress.</p> <p>Ben Holiday, being sworn, for the State, testified: I live south of Oliver Wilkins’ about 50 or 60 yards. On the night of October 15, 1892, I went to town at the first of dark, and came back in about twenty minutes. When I came back, Aleck Brown, the defendant, was talking with Jane Wilkins, the deceased. He was standing on the outside and she was on the inside of the yard fence of Oliver Wilkins’ place. My little boys, who had gone up to the Taylor House, got home about half an hour, or maybe three-quarters of an hour, after I got back from town. I live on the most direct route from defendant’s house to Oliver Wilkins’, and in going to the Taylor House, by the most direct route, from my place, you would have to pass Oliver Wilkins’ place. Maria Gage lives about one-quarter of a mile southeast from where I live; and at the time of the death of Jane Wilkins, Maria Gage owed me a dollar, which she promised to pay on that day, but did not pay on that day. My house is very near the sidewalk, and on the night of the murder there was a lamp burning with a full light until a few minutes before I heard Aunt Barcas screaming, when she found her daughter dead. There is one door and one window of the house on the west side of the room the lamp was in that night.</p> <p>Lloyd Holiday, being sworn, for the State, testified: About two or three hours after dark on the night of the murder of Jane Wilkins, I and • my brother left to go to the Taylor House, and on our return came back by Jane Wilkins’ house. The defendant, Aleck Brown, was there by the fence, talking to her. They said “Yes ” about something. I was gone about half an hour. She was inside of the yard fence, and he was on the outside. They were near the gate, on the west side of the house.</p> <p>Ann Morrison, being sworn, for the State, testified: I live on the opposite side of the street from Oliver Wilkins’. The street is about thirteen yards wide. Oliver’s house is about ten feet from the street, on the south side, and mine about the same distance, on the north side. Oliver’s house fronts south, and mine east. On the night of the murder, about 8 o’clock, or after, I saw Aleck Brown standing on the outside of Oliver’s yard fence of Oliver’s house, at or near the northwest corner. Jane Wilkins, the deceased, was standing on the inside, and they were talking to each other. They were close together, and one each side of the fence. They were quarrelling, I don’t know what about. They stood there quarrelling for several minutes. I heard him say something about money, and I heard Jane say she was through with him, and would have nothing more to do with him. She left, and immediately went in the house, and defendant immediately opened the gate, and went in, and left the gate open. He followed Jane immediately into the house. I heard some noise in Jane’s house. It sounded like some persons fussing and quarrelling. This rumpus was kept up several minutes, and I could not tell what was said by the persons fussing and quarrelling. I went out to my yard fence, and I could tell then that the parties were outside, and south of the house, fussing and quarrelling. I heard Jane say, “You’re a liar.” Then I heard the defendant, Aleck Brown, say something in answer, but could not tell what it was. Then I heard about four licks struck, and heard Jane scream after the first lick was struck, but heard her voice no more after I heard the second blow. After I heard the blows, and heard Jane scream, I saw some one run and jump over the fence right south of the gate, and run down by Ben Holiday’s, in the direction of his house. I heard a plank of the fence break as he got over the fence.</p> <p>I have seen the defendant there frequently, both day and night, while Oliver Wilkins was not at home. I heard her say, “ You’re a liar.” Then I heard him say something, and then she said, “It’s a lie,” and he said something else, and she said again, “ You’re a liar.” I went in the house while they were standing at the fence. I stayed a little while, and when I came out I could hear them in the house talking, quarrelling, and sounded like they might be fighting, and I recognized it as Aleck’s voice. They kept this up until I went in the house again. I stayed a few minutes, and when I came out they were out in the yard. I could hear them quarrelling and talking in the yard. I could not understand all the defendant said. He talked low, but I could understand Jane. She called him a liar three times. I went back in my house the third time. Not long after I went in I heard the blows struck, and the screaming of deceased; and then I heard some one run across the yard, and saw him jump over the fence, and heard the fence break as he got over. ' I could not tell how he was dressed. I then went in my house, and stayed about half an hour, I think, and then I called Jane, but she did not answer. I then went and called Aunt Darcas, her mother, and she came, and found Jane ■dead, with her head split to pieces, with a bloody axe by her side. The defendant and deceased had had quarrels before, and at one time he bit one of her fingers nearly off. I have known the defendant, Aleck Brown, ever since he was a baby. (And the witness points him out, and identifies him in open court, before the jury, and says she is positive he is the man who was engaged in the conversation and quarrelling with the deceased on the night of the murder.) I heard the conversation, and recognized his voice. This all occurred in the town and county of Bastrop, in the State of Texas, on or about October 15, 1892.</p> <p>Jo Sims, being sworn, for the State, testified: I know where Oliver Wilkins was on the 15th of October, 1892, from 6 o’clock p. m. until Aleck came to tell him of the death of his wife. He was in the gambling house, a few feet in the rear of the Home Saloon, from 6 o’clock p. m. on said day until I left the gambling house. I left the saloon about 8 o’clock, and when I returned, Oliver was gone to the scene of the killing.</p> <p>Step Smith, being sworn, for the State, testified: Oliver came to the gambling joint, near the Home Saloon, at 6 p. m. the night Jane was killed, and never left there at all during the time until Aleck came after him, except once to go into the saloon, a few feet distant, to get him a drink. He went to the saloon, got his drink, and immediately returned to the gambling house, and remained there.</p> <p>Warren Fleming, being sworn, for the State, testified: Oliver Wilkins was at the white joint, in the rear of the Home Saloon, on the night of the killing of Jane Wilkins, from a little after 6 o’clock until defendant came after him. He left only one time during that time to go into the saloon, a few feet distant, to get him a drink, and was gone five or ten minutes—can’t be certain—and returned and remained there until defendant came after him.</p> <p>John Majors, being sworn, for the State, testified: Oliver Wilkins, on the night of the killing of Jane Wilkins, came to the joint in the rear of the Home Saloon, and stayed there from about 6 o’clock p. m. until the defendant came and told him of the death of Jane Wilkins. He was gone only once during said time, and then went into a saloon, a few feet away, to get a drink, and immediately returned. Oliver was betting, and I was dealing. Oliver was gone after the drink about five minutes—not over ten minutes, if that.</p> <p>Cross-examined: I was busy with my game. I did not pay much attention to the time, but it did not seem to me more than ten minutes. He had money when he came back, and went to betting on the game.</p> <p>Josh Gage, being sworn, for the State, testified: On the night Jane Wilkins was killed, my mother sent me down to Ben Holiday’s to tell him, if he would come up to our house she would pay him that dollar she owed him. When I got nearly to Ben Holiday’s house, I saw defendant, Aleck Brown, running towards me from the direction of Oliver Wilkins’ house. He ran up in reach of me, and I saw it was Aleck Brown. He sorter circled around a light made by a lamp in Ben Holiday’s house, as if trying to shun the light, and went towards his home in a sort of trot. I got scared, and ran back towards the Macedonian Church, where my mother was. I didn’t stop running until I got to the Macedonian Church. Aleck was running fast until he passed me, and after passing me he ran, in a sort of a trot, off in the direction of his home, near there. He was in the street between Ben Holiday’s house and Jane Wilkins’ house, coming from the direction of Jane Wilkins’ house, when I first saw him; and I got scared so badly when I saw Aleck running that 1 immediately turned and ran back to my mother, without seeing Ben Holiday. I am between 14 and 15 years of age, and Maria Gage is my mother. I have known the defendant, Aleck Brown, all my life, and am positively certain the man I saw running that night, as I have stated, was the defendant, Aleck Brown. (And the witness points, and identifies the defendant in court as the man he saw running, as testified by him.)</p> <p>Cross-examined: I have talked about seeing Aleck that night with Uncle Oliver Wilkins. I didn’t tell him what I was going to say. I don’t know why I wasn’t asked to testify at the examining trial. I know Aleck Brown well, and one reason I got scared was because his shirt was unbuttoned, and he ran up so close to me I could have put my hand on him. As soon as I saw my mother, upon my return, I told her about my seeing Aleck Brown running, and about my getting scared, and failing to deliver her message to Ben Holiday.</p> <p>Maria Gage, being sworn, for the State, testified: I am, the mother of Joseph Gage, and he is 14 years old. I sent him to Ben Holiday’s on the night Jane was killed. Joseph left just after dark. He was gone about one-quarter of an hour, and had been back about half an hour when we heard Aunt Darcas screaming that Jane was killed. I was owing Ben Holiday Si, and had promised to send it to him on that day, but a check for my money had been lost, so I could not get my money that day, and I sent my son Josh to Ben Holiday’s that night to tell him I would get the money and pay him the next day. It was about 9 o’clock, I suppose, when I started him to Ben Holiday’s, and in about fifteen minutes he came running back, and said that he did not see Ben Holiday; that when he got to Ben Holiday’s house he met Aleck Brown, the defendant, running by Holiday’s house; and that this frightened him so that he turned, and returned in a run, without seeing Ben Holiday. About one-half an hour or more after Josh returned, and told me this, I heard Darcas Gage screaming out that her child had been murdered. I live near Colonel Jones’. It is almost a mile from Colonel Jones’ to the place where Jane was killed.</p> <p>Here the State closed.</p> <p>Caddy Brown, being sworn, for the defendant, testified: I am the wife of Aleck Brown, the defendant. We went to bed about half past 8 on the night Jane was killed. We went to sleep. I heard Aunt Darcas screaming, which waked me up. Aleck was asleep beside me in the bed. I woke him up, and told him to put on his clothes, and run on ahead of me. It was dark when he got up, and I don’t know what clothes he put on. We had supper late. It must have been 8 o’clock or after. Aleck might have been knocking about the lot while I was getting supper. I was busy, and didn’t pay any attention to him. When I got over to Oliver’s, Aunt Darcas threw her arms around me. She told Aleck to go after Oliver.</p> <p>Mary Brown, being sworn, for the defendant, testified: I am the daughter of Aleck Brown. I was at Jane Wilkins’ on October 15, 1892, and left there about 7 o’clock. Uncle Oliver was out hunting that morning, and gave us a squirrel. Papa cut it up and salted it. I took two squirrel tails home with me, and gave them to my little brothers to play with. The last I saw of them they were playing with them around the house.</p> <p>Cross-examined: The squirrel was dressed by Oliver Wilkins before he gave it to me, and he gave it to me before noon of that day, and I took it in my hand over from Wilkins’ house to defendant’s. George Kirk, being sworn, for the State, testified: I took Aleck’s sister to the supper that night.</p> <p>William. Matthews, being duly sworn, for the defendant, testified: On the night Jane Wilkins was killed, between 7 and 8 o’clock, I was going south down the railroad track, and at the southeast corner of the block on which Oliver Wilkins, Ben Holiday, and Barcas Gage live I saw the defendant turn the corner of the fence, coming from the direction of his residence, and going up north in the direction of Dally Nunn’s corner.</p> <p>Dr. J. B. Camps, being sworn, for the defendant, testified: I walked from the gambling joint where Oliver Wilkins was on the night Jane-Wilkins was killed, to Oliver’s residence. I took six minutes to walk there, and six minutes to walk back from there, at a pretty rapid gait.</p>

<p>Witness—Convict.—Of persons declared by statute incompetent to testify, are “ all persons who have been or maybe convicted of felony in this State” (subdivision 5, article 730, Code of Criminal Procedure); and by article 27, Penal Code, it is declared, that “ an accused person is termed a convict, after final condemnation by the court of highest resort which by law has jurisdiction of his case, and to which he may have thought proper to appeal.” Held, that an accused person who has been found guilty of felony in the trial court, is not rendered thereby incompetent to testify as a witness until there is a final disposition of his case by sentence from which there has been no appeal in the lower court, or in case he has taken an appeal, until the judgment be affirmed by the appellate court.</p>

Tried below before Hon. C. N. Buckler. Appellant was indicted for burglary with intent to commit theft, and was convicted at his trial, and his punishment assessed at two years in the penitentiary. There is no statement of facts in the record. The objectionable remarks of the district attorney, set out below in the opinion of the court, are presented by a bill of exceptions, saved by the defendant at the time they were made.

Tried below before Hon. W. R. McGill. Appellant was indicted for the theft of one head of cattle, the property of one J. H. Carter. At his trial he was convicted, and his punishment affixed by verdict and judgment at two years confinement in the penitentiary.. In view of the disposition made of this case on appeal, it becomes unnecessary to make a statement of the facts.

Tried below before Hon. Stephen P. West. Appellant was indicted for theft of one head of cattle from the possession of a person to the grand jurors unknown, and was convicted at his trial, the punishment being affixed at two years in the penitentiary. A statement of the facts not necessary.

<p>1. Change of Venue—Affidavits of Compurgators.—On an application for a change of venue, where the State had filed controverting affidavits attacking the means of knowledge of the compurgators, and defendant offered and proposed to file additional affidavits of other compurgators in support of his motion, which was refused because too late, and defendant then asked leave to file second motion for change of venue, attaching the affidavits of the new compurgators, and this application and affidavits being also stricken out on motion of State counsel, upon the ground that issue had already been joined upon the original motion for change of venue: Meld, that inasmuch as there was a full investigation of the question whether appellant could obtain a fair and impartial trial in the county, and upon which investigation the said compurgators testified, no possible injury to appellant is made to appear from striking out these supporting affidavits, filed after issue joined.</p> <p>2. Biased and Prejudiced Juror.—On motion for a new trial, based upon bias and prejudice of a juror, where it was shown, by the testimony of two witnesses, that some months before the trial the juror and defendant had had a difficulty, after which they heard the juror, abuse the defendant, and state in effect, that “ defendant had a casein court, and that he hoped that when the son-of-a-bitch was tried he could get on the jury, and if he did he would send him (defendant) to the penitentiary.” And it further appearing that these statements of the juror were unknown to defendant, and that he did not know that the juror harbored ill feeling toward him on account of their old difficulty until after the trial: Held, that the new trial should have been granted on account of the bias and prejudice of the juror.</p>

The indictment in this case charged that appellant, “ Mary Newberry, did, on the 14th day of July, 1891, with malice aforethought, kill Irvin Clifford Newberry, by cutting the throat of the said Irvin Clifford New-berry,” etc. At the trial, she was found guilty of murder in the first degree, with punishment assessed at a life term in the penitentiary. The defense was insanity.

Tried below before Hon. W. J. Wingate. This appeal is from a judgment final on a forfeited bail bond. J. H. Lockhart executed a bail bond, with II. J. Thornton and Jobe Davis as sureties, in the sum of $750, for his appearance at the District Court to answer an indictment charging him with the theft of 33 head of sheep.

<p>1. Death Penalty — Murder of the First Degree. —Under our code, before the extreme penalty of the law will be permitted to be inflicted for homicide, it is required of the State to prove a murder of the first degree; that is, to show that the homicide was coolly and deliberately determined upon and consummated.</p> <p>2. Murder of Second Degree.—When a homicide is the result of a sudden, rash, and immediate design, springing from an inconsiderate impulse, passion, or excitement, the crime is murder of the second degree.</p> <p>3. Homicide in the Protection of Another from Death or Serious Bodily Injury can not be Manslaughter.—One may kill to protect another from death or serious bodily injury, real or apparent, and maybe justified ; but threatened injury to another would not in law be an adequate cause. If passion was provoked by such a cause, and the facts did not justify the homicide, the passion would be upon an inadequate cause, and a homicide committed under its influence would be murder in the second degree. Following Healer v. The State, ante, page 102.</p> <p>4. Same.—Where the sole defense was homicide in the protection of another, and it was indisputably shown by the evidence that at the moment of the fatal shot deceased had abandoned the difficulty, and was making no hostile demonstrations towards any one, and it was also apparent that neither defendant nor his friends were in any danger at the time from deceased: Held, the homicide could not be less than murder, and whether of the firstor second degree depended on the existence or nonexistence of passion or excitement, and in such case the vital question is, what was the condition of defendant’s mind at the time of the homicide?</p> <p>5. Degree of Murder.—See facts stated which, in the opinion of the court, presented the sole question as to the degree of murder.</p>

<p>Appeal from the Criminal District Court of Harris. Tried below before Hon. E. D. Cavin.</p> <p>Appellant was indicted for the murder of one Annie C. Shaw. Annie C. Shaw was his own mother. At his trial he was found guilty of murder in the first degree, with his punishment assessed at death.</p> <p>The evidence developed the fact that he killed his mother, Mrs. Annie Shaw, and his aunt, Mrs. Isabella Johnson, by cutting their throats from ear to ear.</p> <p>The defendant pleaded not guilty to the charge, and his counsel, who were appointed by the court to represent the defendant, urged insanity as a defense. The defendant differed entirely with his counsel about their theory of the ease, insisting that they did not understand it, and had various theories of his own about the case, as the evidence and his own statement will show.</p> <p>This case is one of much celebrity, and we therefore give the testimony in full, as we find it in the transcript of the record. It is as follows:</p> <p>The State introduced the voluntary statement of the accused, made at his examining trial, as follows:</p> <p>.Walter E. Shaw, defendant, being instructed by the court that he was entitled to make a statement, but could not be compelled to do so, and that any statement made by him would be used as evidence against him in the trial of this cause in the Criminal District Court, made the following statement:</p> <p>“1 know and am convinced in my own heart that I am guilty, as true as I believe there is a God in Heaven. I do not want to be harassed with needless questions, and want to waive examination. I was sober, and could prove it, at 6 o’clock, and was lucid and in my right mind when I went in that house, and was sober. I didn’t do that thing when I was drunk. I know that I committed this God damned horrible deed; that I ought to be hung for it. The moment I knew what I had done, I made the same statement.</p> <p>“ Waltee E. Shaw.”</p> <p>Dr. S. E. Jones testified: I knew Mrs. Annie Shaw during her lifetime. She died March 31, 1892, in Houston, Harris County, Texas; her throat was cut from ear to ear. It was between 9 and 10 o’clock on April 1, 1892, when I visited the house of Mrs. Shaw. I found the bodies of Mrs. Johnson and Mrs. Shaw. The dining room was just off the bed room; under the dining room table Mrs. Shaw was lying, and on the floor Mrs. Johnson was lying, with her throat also cut, and a handkerchief stuffed in her mouth. I found a bloody razor, badly gapped; I picked it up, and laid it back just where I found it. (The razor was shown to and identified by the witness.) Mrs. Johnson’s throat was also cut, and she was dead. I went through the household furniture; it was disturbed, and blood-stains were on the linen and bureau. Mrs. Johnson was under treatment for cancer, and in an emaciated condition. Mrs. Shaw’s throat was cut down to the bones of the neck, and I could see the bones exposed through the cut in the flesh.</p> <p>Cross-examined: The condition of the razor when I found it was as it is now. I can not say whether it is blood on the razor or not, but it had that appearance to me. I saw nothing else about the place which would have produced the wound.</p> <p>Dr. J. F. Stewart’testified: I saw the dead bodies of Mrs. Annie C. Shaw and Mrs. Johnson at their house on April 1, 1892. The cause of the death of Mrs. Shaw was an incised wound on her throat from ear to ear. I saw Mrs. Johnson, and her death was caused by a similar wound of the same character. I first saw this razor at the house of the deceased on April 1, 1892, and it had blood on it. I think it is the same razor you show me now. It would have caused the wounds. Blood was all over the house. Back of the room where the bodies were I found where somebody had evidently washed bloody hands. I saw Walter E. Shaw in jail the next day, April 2, 1892; he had a cut on one of the fingers of the right hand. I saw underclothes and a shirt; I believe them to be the same that you now show me; blood marks were near the button holes. I found under the nails of Shaw what I took to be blood. Death was very recent when I saw the bodies of the ladies. My opinion is, that death was instant from the use of the instrument on their throats. A pocket handkerchief was stuffed in Mrs. Johnson’s mouth.</p> <p>Cross-examined: The razor with the gaps now in it would have produced the wounds. ' I can not tell whether the blood was human or not. I can not say how bloody water came where I found it. I have no recollection of treating the defendant for insomnia, and no recollection of ever prescribing for his grandmother or for him. I performed an operation on his aunt, and that was the first time that I saw the defendant. She seemed to be glad to have the defendant near her during the operation I performed upon her.</p> <p>T. Blake Dupree testified: On the examining trial Shaw said that he wanted to make a voluntary statement. I warned him that he could not be required to say anything, and that anything he might say could be used in evidence against him, but not for him, on the final trial of his cause; but he persisted in making the statement. The statement was made voluntarily by him. Justice Gentry wrote the statement, and it was signed by Walter E. Shaw, and this paper now shown me is that statement. Justice Gentry also warned him in the terms of the law, and reduced it to writing, and all the alterations made were at Shaw’s suggestion after having heard it read.</p> <p>Cross-examined: Shaw did not waive examination. There were no witnesses except himself, which was sufficient, as he made a prima facie case. He was not represented by counsel, but Mr. Oldham, a lawyer, warned him as to making the statement. Shaw replied that he knew what he was doing, and persisted in making it.</p> <p>Sheriff George Ellis testified: I arrested Walter E. Shaw at Galveston, Texas, and brought him back. We stripped him and found upon him the clothing which I now show you, and about which Dr. Stewart has-testified, being drawers, undershirt, and one sock. This razor was given me by Justice Gentry. I took Dr. Stewart to the jail. There were numerous scratches on Shaw’s hands, as if by person’s nails; also a cut. Had to hold him to take his clothing off. When the clothes were removed, blood-stains were on them. He had on shoes, but no socks. I received a sock from the police of Galveston; the one I show you is the sock; it is exactly of the size and kind of a sock as others which were found in the house of the defendant. The wounds and scratches on the defendant were recent.</p> <p>Cross-examined: I saw the wounds and scratches and the cut when I brought him back. They were recent.</p> <p>Archie Anderson testified: I examined the house where the murder was committed. Mrs. Shaw was lying near the middle of the floor, Mrs. Johnson in the door. I found a shirt on the dining room table, which is the shirt I here show you, which was considerably torn. I found a basin of bloody water near the cistern. The bureau drawers and all the trunks had been gone through, and the linen had bloody finger marks on it. I found buttons and some ashes in the heating stove; being these I show you, and comparing them with those on the undershirt and drawers, they appear to me to be the same as worn by defendant. The stove was in the bed room of the house where the murder occurred. The shirt found in the room, as described above, compares as to size, make, and shape with that worn by defendant. A handkerchief was stuffed in Mrs. Johnson’s mouth. The stove had ashes in it. I was there between 11 and 12 o’clock, April 1, 1892. Some persons were already there.</p> <p>William Kreiss testified: I know Walter E. Shaw. I saw the defendant on March 31 (the same evening Mrs. Shaw and Mrs. Johnson are said to have been killed), between 8 and 9 p. m. He passed me on Congress Street. Shaw told me was going to Galveston for his aunt, as he had sick folks at home. He invited me to take a drink with him, and paid for them. He had money; about $25 or $30. He ran and caught the train. The money appeared to be in $5 bills, but I only saw one bill so as to be able to say what it was, and that was a $5 bill. I judge from the size of the roll, and the bill I saw.</p> <p>Cross-examined: It was the Santa Fe train, about 8:50 at night, that Shaw took. I heard of the murder next morning. I saw him and the money he had; I simply guess at the amount; I don’t know how much it was. Shaw was not drunk. He was used to drink and drank steadily; it had no effect upon him. I told Sheriff Ellis the next day that Shaw had gone to Galveston.</p> <p>Frank Stein testified: I saw Walter E. Shaw the evening preceding the night of the murder. He and Kreiss came to my place about 8 o’clock, and said he was going to Galveston to get his aunt, as his folks were sick. He pulled out a bundle of money and said it was election money. After the train left Kreiss came back.</p> <p>Cross-examined: Shaw appeared to have about $50. Can not say how much for certain; I could see that he had more than one bill in his hand. Shaw often came to my place. I did not think Shaw was drunk that night. I never sold him liquor when he was drunk. He drank bitters on this occasion.</p> <p>It. E. Kirkpatrick testified: I was passenger conductor on the Santa Fe train on March 31, 1892. The defendant started to Galveston on my train about April 1; twenty-four hours later I heard of the murder. Shaw appeared to be drinking when on my train. His hand was tied up. He gave me a $5 bill to take his fare out. He said that he had cut his hand on the seat, and that is why he had it tied up; there was nothing on the seat for him to cut his hand on.</p> <p>Cross-examined: He could not have cut his hand on the seat. He appeared to have been drinking, but was not boisterous. It was about 8:50 at night when he took my train. He got off my train at Alvin, and I do not know where he went.</p> <p>Mr. Williamson testified: I was a special officer of Galveston on March 30, 1892. Shaw was brought to the city jail on the night of March 31, 1892, or rather early on the morning of April 1, 1892. He talked to me in jail; he was wild and talkative. His finger nails had been scraped clean all round. He was brought in for being drunk. He had no socks on, but had one in his pocket; he pulled it out searching for tobacco, and I gave him some. I talked with Shaw, and he talked intelligently.</p> <p>Cross-examined: He was arrested in Galveston as drunk and down. I ■do not know whether defendant was in a stupor or not when he was brought in.</p> <p>Dr. Arnold testified: I saw the dead bodies of the ladies who were killed. The razor you show me would probably have been gapped in the manner it is by its being used in cutting their throats.</p> <p>Mrs. Mary Jones testified: I know the defendant, and I knew his mother and aunt very well; we lived near them. His aunt and his mother were very devoted to him, and very kind to him; they did everything they could to make him comfortable. He used liquor or intoxicants to excess, and was often boisterous and excited in his manner when at home, and by reason of his habits, his drunkenness, and use of intoxicants, he was a source of great trouble and annoyance to his mother and his aunt. The night of the murder I was at the house of Mrs. Shaw, and saw the defendant there. It was about 6 o’clock, and I judge of the time by the' fact that they had just lighted the lamps in the house. I knew his voice, which I heard, and saw him through the door of the next room. I left and went home, which is in the next house, and heard nothing until next morning.</p> <p>Mrs. W. E. Goodwin testified: I know the defendant, and I knew his mother and his aunt. I lived once in the same house with them. His mother and aunt were very devoted to him. He drank very hard, and was often very rude and threatening to his mother and'aunt. They were kind and devoted to him, and gave him no cause for any such action on his part. His habits as to the use of intoxicants were very bad, and I heard him say on one occasion to his mother, “ You damned old bitch, I will cut your throat yet.”</p> <p>Cross-examined: In response to an interrogatory of the prisoner, the witness said: “ I never saw you drink any liquor, and I do not know of my own knowledge that you drank liquor; but I do know from your condition that you were under the influence of something the most of the time. On many occasions you must have been under the influence of liquor or something, or you could not have stated the things to your mother and aunt that you did.”</p> <p>E. C. Crawford testified: On the day of the funeral of the defendant’s grandmother, five,- or six years ago, he was very drunk. His habits as to drinking whisky have been very bad. After the killing I looked for money amongst the effects of Mrs. Shaw, but found none. I knew that she ought to have money, because I had paid her some a short time before.</p> <p>John Windletts testified: I am clerk and cashier for E. C. Crawford, and about ten days before Mrs. Shaw was killed I was directed by Mr. Crawford to pay her a balance due her, which I did, and paid her something over $40. I don’t know what kind of money it was, but think it was in $5 bills.</p> <p>W. W. G-lass testified: The testimony given by the other witnesses as to the condition of the premises and positions of the bodies is correct; I was there, and I know what has been testified about it is correct; it corresponds with my own observation. I saw bloody footmarks on the floor, as if made by a person in stocking-feet, and they compared as to size with those of defendant.</p> <p>Defendant's Evidence.—W. N. Shaw testified: I am distantly related to the defendant. I have known him all my life. I have known him intimately. I have seen him from week to week for the last ten or twelve years. Up to the time of the murder he was dissipated, from drinking or the use of drugs, I can not say which. I rarely saw him when he was not under their influence. In this particular instance, as it was in many others, he was rendered a fool, but was not as he was before he began drinking. His whole condition seemed changed, and he had a strange glitter in his eyes. He came up to me at one time and told me that he was now living on whisky and morphine. That has been about a year ago. I am not well enough acquainted with the defendant’s mother’s family to say whether insanity was hereditary in her family or not. I do not know what relation existed between defendant and his mother. I never visited his nfother, though I am not unfriendly to her. I can not of my own personal knowledge tell you the details of an attempt to assassinate me by him, of my own knowledge. I can only tell you what others told me as to where he was and what he had in the way of a weapon, and what his purpose was. Of course all this is hearsay, of what others told me; I do not know it of my own knowledge. It was a very rare thing to see the defendant except under the influence of drugs or liquor; it was something, I think, besides liquor. His habits as to the use of intoxicants or whisky or drugs has been continuous for some five or six years. In my opinion, his mental condition is not sound. His conduct has been such as to alienate his affections with the rest of the family from him.</p> <p>Judge G-ustave Cook testified: I defended Walter E. Shaw in his former trial in April. I was thrown a great deal with him during that time. My acquaintance with defendant has been casual for some years, but I had no knowledge of his mental condition beyond his standing as a business man, which was that above the average. After the court appointed me to defend him, I observed him closely. His manner indicated extreme tension. He seemed excited; was not normal. His manner was nervous, though he seemed to make an effort of self-restraint. The manner of defendant was strange; he was dictatorial and rude, especially so to me. On the former trial he insisted on entering the plea of guilty to the bill of indictment, against my wishes. He said that he would thwart me should I attempt to defend him. I could not see how a sane mind could conceive and execute such actions. The finding of the jury before was “ guilty,” and he thanked the jury with a great deal of theatrical display, natural to him. He appeared to give more attention to the cigarette than to his case, and did not appear to have any idea of the solemnity of the occasion. He did not want any counsel, and it was only as a sort of personal favor to me that I was allowed to interfere in the case.</p> <p>Cross-examined: He said to me that he was satisfied that “ I am guilty, and I am convinced that I am guilty.” That one who was guilty of such a damnable, outrageous murder ought to be hung. I haven’t the least doubt that if a proposition of facts constituting a homicide were presented to him, he would know the illegality of murder. I think he would know the right and wrong of murder.</p> <p>Redirect: He never, in any manner, shape, or "form, stated that he had any knowledge of the facts, but continually stated, in an argumentative way, that he was convinced of his guilt, and satisfied of his guilt. Whenever we talked of it, he remarked that he was convinced of his guilt and satisfied of his guilt; never under any circumstances did he say that he was guilty.</p> <p>Dr. D. R. Wallace testified: I am a physician. MJ special practice is insanity and nervous diseases; have been engaged in practice of this nature for twenty years. I have been connected with the insane asylums at Austin and Terrell. It is a hard matter to give a definition of insanity; in a few words, it may be said to be mental freedom impaired. To illustrate: A man may be insane, and still appear to be sane. Mental insanity is caused more from alcoholism than from opiates. Whisky stimulants, indulged in constantly, may bring about, and does often bring about, mental derangement. I can not say whether a man could commit murder and be insensible to the act. There is such a thing as monomania. I have never seen such a man but that his mind was otherwise affected than with the cause attributed to him. A test would be, with me, if the accused knew right from wrong and is free to do what he wishes, I look upon him' as a responsible being. I have had patients to ask me to restrain them, for fear they might do some harm. A man may do things he knows is wrong, still he can not keep from committing. Persons who are insane are liable to be suspicious. Insane people are very sagacious and cunning, and are very apt in concealing their acts. There is such a thing as homicidal mania, and we can judge of it only from the facts of the case. It is true, there is such a condition that a man may be in contact with his fellow man for a long period of time, and be entirely rational on every question, and disclose no evidence of mental unsoundness, yet suddenly, by reoccurrence of the mania, becomes within a short time unable to control his mind and irresponsible for his acts. It is a fact that a man may display shrewdness and method, and do acts indicating plan and purpose of method—or, in other words, a man may evince intelligence and shrewdness—and yet be, to all intents, insane. A man may have a mania for taking human life, but still they are subject to other mental diseases, and may have shown manifestations of it before. This homicidal mania does not apply mainly to taking the life of a near relative. I know of no such case. When a man appears sane, and has killed a friend, it has been found out that the man was not sane. I know of one such instance. In this case, where the patient, who had been treated for insanity at the asylum at Austin, was discharged as being a sound man, and was considered by the physician in charge of said institution, namely, Dr. Reeves, as being restored to his normal condition of mind; and one day the said patient, Mr. Purnell, took his gun, and, without a moment’s warning, shot his keeper, Dr. Reeves, dead. But both professional and unprofessional people had warned Dr. Reeves that the man was insane, and was not cured.</p> <p>Insomnia is sleeplessness; the effect is a general derangement of the health; if protracted, the man would die. If a person has lost eight or nine days sleep, it would not produce insanity. Insomnia will not produce insanity. I know of no case where the mind became deranged from insomnia. From the testimony heard in this case I would state, that the accused, at the time of the killing, showed a certain unsoundness of mind, but was in full power of his senses as to the wrong he was doing. I do not think he was in his normal condition, nor is any man who is under the influence- of narcotics; still he knew right from wrong, and had full control of his will powers. I regard Spitka and Hamilton good authorities on insanity. I have listened to the testimony in this trial, and have watched the defendant’s conduct, and have seen all that he has done, and heard all he has said.</p> <p>Dr. J. J. Burroughs testified: I have been a practicing physician for thirty years, having practiced my profession constantly during that time. I have read all the standard authors on insanity; in fact, I have read every author of any consequence on insanity, and I have in my practice come in contact with many cases of insanity. I don’t believe Shaw did the killing. A man may be insane, and at the same time conceal the disorder upon all subjects save perhaps one, and may appear sane upon all subjects save the one upon which he is insane. A person laboring under homicidal mania is liable to attack any one whom he may meet. A shocking sight might produce grave results upon a man who had long suffered with insomnia. I have not heard the testimony in this case, but did hear that of a former trial, but I do not think the defendant’s mind is sound. If Shaw committed the murder, I believe he was insane; but I have had serious doubts whether he committed it.</p> <p>Dr. S. C. Red, being recalled, testified: That he believed the prisoner was mentally capable of comprehending the enormity of a murder. He thought insomnia would affect the body before it would affect the mind.</p> <p>Dr. Turner, being recalled, testified: That he did not consider himself an expert on insanity nor insomnia. He had made no study of either, but would not admit insomnia to be a species of insanity. In his opinion, insomnia would never affect a person so that he would be violently insane one day and all right the next.</p> <p>Dr. J. W. Daniels testified: I have practiced my profession for thirty years. I have read all the standard authors on insanity. There is such a thing as homicidal mania, and it may be brought about by the continuous use of intoxicants to excess. In such cases people who are thus affected would be liable to kill any one with whom they came in contact, even those most dear to them. I do not claim to be an expert on insanity. It is a condition of the brain that produces insomnia, and a shocking sight might for the time being unbalance a man so affected.</p> <p>Mr. Jordon testified: That he had been a police officer, and had seen Shaw in the lockup in Galveston on April 1 last. He testified that the sock shown him was found in the police wagon in which the defendant was taken from the police station in Galveston to the depot, when sheriff George Ellis came and took defendant back to Houston; and that the sock had blood on it.</p> <p>George Ellis, being recalled, after'the defendant, Shaw, had testified, testified: That the sock was delivered to me bj^ mail from Galveston, and the sock shown him was the same sock; and also testified that Shaw told him in jail about killing his mother and aunt. That Shaw stated that he talked with his mother, and that he saw the razor on the table. That his aunt came in twice, and was taken back to bed each time by his mother, and after he had killed his mother, his aunt came back again, when he stuffed a handkerchief in her mouth and cut her throat.</p> <p>Dr. D. F. Stuart, being recalled, testified: That from his acquaintance with Shaw, he regarded him as a responsible being, and knew the right and wrong of murder. He had never heard of insomnia producing insanity. I am a practicing physician for thirty years. I have read all the standard works on insanity, and have treated many cases of insanity. In my opinion, the defendant, at the time of the killing of Mrs. Shaw, knew the difference between the right and wrong of homicide.</p> <p>J. R. Riordan testified: That Shaw, for a long time prior to the killing of his mother and his aunt, had been addicted to the continuous use of liquor to such a degree as to put him in an abnormal condition of mind. That he was not himself, and that he was commonly regarded as cranky. I met Walter E. Shaw, the defendant, in Houston between 5 and 6 o’clock on the evening of March 31, 1892, the evening Mrs. Shaw was killed. I talked with him, and he was cool and sober. He told me that he was on his way home.</p> <p>John Valentine testified: That he knew Walter E. Shaw intimately for a number of years. That for some years prior to the killing he had been addicted to the use of liquor and intoxicants, using them constantly to excess, and to an extent as to make himself annoying and disagreeable with everybody he came in contact with.</p> <p>Walter E. Shaw testified: While my attorneys have attempted to establish insanity, they can not do it—I am not insane. I have suffered with insomnia three or four years. At the time this charge was made against me, I was not in a state of mind to know what the charge was. I knew through my disordered brain, that no glimmer of guilt had entered. Ellis had staggered me by telling me that there was an eye-witness. Mother had been suffering for years with nervous sick headache, and had been the sole nurse of my aunt, and from the strain on her she was nearly crazy. I had been suffering from insomnia for eight or nine nights, and I went to Joseph Hart’s saloon to get a drink. I had a long conversation with mother, and she asked me to tell aunt she could no longer nurse her. I was engaged to marry a young woman, and was to marry her the week after the election. I had sacrificed my happiness on account of a young lady whom my grandmother had forbidden me to marry. Then I was the support of grandmother and mother, and had made sacrifices for them, as they had for me. When I left the house I had an understanding with mother that I should go to Galveston and marry the girl, but would not proclaim the marriage. Dr. Stuart told me that aunt could not live to July. A woman had died of malignant cancer, and aunt had heard of it. I had told aunt if any fatal illness came on, I would administer something that would put her out of misery. Aunt was a woman of great fortitude, and had been told that she could not live a year. She had asked me the doctor’s opinion, and I told her. That day aunt had seen me and mother have a long conversation. My cellmate knows that in certain periods of insomnia I told everything that I knew. I had told the whole story of my connection with the young lady, and my purpose in going to Galveston was to stay there. As far as the 840 is concerned, I do not know how I came by it.</p> <p>My aunt, when I went out, asked when I would come back. To have left my mother after my aunt’s death, I could not think of. The young lady to whom I was engaged would have a little money on coming of age, and would soon become a mother. I told aunt everything, and she was worried lest I would not come back. When 1 left the house it was about 5 p. in. I was no longer fit for a clerk, as I was in bed about a week out of a month. I did not take the drink because I was sick. When I went home the evening of March 31, 1892, I saw Dr. Arnold’s buggy at our gate, and I went into the house the side way, the door opening into the gallery, and went into my room, and lay down, very nervous, but I knew what I was doing. When I went in, I heard Mrs. Jones’ voice, talking with mother. Mother then came in and renewed the conversation; told about an aunt in Louisiana, who .continually wrote that her husband was no account, and me no better, and it would be better if all were dead. Aunt made me promise that when I knew that she had a fatal disease, I would give her something to put an end to her life. I would make good the promise. There are two or three rooms, and we were in the dining room. Mother was saying that it was only her will power that kept her up. She was in a nervous and excited state, aúd one night ran out in the street in her night clothes. She had a desire when in this condition to get out of the house. Aunt came out while mother and I were sitting at the table at almost dark. I soothed my aunt, and carried her back to bed, and went on the gallery the second time to fill a lamp, and aunt came out again, and mother soothed her and put her to bed. Mother said that she did not know what to do; that she was almost crazy. I told her I would bring her something from Galveston.' I was perfectly sober. When through filling the lamp, I came in and.heard a coarse scream. The razor was not kept where I knew it was, and I had not shaved myself for a long time. When I came in, I saw mother with the razor in her hand, and she said, “I will kill her and end her misery. myself; you would not do it; and then you can kill me and go and live with your Viola.” The expression upon her face was the strangest I ever beheld. With one bound, I was at my mother and seized her. The details of what happened I can not relate, for I do not know what they were. Thank God for that.</p> <p>I know that I killed my mother and my aunt; of course there is no doubt about that; but the details of the horrible and awful affair I do not know. I am not making this statement with the hope of saving my life, for my neck is the least valuable of my possessions just now. I know that I committed the deed and jumped on my mother, and there was then not a scratch upon her. I know I am guilty of the commission of the crime, but do not hold myself responsible. I have never used morphine, and if I had and have been led to this crime I would deserve death. I pleaded guilty on the former trial. I said I must be guilty. I knew nothing more until I woke up in the lockup in Galveston, and a man told me that I had a fight with a hack driver in Galveston. I suppose the cut on my hand was made by the razor. There was a crowd about the calaboose, and with the caution of any man I did not ask any questions. About the conversation with Ellis I have no recollection. I think I remember being stripped in the sheriff’s office. In jail I was told Ellis wanted to see me, and I said, “ It must be something tough,” and Anderson said, “ Yes, it is.” The first thought that entered my mind was that the people at home would think that something was the matter. The young lady to whom I was engaged had sent me $75, and I had given my aunt $60 of this to keep. My mother always carried her money about her person, and I knew where every article of value about the house was. I did not tell Sheriff Ellis that I committed the murder. I have been credited with the assassinations of Hennessey, Brown, and Hobson; those things, however, I never did. But I did that which is far worse, and that is the ruining of a confiding young girl; and then this charge being made against me and my imprisonment, and my inability to make reparation for the wrong I had done. This is the severest blow I have ever had to bear; to think that I had put this young lady in such a position, and disgraced her and ruined her, who was about to become a mother, and I in jail upon a charge of murdering my mother and aunt, has troubled me by day and night more than anything else, for I know I am not responsible for the killing of my mother and aunt.- I did it, but, as stated before, I have no recollection of the details. I was not responsible for what I did; but in ruining this young lady I was responsible, and did a thing I ought not to have done. As stated before, I am not making this statement with the hope of saving my life, for life and I have no attachment for each other. I do not know any of the details of the awful killing of my mother and aunt, and I have never heard the evidence in the case; deaf in one ear, I place my hand over the other, thus excluding the evidence. I have never heard it, and will never hear it.</p> <p>The following is the bill of exceptions, as qualified by the trial court, referred to in the opinion:</p> <p>“ On the trial ‘ the defendant insisted upon his right in person to interrogate the venireman E. M. Coglin as to his qualifications as a juror, which the court refused to permit the defendant in person to do, insisting that he must do so through his counsel, and should not ask the questions in person; which action of the court, in refusing to permit the defendant in person to interrogate said venireman, the defendant then and there excepted to, and now tenders this, his bill of exception, and prays this be allowed, filed, and made a part of the record in this cause.’</p> <p>“ The foregoing bill of exception was this day presented to me, and I allow the same, with the following explanation, qualification, and correction: The venireman Coglin, on his voir dire examination, fully qualified as a juror, and was fully interrogated by the defendant’s counsel, and then by the defendant in person; and after numerous questions had been asked said Coglin by the defendant, the questions asked by defendant became wholly irrelevant and impertinent, and I finally directed him to confer with his counsel, and get his questions directed to proper matters, as they could conduct the examination in a proper and orderly manner. This was after the defendant had in person interrogated the venireman Coglin at length, and to this he in person excepted. Throughout the entire case he was in person permitted to interrogate both veniremen and witnesses, and made a speech in his case to the jury. The venireman Coglin was finally challenged peremptorily by defendant, but he did not exhaust his peremptory challenges, and only used nineteen of such challenges. With and subject to the foregoing explanation, qualification, and correction, I allow this bill of exception, and order the same to be filed by the clerk as a part of the record in this cause.”</p>

Tried below before Hon. J. 0. Woodward. On an indictment charging him with the murder of one John Woodard, by shooting him with a pistol, appellant was found guilty of murder in the second degree, with his punishment affixed at five 3’ears imprisonment in the penitentiary. In view of the disposition made of this case on appeal, it is unnecessary to give a statement of the facts.

Tried below before Hon. T. H. Spooner. Appellant was indicted for the murder of one Dick Carroll, and at his trial was convicted of murder in the second degree, the punishment assessed being five years in the penitentiary. The important facts pertaining to the homicide are concisely and sufficiently stated in the opinion of the court.

Tried below before Hon. Thomas M. Paschal. This prosecution was instituted by complaint in the Mayor’s Court of the city of Kerrville, for simple assault. At his trial in said court, appellant was convicted, and his punishment assessed at a fine of $5 and costs.

Under an indictment charging him with the theft of one head of neat cattle, appellant was found guilty, and his punishment assessed at two years in the penitentiary. In view of the disposition made of this case on appeal, it becomes unnecessary to make a general statement of the evidence produced on the trial; and the facts illustrative of the points decided are sufficiently stated in the opinion of the court.

Appellant was indicted in the District Court of Throckmorton County for the crime of burglary. The venue was changed to the District Court of Haskell, where, upon trial of the case, he was found guilty, and his punishment assessed at two years in the penitentiary.

Tried below before Hon. T. A. Falvey. Appellant was indicted for a conspiracy with J. F. Bird, R. E. Vandergriff, and J. L. Smith to rob the railroad train of the Texas & Pacific Railway Company, and the Pacific Express car, attached to said train, and at his trial was found guilty, and his punishment assessed at five years confinement in the penitentiary. There is no statement of facts in the case.

<p>Appellant was indicted for unlawfully keeping and exhibiting for the purpose of gaming a gaming table and bank, and at his trial, the cause having been submitted to the court without a jury, he was convicted, and his punishment assessed at a fine of $25 and ten days imprisonment in the county jail.</p> <p>The facts proved on the trial were:</p> <p>That the defendant, John Bell, in Donley County, Texas, on the 1st day of August, 1892, did sit by the side of a certain table, and have on that table a sum of money, to-wit, about $15; also two dice cubes, with six sides each, and having dots on those six sides as follows, one, two, three, four, five, and six dots on one side respectively of each dice, the same being ordinary playing dice. The table was an ordinary table, but-had around its edges strips which prevented the dice rolling off when thrown on the table; also had a cloth on it, and on that cloth were numbers in a row as follows, 4, 5, 6, 7, 8, 9, 10.</p> <p>While the defendant was at the table a man on the outside approached,, going to the table, picked up the dice, laid some money down on the said table, when the defendant threw out a blind or block on about the number 7. The man threw the dice on the table. The game was played as-' follows: If the man threw seven or eleven he won, and the defendant-paid him the amount of the bet. If he made two or three he lost, and defendant would take his money. If he made any other number than seven or eleven it was called his “ point,” and he continued to throw until he threw his “ point” again or seven. If he made his point first, he won;, if he made seven first, he lost.</p> <p>This man played for sometime. When the defendant won bets, he put what he won on the table with money he had there. If he lost, he paid the bets with money taken from the money on the table. The man throwing the dice would have his money in his hands and laying on the table; could put it down on the table. The defendant had a “ chip” or block which he used to mark V points ” the thrower would make. If the man on the outside would throw a “ point” on the first throw, the defendant would put his “chip” blind on the corresponding number on the table. This was to prevent the defendant and players from forgetting the “ point,” thereby causing misunderstandings. The game is called “ craps.” When one is playing at it they sometimes call it playing, but it is generally called “shooting craps.”</p> <p>The defendant sat by that table, and would take all bets with any one who came up and wanted to bet, paying lost bets from said money on said table, and putting bets won with said money. The man on the outside did all the throwing of the dice. The game is properly “ craps.” It is known as “ old nigger craps,” and has been in existence in the South for nearly fifty years. It is played by one party putting down where they are to throw the dice the amount of money he wishes to bet, when any one who wishes can bet against him by putting down a like amount, which in the game parlance is “ fading the bet.”</p> <p>The party “fading,” when he puts down the amount bet by the thrower and says he “fades” the thrower, he bets against 7 and 11 on the first throw, and against the thrower’s “point” after that until one of them won or lost. In the game played aforesaid, defendant always, or nearly always, did the “ fading.” He could throw the dice and let some one else fade him, if he chose so to do, and any one would “ fade” him. Two or more can play the game. They can let one throw all the time, or take it about in turn, after each bet is won or lost, or any way they please. Any two can make any bet they please as to the result of the throw made. Defendant would take all bets offered him. Others would bet with each other.</p> <p>The table was not an essential or necessary part of the game, but only a convenience to prevent misunderstandings from arising between the players. The dice in playing the game can be thrown on the floor, on a counter, or on the ground, or any place where a level surface upon which to lodge the dice can be found. It can be played by parties walking along the road, throwing the dice in a hat. No particular dice are necessary. Two cubes of any convenient size and kind of substance, having the numbers either in figures or dots," will serve to play with. Can whittle out two cubes here in the court room, number the sides with a pencil, either by dots or figures, and play the game by throwing them on the floor or table. Any substance, as coal, wood, bone, clay, ivory, etc., can be used to make the dice. Can start here, with a small piece of wood and a knife, and in a few minutes be prepared to play the game before the court. The game referred to on the 1st of August, 1892, was played with dice which defendant had in the table. Defendant never forbade any one to bet, and took all bets that were offered him.</p> <p>By the man on the outside is meant the man who came up to said table where defendant was sitting, and threw the dice and bet. The defendant never threw the dice, but always, or nearly always, did the “fading,” that is, accept the bets offered. By the defendant’s “ blind” or block is meant the block he would put on seven at first throw and the thrower’s “ point” after, until one of them won or lost, and was by defendant kept on the number he was betting against, and is used in the game to represent his “fading” of the thrower’s bet, and to keep the points correct. Several parties approached that table on said day and bet with defendant as described.</p> <p>At the Dallas Term the cause came on for hearing on appeal, and the judgment was reversed and cause remanded. A motion was made by the Assistant Attorney-General in behalf of the State for a rehearing, which motion was transferred to the Austin branch, where the case was finally disposed of as shown in the opinion of Simkins, Judge, below.</p>

On his trial for the murder of George Meadows, appellant was convicted of murder of the first degree, with punishment assessed at a life term in the penitentiary. In order fully to illustrate the grounds of reversal, the evidence is reproduced in full. The following is the evidence for the State: W. D. Ake testified: Live about one mile from Hugh Jackson’s place, In this county. I knew George Meadows. He is dead.

<p>Bail Bond — Date of Execution of, How Determined. — Where a. hail bond itself is dated, the date will control the approval of the sheriff made at a later day; and where the bond is executed and acknowledged before an officer, the date of execution and acknowledgment, in the absence of any date on the bond itself, should be held to be the proper date of the bond.</p>

<p>Appeal from the District Court of Webb. Tried below before Hon. A. L. McLane.</p> <p>On a trial, under an indictment charging him with bigamy, appellant was convicted, and his punishment assessed at two years confinement in the penitentiary.</p> <p>For the State, it was proved: That defendant was legally married to Margarito Rico, a woman, in 1889, in Webb County, Texas; that they separated in about three months after the marriage; that they have never been divorced, and that said wife is still .living. That about the 9th day of January, 1893, defendant was married, 'in Webb County, Texas, by a duly qualified justice of the peace," by virtue of a license issued by the clerk of the County Court of Webb County, Texas, to one Luz Corpus, a woman. '</p> <p>The State here rested.</p> <p>For the defendant, it was proved: That about the 9th day of January, 1893, defendant was arrested upon a complaint charging him with the seduction of one Luz Corpus; that he was placed in jail, and after-wards taken before the justice of the peace; that his father accompanied him to the office of the justice; that deputy sheriff Magnon, not knowing that defendant had ever been married, told the father of defendant that he thought the charge would be dismissed if defendant married the girl charged to have been seduced, and said he would see the district attorney in regard to it; that he did so, and was told by the district attorney that the charge would be dismissed if defendant married the girl. That the deputy sheriff communicated this to defendant’s father, who said that defendant would marry the woman Luz Corpus, and instructed the sheriff to procure the license. That defendant’s father then told defendant that he had arranged for him to marry the girl; that defendant said he could not do so, as he was already married; that his father then told him that he must do so, as the first wife had no claims on him, not having lived with him for three years; that defendant then told his father to see the officers and tell them of his former marriage, and ask them if he could marry; that his father agreed to do so, and left him. That after-wards, defendant’s father came to defendant, took him before the justice of the peace; and had the marriage ceremony performed; that after the marriage defendant said to him, “ The officers said it was all right, did they?” To which his father replied, “ I did not say anything to them about it, for I knew that the first wife did not treat you right, and had no claim on you.” That on the next day defendant was arrested for bigamy, and placed in jail.</p> <p>It is further proved, that defendant was an ignorant, but honest and industrious boy, and about 20 years of age, and had always borne a good reputation; that he did not understand, speak, read, or write the English language.</p>

<p>1. Evidence—Reproduction of Testimony of Deceased Witness. In order to qualify a witness to reproduce the testimony of a witness who has died since testifying at a former trial, it is not requisite that he should be able to testify to the substance of the entire testimony, but if said witness can testify to the substance of all that was said on direct and cross-examination upon one subject, it will be admissible, though there may be other portions of said testimony as to other matters not remembered by the witness.</p> <p>2. Theft of Cattle — Charge of Court — Possession—Accustomed Range.—On a trial for theft of cattle, a charge of the court which instructs the jury, that an animal running on its accustomed range is in the constructive possession of its owner, is a correct enunciation of the law, and is not a charge on the weight of testimony; and if so, it is harmless, because whether on or off its range, unless in actual possession or control of another, an animal is in the constructive possession of the owner.</p> <p>3. Same—Circumstantial Evidence.—Where there is direct and positive testimony as to the fact of guilt by an eye-witness, or the facts proved were in such close juxtaposition to the main fact as to make them equivalent to direct testimony, the court is not required to charge upon circumstantial evidence.</p> <p>4. Same—Recent Possession.—On a trial for theft of cattle, when there was no evidence of explanation of his possession by defendant, and where possession is not the only inculpatory circumstance to show guilt, the court is not required to charge upon possession of recently stolen property.</p>

Appellant was charged by indictment with knowingly and fraudulently passing as true a forged instrument in writing. The charging part of the indictment is as follows, viz.: “ Did then and there willfully, knowingly, and fraudulently pass as true, to R. L. McCauley, a forged instrument in writing, to the tenor following: “No. 8. Sweetwater, Texas, Feb. 16, 1889. “ Thomas Trammell & Co., Bankers: “ Pay to A. Rawlins — order eighty-five dollars. “$85.00.

Tried below before Hon. J. L. Dupree, County Judge. Appellant was prosecuted by information in the court below for aggravated assault and battery on one Antonio Lagus, an aged and decrepit person, said assault having been committed with an axe handle, a deadly weapon, and thereby inflicting serious bodily injury upon him, the said A. Lagus. At his trial he was convicted of said ofíense, and his punishment assessed at one month confinement in the county jail.

<p>1. Forgery—Charge of the Court.—On a trial for forgery, a charge of the court which in effect instructs the jury, that if they believe from the evidence that the defendant signed the name of the alleged injured party to the note under authority which he had good reason to believe, and actually did believe, to be sufficient, then defendant would not be guilty, is substantially in the language of article 441, Penal Code, and is unobjectionable.</p> <p>2. Reasonable Doubt—Charge Sufficient as to, when.—If a charge applies the reasonable doubt to the whole case, this will satisfy the demands of the law; and when this has been done, it is not error to fail to apply it to any particular phase of the case. Williams v. The State, 24 Texas Criminal Appeals, 346, explained.</p> <p>3. New Trial—Newly Discovered Evidence.—When it is shown that testimony might or could have been ascertained by the use of ordinary diligence, a new trial will not be awarded on the ground of newly discovered evidence.</p> <p>4. Special Instructions on Particular Phase of the Case.—When, from the relationship of the parties and their manner of dealing with each other, the issue in a case of forgery was whether the appellant had reasonable ground for and did believe that he was authorized to use the name of the prosecutor, held, that a special requested instruction presenting the law upon that phase of the case should have been given, even though not strictly correct.</p> <p>5. Forgery—Evidence Insufficient.—See facts in the case which, in the opinion of the court, are wholly insufficient to support a conviction for forgery.</p>

This is an appeal from a conviction for perjury, wherein the punishment assessed against appellant was five years confinement in the penitentiary. The perjury was assigned, by the indictment, upon an application for continuance made by appellant in a certain cause pending in the County Court of Erath County, wherein appellant was charged, by indictment, with carrying on and about his person a pistol on or about the night of the 31st of October, 1888.

Appellant was indicted for robbery of one John Bird, and having been convicted at his trial, his punishment was assessed at five years confinement in the penitentiary.

<p>Appeal from the District Court of Webb. On change of venue from Duval. Tried below before Hon. A. L. McLane.</p> <p>A severance having been taken by the parties, the codefendant, Molina, was tried and convicted: and the venue of the case as to this defendant was changed to Webb County from Duval County; where, having there been placed upon his trial, defendant was convicted of murder in the first degree, and his punishment fixed at a life term in the penitentiary.</p> <p>A concise statement of the substance of the salient features of the evidence is as follows:</p> <p>Thomas Henderson, the deceased, was a merchant in the village of Benavides, Duval County. He was killed between 10 and 11 o’clock p. m., in the street, about fifty feet from his store house,” on the night of the 19th of September, 1892, by a gunshot wound, which penetrated his forehead between the eyebrows. There were no eye-witnesses to the killing. A Mexican fiesta was held in the village that day, and was still in operation upon the plaza at the time of the killing. Deceased had been seen upon the plaza a short time before he was killed, talking to some young ladies. When he left them, he remarked that he was going to his store. He was seen to go to his store, unlock the door, light a lamp, and after remaining a short while, come out, lock the door, and start off, whistling, up the street. In a short while a scuffle and choking noise was heard, and then a shot. A party was seen and heard running from one direction from the place of the killing, and the codefendant (Molina) was also seen and recognized, walking from that direction very deliberately, and but a short distance from the scene. His tracks, which were -measured, found, examined, and identified, were followed the next day to the rear of some lots into which he had jumped, and into his own lot. When his house had been reached that night by parties looking for the murderers, he had a saddle in his hands and his horse was hitched in the back of his lot. . He was arrested that night, and a key found on his person which would unlock the door of deceased’s store. The next day after the killing a number 44 carbine was found under the mattress of a bed in Molina’s house, which had been recently discharged. On the morning after the killing the deputy sheriff cut the bullet out of the back of the head of deceased, and it was a number 44 bullet, and fitted the carbine found at Molina’s. This carbine and bullet were produced at the trial of the defendant, and, over his objection, were exhibited and identified to the jury. Defendant and Molina were seen together several times on the night of and just before the killing. Their acts and conduct arrested the attention of others. They left the plaza just before deceased did; were seen in close conversation on the opposite side of the street after deceased had entered his store; were seen afterwards to change their position.</p> <p>The man who was seen running away from the scene of the killing had on a high-crowned, chocolate-colored Mexican hat and white-looking pants. It was proved that defendant wore a hat of that description and pants of that color on that night. The tracks of this party, made as he ran from the scene, were found, examined, and trailed near to the house of Juan Moreno, where defendant lived. The tracks were measured, and the shoes by which they were made were old and broken in such manner as to make the track a peculiar one. ■ On the morning after the murder, the defendant went out of the village some ten miles, to the ranch of Juan Moreno.</p> <p>Moreno had a stepson named Gregorio Rios, 10 or 12 years of age, and his testimony for the State was as follows: I live in Benavides and am a stepson of Juan Moreno, and live at his house. On the night Henderson was killed I was at the plaza, and when I heard the shot I went home and found Pedro Rodriquez on his pallet asleep, and I slept with him that night. Next morning Pedro killed a goat and went away. In the evening of that day my father sent me out to his ranch to tell Pedro to come back to Benavides. I left on horseback, and got to the ranch about dark, but did not find Pedro there. Next morning he came to the ranch, and I delivered to him my father’s message, and loaned him a horse to come back to town on. Just before leaving the ranch, Pedro asked me to change shoes with him, and I did so. He put on my shoes and wore them away, and I wore his shoes. He did not say why he wanted to change shoes. I know the shoes shown me by the district attorney (the shoes being the same shoes worn by the witness). They belong to Pedro, and are the same shoes I had on when Manuel Resandes took me to Justice Vail's. When I say Pedro, I mean Pedro Rodriquez. Pedro had on the shoes the night Henderson was killed. He has no others. Defendant and I wear number 6 shoes.</p> <p>On the trial, the county surveyor of Duval County was permitted, over objection of defendant, to exhibit and explain to the jury a diagram or plot or map of the town of Benavides, made by him a month after the killing, which fully showed the location of the various portions of the town, together with the prominent objects of interest mentioned by the witnesses in the testimony.</p>

Tried below before Hon.. C. C. Clamp, Special Judge. The indictment in this case charged defendant with offering to bribe, one A. Y. D. Old, to procure the dismissal of a certain prosecution, by indictment, against one Dave Sweeten, charged with the theft of one head of cattle, and in which said case the said A. Y. D. Old had .been employed as private prosecutor to assist the district attorney.

' Tried below before-. Hon. W. Gr. Rucker, County Judge. This was a prosecution for aggravated assault, under an information containing two counts; one charging the defendant, a person of robust health and strength, with an assault upon W. M. Bell, an aged and decrepit man; the other alleging the use of a pistol by the defendant, a dangerous and deadly weapon, in an angry and threatening manner, with intent to alarm said Bell, and under circumstances calculated to effect…

Tried below before Hon. C. P. Woodruff. On a trial under an indictment charging him with a nighttime burglary, appellant was convicted, and his punishment assessed at two years confinement in the penitentiary. It is unnecessary to give a statement of the facts adduced in evidence. The facts pertaining directly to the questions passed upon in the opinion of the court need no additional statement from the record.

Tried below before Hon. James H. Robertson. Under an indictment charging him with incest with his daughter, appellant was tried and convicted, and his punishment assessed at five years in the penitentiary. It is not necessary to state the facts in the case, in view of the disposition made of it on this appeal.

Tried below before Hon. T. S. Reese. Appellant was indicted for assault with intent to murder one Canuto Lerno with a bowie knife. His trial resulted in his conviction, with punishment assessed at two years in the penitentiary. On the night before the stabbing, appellant and Canuto Lerno had a difficulty over a game of monte. The parties were drinking, and continued drinking during the night.

Tried below before Hon. E. W. Terhune. On an indictment charging him with theft of money over the value of $20, appellant was tried and convicted, and his punishment assessed at two years in the penitentiary. In view of the questions upon which the case was disposed of on this appeal, it becomes unnecessary to state the facts adduced in evidence.

This proceeding was an original application addressed to and filed June 10, 1893, in the Court of Criminal Appeals for a writ of habeas corpus.

<p>1. Bill of Rights—City Ordinances Regulating Sale of Newspapers.—An ordinance passed by the city of S., which declared a certain newspaper published in the city of C. to be a public nuisance, and prohibiting its circulation within the city limits of said first city, held, to be in violation of the Bill of Bights, and therefore void.</p> <p>2. Municipal Corporations—Authority of, to Suppress Newspapers.—Held, that there is “ no authority sustaining the doctrine that a municipal corporation is invested with the power to declare the sale of newspapers a nuisance.”</p> <p>3. Legislative Authority to Control Publication of Newspapers. Held, “ the power to prohibit the publication of newspapers is not within the compass of legislative action in this State.” For further discussion upon the subject, see the opinion of the court.</p>

<p>1. Practice—Bill of Exception as to Evidence.—A bill of exception which merely states that certain evidence was objected to, but which does not show that the evidence was permitted to go to the jury, is wholly insufficient.</p> <p>2. Passing Forged Instrument — Allegation and Proof — Variance.—In an indictment for passing a forged instrument, when the instrument set out was a certificate signed by R., to the effect that he had sold a eertainnote which he held on one L., to one S., and both L. and R. testified that L. did not owe R. a note of any description, held, a fatal variance between the allegation and the proof.</p> <p>3. Same — Indictment—Insufficient Averments.—A writing so imperfect and obscure that it is not intelligible without reference to extrinsic facts, will not support an indictment for forgery, unless these facts are averred, and by averment it is made apparent that it has the capacity of effecting fraud, Hendricks v. The State, 26 Texas Cr. App., 176. See this rule applied to an indictment for passing a forged instrument, held, fatally defective for want of sufficient averments.</p>

Two indictments were presented in the case. A copy of the first had been duly served upon defendant, but it was dismissed by the prosecution because fatally defective. Defendant had never been served with a copy of the second. He announced ready for trial, not knowing that the first indictment had been dismissed and that he was to be tried on a new one.

Tried below before Hon. George H. Noonan. This appeal is from a judgment of conviction for murder of the second degree, defendant having pleaded guilty to that degree of murder, and in which the punishment was assessed at twenty-five years in the penitentiary. This is the third time this case had been appealed, and the facts will be found fully stated in the reports of the two former appeals. Ex Parte Evers, 29 Texas Cr. App., 539; Evers v. The State, 31 Texas Cr. Rep., 318.

Mrs. S. Hereschop, for the State, testified: My name is Sylvia Hereschop. I am the woman referred to in the indictment. I see the man that assaulted me in court. He assaulted me in July, 1892, on the Dibrell place, four miles from the town of Seguin. It occurred on Sunday evening, awhile after noon, as I was going from my house to my sister-in-law’s. When I reached the gate that leads from the Dibrell farm into the pasture, the defendant was standing at the gate.

Tried below before Hon. P. G. Morris. On his trial upon an indictment for robbery, appellant was convicted, and given as a punishment five years in the penitentiary. There is no statement of facts in the record. The defendant’s bill of exceptions related to errors and supposed errors in the charge of the court. These matters are fully and sufficiently stated in the opinion.

<p>The facts are stated in the opinion.</p>

<p>1. Municipal Charter and Ordinance — Variety Shows.—Where a city charter expressly grants and confers upon the city council authority to prohibit, segregate, and regulate bawdy houses and variety shows, such authority, to be legal and valid, must be exercised in harmony with the criminal laws of this State.</p> <p>2. Variety Shows and Theatres not per se Illegal.—A variety show or theatre eo nomine has never been declared illegal, or its existence declared a penal offense, nor is a penalty affixed thereto by the laws of this State.</p> <p>3. Same—Disorderly House.—Articles 339 and 341a of the Acts of 1889, define and declare what are the elements essential to constitute a theatre, play house, or variety show a disorderly house, and since such disorderly houses are forbidden.by law, a variety show, to come within the prohibition, must be a disorderly house within the purview of those articles.</p> <p>4. Same.—Where the city council, under a charter which empowered them “to prohibit, and punish keepers and inmates of bawdy houses and variety .shows, and to segregate and regulate the same, and determine such inmates and keepers to be vagrants."’ passed “An ordinance to define what are variety theatres and variety shows,” in which it was in effect declared, that any place is a variety show where persons gather together and engage in music and dancing, or plays and exhibitions, and liquor is drunk, sold, or offered for sale, or given away to any person present or visiting such place: Held, that such ordinance is not only vague, indefinite, and uncertain, but is also invalid, in that it is beyond the power conferred by the charter upon the council, and contains none of the essential elements of a disorderly house as denounced by law.</p>

<p>On the 9th day of May, 1893, the applicant presented his petition to the Hon. T. J. Brown for the writ of habeas corpus. It set up,, that he was illegally restrained in his liberty by J. L. Moulden, sheriff of Collin County, and one Hiram" Church, who was the agent for the State of Tennessee. That he was restrained by virtue of a warrant issued by J. T. Andrews, a justice of the peace in Collin County, upon a complaint charging him with an assault to murder one Oats. That an examining trial had been commenced, but not concluded, before said justice, and that the case had been set over; and set up as full as could be done the proof which had then been taken, and asked that it be considered as part of the application, and that Andrews be ordered to send it up. That the applicant had been illegally arrested, without any warrant whatever, for a reward of $300 offered by certain persons in Tennessee, and that the alleged assault upon Oats was a pretense, and occurred in the applicant’s necessary self-defense, while the said Oats and seven others were attempting to arrest him, without warrant, for said reward. That in February prior one Hendricks, a constable, and one Barnett had, without warrant, arrested the applicant for said reward from Tennessee, and that the Governor of Texas had issued his warrant afterwards, and that under it the applicant had been extradited and taken by the agent therein named for the State of Tennessee, and had been carried outside of and beyond the limits of the State of Texas. That on, to-wit, the 5th day of May, 1893, the Governor of Texas had issued another warrant of arrest for the purpose of again extraditing the applicant under it. That such warrant was null and void, and was contrary to the Constitution and laws of the State, and contrary to the Constitution and laws of the United States, and of the rights conferred on the applicant by such Constitution and by section 5278 of the Revised Statutes of the United States, in this, that the Governor of Texas did not have or require any proof whatever when he issued the last warrant, but acted upon the original proof and papers upon which he had so issued the first warrant, under which the applicant had been received by such agent for the State of Tennessee and had been carried outside of the State. That the Governor of Texas, in issuing the last warrant, had not required any such proof as the law demanded, but only acted upon parol testimony. That the said Hendricks and Barnett were present at the alleged assault on said Oats, and were with said Oats and five others, assisting in making such unlawful arrest.</p> <p>Oil the 9th day of May, 1893, Judge Brown heard the application, received certain testimony over appellant’s objection, and to which he took a bill of exceptions, and made his order remanding the applicant into the custody of J. L. Moulden, to be by him held until the charge and proceedings of The State of Texas v. W. N. Hobbs, pending before said Andrews, the justice of the peace in Collin County, is disposed of, when the said Moulden was to deliver the applicant to said Church under the warrant so issued by the Governor of Texas May 5, 1893. To which judgment the applicant then and there excepted and gave notice of appeal to this court.</p>

Appellant was tried upon an indictment charging him with the murder of one W. H. Riddle, and at the trial was found guilty of murder in the first degree, his punishment being assessed at death. The appeal came on for hearing at the Dallas Term, and the judgment was affirmed in the opinion below, delivered by Presiding Judge Hurt on the 21st of January.

Writ of Error from the County Court of Falls. Tried below before Hon. S. R. Scott, County Judge. Plaintiff in error, Johnson, alias Thompson, was tried and convicted in the Justice Court, precinct number 1, Falls County, for unlawfully playing with dice at a game called “ craps,” and was fined in the sum of $10.

<p>1. Continuance—Bill of Exceptions—Practice on Appeal.—Without a bill of exceptions, the action of the trial court refusing a continuance will not be revised on appeal.</p> <p>2. Theft—Charge—Reasonable Explanation—Purchase.—On atrial for theft of cattle, where defendant, in explanation of his possession, claimed to have purchased the animals, a charge of court which instructs the jury, “ If you find that defendant bought the two head of cattle he is charged with stealing, or if you have a reasonable doubt as to his having bought said cattle, you will acquit him.” pertinently and correctly submits his explanation, and further instruction as to the law of reasonable explanation of possession is uncalled for and unnecessary.</p> <p>3. Argument of Counsel—Improper Remarks.—To avail of improper remarks of counsel on appeal, the record must show, that defendant requested the court to instruct the jury to disregard such remarks; and where this was not done, and it appeared that where objection was made to improper remarks of counsel the objection was promptly sustained by the court, and the attorney offending admonished to keep within the record: Held, no injury is made to appear.</p>

The indictment in this case charged appellant and one Sam Swan and one W. E. T. Ogletree jointly with breaking into the county jail of Sabine County, on the 25th of March, 1885, with intent and for the purpose of effecting the rescue and escape of Fred Connor, William Con-nor, Willis Connor, and John Connor, who were confined therein on a charge of murder, and of which the said Fred Connor had already been tried and convicted.

R. L. Zapp was one of the witnesses who was called to testify by the defendant. The evidence of this witness, on cross-examination, was admitted, over objection of the defendant. Zapp’s testimony, as shown by the record, is as follows: R. L. Zapp, being sworn, for defendant, testified: I was sheriff of Fayette County during 1892, and am sheriff now.

Tried below before Hon. G-. H. Noonan. This is an appeal from a conviction for burglary, the punishment assessed being a term of two years in the penitentiary.

Tried below before Hon. Rufus Price, Special Judge. Appellant was indicted for the murder of one Abe Smith, in Sabine County, alleged to have been committed on the 16th day of June, 1883, by shooting him with a gun. The trial began on the 17th day of August, 1893, more than ten years after the alleged murder, and was concluded on the 24th day of August, by defendant’s conviction for murder of the first degree, and the penalty assessed at a life term in the penitentiary.

Tried below before Hon. J. M. Morris, County Judge. Appellant was prosecuted by information for a disturbance of religious worship, and was at his trial convicted, with the punishment assessed at a fine of $25. The facts are concisely, but lucidly, stated in the opinion.

The charging part of the information is set out in the opinion below. A motion in arrest of judgment was made by defendant, for insufficiency of the information, which was overruled. Ho statement necessary.

<p>Appeal from the County Court of Hopkins. Tried below before Hon. J. M. Morris, County Judge.</p> <p>Appellant was charged, by information, with an aggravated assault made upon one Bye Millhollon with a knife. At his trial he was convicted of said offense, and his punishment assessed at a fine of $50.</p> <p>As shown by the record, the testimony, in substance, is: That defendant and Millhollon were hack-drivers. A dispute arose between them at the depot, the defendant having charged Millhollon with acting unfairly and in violation of an agreement, by going on the train of cars to solicit or drum passengers for his hack. After a wordy altercation at the depot, the parties got upon their respective hacks and started for town. On the way to town the quarrel was renewed, and the parties bantered each other, using very vulgar and indecent language, to get down off his carriage. They both got down and started for' each other, each having the small end of his carriage whip wrapped around his hand. According to a majority of the witnesses, when they approached each other within striking distance, and about half-way between their hacks, defendant delivered the first blow, and when Millhollon struck defendant, the latter warded off the blow, caught Millhollon’s arm, dropped his whip, drew his knife, and cut Millhollon on the ribs, when Millhollon jerked away from him and ran. The wound on Millhollon, which he exhibited to the jury, was about four inches long. The knife used by defendant was a large pocket-knife.</p>

Tried below before Hon. J. W. Patterson. Appellant was tried upon an indictment containing two counts; one for assault with intent to commit robbery, and the other for assault with intent to murder one J. E. Page. At the trial he was convicted of assault with intent to murder, and his punishment assessed at two years in the penitentiary.

Tried below before Hon. D. E. Barrett. This appeal is from a judgment of conviction for theft of money, the punishment assessed being two years in the penitentiary. No statement necessary.

Tried below before Hon. S. W. Blount, Special Judge. This appeal is from a conviction for perjury, alleged to have been committed by defendant on a trial in Justice Court, precinct number 8, Shelby County, at which trial defendant was being prosecuted on a complaint •charging him with a disturbance of the peace, in discharging firearms in -a public place, and on which said trial defendant, as a witness in his own behalf, had sworn he neither had nor discharged a pistol on…

Tried below before Hon. W. H. Jenkins, County Judge. Appellant was prosecuted by information for shooting craps, and at his trial was convicted, the punishment being assessed at a fine of $25.

A plea to the jurisdiction of the court was filed by defendant, upon the ground that the case was a misdemeanor cognizable by a Justice Court, and that the Criminal District Court had no original, but could exercise, if at all, appellate jurisdiction in such cases. This plea was overruled, and upon the trial defendant was convicted, with his punishment assessed at a fine of $200. No statement is necessary.

Tried below before Hon. Eugene Archer. Appellant was convicted of horse theft,' his punishment being assessed at five years in the penitentiary. The theory of the defense was, that Robert Kelley, the alleged owner of the stolen animal, had traded the horse to Joseph Kelley, and that Joseph Kelley had traded the horse to defendant, authorized him to get the horse, and that in pursuance of this trade and authority defendant took the horse.

Tried below before Hon. W. H. Harman, County Judge. The indictment charged that appellant did, on the 4th day of March, 1893, engage in and pursue the occupation of selling spirituous liquors, in quantities less than a quart, without posting and keeping posted his occupation license in a conspicuous place at his place of business. At the trial he was convicted, his punishment being assessed at a fine of $1200. The facts are sufficiently stated in the opinion.

The information charged appellant with unlawfully and willfully disturbing a congregation assembled for religious worship, by loud and vociferous talking. At the trial he was convicted, and his punishment assessed at a fine of $25.

This appeal is from a conviction for rape, the penalty having been assessed by the verdict and judgment at death. Important testimony adduced at the trial is reproduced, as follows: Anna Straka was introduced by the State, who testified through an interpreter. Being interrogated by the court as to her competency, upon demand of counsel of defendant, she answered as follows: My name is Anna Straka. I am 11 years old; will be 11 my next birthday.

<p>Appeal from the District Court of Waller. Tried below before Hon. T. S. Reese.</p> <p>Appellant was indicted for perjury, committed upon an investigation pending before a grand jury relative to a charge against him of having forged a teacher’s school voucher, by signing the name of the trustees of the school community to said voucher; and upon which investigation defendant, under oath, had stated that he was authorized by said trustees, to sign their names to the said voucher; and wherein he had also sworn, falsely to the number of months he had taught school in said school community.</p> <p>At his trial, he was convicted of perjury, and his punishment assessed, upon a general verdict of guilty, at five years imprisonment in the penitentiary.</p> <p>Omitting formal allegations, the charging part of the indictment was as follows, viz.:</p> <p>“ That W. H. Moore, late of the county of Waller, on the 9th day of February, in the year of our Lord one thousand eight hundred and ninety-three (1893), with force and arms, in the county of Waller and State of Texas, did then and there, in the county and State aforesaid, personally appear before the duly organized grand jury for said county, which was then and there in session for the February Term of the District Court for said county, and of which said grand jury P. L. Clapp was then and there the legally appointed foreman; and the said W. H. Moore did then and there take his corporal oath, and was duly sworn as a witness before said grand jury, said oath being then and there duly administered to him by the said foreman of said grand jury, who was then and there authorized by law to administer the same, and which said oath was so administered for the ends of public justice. Thereupon it then and there became and was a material inquiry before said grand jury, and necessary for the due administration of the criminal law of said State, whether the said W. H. Moore, in the county aforesaid, on or about the 29th day of October, 1892, did forge a school voucher for $50, by signing G-. W. Stewart’s and Henry Woods’ names to said voucher, the trustees of school community number 43 of Waller County; and said W. I-I. Moore did on the day herein before first named, in said county, before and to the said grand jury, under the sanction of said oath, administered to him as aforesaid, willfully and deliberately state and testify, that he, the said W. H. Moore, in the county aforesaid, did during the month of August, 1892, teach school at school community number 43, in Waller County, Texas, under a verbal contract with said trustees, Gr. W. Stewart and Henry Woods, and that his salary for teaching said school for the month of August amounted to $25; and that he taught said school for said community during the months of September and October, 1892, under a contract with said trustees, G-. W. Stewart and Henry Woods, and that he was to receive the sum of $25 for the time he taught in the aforesaid months of September and October, 1892, and -that these sums of money added together made the $50 that said voucher was drawn for; and that the said Gr. W. Stewart and Henry Woods authorized him, the said W. H. Moore, to sign their names to said voucher as trustees of said school community number 43, Waller County, Texas; whereas, in truth and in fact, the said W. H. Moore did not teach in said school in August, September, or October, 1892, nor did the said Gr. W. Stewart and Henry Woods, trustees as aforesaid of school community number 43, of Waller County, Texas, authorize the said W. H. Moore to sign their names to the said voucher; which said statements so made by the said W. H. Moore before and to the said grand jury as aforesaid were willfully and deliberately false, and the said W. H. Moore knew the same to be false when he made them. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>“ P. L. Clapp,</p> <p>“ Foreman Grand Jury.”</p> <p>The statement of facts not being legally in the record, no statement of the evidence can be given.</p>

<p>Practice — Two Prosecutions in Different Courts for the Same Offense—Crap Shooting.—On a trial in the County Court upon an information for crap shooting, it was made to appear, that a complaint against defendant was pending in the Justice Court for the same transaction; which latter prosecution the county attorney had moved the justice to dismiss, because it was practically impossible to enforce the law in such gambling cases, owing to a combination to defeat the law: whereupon counsel for defendant pleaded to the jurisdiction of the County Court, to which plea the county attorney interposed a demurrer, which was sustained by the court. Held, that there is no relief .against such practice. Following Shindler v. The State, 15 Texas Criminal Appeals, 394; Williams v. The State, 20 Texas Criminal Appeals, 359; and Bonner v. The State, 29 Texas Criminal Appeals, 229.</p>

Tried below before Hon. M. J. Hickey, County Judge. Appellant was prosecuted, by information, for unlawfully carrying a pistol, was convicted, and his punishment assessed at a fine of $25. A statement of the facts is unnecessary.

Tried below before Hon. John J. King, County Judge. This appeal is from a judgment of conviction for slander, wherein the-punishment was assessed at a fine of $100.

<p>1. Recognizance where the Offense is not Bo Nomine.—A recognisance, to be sufficient, where the offense for which defendant was convicted is one not made such eo nomine by the Penal Code, it is necessary that its essential elements be set out in the recognizance; otherwise, the obligation is fatally defective.</p> <p>2. Same—Disturbance of Religious Worship.—A recognizance which recites, that defendant “ stands charged with the offense of disturbing religious worship,’" without further setting out the elements of that offense, as defined in article 180, Penal Code, is fatally defective.</p> <p>3. Same — Practice on Appeal — Jurisdiction.—Without a sufficient recognizance, the jurisdiction of the appellate court can not attach.</p>

Tried below before Hon. W. A. Blackburn. The indictment in this case contained three counts: first, that defendant did ravish and have carnal knowledge of Leonor Gutierres, a female under the age of 12 years; second, that defendant did, by force and threats, and without her consent, ravish and have carnal knowledge of said Leonor Gutierres, a woman; and third, that defendant did attempt, to ravish said Leonor Gutierres, a female under the age of 12 years.

Exceptions to and motion to quash the indictment, made by defendant, were overruled. At the trial appellant was convicted, his punishment being assessed at five years in the penitentiary. No statement is necessary.

Tried below before Hon. W. A. Blackburn. The indictment contained two counts; one for rape upon a female under the age of 12 years, and one for assault with intent to commit rape upon a female under the age of 12 years. At the trial the prosecution was had upon the second account, for assault with intent to commit rape, and appellant being convicted of that offense, his punishment was assessed at a term of two years in the penitentiary.

At the trial the appellant pleaded specially, that the district judge was disqualified from trying the case, because at the time of the alleged commission of the offense said judge was the district attorney of said district and county in which it was committed, and was holding said office at the term of court at which appellant was indicted. This plea was overruled, and the facts connected therewith are fully stated in the opinion.

Appellant was prosecuted by information charging him, jointly with one Sidney Alexander, with the theft of a pair of spurs, of the value of 75 cents. Appellant’s motion for a severance having been granted, the prosecution as to the codefendant Alexander was dismissed, on motion of the count)'- attorney, and defendant placed alone upon trial, which resulted in his conviction, with his punishment assessed at thirty days imprisonment in the county jail.

On his trial under an indictment which charged him with the murder of one W. D. Gooch, in Mitchell County, Texas, appellant was convicted, in Nolan County, Texas, where the case had been properly taken by change of venue, of murder in the second degree, his punishment being assessed at thirty years imprisonment in the State penitentiary. In view of the disposition made of the case on this appeal, it is unnecessary to make any general statement.

<p>Appellant was prosecuted, by information, for the theft of a pair of gloves, the property of one T. S. Mooney. At the trial he was convicted, and his punishment affixed at imprisonment in the county jail one month and by a fine of $5.</p> <p>All the facts necessary to explain the points decided are sufficiently stated in the opinion.</p>

Appellant was indicted for resisting the execution of a warrant of arrest, and in resisting the same, and that he did make an assault with intent to murder Sam Cook, the constable attempting to make the arrest. At the trial he was convicted, his punishment being assessed at seven years imprisonment in the penitentiary.

Tried below before Hon. F. Gr. Morris. Appellants, John Rogers and Charles Lyman, were separately indicted for a joint robbery committed by them upon S. S. Hardin on the 13th of February, 1893, at which time they took a pistol from said Hardin, of the value of $20. They were tried separately, and each trial resulted in a conviction, the punishment assessed in each case being imprisonment in the penitentiary for ten years.

<p>Appellant was indicted, in Trinity County, for burglary with intent to commit theft. The venue of the case was changed to Polk County, where, on the trial, he was convicted, and given two years in the penitentiary as his punishment.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried below before Hon. W. A. Blackburn. Appellant was indicted for assault with intent to murder one K. L. Spivey, and at his trial was convicted, with his punishment assessed at imprisonment for two years in the penitentiary. It appears from the testimony, that there was a dance given at Cary White’s on the night of January 7, 1893, which was attended by a number of young people, among them Spivey and appellant, who had theretofore and up to the encounter been good friends.

Tried below before Hon. D. E. Barrett. The indictment contained two counts, one for theft and one for unlawful conversion by a bailee for hire. At the trial appellant was convicted upon the first count, with his punishment assessed at confinement in the penitentiary for a term of five years.

<p>1. Local Option Elections—Validity of, How Determined.—In determining the validity of a local option election, held, that the matters to be considered are :</p> <p>1. The object to be attained by the election.</p> <p>2. The statutory requirements.</p> <p>3. The distinction between the things required prior to -and those required subsequent to the election.</p> <p>2. Same—Procedure Prior to Election.—As to the statutory procedure prior to the election, a strict compliance with the requirements must be shown.</p> <p>3. Same — Procedure Subsequent to Election.—As to statutory requirements subsequent to the election, courts will give such construction as will best secure and carry out the will of the people, as expressed at the election, and will not permit it to be defeated by the neglect or willful disregard of a plain ministerial duty.</p> <p>4. Same—Order Declaring the Result of the Election.—While the statute (Revised Statutes, article 3233) requires the order of the court declaring the result of the election shall be made immediately at the special session on the eleventh day, or as soon as practicable thereafter, held, that a failure to make the order at that time will not render the election void; but the court may amend the record and enter said order at a subsequent term.</p>

Tried below before Hon. E. R. Scott. A copy of the indictment will show the nature of the most important points involved, as well as the facts which were sustained by the evidence, without the necessity of reproducing the testimony.

<p>1. Habeas Corpus as to Justice’s Proceedings — Evidence.—One O., a justice, having fined relator for an assault made by relator upon him (the justice), and relator being in arrest under a capias pro fine issued by the justice on said judgment, applied to the county judge for a writ of habeas corpus, praying that the justice'be cited to appear and bring with him his books and papers relating to said case; and the writ having been duly served upon said justice, he, instead of producing his original books and papers, made out and certified a transcript of all the proceedings in said cause. On the hearing of the habeas corpus, applicant offered the transcript in evidence, and also offered to prove by the justice, and other witnesses, the facts pertaining to said trial, which was excluded by the court, on objection that the justice’s docket was the best evidence of its contents. Held, error; the transcript was admissible evidence under express provision of the statute (Revised Statutes, article 2253; Code of Criminal Procedure, articles 857, 900), and the docket was certainly not better evidence of the identity of the injured party than would have been that party’s own testimony.</p> <p>2. - Same — Diligence — Practice.—When an applicant for habeas corpus shows that he is in arrest, and dealing with prejudiced sources, held, that strict diligence to obtain his testimony ought not to be required.</p> <p>3. Justices of the Peace—Disqualified, when.—By express provision of article 569, Code of Criminal Procedure, a justice of the peace is disqualified to sit in any case where he may be the party injured, and his judicial acts in such case are nullities.</p>

Appellant was indicted for perjury, committed by him as a witness on a trial in a Justice Court of one Colbert Sexton, for using violently abusive language of, to, concerning, and in the presence and hearing of said witness, and which language was reasonably calculated to provoke a breach of the peace. On his trial for perjury, appellant was convicted, and his punishment assessed at imprisonment in the penitentiary for five years.

Tried below before Hon. John C. Russell. Appellant was indicted for the fraudulent conversion of a horse, of which he was the bailee, and at his trial was convicted, his punishment being assessed at five years confinement in the penitentiary. No statement is necessary.

<p>No statement of the case necessary.</p>

<p>Slander—Evidence.—In prosecutions for slander, it is expressly provided by article 646, Penal Code, that the defendant may show the truth of the imputation, etc. Held, that when the imputed slander consisted in a statement as to a specific act of carnal intercourse, it was admissible to prove prior acts of illicit intercourse between the same parties, to show the truth of the imputation, and also to establish that the prosecutrix was not chaste, and therefore not the subject of slander.</p>

<p>Appeal from the District Court of Falls. Tried below before Hon. L. W. Goodrich.</p> <p>This appeal is from a conviction for burglary with intent to commit rape, the punishment being assessed at ten years imprisonment in the penitentiary.</p> <p>The opinion sufficiently states the facts in the case.</p> <p>Defendant’s refused special instruction was as follows, viz.:</p> <p>“ Defendant asks the court to charge the jury, that even though they should find that the defendant unlawfully entered the house in question for the purpose of having carnal knowledge of one Miss Matilda Newman without her consent, yet before you can convict the defendant you must find that the defendant entered the house with the intent to have such carnal knowledge by force; and by force is meant such as might reasonably be supposed to be sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case. Therefore, unless you find, beyond a reasonable doubt, that at the time the defendant entered the house he then and there entertained the intention of having carnal knowledge of Matilda Newman, without her consent and by force, as force has been herein before defined, then and there intending to overcome such resistance as might be reasonably expected would be made in such undertaking, and unless you so find you will acquit him.”</p>

On a trial under an indictment charging him with assault with intent to murder one W. N. Erwin, defendant was convicted of that offense, with his punishment assessed at two years in the penitentiary.

This appeal is from a conviction for assault with intent to rape, wherein the punishment assessed was imprisonment in the penitentiary for a term of two years. ' The facts are sufficiently stated in the opinion.

the County Court of Mitchell. Tried below before Hon. C. H. Earnest, County Judge.

<p>1. Evidence to Corroborate a Witness. — Where a witness was permitted, over objection of defendant, to state that he had testified to the same facts before the grand jury, the objection being that he could not corroborate his testimony in this manner, held, the objection was not tenable, the witness being as competent to testify to such statements as was any member of the grand jury.</p> <p>2. Same — Impeached Witness. —Where a witness has been impeached by proof of conflicting and contradictory statements made by him. it is competent to corroborate his testimony on the trial, by proof showing that he had made the same statements as testified to by him to a witness on the night following the alleged crime.</p> <p>3. Evidence of Extraneous Crimes as Affecting the Credibility of a Witness.—The rule permitting the credibility of a witness to be attacked by evidence showing that he has been convicted of crime, is limited and restricted to convictions involving moral and legal turpitude.</p> <p>4. Assault with Intent to Murder—Charge—Aggravated Assault and Battery.—On a trial for assault to murder, where the evidence suggests the issue of aggravated assault and battery, the charge of the court should submit that issue to the jury under appropriate instructions.</p>

“At the Fall Term, 1893, of the District Court of Victoria County, appellant was tried and convicted on an indictment charging him with the theft and receiving and concealing a certain horse, the property of E. R. Hays. The evidence showed that appellant lived about three or four miles from the alleged owner, and had lived there most of his life, and was familiar with all the stock and brands in the surrounding country.

Tried below before Hon. S. P. Greene. The indictment charges appellant with theft of a horse, the property of one W. C. Freese. He was convicted at the trial, with punishment assessed at five years imprisonment in the penitentiary. In order to illustrate the character of the principal features of the case, it is necessary to give portions of the testimony. W. C. Freese testified, for the State: I know the defendant.

<p>Writ of Error from the. County Court of Ellis. Tried below before Hon. B. McDaniel, County Judge.</p> <p>Nellie Walker, being indicted for carrying on and about her person a dirk, executed a bail bond in the sum of $100, for her appearance to answer said indictment in the County Court. Failing to appear, the bond was forfeited against her and the sureties, and this writ of error is sued out by the sureties. The error complained of is, that the judgment final is fatally defective, because the offense as recited therein is that she was charged with the offense of “carrying on or about her person a dirk.”</p>

Writ of Error from the County Court of Ellis. Tried below before Hon. B. McDaniel. At the July Term of the County Court of Ellis County the appearance bond of Claude Bullard for §100 was forfeited, and judgment nisi rendered. Appellants, S. J. Bullard and F. Hapson, were sureties on said bond.

Tried below before Hon. James Q. Chenoweth, County Judge. Appellant was prosecuted by information for permitting a house owned by him to be kept as a disorderly house, and at his trial was convicted, the punishment assessed being a pecuniary fine of §200. The facts involved in the rulings on this appeal are sufficiently stated in the opinion, and no additional statement is required.

<p>On a joint prosecution, by information, and a joint trial for adultery, both appellants were convicted and the punishment affixed against each at a pecuniary fine of $100.</p> <p>At the trial, over objection of both defendants, the court permitted Sophrona Barnett, wife of defendant Ellis Barnett, to testify as a witness in the case. The whole matter pertaining to her testimony is presented in defendants’ bill of exceptions, as follows:</p> <p>“Be it remembered, on the trial of this case, which was a joint trial against both defendants (there having been no severance demanded or requested by any party, the State or the defendants), the county attorney offered one Sophrona Barnett as a witness, and offered to prove the following facts by her as such witness, to which the defendants then and there in open court excepted, for the following reasons, ‘ that she was an incompetent witness under the law, and was the wife of the defendant Ellis Barnett; ’ which objections were then and there overruled by the court, and it permitted and allowed the said Sophrona Barnett to testify in the presence and hearing of the jury trying the case, and said witness did testify on said trial as follows, in answer to questions propounded by the county attorney: 1 am the wife of the defendant Ellis Barnett. I know where the defendant Kate McLean lives. I have seen Ellis Barnett at her house several times within the last two years; as many as four or five times. On the night of the 12th of March, 1893, I saw him there. I was in company with Elmira House, and went into the yard where Kate McLean lived, at night, at about 12 o’clock. We stood at the south end of the house and watched through the south window; saw Kate McLean in bed; saw Ellis get in bed with her; he had off his clothes. Kate told him to blow out the light, and he done so and got in bed with her. They staid there some fifteen or twenty minutes. They did not do anything then that I saw. I called him out, and he came out to where I was, and I told him to go home, and he went part of the way and turned off.’</p> <p>‘ ‘ The defendant Ellis Barnett refused to ask any questions of said witness whatever, on the ground that by law she was an incompetent witness; whereupon the attorney for defendant Kate McLean asked the witness the following questions: ‘Are you friendly with Kate,’ to which she replied that she was not. He then asked her if she had not had a fuss with Kate McLean, in which she assaulted her and knocked her down, and the witness then said that she had done so on the night of the 9th of April, 1893. Whereupon, on a re-examination of said witness, the county attorney then and there in open court asked the witness to detail all about the fuss, and how it occurred; to which the defendants then and there again urged the objections herein above set forth, and in addition thereto the further following objections, to-wit: The fuss occurred long after the time alleged in the information, to-wit, the 12th day of March, 1893, and that the questions had only been asked to show the state of her feelings against the defendant Kate McLean, and that a detail of said difficulty would prejudice the minds of the jury trying this case against the defendant Barnett. All of which objections were then and there overruled by the court, and the witness was permitted to and did testify before the jury trying the case, in answer to said question so propounded by the county attorney, as follows, to-wit: ‘ On the night of the 9th of April, 1893, on the street in McKinney, at about the hour of 10 o’clock, and after church had closed, myself, my daughter, or rather Rufe and his wife, were on the sidewalk, when defendants, Ellis and Kate, came along. The defendant Ellis Barnett had a walking stick in his hand. I caught hold of Ellis, and told him he could not go home with Kate McLean; he slung me loose. I then went to fighting Kate, and did knock her down. Ellis took sides with Kate, and cursed me, and attempted to strike me with the stick, and my daughter and brother Rufe prevented Mm from so doing. Then Ellis went on home with Kate.’ To which rulings of the court in allowing said witness to testify at all in the case, and in allowing her to detail the said fuss, each of the defendants now here in open court excepted, and this their bill of exceptions has been examined and approved, and is ordered to be filed.”</p> <p>The court qualified the foregoing bill as follows, to-wit: “ This bill is approved, with this qualification, that this proof was offered only as against the defendant Kate McLean, and the court instructed the jury that they would not consider the same as to the defendant Ellis Barnett, and I afterwards charged the jury to not consider the same as to Ellis Barnett.” Signed by county judge.</p>

<p>1. Murder — Charge of Court — Presumption of Intent.—On a trial for murder, where the evidence presented the issue of intentional or accidental shooting, held, that as to such issue it was error for the court to charge the jury, “ that the law is, that when an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention; and therefore, if the jury should find from the evidence that defendant was in fact the person who shot and killed deceased", if he was shot and killed, then the law presumes that defendant intended to injure deceased, and it rests with defendant to show the accident or innocent intention." Following with approval Jones v. The State, 13 Texas Or. App., 1.</p> <p>2. Same — Evidence Incompetent and Irrelevant. — On a trial for murder, where the State was permitted to prove by a witness, over objection of defendant, that on the afternoon before the homicide the defendant, who was then drunk, told the witness “ that he had a good pistol and was going to use it, and that one of his (defendant’s) wife’s relatives has persuaded his boy to leave home,” and that defendant seemed incensed, held, the evidence was incompetent and not relevant for any purpose, and should not have been received.</p>

Tried below before Hon. Don A. Bliss. Omitting formal averments, the indictment charged, “ that in said county of Grayson and State of Texas, on the 27th day of June, A. D. 1893, one Sam Stinnett, in the daytime, did, by force, threats, and fraud, break and enter a house there situate, and occupied by J. B. Snyder, without the consent of the said J. B. Snyder, and with the intent then and there, with malice aforethought, to murder Cymantha Stinnett; against the peace and…

Tried below before Hon. T. S. Reese. At his trial under an indictment for the murder of one Rufus Love, appellant was convicted of murder of the second degree, the punishment assessed being imprisonment for twenty-five years in the penitentiary. In view of the disposition made of the case on this appeal, it is unnecessary to make a statement of the facts proved on the trial.

Tried below before Hon. W. M. Allison. Appellant was separately indicted for theft of the horse of one Pablo Portales, and at the trial was convicted, his punishment being assessed at imprisonment for five years in the penitentiary. When the case was called for trial, defendant made application for a continuance for the testimony of two absent witnesses. This application was overruled.

The indictment is set out in the opinion of the court. A motion in arrest of judgment, upon the insufficiency of the indictment, was overruled.

Tried below before Hon. W. P. Skeen, County Judge. Appellant was prosecuted by information, jointly with one McPherson, for keeping open a saloon or bar room on the 27th day of December, 1892, a day upon which a special election was being held. At the trial McPherson was acquitted, and defendant convicted, his punishment being affixed at a pecuniary fine of Si 00. The evidence shows that the saloon was opened at about 6 o’clock p. m., on the evening of the election.

<p>Appeal from the District Court of Cherokee. Tried below before Hon. James T. Polley.</p> <p>Appellant was indicted for burning the Jacksonville calaboose, and at his trial was convicted, his punishment being assessed at a term of seven years in the penitentiary.</p> <p>The evidence shows, that defendant was a prisoner, being in custody of an officer who was taking him from Palestine to Rusk. They had to lay over for the night at Jacksonville, waiting for a train, and the officer placed the defendant, for safe keeping during the night, in the calaboose. There were no other prisoners in the calaboose. A hole was burnt in the floor of the room in which defendant had been placed, sufficiently large for a man to crawl through, and showed signs as though a person had crawled through and under the building. Defendant escaped from the calaboose, and was not rearrested for three or four months afterwards.</p>

Appellant was indicted for burglary - of a railway car, occupied and controlled by one Charles Griffith, with intent to commit theft therefrom of property belonging to said Griffith, and at his trial was convicted, his punishment being assessed at two years imprisonment in the State penitentiary.

<p>1. Local Option — Petition — Description of Proposed District Embracing an Incorporated Town.—Where a petition for local option sets outs the limits of the proposed district, and the order of the Commissioners Court for the election declares that the petitioners are all voters of the State and county, and reside in the proposed district, the metes and bounds of which, together with the time and places for holding said election, being also fully set forth, held, the law as to the description of the proposed district is fully complied with, and the adoption of local option in said district is not invalid because the metes and bounds of said district embrace and cover, as part of their territorial limits, an incorporated town containing defined wards and precincts.</p> <p>2. Same — Acts Amendatory of Local Option Law. —The Act of April 1, 1887, did not repeal title 63 of Revised Statutes, but only amended and added certain articles thereto, as is shown by the express terms of that act; and from its adoption these amended and additional articles became parts of the Revised Statutes title 63, two of these added articles being 3239a, 3239c. Held, that the Act of March 29. 1893, though not specifically naming the Act of April 1, 1887, in its title or caption, did name the articles 3239a and 3239c of said act as subjects, in part, to be amended, and was in fact intended as a revision of all the articles of title 63 of the Revised Statutes, including the Act of April 1, 1887.</p> <p>3. Titles and Captions to Legislative Acts. — Titles to acts should receive a liberal construction, especially criminal acts. Following Ex Parte Tummins, ante, 117.</p> <p>4. Penalty for Violating Local Option not Repealed.—Article 3239 of Act of March 29.1893, declares that any one violating local option shall be punished as prescribed in “ the Penal Code.” Held, that the "Penal Code” is the Penal Code as amended by the Act of 1887, and this latter act plainly prescribes the penalties for selling intoxicating liquors in violation of the local option law.</p> <p>5. Election — Voting Places. — In an election for local option, where it appeared that there was a prescribed voting box in ward number 2, in the city of B., hut the election was held on another street two blocks away from the place designated in the order for election, held, that though this might have been an irregularity which could, perhaps, have been availed of in a contest to invalidate instituted within thirty days from the election, it does not present a serious question when not so availed of, and where it is not made to appear that a fair expression of the will of the people was not had at said election, and no fraud or improper motive is shown in changing said voting place.</p>

The witness John Alvey testified, in behalf of the State, as follows: My name is John Alvey. I live ten miles southwest from the town of Cisco. I was at Cisco on the 12th day of August, 1893, when defendant arrested Katie Moore. I was in George Harris’ saloon at the time. I was attracted by the noise of some one hallooing and screaming.

Tried below before Hon. This appeal is from a conviction of theft of a gold filled watch and chain, a silver pencil case, pearl handled knife, and one gold breastpin, all of the aggregate value of 840. The punishment assessed was imprisonment for three years in the penitentiary. The purported statement of facts found in the transcript of the record on appeal was not approved by the trial judge, and consequently was not considered on the appeal.

<p>1. Burglary and Theft — Former Conviction. — Where a party is charged in separate indictments for burglary and the theft committed after the burglarious entry, he may, under our statute (Penal Code, articles 712, 713), be tried and convicted separately for each crime, and a conviction for one of the crimes is no bar to a prosecution and conviction for the other.</p> <p>2. Same—Common Law Rules of Practice.—Our statutes with regard to prosecutions for burglary and such other offenses as are committed after the burglarious entry, and authorizing separate convictions both for the burglary and such other crime, abrogate and repeal the common law rule, and as to these offenses the common law rules of procedure, of construction, and of evidence have no force in this State when in conflict with the plain legislative intent as expressed in our statute.</p> <p>3. Same — Cases Disapproved.—The cases of Shepherd v. The State, 42 Texas, 501; Robertson v. The State, 6 Texas Cr. App., 669; Struclcman v. The State, 7 Texas Cr. App., 581; Howard v. The State, 8 Texas Cr. App., 447; and Smith v. The State, 22 Texas Cr. App., 350, in so far as they hold that where burglary and theft are involved in the same transaction a prosecution and conviction for one of the offenses would bar a prosecution for the other, are overruled.</p> <p>4. Continuance.—A continuance is properly refused where it is manifest that the testimony expected of the absent witness is not probably true.</p> <p>5. Statement of Facts — Practice on Appeal.—Where the statement of facts found in the transcript of the record on appeal is not approved by the trial judge, it will not be considered on appeal.</p>

' Tried below before Hon. J. M. Hall. Appellant was indicted for the theft of a saddle, of the value of $25, the property of one Will Hunsucker. The trial resulted in his conviction, with punishment assessed at imprisonment in the penitentiary for a term of two years. No statement necessary.

Tried below before Hon. W. E. McConnell, County Judge. Appellant was indicted as a practicing physician for unlawfully giving a prescription for liquor in a local option precinct, he being at the time, both as a principal and agent, interested in the sale of intoxicating liquors in the drug business. His trial resulted in a conviction, the punishment assessed being a pecuniary fine of $50 and imprisonment in the county jail for twenty days. No statement necessary.

•Appeal from the District Court of Mitchell, on change of venue from Martin County. Tried below before Hon. Wm. Kennedy. This appeal is from a conviction for theft of one head of cattle in the Territory of New Mexico, and for the bringing of the same into the State of Texas. The punishment assessed by the verdict and judgment in the court below was imprisonment for two years in the penitentiary.

. Appeal from the County Court of Scurry. Tried below before Hon. Branch Isbel, County Judge. Appellant was prosecuted for adultery with one Mary Caruthers, he being a married man. At his trial he was convicted, with the punishment assessed at a fine of $1000. No statement of the case is necessary.

Montgomery. Tried below before Hon. L. B. Hightower. This appeal is from a conviction for theft of a horse, the property of one Burrell Warren, wherein the punishment assessed was imprisonment in the penitentiary for a term of five years. The important facts in the case are sufficiently stated in the opinion.

Tried below before Hon. B. H. White, County Judge. Appellant was convicted under an information charging him with a breach of the peace, his punishment being assessed at a fine of $5. A motion to arrest the judgment for insufficiency of the information was overruled. The motion was based upon the failure of the information to aver that the language used was used “ concerning him,” the prosecutor, those terms being used in the statutory definition of the offense.

Tried below before Hon. Charles M. Thacker, County Judge. This appeal is from a conviction for aggravated assault and battery, wherein the punishment assessed was a fine of $100. The evidence shows that Jim Bell, the injured party, who was about 18 years of age, and two other boys, went in bathing on the 26th of June, in a water tank in the pasture of the defendant. Defendant went to the tank and cursed them and ordered them out.

Tried below before Hon. T. H. Conner. Appellant was indicted for the murder of W. M. Norton, and upon his trial was convicted of murder of the second degree, the punishment being-assessed at a term of twenty-five years imprisonment in the penitentiary. As soon as indicted and arrested, to-wit, December 1, defendant filed proper application for process to Ellis and Wise counties for the witness G-. C. Black.

Tried below before Hon. Charles M. Thacker, County Judge. Appellant was prosecuted by information for aggravated assault, and upon trial was convicted, his punishment being assessed at a fine of $5. A motion was made to quash the affidavit or complaint upon which the information was based, because affiant had not stated positively that the assault had been committed, but had only sworn that “ he had good reason to believe, and does believe,” that said assault was committed.

Tried below before Hon. Ethan Allen, County Judge. This appeal is from a judgment final on a forfeited bail bond for $150. As recited in the body of said bond, the condition was as follows, viz.: “ The condition of the above obligation is such, that whereas the above bound principal, Charles Coleman, stands charged, by complaint duly presented in the County Court of Martin County, Texas, with the offense of theft of property under the value of $20.

Tried below before Hon. E. E. Soloman, County Judge. Appellant was convicted of a violation of the local option law, after the same had been legally adopted in justice precinct number 6 of Callahan County, his punishment being assessed at a fine of $25 and twenty days imprisonment in the county jail. The questions upon which a reversal was sought on this appeal are sufficiently stated in the opinion, and no additional statement of the case is required.

<p>1. Swindling — Indictment. — See an indictment for swindling by means of “ a trick knife,” held, sufficient.</p> <p>2. Same.—That a party is induced to bet his property upon his own ability to work or operate a swindling device does not prevent the transaction from being a swindle.</p> <p>3. Charge.—Where no objection is made to a charge of the court not strictly correct in every particular, its imperfections, if not calculated to injure the defendant, will not constitute a ground for reversal.</p>

<p>1. Variety Theater, Selling Liquor in — City Charter and Ordinances.—Where the charter of the city of D. authorized the city council “ to locate and regulate variety theaters.” and also “ to prevent the sale, bartering, or giving away of any intoxicating liquor in a variety theater, or any place where theatrical representations are given, and to prevent said liquor from being brought into said places under any pretext whateverand in pursuance of said charter, an ordinance was adopted “ regulating variety theaters and prohibiting the sale, etc., of spirituous, vinous, or malt liquors in variety theaters or places where theatrical or other exhibitions are given,” and denouncing a penalty for the same: Held, that the charter and ordinance are valid, and that the authority to adopt the ordinance was unquestionably conferred by the charter.</p> <p>2. Same—Authority to “ Regulate.”—The authority conferred by a city charter to regulate variety theaters necessarily involves the right to prescribe and enforce the reasonable conditions and limitations under which they may be conducted in the city.</p> <p>3. Same — Providing Punishment for Offenses not Known to the Penal Law of the State — Police Regulation.—Where it was objected to a city ordinance which punished the sale of liquor in variety theaters, that it makes an act an offense which is not defined hy the Penal Code. held, the object of the power conferred by the charter, and the purpose of the ordinance, was not to punish an offense against the criminal law, but to provide a police regulation for the enforcement of peace and good order within the municipal corporation; and that in the preservation of life, health, good order, and public morals, municipal ordinances may prohibit and punish many acts not unlawful in themselves, nor made so by the Penal Code.</p>

This appeal is from a conviction for rape, wherein the punishment assessed is imprisonment for a term of twenty-five years in the penitentiary. The evidence for the State is fully shown by the testimony of the prosecutrix, Paula Boeck, which is as follows: My name is Paula Boeck. I live down by San Juan Mission. I was 15 years old last August. I know Marcarlo Gonzales; he is sitting right over there.

<p>Appeal from the District Court of Midland. Tried below before Hon. William Kennedy.</p> <p>The indictment in this case contained two counts; one for theft of $500, and the other for the fraudulent conversion of said $500, acquired by virtue of a contract of bailment. The first count for theft was dismissed, and defendant was tried and convicted upon the second count for the fraudulent conversion as a bailee, his punishment being assessed at two years imprisonment in the penitentiary.</p> <p>The facts proved by the State are sufficiently stated in the following testimony of W. E. Connell, who testified: I am and was on the 4th day of December, 1893, cashier of the First National Bank of Midland County, Texas. I saw defendant, W. F. Fulcher, on that day when defendant, in company with Arch Parker, presented for payment a check for the sum of $569, drawn on said bank by T. J. Mullinix (which check witness identifies as the one here offered in evidence by the State). In paying said check, I opened a package of money received by express that morning, and took a package of bills enclosed by a rubber band out of said express package. I supposed said package contained $500. I did not count said money, but counted the bills before I handed the said package to defendant. I remember that said package handed to defendant had two $50 bills in it, but do not remember the denomination of the other bills in said package. If I paid defendant more money than his check called for, it was paid by mistake. I saw defendant count part of the money paid to him, and leave the bank.</p> <p>It was about 10 o’clock in the morning when I paid this money to defendant. The package of money received by express that morning purported to come from the City National Bank of Dallas, Texas. There were two or three wax seals on said package, bearing the stamp of the City National Bank of Dallas, Texas, and said seals appeared to be unbroken. Said package was brought to the bank that morning by W. D. Watts, assistant cashier, and was not opened by me when I paid defendant. Said package purported to contain $3000, but was not counted until about 1 o’clock in the afternoon of that day, and when counted contained only $2000.</p> <p>As soon as I found said package contained only $2000,1 got Ed Townsend and went with him in a buggy in search of defendant, going west of Midland to where T. J. Mullinix was holding cattle, supposing I would find defendant there, but upon arriving there I found that defendant had gone to Stanton, and I, in company with Ed Townsend, followed defendant to Stanton. Upon the way to Stanton we met a Mr. Glasscock, and made inquiries of him about defendant, and Mr. Glasscock told us he thought we would find defendant at his (Glasscock’s) ranch, about four miles south of Stanton, in Martin County. We went to Glasscock’s house, but not finding defendant there, went on to Stanton, arriving there about sundown, and found that defendant and Parker were there at the hotel, and had gone to bed. We, in company with A1 Garrett and Henry Harding, went to defendant’s and Parker’s room, upstairs, and I told defendant that I had paid him $500 too much money, and wanted defendant to count his money in our presence, which defendant refused to do, stating that he had left the money at Glasscock’s ranch. I told defendant we had just come from Glasscock’s ranch, and he had not left any money there. Defendant then said he had paid out part of the money and had left the balance of the money with a saloon keeper in Midland, Texas.</p> <p>Defendant never denied that he had received more money than was due him, nor did he admit it; but said he had on receiving said money at the bank counted same until he saw he had enough, .and then quit. The money was current money of the United States, and of the value of $500, and was paid defendant in Midland County, Texas, December 4, 1893.</p> <p>The express package containing this money was placed by W. D. Watkins in a drawer to the left of the regular money drawer and to the left of the cashier’s window. I took no money from said package except that paid to defendant. I was present in the bank the morning of December 4, 1893, from the time the money was received from the express office until I went to dinner at noon, and then I left W. D. Watkins in charge of the bank. I did not see any one else take any money out of said package. No one had access to the money except myself, W. D. Watts, and George Elliott. I had exclusive custody, control, and management of said money herein before mentioned. When I paid the money to defendant I saw no one else with him but Arch Parker. Defendant and Arch Parker were strangers to me, and I had never seen them before the time I paid the check. I paid the defendant $69 out of the cash drawer in addition to the package of money referred to by me. The defendant first told me that he did not know whether he had the money or not, and he objected to counting it. I told him Sheriff Garrett and County Clerk Harding were present, and he was in no danger. He said he feared he would be robbed. I usually counted money by counting the number of bills. On December 2, 1893, I wired the City National Bank of Dallas, Texas, to send me $3000 in currency.</p>

Tried below before Horn Stephen P. West. On a trial under an indictment charging him with the murder of one-Bob Ford, appellant was convicted of murder of the first degree, his punishment being assessed at a life term imprisonment in the penitentiary. Bob Ford, the deceased, Jin White, appellant, and several other parties were employed in the Ice, Light and Refrigerator Ice Company’s ice-house, in Beaumont, Texas.

On a trial under an indictment charging him with the murder of Sid Nance, appellant was convicted of murder of the second degree, the punishment being assessed at imprisonment in the penitentiary for a term of ten years.