Volume 33 — Texas Criminal Reports

Tried below before Hon. B. R. Abernathy, Special Judge. This appeal is from a refusal of tbe court below to grant defendant bail under a writ of babeas corpus. Tbe case is fully stated iu tbe opinion. Tbe material facts concerning tbe murder will be found in tbe case of Cox et al. v. Tbe State, 8 Texas Crim. App., 254. 1.

<p>Appeal from the District Court of Hunt. Tried below before Hon. E. W. Teehune.</p> <p>This appeal is from a conviction for burglary, the punishment assessed being two years’ imprisonment in the penitentiary.</p> <p>Defendant went voluntarily before the grand jury and, after being properly warned, confessed that he had entered the house of Mr. Hollon, the alleged injured party, through a window, and taken a basket containing provisions from the house.</p>

Tried below before Hon. C. P. 'Woodbuef. Tbis appeal is from a conviction for burglary, witb punishment assessed at two years in tbe penitentiary. One Lucien Beeves was separately indicted for tbis offense, and upon defendant’s motion and affidavit Beeves was first put upon trial, but witb wbat result tbe record does not disclose.

Tried below before Hon. JOHN C. Bussell. This appeal is from a conviction for murder of tbe second degree, tbe punishment assessed at ten years’ confinement in tbe penitentiary of eacb of tbe appellants. Tbe opinion of tbe court sufficiently states tbe case. No briefs found witb tbe record.

Tried below before Hon. W. A. Blackburn. This appeal is from a conviction for murder of tbe second degree, tbe xmnisbment assessed being ten years in tbe penitentiary. Tbe murdered party was a woman (Marize Malcek), appellant’s wife. Tbe parties were Bohemians, and they were married in tbe old country in 1871. They bad lived thirteen years in Texas, part of which time they lived in Falls County..

Tried below before Hon. W. E. McGill. Appellant was indicted March 28,1893, in the county of Motley, for the murder of A. Beemer, alleged to have been committed on the 7th day of September, 1887. On account of the sparseness of population and difficulty of getting a jury in that county, the venue was changed to the county of Knox.

Tried below before Hon. StepheN P. West. Tbis appeal is from a conviction for assault witb intent to murder, tbe punishment assessed being five years in tbe penitentiary. Appellant and Green, tbe alleged injured party, occupied adjoining business bouses, and tbey used water from tbe same cistern. Tbe faucet of tbis cistern got out of order and was leaking. Green sent bis porter to fix it, and Baw came out and began to interfere witb tbe work.

O. P. Woodruff. Appellant was indicted in the District Court of Scurry for the murder of one Thomas Lowe, in the unorganized county of Kent, on the 23d day of March, 1891, the county of Kent being at the time attached (for judicial purposes) to the county of Scurry. Afterwards, and before the trial, Kent County, where the homicide occurred, became organized.

Tried below before Hon. C. P. Woodruff. This appeal is from a conviction for seduction, the punishment being assessed at two years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

<p>Appeal from the District Court of Bell. Tried below before Hon. W. A. BlacKbttbN.</p> <p>This appeal is from a conviction for murder of the second degree, the punishment being assessed at five years’ imprisonment in the penitentiary.</p> <p>A sufficiently fair condensed statement of the facts is found in appellant’s brief, as follows:</p> <p>The evidence shows that appellant was deputy city marshal in the town of Belton on March 11,1893, and had been for several .years previous to that time. That on the night of the 13 th of March, 1893, the city marshal was absent from town and appellant had charge of the office of marshal. That about 12 o’clock on said night appellant was on his way home, and as he was passing the Buckhorn saloon Mr. Jones, the bartender in said saloon, called him and told him to come get his meat. Appellant was in the habit of leaving his breakfast steak in Jones’ ice chest, and it was appellant’s custom to come by after it before going home. Appellant went in and got his meat and put it in his overcoat pocket. There was a barber shop inside of the saloon building and separated from the saloon proper by a partition wall, with one door opening on the north sidewalk and another opening into the saloon. When appellant went into the saloon, deceased and John Hammersmith were near the barber shop, and Hammersmith was insisting on being shaved. O’Riley, one of the barbers, refused to shave him, because it was after 12 o’ clock, and told him it was a fifty-dollar fine to shave a man after that hour. Hammersmith replied that he was not short on money, and would pay the fine. O’Riley then proffered to go to bis borne and shave him on the next morning, but told him be could not shave him then, as it was after 12 o’clock, and be must close up. At this time Mr. O’Riley remarked, “There is the marshal now,” referring to appellant. Appellant then said, “Yes, boys, it is time to close up.” Hammersmith remarked to him, “What in the hell have you to do with it?” Mayes said, “I have enough to do with it to see that everything is closed at 12 o’clock.” Hammer-smith then said, “You are a damn fine specimen of city authority.” Mayes said he did not want any trouble with Hammersmith. At this time deceased said, “Why don’t you whip him?” and started toward appellant, and told him if he would pull off his “gun” he would whip him. Mayes pulled his pistol out of his pocket as if to use it as a club with one hand, and pushed deceased back with the other. Then they were parted. George Evans held deceased, while O’Riley took appellant out at the back door of the saloon. Deceased tried to pull loose from Evans and follow appellant. While on the outside, O’Riley and appellant had a conversation. O’Riley says this is the conversation they had, to wit: “ I said to Mayes, 'Let it drop and have no fuss.’ Mayes said, 'Well, keep Russell away from me; I don’t want to take the worst of it.’” They then returned to the saloon, and as soon as they got inside the door deceased rushed at appellant, and O’Riley caught deceased and threw him between two billiard tables and held him. The bartender then told appellant to go out, and he went out, and the bartender immediately shut the door and locked it. When appellant got on the outside of the saloon he said to John Perry, “Go after Pink, and go quick,” meaning Pink Denman, deputy sheriff, who was at the jail a short distance from them. Perry started toward the jail. Just after the door was closed Hammersmith said, “Russell [meaning deceased], get a gun and fight him right.”</p> <p>Hammersmith denies making this statement, but the other witnesses say he did make it. Hammersmith admits he was “full.” Deceased then asked Jones, the bartender, for a pistol, and Jones said he did not have one. Jones says when deceased asked him for the “gun” he spoke it in a loud and excited tone, and when he told him he did not have one, he spoke it in an ordinary tone. Jones says deceased then said, “I can whip the damn son-of-a-bitch anyhow,” and broke for the door. Hammersmith and Jones grabbed him, but he broke loose from them and caught hold of the door and gave it a wrench with such force that it broke the glass in the door and the door came open. When the glass broke, it fell on the floor and made a loud crashing noise. Deceased rushed through the door toward appellant, saying, “I’ll beat his damn face off of him,” and appellant fired, and deceased went north, then straightened himself, turned facing appellant and threw his hands to his breast, and appellant fired again. The shots were in quick succession. As soon as appellant shot the last shot, he said: “Boys, I have done it; come and get me.” Appellant surrendered to W. J. Stone, and as they were going to the jail (immediately after the shooting) appellant said to Stone, “I am sorry that it happened,” or “I hated to have to do that.” Appellant says he heard Hammersmith tell deceased to “get a ‘gun’-and fight him right,” and heard deceased ask Jones for a pistol, but did not hear Jones’ reply. He also heard deceased say,.when he came through the door, that “he would beat his damn face off of him.” Deceased and appellant were friends up to the difficulty. Appellant had said nothing to deceased until deceased spoke to him. There are no contradictions to the above statement of the facts except as to John Hammersmith as above stated. The only material contradictions, if any, are those as to what appellant said and did on the outside of the saloon, and as to George Evans’ going out the door with deceased at the time deceased was shot.</p> <p>Thomas O’Brien testified substantially as follows: That he, in company with Frank Ellington and O. C. Hartley, was passing the Buck-horn saloon about 12 o’ clock, and just as they passed the saloon he saw Geo. Evans standing on the sidewalk holding Mayes and telling him to hold on. Mayes replied: “No, by God, if he comes out I’ll kill him.” Mayes had his pistol-waving it over his head, and Evans was trying to catch it, and had hold of Mayes’ arm. They did not stop, but went on down the street, and when they had gotten in the middle of the street between Coop’s and Cook’s corner, they heard two shots fired. Mayes had arrested him and put him in the calaboose for being drunk. I did not tell Jake Bruce that we had sworn falsely on the habeas corpus trial of this defendant. I did not tell Jake Bruce that Ellington had gotten me into it. I did tell Bruce that if Ed Holtzclaw, the marshal, and Joe Mayes did not watch out, Ellington would kill them both. (See testimony of Jake Bruce, who says O’Brien told him those things, which he denies having told him.)</p> <p>Frank Ellington testified for the State substantially as follows: Thomas O’Brien, Hartley, and himself left the Traders’ saloon at about 12 o’clock to go to the Commercial hotel. They passed by the Buck-horn saloon, and when they got to the north side door Joe Mayes and O’Biley were standing on the sidewalk. O’Biley had his hand on Mayes’ shoulder, and Mayes said: “If you don’t keep him away from me, I’ll kill him.” Mayes had his pistol out in his hand hanging by his side, but did not have it over his head. Mayes was not waving his pistol when I passed. O’Brien, himself, and Hartley were walking side by side when we passed Mayes and O’Biley. He did not see Mr. Patterson or any one else ahead of them. They were about 127 yards from where they saw O’Biley and Mayes, between the Coop corner and Commercial hotel, when the shots were fired. Mayes had arrested him twice for being drunk, and put him in the calaboose. O’Brien was pretty drunk that night.</p> <p>C. C. Hartley testified substantially the same as did Frank Ellington, except he says they had gotten to the Cook corner instead of the Coop corner when he heard the shots. Joe Mayes had put his calf in the pound.</p> <p>Frank Johnson testified for the State, substantially, that he was at Hunt’s saloon playing dominoes until 12 o’clock, and at that time the saloon was closed and he left, and Ellington, O’Brien, and Hartley came on behind him. That he passed the Buckhorn saloon and saw Joe Mayes about half-way from the corner and the north side of the door coming toward him, and heard him say: “If the son-of-a-bitch comes cut and jumps at me, I’ll kill him.” That two men were following Mayes, and were near him when he made this remark. Five or six: men were standing near the north side door of the saloon. That he went right on home, and as- he was going up the stairs to his room he heard two shots fired; that he went on in his room and went to bed. “I know the old man who used to cook at Mr. Pecora’s; he slept in the same room with me. Another man, a stone cutter, was sleeping in the room at the time. I do not know where he is now.”</p> <p>Defendant’s witnesses contradict these last State’s witnesses in several important particulars, but we do not deem it necessary to reproduce the contradicting evidence.</p> <p>Appellant’s bill of exceptions number 1 discloses the fact that the court refused to grant appellant’s motion to have Tink Perry, Ed Yates, and Ned ChaDey placed on the stand to testify. -These witnesses were present in the saloon, and were in a position to have seen and heard all that occurred in the saloon from the beginning to the end of the difficulty between appellant and deceased.</p> <p>This bill of exceptions also complains of the remarks of the district attorney in his closing argument, with reference to the failure of these witnesses to testify. He said: “Why did not the defendant put Mr. Perry, Mr. Yates, and Ned Chaney on the stand! Mr. Yates is the son-in-law of the defendant, and the other witnesses in the saloon that night were defendant’s friends; he was in the very nest of his friends. Mr. O’Biley was Mr. Yates’ partner; that is why we did not put the witnesses on the stand.” Appellant’s counsel promptly objected to these remarks, because counsel had no right to refer to or comment on these witnesses who had not testified.</p> <p>Frank Johnson testified, in behalf of the State, that he passed the Buckhorn saloon just before the shots were fired that killed Bussell Embree, and that as he was passing the saloon he saw appellant on the outside of the saloon, and heard him say, “If the son-of-a-bitch comes out and jumps at me, I’ll kill him.” For the purpose of impeaching this witness, appellant placed upon the stand J. N. Galliger, Cliff Torrence, and G. N. Davis, who testified that they were well acquainted with the general reputation of Frank Johnson in Waco, his former borne, for truth, and that it was bad. Appellant’s counsel then asked each of said witnesses this question: “From that general reputation, is he worthy of belief upon his oath?” The district attorney objected to this question, because improper, and the court sustained the objection and refused to permit the witnesses to answer it.</p> <p>It is made one of appellant’s grounds for a new trial that B. A. Center, one of the jurors in this case, was guilty of corrupt conduct, in this, that when tested on his voir dire as to his qualifications to serve as a juror, the said E. A. Center stated that he was not biased or prejudiced against appellant, and had neither formed nor expressed an opinion as to appellant’s guilt or innocence.</p> <p>To establish the falsity of the statement of this juror, this ground of the motion for a new trial is supported by the affidavit of "W. E. Burks, in which he makes the following statement, to wit: “Hive in Bell County, Texas. I was drawn and summoned on the J. M. Mayes venire in the District Court of Bell County, Texas, July Term, 1893, to appear August 21, 1893, wherein J. M. Mayes was charged with the murder of Eussell Embree. I know one E. A. Center. I have known him about six years. He is a warm friend of mine. The E. A. Center mentioned is the same man who sat on the said J. M. Mayes case as juryman, tried at the present term, being number 5223. Mr. Center was also drawn and summoned as a venireman on said cause, to appear August 21, 1893.” Affiant and the said E. A. Center, while on their way to Belton, Texas, from their homes, on the morning of the 21st of August, 1893, to answer their said summons, had a conversation with each other respecting the Mayes case; that in said conversation the said E. A. Center stated to affiant that he would like to get on the Mayes jury. “I asked him why, and he said, ‘I’ll get to make my hash.’ B. A. Center then asked me what I thought they would do with him (meaning the said J. M. Mayes). I replied that I didn’t, know. I then asked him what he thought they would do with him, and he replied that he thought he (meaning the said J. M. Mayes) ought to have his damn neck broke.”</p> <p>In answer to this affidavit the State files the affidavit of E. A. Center, who denies that he made the statement Burks says he made. But in his affidavit he admits having a conversation with Burks as he was. coming to Belton in obedience to a summon as venireman in the Mayes case, and in that conversation he says he told Burks that he hoped they would use him on the juries so he could make his expenses, and that they would keep on hauling him down on these juries until he would get a chance to help hang some son-of-a-bitch. He further says that all he said was in a jocular manner, and with reference to all the venires he was on. In support of this affidavit the State filed the-affidavit of W. E. Burks, who says he had always regarded E. A. Center as an honest man, and still so regards him as such. Center, in his, affidavit, also stated that at the time of the conversation between Burks and himself he, affiant, had no acquaintance with Mayes, the defendant, nor with Bussell Embree, the deceased, and knew nothing whatever at the time of the facts in the Mayes case, nor of any other case in which he had been summoned as a venireman, none of the cases having originated in his ¿portion of the county, it being twenty-five miles west of Belton and near the county line where he had his place of residence. That he did not then have, nor has he now, any bias or prejudice against the defendant, J. M. Mayes.</p> <p>1. It was the duty of the court to have required the prosecution to place the eye-witnesses Tates, Perry, and Chaney on the stand to testify. Hunnicutt v. The State, 20 Texas Crim. App., 639; Thompson v. The State, 30 Texas Crim. App., 325.</p> <p>2. The court erred in the nineteenth paragraph of the charge in submitting questions as to antecedent malice, previously existing enmity, and grudges between the parties, when there was no evidence of any such conditions — the testimony showing that on the contrary deceased and defendant were good friends up to the beginning of the difficulty. The charge was excepted to generally. Code Crim. Proc., art. 677; Willson’s Crim. Stats., secs. 2335, 2337.</p> <p>3. It was error for the court to refuse to permit counsel for defendant to ask the witness he had called to impeach the witness Frank Johnson, if “from that general reputation, is he worthy of belief on oath?” As far as we have been able to ascertain, this question came before our courts of last resort for the first time in the case of Boon v. Weathered, 23 Texas, 675, and after a very exhaustive research into the authorities, Judge Bell states the rule to be, “inquiry should practically be restricted to the general character of the impeached witness for truth. * * * If the impeaching witness states that he is acquainted with the general reputation of the impeached witness for truth in the community where he lives, he may then properly be asked whether that general reputation is such as to entitle the witness to credit on oath. * * * Any other form of words may be used which do not involve a violation of the cardinal principles that the inquiry must be restricted to the general reputation of the impeached witness for truth in the community where he lives or is best known, and that the impeaching witness must speak from general reputation and not from his own private opinion.” This is still the rule in this State, and as authority we call this court’s special attention to the following decisions: Marshall v. The State, 5 Texas Crim. App., 293; Holbert v. The State, 9 Texas Crim. App., 219; Griffin v. The State, 26 Texas Crim. App., 163. Then, if these decisions lay down the law of this State, this appellant has been deprived of a legal right, and having properly saved his bill of exception, he is entitled to have this conviction set aside.</p> <p>4. The court should have granted the new trial on account of the bias and prejudice of the juror Center. Long v. The State, 10 Texas Crim. App., 198; Henrie V. The State, 41 Texas, 579; Hanks v. The State, 21 Texas, 527; Sewell v. The State, 15 Texas Crim. App., 62; Graham v. The State, 28 Texas Crim. App., 583.</p> <p>5. We submit that the evidence is insufficient.</p> <p>(1) No murder is shown, but the facts show a case of justifiable homicide in self-defense.</p> <p>(2) If culpable homicide is shown, it is of no higher grade than manslaughter.</p> <p>1. The appellant contends that the homicide is justifiable. The State contends that the facts show murder, and there is an abundance of evidence to sustain a verdict for murder in the second degree. Deceased, Eussell Embree, and Mayes had had a wordy altercation in the saloon a short time before the killing. Mayes had drawn his pistol in this altercation, and tried to use it on Embree. They quarreled and tried to fight, but were separated; that is all. Mayes was taken out of the saloon, soon returned, and another altercation was about to ensue. Mayes was again removed from the saloon, or went voluntarily. It is established by the evidence that defendant did not have the nerve to fight the boy with his fist, but preferred to murder him rather than to get his face bruised a little or to arrest him. The homicide was not necessary, and Mayes never thought so, and the jury did not think so. Hooper v. The State, 30 Texas Crim. App., 415; The State v. Webb, 41 Texas, 67.</p> <p>2. The court fully charged the jury that they must view the killing from appellant’s standpoint, and charged according to the approved precedents. It was not necessary to repeat the charge by giving the requested charge. Garrello v. The State, 31 Texas Crim. Eep., 56; Maxwell v. The State, 31 Texas Crim. Eep., 119; Nalley v. The State, 28 Texas Crim. App., 387; Gonzales v. The State, 28 Texas Crim. App., 130; Willson’s Crim. Stats., sec. 1070. The Nalley case is squarely in point.</p> <p>3. The court did not err in not requiring the State to put all the eyewitnesses on the stand. The remarks of the district attorney were proper. Appellant did not ask the court to disregard them even if they were improper. Willson’s Crim. Stats., sec. 1055; Hunnicutfc v. The State, 20 Texas Crim. App., 626; Phillips v. The State, 22 Texas Crim. App., 139; Gibson y. The State, 23 Texas Crim. App., 414; Ex Parte Smith, 23 Texas Crim. App., 140; Garrello v. The State, 30 Texas Crim. App., 61.</p> <p>4. The facts show murder, and the court properly submitted both degrees of murder to the jury. A perusal of the record sustains this proposition. Parker y. The State, 22 Texas Crim. App., 109; Neyland v. The State, 13 Texas Crim. App., 536; Willson’s Crim. Stats., secs. 1060, 1064.</p> <p>5. The sufficiency of the court’s charge on self-defense has been discussed supra — proposition 2. Nalley y. The State, 28 Texas Crim. App., 387.</p> <p>6. The only proper way to impeach a witness on account of his general reputation is to prove by witnesses who know his general reputation what that reputation is. When this is done the ends of justice are accomplished, and the court does not injure a defendant by refusing to let the examination proceed further. 1 Greenl. on Ev., sec. 461, is in point; Willson’s Crim. Stats., sec. 2513, and many cases cited.</p> <p>7. Appellant asks for a new trial on account of the misconduct of the juror E. A. Center. Center positively denies the charges, and makes an affidavit to that effect. No injury is shown. The juror shows that he was a fair juror and uninfluenced by any improper motives. This is not a case of a juror impeaching his verdict, but an attempt is made to show that he was an improper juror. For this to be made available, it must be clearly shown that he made the remark and that it was injurious to appellant in some of his substantial rights. Thomp. on Trials, secs. 2611, 2612, and many cases cited; Willson’s Crim. Stats., secs. 2545, 2546; Weatherford v. The State, 31 Texas Crim. Bep., 530; Long v. The State, 32 Texas Crim. Rep., 140.</p>

Tried below before Hon. Beauregard BryaN. Appellant was convicted as an accomplice to the crime of arson, the indictment alleging that the fire was applied to the house by one Paul Kirschner and one George B. Jones, and that appellant, prior to the commission of the crime by said parties, “did unlawfully and willfully promise the said Paul Kirschner to pay him, the said Paul Kirschner, the sum of five hundred dollars to procure the commission of said offense by the said Paul…

Tried below before Hon. B. D. MoClellan. This appeal is from a conviction for assault with intent to rape, the punishment being assessed at five years in the penitentiary. The opinion on rehearing sufficiently states the case.

Tried below before Hon. S. E. Scott. This appeal is from a conviction for perjury, the punishment being-assessed at five years’ imprisonment in the penitentiary.

Appear from the District Court of Karnes-. Tried below before Hon. S. F. Grimes. Appellant was indicted in the ordinary form for the murder of one Frank Martin. The murder was committed in the attempt at robbery of a railroad train on the San Antonio & Aransas Pass Railroad, near the station of Brackenridge, in Karnes County. At the trial appellant was convicted of murder of the'first degree, his punishment being assessed at death.

Tried below before Hon. L. W. Goodrich. Tbe indictment charged the appellant with tbe murder of one E. Kaufman, by shooting him with a pistol; and tbis appeal is from a judgment of conviction in which be was found guilty of murder of tbe first degree, the penalty being affixed at death. In view of tbe disposition of tbe case on appeal, a statement of tbe evidence is neither necessary nor called for.

the District Court of Milam. Tried below before Hon. JOHN N. HENDERSON.' Appellant was indicted for fraudulently and privately taking a. watch of the value of $10 from the person and possession of one D. K. Donovan. At his trial he was convicted, punishment being assessed at a term of two years in the penitentiary.

<p>1. Rape — Evidence—General Reputation of Prosecutrix as to Mental Capacity. — -On a trial for rape it is not permissible to prove that the prosecutrix was regarded in the neighborhood where she resided as wanting in good sense.</p> <p>2. Same — Insanity.—Insanity can not be proved by general reputation.</p> <p>3. Same — Nonexpert Testimony. — Where the testimony of nonexperts is relied upon to prove insanity, the opinion of such witnesses is competent évidenee only when the facts and circumstances upon which it is based are stated by such witnesses.</p> <p>4. Charge — Circumstantial Testimony. — It is not error to refuse to charge upon the law of circumstantial testimony where the testimony is positive and direct.</p>

<p>Assault — Means and Manner Calculated to Alarm. — Where it appeared that accused, armed with a knife, advanced in an angry and threatening manner with intent to alarm the prosecutor, and under circumstances calculated to, and which did, effect that object, Held, sufficient to constitute an assault under subdivision 3, article 489, Penal Code.</p>

Tried below before Hon. D. E. Bakrett. Tbe indictment, wbicb was for borse theft, contained three counts. 1. That tbe borse was tbe property of, and stolen from tbe possession of D. 0. Lay. 2. That the borse was tbe property of C. C. Fowler, and stolen from tbe possession of D. C. Lay. 3. That tbe borse was tbe property of 0. C. Fowler, and stolen from tbe possession of one B. B. Mathis. Tbe third count was quashed on motion of defendant.

Tried below before Hon. A. LewellyN, County Judge. This appeal is from a judgment final on a forfeited bail bond executed by John Markham as principal, with R. H. Jones and J. F. Batía as sureties, in the sum of $200, conditioned for the appearance of said Markham before the County Court to answer to an information against him for carrying a pistol. Having failed to appear, the bond was forfeited and judgment nisi rendered, with scire facias to the sureties.

Tried below before Hon. T. F. Nash, County Judge. Appellant was indicted for butchering for market two unmarked and unbranded calves, the same not having been raised by him, and he not having a written transfer or bill of sale for the same. At the trial he was convicted, the punishment being assessed at a fine of $50. There was no evidence that appellant ever had a bill of sale or written transfer of the animals. The other facts are sufficiently stated in the opinion.

Tried below before Hon. Charles F. CliNt. Appellant was indicted for the theft of several pieces of leather belting, some of value over $20; the others of less value. At the trial he was convicted of theft of property over the value of $20, the punishment being assessed at imprisonment in the penitentiary for a term of eight years. The facts are sufficiently stated in the opinion. 1.

<p>- Appeal from the County Court of Donley. Tried below before Hon. B. H. White, County Judge.</p> <p>This app.eal is from a conviction for giving away intoxicating liquors on a general election day, wherein the punishment was assessed at a fine of $100.</p> <p>Defendant made a motion to quash the indictment, and among other grounds claimed that it was mainly defective, “because it does not allege, by distinct and positive averment and in plain and intelligible words, the purpose for which the alleged election was being held, nor does it allege any purpose known to and recognized by law.”</p> <p>No further statement necessary.</p>

<p>1. Abortion and Attempt to Produce an Abortion — Practice.—Where an attempt to produce an abortion fails of its purpose, the accused should be prosecuted under both articles 536 and 538 of the Penal Code. If the abortion is produced, he should be prosecuted under article 536 alone.</p> <p>2. Same — Principal and Accomplice. — A party furnishing the means with intent to produce an abortion is a principal and not an accomplice, though not present when the means were used by the female, and though the female was desirous of and consenting to what was done to produce the abortion.</p> <p>3. Same — Accomplice Testimony — Charge of Court. — On a trial for abortion where the injured female testifies, the court is not required to instruct the jury as to the law of accomplice testimony as applicable to her evidence. Following Watson v. The State, 9 Texas Crim. App., 237.</p> <p>4. Same. — On a trial for an attempt to produce abortion, if it appears that the accused administered or caused to be administered a drug or medicine not calculated to produce that result, he can not be convicted; but if the medicine was such as would have produced an abortion, and was administered for that purpose, a convictioii is properly had and will be sustained.</p>

Tried below before Hon. W. P. CUNNINGHAM, County Judge. This appeal is from a conviction for keeping a disorderly house, the punishment being assessed at a fine of $200. No statement necessary. No briefs have come to the hands of the Reporter.

<p>Appeal from the District Court of Hardeman. Tried below before Hon. G-. A. Beown.</p> <p>This appeal is from a conviction for theft of a horse, the property of one Jesse Biggs, wherein the punishment assessed was five years in the penitentiary.</p> <p>In view of the disposition made of the case on appeal, no general statement is necessary.</p> <p>— The court erred in overruling defendant’s motion for a new trial on the ground that the jury had not been sworn to try this cause; because the record shows, by the admission of the district attorney, “that the jury was not sworn in this case,” as shown by defendant’s bill of exceptions number 2.</p> <p>On appeal, if the record fails to show that the jury were sworn, or if it shows that any other oath than the statutory oath was administered to them, the conviction will be set aside. Any other oath than the statutory oath is, in contemplation of law, no oath. Leer v. The State, 2 Texas Crim. App., 495; Edmonson v. The State, 41 Texas, 501; Bawcomb v. The State, Id., 191; Martin v. The State, 40 Texas, 26; Smith v. The State, 1 Texas Crim. App., 408.</p> <p>Tbe judgment recites tbe fact that tbe jury was duly impanelled and sworn. Tbe defendant’s bill of exceptions number 2 shows that tbe statutory oath was not administered to tbe jury, and that tbe jury were not sworn after they were selected to try tbe defendant, but that they were sworn with other jurors for tbe week as provided for swearing jurors in civil cases (Rev. Stats., art. 3099), and that this oath was administered to tbe jury before this defendant was brought into tbe court room for trial. Defendant can not have tbe judgment corrected so that it will show tbe exact oath that was administered, but must present tbe point by bill of exceptions. Preston v. Tbe State, 8 Texas. Crim. App., 30.</p>

Tried below before Hon. L. B. Hightower. Appellant was indicted for the murder of one N. B. Hickman, and on his trial was convicted of murder of the second degree, with punishment assessed at five years’ imprisonment in the penitentiary. The killing occurred in the town of Leggett, in Polk County, Texas, on the afternoon of the 24th day of September, 1892.

Tried below before Hon. J. C. Russell. Appellant and one Yndalacio Rosales were jointly indicted for the murder of Elias Mussett. Defendant filed a motion, in conformity with the provisions of article 669a of the Code of Criminal Procedure, for severance, in order that said Rosales might first be tried.

<p>Appeal from the District Court of Live Oak. Tried below before Hon. W. W. Walling, Special Judge.</p> <p>Appellant was indicted for the theft of one head of cattle, the property of one O. P. Williams, and at his trial was convicted of said offense, the punishment being assessed at two years’ imprisonment in the penitentiary.</p> <p>The case is sufficiently stated in the opinion.</p> <p>The defendant, Jose Torres, was indicted in this cause for the theft of the calf in question under and by virtue of article 724, Willson’s Criminal Statutes of the State of Texas, and said indictment charges the offense as therein defined, and the evidence, and especially that of O. P. Williams, shows conclusively, that if the defendant is guilty of an offense, it is either embezzlement as defined by our Penal Code, or theft as is defined by article 742a of the Penal Code of the State of Texas pertaining to theft by a bailee. Taylor v. The State, 25 Texas Crim. App., 96; Brooks v. The State, 26 Texas Crim. App., 184; Cunningham v. The State, 27 Texas Crim. App., 479; Nichols v. The State, 28 Texas Crim. App., 105; Rumbo v. The State, 28 Texas Crim. App., 30; Purcelly v. The State, 29 Texas Crim. App., 1; Porter v. The State, 23 Texas Crim. App., 295; Williams v. The State, 30 Texas Crim. App., 153; Hernandez v. The State, 20 Texas Crim. App., 152.</p> <p>In order to sustain a canse in any court, the allegations and proof must correspond and be confined to the point or points in issue, and in a criminal case the indictment must contain all of the descriptive allegations of the offense, as well as all necessary allegations that the particular offense has been committed; and if one of these elements is not contained in the indictment, which the facts of the case conclusively show, then the conviction can not stand. In order that the defendant in this cause might be legally convicted for the theft of the calf in question, the indictment would have to allege the descriptive allegations contained in article 742a of our Penal Code — that is, that the defendant obtained possession of the animal as bailee of the owner, and other allegations which would bring the offense within the definition of theft, and not that the defendant fraudulently acquired the possession of the animal as in the general definition of theft, all of tbe evidence going to show that if the defendant was guilty of theft at all, it was as the owner’s bailee, and was not guilty under the indictment, which only charged theft under the common definition of such an offense.</p>

Tried below before Hon. H. B. Pruitt, County Judge, The complaint upon which relator was tried in the Justice Court is as follows: Texas’ 1 In Justice’s Court, Precinct No. 3. “County of Leon. ) “Personally appeared before me, T. A. Holland, a Justice of the Peace in and for Precinct No. 3, Leon County, Texas, G. A. Parrish, who, after being by me duly sworn, on oath deposes and says that heretofore, to wit, on or about the 3rd day of July, 1893, in the County of Leon and…

Tried below before Hon. E. W. TeshuNE. This appeal is from a conviction for murder of the first degree, with penalty assessed at a life term in the penitentiary. Held: that any act of a defendant while under arrest which indicates guilt is as equally inadmissible as statements made by defendant under same circumstances, and tbe record in tbis case shows that tbe defendant bad been under arrest and in prison ever since be was accused of tbis crime.

Tried below .before Hon. JOHN L. Sheppard. Appellant was indicted for tbe murder of Matilda Allen, and at bis trial was convicted of murder of tbe second degree, with bis punishment assessed at twenty-five years’ imprisonment in tbe penitentiary. Defendant pleaded guilty. Tbe only evidence introduced was that of J. M. De Ware, wbo testified: “I am sheriff of Marion County, Texas; was sheriff of said county on September 4, 1893. I knew Matilda Allen in her life-time.

■Appeal from the District Court of Grayson. Tried below before Hon. DON A. Bliss. . ■ ■ This appeal is from a conviction of burglary, the- punishment assessed being two years in-the penitentiary. The house burglarized-was the saloon of W. J. Stern, in the city of Denison. The property proved to have been stolen from the house was $14.80, which had been left in the cash drawer by the bartender when he shut up the house for the night, and a pistol.

Tried below before Hon. J. H. Eobertsoh. Tbis appeal is from a conviction for murder of tbe first degree, witb tbe punishment assessed at death. Tbis is tbe second appeal in tbis case. Tbe former appeal was also from a conviction for murder in tbe first degf ée, witb tbe death penalty. Eeyons v. Tbe State, 32 Texas Crim. Eep., 151.

Tried below before Hon. G-eoege H. Noonan. Upon his trial under an indictment charging him with the murder of one Anderson Harris, appellant was convicted of murder of the first degree, with the death penalty.

Tried below before Hon. B. B. Beaibd, County Judge. Appellant was tried upon information, and convicted for unlawfully discharging a gun and a pistol on and across a public street in the city of Tyler, his punishment being assessed at a pecuniary fine of one cent. The facts show, that on the 28th day of June, 1893, the appellant, in the city of Tyler, at about 3 o’clock a. m., on a vacant lot immediately west of the public square, shot an unmuzzled dog.

<p>1. Statement of Facts — Order for Filing After Adjournment — Practice.— The order allowing ten days’ time for filing the statement of facts after adjournment of court must he entered of record, and a statement of facts filed after adjournment can not be considered on appeal in the absence of such record entry, even though the judge certified that he ordered it to be filed in accordance with an order made in the case to that effect.</p> <p>2. Continuance — Bill of Exceptions — Practice on Appeal. — The action of the trial court refusing a continuance will not be revised on appeal in the absence of a bill of exceptions reserved to said action.</p> <p>3. Newly Discovered Evidence — New Trial. — In the absence of a statement of facts, the court, on appeal, can not consider whether or not the trial court erred in overruling a motion for new trial on account of newly discovered testimony.</p>

Tried below before Hon. T. J. Brown. Appellant was. indicted for assault with intent to murder one Joe Phillips. At bis trial be was convicted of aggravated assault and battery, bis punishment being assessed at a fine of $100. Tbe main facts are concisely but sufficiently stated in tbe opinion.

Tried below before Hon. B. D. Cavtn. This appeal is from a conviction of a white woman for intermarrying with a negro, the punishment being assessed at two years’ imprisonment in the penitentiary. The record does not contain a statement of facts. No briefs have come to the hands of the Reporter.

Tried below before Hon. J. M. Moobe, County Judge. This appeal is from a judgment of conviction under an information charging defendant with the theft of five hogs of the aggregate value of $13, the same being the property and taken from the possession of one C. D. Owens; the punishment assessed by the verdict and judgment being three days’ imprisonment in the county jail, and a pecuniary fine of $25. No statement necessary.

Tried below before Hon. H. Teiohmdller. Appellant Joe Moore was, by indictment, charged with the offense of assault with intent to murder one Sam.Simon on the 4th day of. April, 1893. He was convicted of said offense, and his punishment assessed by the jury at seven years’ confinement in the State penitentiary, from which judgment he prosecutes this appeal.

Tried below before Hon. S. E. Scott. Appellant was tried and convicted of tbe offense of burglary, receiving as bis sentence a three years’ term in tbe State reformatory, and appeals. Tbe facts briefly stated are, that appellant, who was not 15 years old at tbe time tbe offense was committed, was an orphan and resided with bis uncle, Tony Lord.

Tried below before Hon. E. W. TerhuNE. The indictment charged that defendant Peters did by force, threats, and fraud, at night, break and enter a house occupied by R. D. Campbell and N. B. Eiland, with intent to commit the crime of theft. At his trial he was convicted of burglary, and his punishment assessed at two years’ imprisonment in the penitentiary.

Tried below before Hon. O. D. CANNON, County Judge. Appellant T. A. Whitley was convicted of a simple assault, and fined in the sum of $10. The facts are sufficiently stated in the opinion of the court. No briefs have come to the hands of the Reporter.

Tried below before Hon. J. M. Smtther. This appeal is from a conviction for theft of money over the value of $20, the punishment assessed being two years in the penitentiary.

<p>1. Witness — Incompeteney of, on Account of Being1 a Convict — How Proved. — It is a valid objection to tbe competency of a witness that he has been convicted of a felony and served a term in the State penitentiary, and had not been par- . doned nor restored to citizenship. But the best evidence of such incompeteney is the record of his conviction, and other testimony as to the fact of conviction, even though it may be the admission or statement of the proposed witness himself, is not admissible if objected to, or unless objection to that mode of proof be waived.</p> <p>2. Same — Distinction in Hule as to Competency and Credibility. — Where the competency of a witness, on account of previous conviction for crime, is the issue, his incompeteney can not be proved by the witness himself, if objections be urged to that mode of proof. If, however, the credibility of the witness is the issue, then he can, on cross-examination, be compelled to answer as to his previous convictions for crime.</p>

Tried below before Hon. J. M. Moore, County Judge. Appellant, Willie Wallace, a boy 13 years of age, was convicted of “using obscene and vulgar language near a private house, in a manner calculated to disturb the inhabitants thereof,” and appeals. Tbe facts essential to an understanding of tbe case are fully stated in tbe opinion. No briefs baye come into tbe bands of tbe Reporter.

Tried below before Hon. JOHN M. Fubiman, County Judge. Appellant, J. J. Einger, was charged, by information filed in the County Court of Bell County, with “unlawfully carrying on or about his person a pistol,” and was convicted of said offense, the punishment being assessed at a fine of $25. The evidence shows that appellant was arrested by the sheriff, with a pistol on his person, in the public streets of the city of Belton.

Tried below before Hon. W. J. Graham. This appeal is from a conviction under an indictment charging appellant with forgery of a school voucher, or order, the punishment assessed being a term of four years’ imprisonment in the penitentiary.

Tried below before Hon. H. TeichMtjller. This is an appeal from a conviction for murder in the first degree, the punishment being assessed at death. The indictment charged that on the 27th of October, 1893, appellant killed one Grant Banks, in Fayette County. The following is a statement of the facts as shown by the record: Dr. G. W. Sutherland testified: “I am a practicing physician; live at Winchester. I was called to see Grant Banks on October 27, 1893.

Tried below before Hon. T. F. Nash, County Judge. The indictment contained two counts. The first, for theft of a plow of the value of $8, the property of Nathan Elliot; the second, for receiving said plow from some person to the grand jury unknown, and fraudulently concealing the same. Appellant was tried upon both counts, but was convicted upon the second, bis punishment being assessed at three months’ imprisonment in the county jail and a pecuniary fine of $300.

Tried below before Hon. L. W. Goodrich, in chambers. Appellant was committed to the custody of the sheriff of Milam County, by a justice of the peace, for the murder of one W. A. Bink-ley. He applied for a writ of habeas corpus to the Hon. L. W. Goodrich, judge of the Nineteenth Judicial District, who granted the same. At the hearing under the writ relator was denied bail, and it is from that judgment this appeal is prosecuted.

<p>1. Murder — Accomplice Witness — Charge—Circumstantial Testimony.— On a trial for murder, where an accomplice eye-witness swears directly and positively to the facts of the killing, and the evidence further shows threats of defendant to kill the accomplice in case of betrayal by her, Held, that the case was not one of circumstantial testimony requiring the court to charge on circumstantial evidence.</p> <p>2. Charge — Special Instructions. — It is not error to refuse special requested instructions where the law of such instructions is fully submitted in the general-charge.</p> <p>3. Continuance — Sufficiency of — Practice on Appeal. — An application for continuance must show diligence; the testimony expected to he proved must not he stated in vague and general terms; it must he pertinent and material to the issues in the case. But if it he conceded that an application is good in each of these particulars, still the court, on appeal, will not reverse for error in overruling it if the facts stated are such as, in the light of the record, do not require a reversal, and especially so where it is shown that the material facts alleged could have been proved hy witnesses present.</p> <p>4. Bill of Exceptions — Indefinite, When. — A hill of exceptions reserved to evidence is too indefinite to he considered if it fails to show that the evidence was produced before and went to the jury. Following Burke v. The State, 25 Texas Crim. App., 172.</p> <p>5. Evidence — Bloody Clothing — Codefendants—Accomplice Testimony.— Where the evidence discloses that defendant and another acted together in the perpetration of the murder, bloody clothing taken from the possession of the codefendant the day after the murder is admissible evidence against defendant, and especially so where it is corroborative of the testimony of an accomplice inculpating such other party in the murder.</p> <p>6. Jury Law — Special Venire — Practice.—It is provided hy statute (Code Crim. Proc., arts. 611, 612), that when the special venire is exhausted the court shall order the sheriff to summon from the body of the county any number of persons it may deem advisable for the formation of the jury, and a defendant has no right to demand that the Tegular panel for the week be placed in the jury box from which to complete the panel. Following Weathersby v. The State, 29 Texas Crim. App., 278.</p> <p>7. Murder of First Degree — Evidence.—See facts which in the opinion of the court are amply sufficient to support a conviction for murder of the first degree, with a life term in the penitentiary.</p>

<p>Appeal from the District Court of Webb. Tried below before Hon. A. L. MoLANE.</p> <p>Appellant was indicted in the District Court of Duval County for the murder of one Clemente Reyna, on the 6th of February, 1893. The venue was changed to the District Court of Webb, and on trial in said court appellant was found guilty of manslaughter, the punishment assessed being two years’ imprisonment in the penitentiary.</p> <p>The case is concisely but sufficiently stated in the opinion.</p> <p>No briefs found with the record.</p>

<p>Appeal from the District Court of Gonzales. Tried below before Hon. T. H. SPOONER.</p> <p>This appeal is from a conviction for perjury, wherein the punishment was assessed at five years’ imprisonment in the penitentiary.</p> <p>A general statement of the case is unnecessary. All the facts essential to the points decided are sufficiently stated in the opinion.</p>

<p>1. Carrying Pistol — Sale—Evidence.—To avoid the effect of the State’s case, appellant sought to prove the sale of his one-half interest in the pistol carried to one B., and that he was carrying it for the purpose of delivering it to B. Neld, in contravention to this contention, it was admissible for the State to prove that defendant bad the same pistol subsequently on his mother’s premises, where he resided;</p> <p>2. Same — Defense, Honesty of. — The fact that defendant was subsequently seen with the same pistol on his mother’s premises bore directly and pertinently upon the honesty of the defense, and was an attack on the sale and delivery of the pistol, and was clearly admissible:</p> <p>3. Same — Question of Fact.- — Whether the sale and delivery was bona fide was a fact for the jury to determine.</p> <p>4. Evidence in Rebuttal. — If evidence is necessary to a due administration of justice, it is admissible whether in rebuttal or not. Code Crim. Proc., art. 661.</p> <p>5. Complaint — Validity of — líame of Affiant In. — Having signed and sworn to it, it is not necessary to the validity of a complaint that the name of the affiant be set out in the body of the complaint. Code Crim. Proc., art. 236.</p>

Tried below before Hon. James T. Polley. Appellant and his brother Jodie Butler were each separately indicted for the murder of one Oscar Johnson. Jodie Butler made an affidavit under our statute, and was granted a severance in order that this appellant might first be tried, and it was so agreed between the defendants. At his trial appellant was convicted of manslaughter, with his punishment assessed at two years’ imprisonment in the penitentiary.

Tried below before Hon. M. KbNNON, Special Judge. In January, 1892, Boger Blain, this appellant, and J. N. Blain and Otho Askey were jointly indicted for the murder of G. C. Barber. There was a severance by the defendants, and Boger Blain, the appellant, having been put upon trial, was convicted of murder in the second degree, the punishment affixed being five years in the State penitentiary.

Tried below before Hon. E. W. Terhune. Appellant was indicted for the murder of one Nicholas, whose Christian name was to the grand jury unknown, by strangling to death with, a cord the said Nicholas. The murdered party was a newly born infant. At the trial defendant pleaded guilty to murder of the second degree, and was convicted of that degree of murder, the punishment being assessed at five years’ imprisonment in the penitentiary.

Tried below before Hon. T. J. Bbown. Appellant was indicted for tbe murder of May Hunt, bis wife, in Grayson County, on tbe 15th day of December, 1892, by striking her with an axe. Tbe defense was insanity. Tbe trial resulted in a con-yiction of murder of tbe first degree, tbe penalty being assessed at death.

Tried below before Hon. JOHN N. Henderson. Appellant was indicted for the murder of one Mollie White. At his trial he was convicted of murder of the first degree, with the penalty assessed at imprisonment for life in the penitentiary. The leading features of the case as developed by the evidence will be found substantially stated in the opinion.

Tried below before Hon. JOHN N. Henderson. On trial under an indictment charging him with the murder of one E. N. Moody, appellant was convicted of manslaughter, his punishment being assessed at two years’ imprisonment in the penitentiary. The facts of the case will be fully understood from the testimony of the witnesses George Williams and Sam Hay, which testimony was fully corroborated by the other witnesses.

Tried below before Hon. S. F. Grimes. This appeal is from a conviction for aggravated assault, the punishment assessed being a fine of $175 and one month’s imprisonment in the county jail. The parties to the difficulty were negroes. The attendant circumstances of the assault are fully shown by the following testimony of the State’s witness, Mr. Newkum. He says: “I know defendant.

Tried below before ■Hon. S. R. Scott. Appellant was jointly indicted with Ben Moore and Rufus Thompson for the robbery of one Charles Dick, and taking from his person . and possession by assault and violence the sum of $5.25. It seems ■ that Thompson had been previously tried and acquitted. Appellant was alone placed upon trial in this prosecution, and the trial resulted in his conviction, with the punishment assessed at five years in the penitentiary.

. Tried below before Hon. W. E. McGill. This appeal is from a conviction for theft of a horse, the property of one W. O. Menifee. At the trial appellant was convicted, and his punishment assessed at imprisonment in the penitentiary for two years. The case is sufficiently stated in the opinion.

<p>Appeal from the District Court of Lavaca. Tried below before Hon. T. H. Spooneb.</p> <p>This appeal is from a conviction for embezzlement of money over the value of $20, the punishment being assessed at two years’ imprisonment in the penitentiary.</p> <p>The indictment contains two counts, and, omitting the formal allegations, is as follows: “That Mose Steiner, in the county and State aforesaid, on the 1st day of July, 1893, was then and there an officer of the city of Hallettsville, to wit, secretary of said city, and was then and there superintendent of the waterworks and electric lights of said city; and as secretary and superintendent as aforesaid, was charged with the collection of money belonging to said city, and as such officer, and by virtue of said office and his being superintendent of said waterworks and electric lights aforesaid, there had come into and was in his custody and possession the sum of $200, good and lawful money of the United States of America, and then and there of the value of $200, and which said money was then and there the corporeal personal property of said city of Hallettsville, and said Steiner did then and there unlawfully and fraudulently secrete the same with the intent to convert the same to his, the said Steiner’s, own use and benefit, and that the said Steiner did then and there unlawfully and fraudulently take and convert the said money to his own use and benefit. And the grand jurors aforesaid, upon their oaths aforesaid, do further say and charge, that the said Mose Steiner, in the county and State aforesaid, on the said 1st day of July, 1893, was then and there an officer and agent of a certain incorporated institution, to wit, the city of Hal-lettsville, which was then and there an incorporated city in said county and State; and that the said Steiner did then and there unlawfully and fraudulently embezzle, misapply, and convert to his own use, without the consent of the said incorporated institution, to wit, the city of Hallettsville, certain money of said incorporated institution, to wit, the city of Hallettsville, to wit, $200, good and lawful money of the United States of America, and then and there of the value of $200, which said money had come into the possession of and was under the care of said Steiner by virtue of his said office and agency. Against the peace and dignity of the State.”</p> <p>There was a motion to quash the indictment, which was overruled.</p> <p>The court erred in overruling the motion to quash the indictment. Under the statute a city secretary is not authorized to collect moneys unless the same is done by private ordinance. A private statute or ordinance of a city or town must be pleaded and proven. Rev. Stats., arts. 364, 367; Green’s Plead., art. 379; Sayles’ Plead., art. 10; Sterrett v. City of Houston, 14 Texas, 153.</p> <p>The court erred in overruling defendant’s motion to quash the indictment, made upon the grounds that in its first count it failed to allege that the city of Hallettsville was incorporated. When property alleged to have been stolen or fraudulently appropriated belongs to a corporation, the indictment should allege the act of incorporation.</p> <p>The indictment in its first count fails to allege that the city of Hal-lettsville, the alleged owner of the property taken, was incorporated. Thurmond v. The State, 30 Texas Crim. App., 540; Stallings v. The State, 29 Texas Crim. App., 220.</p> <p>The court erred in overruling defendant’s motion to quasb tlie indictment, made on tbe ground that in its second count it failed to allege the ownership of the money charged to have been embezzled.</p> <p>In the second count of the indictment, in which it is attempted to charge the defendant with embezzlement, the only allegation of ownership is the following allegation, viz., “Certain money of said incorporated institution, to wit, the city of Hallettsville.” Code Crim. Proc., arts. 426, 427 ; 2 Bish. Crim. Proc., arts. 320, 718; Peacock v. The State, 36 Texas, 647.</p> <p>• The court erred in permitting the introduction in evidence, over defendant’s objection, of an ordinance of the city of Hallettsville electing defendant to the office of superintendent of waterworks and electric lights, for the reason that the same was a private ordinance of the city of Hallettsville, and had not been pleaded in the indictment.</p> <p>If a pleader relies upon private acts or city ordinances, he must set them up in his pleading before he is authorized to prove them. This indictment fails to plead any city ordinance electing defendant to the office of superintendent of waterworks and electric lights. And upon the trial the State, over the objection of defendant, was permitted and did introduce in evidence an ordinance of the city of Hallettsville electing defendant to said office. 23 Am. and Eng. Encyc. of Law, 288; Green’s Plead., art. 379; Sayles’ Plead., art. 10; Bev. Stats., art. 1191.</p>

Tried below before Hon. A. B. WATKINS. This appeal is from a conviction for arson, the punishment being assessed at five years’ imprisonment in the penitentiary. The indictment charged appellant, John Rains, and Ralph Barrs and Jim Hunter with setting fire to the storehouse of J. P. Grant and FT. M. Rayburn. The case as to Barr and Hunter was nolle prossed by the district attorney for want of sufficient evidence against them.

<p>Appeal from tbe District Court of Falls. Tried below before Hon. S. B. Scott.</p> <p>This appeal is from a conviction for assault with intent to murder one A. C. Allen, the punishment having been assessed at three years’ imprisonment in the penitentiary.</p> <p>The statement of facts was not approved by the trial judge, nor is-the proposed statement incorporated in the record. The facts pertaining to the failure to get a statement of facts are sufficiently shown in_ the opinion below.</p> <p>No briefs in the record.</p>

<p>Appeal from the County Court of Colorado. Tried below before Hon. Chakles Biley, County Judge.</p> <p>Tbis appeal is from a conviction for unlawfully carrying a pistol, the punishment being a fine of $25.</p> <p>The essential facts are sufficiently stated in the opinion, as is also the substance of the erroneous charges for which the judgment was reversed.</p> <p>i. ’ The Act of January 30,1889, under which appellant was convicted, is not now, and never was, the law of this State regulating the carrying of arms, and is void in this, that article 318 of the Penal Code of the State of Texas was repealed and rendered obsolete by the Act of February 24, 1887, and the so-called Act of January 30, 1889, being an amendment to said obsolete and repealed article, is of itself void and of no effect.</p> <p>The Penal Code of the State of Texas was constituted by the sole Act of March 17, 1879, which took effect on July 24th of the same year, said act being entitled, “An Act to adopt and establish the Penal Code and Code of Criminal Procedure for the State of Texas,” and said article 318 then became the law regulating the carrying of arms, and so continued until repealed by the Act of February 24, 1887, which then became the law. Wherefore the Act of January 30, 1889, amending said repealed and void article of the code was itself void and without effect, leaving the Act of February 24, 1887, as the law of the State regulating carrying arms.</p> <p>That the designation “Penal Code” has reference solely to the act •adopting the report of the codifiers, see Act of July 24,1879; Nichols v. The State, 32 Texas Grim. Bep., 391, and the case of McCraclrin, 42 'Texas, 385, therein cited. That article 318 of the Penal Code was repealed, see Act of February 24, 1887. That the Act of January 30, 1889, amends the repealed article 318, see said Act of January 30, .1889.</p> <p>2. The Act of January 30, 1889, regulating the carrying of arms, under which appellant was tried and convicted, and under which the trial court erroneously charged the penalty against him, is unconstitutional, for the reason that the title of said act does not express the subject of legislation embraced therein.</p> <p>It will be seen by reference to the Act of January 30, 1889, that the caption thereof refers to article 318 of the Penal Code as amended by the Act of February 24, 1887, while the enactment amends simply article 318 of the Penal Code. For further statement and authorities in support of the above contention, the court is referred to the Constitution of the State of Texas, article 3, sections 35, 36.</p> <p>The enacting clause of the Act of July 24, 1879 (see Willson’s •Criminal Statutes, p. 16), declares, that when’ adopted the said act •shall constitute the Penal Code of the State. And since its passage, has been known, identified, and referred to as the “Penal Code,” while all subsequent enactments are referred to as the act of such and -such a date. In the case of Nichols, supra, Judge Simkins, speaking for the court, says: “Ever since the enactment of the Penal Code : and Code of Criminal Procedure, * * * they have recognized the Penal Code as a single act, designed to embrace all offenses against the laws, complete within itself.” And the same learned judge, further ■on in said opinion, quotes the language of Chief Justice Roberts in McCrackin’s case, with reference to the code adopted August 26, 1856, as follows: “It (the Penal Code) has been amended continually ever ■ since its adoption by referring to it in the titles of the amendatory acts as the ‘Penal Code,’ not meaning thereby generally the body of ■ criminal laws in force in the State, but specially the Penal Code that was adopted as one act of the Legislature, approved August 26,1856.” This should be conclusive on that point. Now, it is true that the cap-vtion of January 30,1889, .states that article 318 of the Penal Code was amended by tbe Act of February 24, 1887, but that will not suffice. Tbe caption being no part of tbe enactment, but simply tbe indorsement of tbe bill, for tbe convenience of those through whose bands it must pass in tbe process of its introduction and passage as a bill, which indorsement ought truthfully to inform them, as well as all others interested — though in this case it did not — of what was about to “Be (it) enacted by the Legislature,” etc. The impress of the authoritative mandate and command of the enacting body upon the bill begins only with the utterance, “Beit enacted, ’ ’ etc., without which no bill can become a law, let the caption state what it may. Now, what is enacted (section 1) by the Legislature in this act? What does it say shall be done? Simply, “That article 318 of the Penal Code shall be and the same is hereby amended, so as to hereafter read as follows,” etc., and not that said article as amended by the Act of 3887 should be amended, which it ought to have done. And while the caption is no part of the law, still it must truly state the subject to be legislated upon as contained in the bill; for the reason that upon its introduction, for convenience, the caption only is read to call the attention of the lawmakers to what law is about to be passed or amended; and if this is not truly done, a deception takes place, and for that reason the Constitution very wisely requires that the enacting clause shall take effect and impress with authority-only those subjects named in the caption. While it may be held that in amending a law, reference to articles, chapters, etc., would fill the requirements of the Constitution on this point, still it must also be held, that if the enactment amends a different article than the one set out in the caption, then the caption does not state the subject legislated upon. The only reason why it might be held that it is sufficient in amending a law to simply refer to the article, chapter, etc., to be amended, is, that those interested can make certain óf what is about to be done by referring to the articles, etc., cited by the caption. And while we think that the courts have gone too far in thus construing the Constitution, still in this case the reason for such holding does not exist, because the act amended is not truly cited in the caption of said Act of 1889, and no such information is imparted thereby.</p>

Tried below before Hon. W. A. Blackburn. This appeal is from a conviction for assault with intent to murder, the punishment assessed being two years in the penitentiary. The parties to the shooting are negroes. The two theories pertaining to the occurrence are shown by the testimony of these two parties, Bent Clark and John Moore, most of which we reproduce, as follows: Bent Clark testified: “On Sunday, the 21st day of August, 1892, I and my wife went to church.

Writ of error from tbe District Court of Wilson. Tried below before Hon. JAMES C. WILSON.

<p>Appeal from the District Court of Nacogdoches. Tried below before Hon. JAMES T. POLLEY.</p> <p>This appeal is from a conviction for perjury alleged to have been committed by appellant, as a witness in an examining trial in his own behalf, in a proceeding wherein he was charged with theft of one head of cattle. The punishment assessed was six years’ imprisonment in the penitentiary.</p> <p>Among other defenses, it was claimed that defendant could not be prosecuted and convicted for said crime, because at the time he testified at said examining trial he (defendant) was an incompetent witness, because of the fact that he was an ex-convict who had served a term in the penitentiary.</p> <p>Nor further statement is necessary.</p> <p>No brief found with the record.</p>

Tried below before Hon. Charles Bogan, County Judge. This appeal is from a conviction under article 649 of the Penal Code for threats of prosecution to extort money, the punishment assessed being a fine of $350. The charging part of the information is set out in the opinion below.

Tried below before Hon. C. P. Woodruef. Appellant was indicted for perjury as a witness before tbe grand jury. The charging portion of the indictment is set out in full in the opinion below. Defendant made a motion to quash the indictment, because “it does not appear, from the face of the same, that an offense against the’ law was committed by the defendant, there being no allegation showing the materiality of such statement before the grand jury.” This motion was overruled.

Tried below before Hon. Charles RogaN, County Judge. This appeal is from a judgment of conviction under an information for unlawfully and knowingly selling liquor to one Walt Burns, a minor under tbe age of 21 years. Tbe punishment assessed was a fine of $75.

Tried below before Hon. H. Teiohsiullee. This appeal is from a conviction for murder of the first degree, the penalty being assessed at death. The murdered party was one Julia Vela, alias Juliana Zespede, who was the wife of appellant.

Tried below before Hon. Chas. Feed Tuckee. This appeal is from a conviction for burglary, the punishment assessed being imprisonment for six years in the penitentiary. Appellant and Jack Brazell and Allen Forrester were each separately indicted for this crime, which was the burglary of the store of J. B. May, in tbe village of Farmer’s Branch, Dallas County, on the 4th day of February, 1893.

Tried below before Hon. BRANCH Isbell, County Judge. This was a prosecution in tbe County Court of Scurry by information wbicb charged, that appellant Galbraith “was the owner of taxable property situated within the State, and was a person required by law to render a list and statement of the taxable property owned and controlled by him as aforesaid on the 1st day of January, A. D. 1893, and was subject to be assessed for said property for said year in said Scurry County,…

Tried below before Hon. Charles F. Clint, Special Judge. This appeal is from a conviction for burglary, the punishment being assessed, at three years’ imprisonment in the penitentiary. This is a companion to Conway v. The State, ante, p. 327, and the facts will be found substantially stated in that case.

<p>Appeal from tbe County Court of Fisher. Tried below before Hon. S. PattoN, County Judge.</p> <p>Tbis appeal is from a conviction upon an information charging appellant with an attempt to produce an abortion on one Livie Brown, a pregnant woman, by then and there administering to her, with her consent, certain drugs and medicines well calculated to produce an abortion upon her, etc. Tbe punishment assessed was a fine of $110. Tbis is a companion case to that of Willingham v. The State, ante, p. 98.</p> <p>Livie Brown testified: “My name is Livie Brown. I reside in Fisher County, Texas, about twelve miles west of Boby, tbe county site. In August of 1892 I was pregnant, and Barton Willingham, a young man who lives in my neighborhood, came to my house one day and I went with him out to a straw-stack near by, and he went round and brought the defendant around to where I was. I was standing on the side next to the house. We three had a talk about my pregnant condition, and about what kind of medicine would make me miscarry it. Willingham had been giving me calomel, but it did not make me miscarry, so defendant said he could give me medicine that would make me miscarry the child, but that if I took it I must do so on my own responsibility, and that he would advise me not to do it. I told him all right, that I wanted to get shut of the child. In a few days defendant came to my house, came in the house, and brought me a powder he called calomel, and told me to take it and say nothing about it to no one. I took it; it made me sick and made my bowels to act freely. I bad taken calomel before, and tbis affected me as did tbe calomel. Tben be told me to take tbis powder, three doses a day, two bonrs apart, until I took it all. In a few days after tbis be brought me a red looking medicine and gave me a dose of it himself; tbis was a fluid medicine. He told me to take twenty drops of it at a dose, three times a day, and it would abort me. I took tbis medicine as be directed, and it caused sharp, short, quick pains in my-back and abdomen. Tbe pains would originate in my back and protrude downward to my abdomen — very much such pains as I bad when my child was born. I do not know tbe name of tbe medicine, nor did defendant know what it was, but that it would abort me. I took all of tbis medicine as defendant directed. [A bottle was here banded her.] Tbis is tbe vial, and looks just like tbe one I speak of, and will bold about one ounce. About a week and a half after defendant brought tbis medicine be returned again and brought me a dark looking powder, about a pint; also a bottle of turpentine and a bottle of whisky. [Two bottles were here banded her.] Tbis is tbe bottle that bad tbe turpentine in it, and tbis is tbe one that bad tbe whisky in it. He dosed me a dose as follows: Two teaspoonfuls of tbe dark powder, one teaspoonful of tbe turpentine, and enough whisky to dissolve it all, in a cup, banded it to me and told me to take it, and to take tbe same kind of a dose at night and morning until I miscarried. When be banded me tbe cup, in talking with him, I set it on tbe table. He tben went out of tbe bouse and I took it as be directed. I took a dose of tbis night and morning as be directed until I took all tbe powder and nearly all the turpentine. There was left in the turpentine vial about a half inch of turpentine. In about two weeks defendant returned, brought me some more of tbe black powder and some alcohol, and expressed himself as being greatly surprised that tbe medicine given bad not already aborted me. Tbis turpentine and powder affected me very greatly; gave me quick, heavy pains in tbe back and abdomen.' Tbe pains were almost as bad and very like tbe pains I bad in childbirth. I was'taking no other medicine, and took no other medicine, except what defendant gave me, during all tbis time. Tbis all occurred in Fisher County, Texas.”</p> <p>Cross-examination: “In May, before this, I told my father that I needed some medicine; that my periods were not regular. He went to Sweetwater and brought me back some brown pills. I took them; they affected my bowels a little, and tbis was tbe only effect they bad on me. My father did not know I was pregnant. Willingham gave me calomel before defendant gave me any of tbis medicine. Tbe first time I talked to defendant was out at tbe straw-stack with Willing-ham; tbis was private between us three. Tes, Mr. Cave came to our bouse one evening. I don’t know bow be came to come there. I don’t know whether father waved him by or not. It was late in the evening, and father and my sister, after sitting awhile, went out and got supper. I and my little brother remained in the house with defendant. I did not ask him this time for any money. I never asked him for any money until after my child was. born, in November, 1892; nor did I ask him then to give me any money, but wanted to borrow of him $30 for father, in February, 1893. The first time he ever gave me any money was one day he came to our house and gave me $2 and told me to buy clothing for my babe. I kept the $2, but did not feel right to keep it, so one day shortly after this I gave it back to him in the presence of my sister Orrie, and told him I did not feel like taking money that way from strangers. It was sometime after this that I borrowed the $30 from him for father. Mr. Cave often told us he had money, and seemed to want us to take it; would pat his pocket and say he had money, and offered to give us money frequently. Father was needing money badly, so one day I told him that defendant seemed to have a good deal of money, and he told me when he came again to borrow $30 for him, and tell him he would repay it as soon as possible. So I did so, and defendant let me have the money. Yes, if you will make me answer, I will tell you the whole truth. [Here witness broke down and cried.] Defendant offered us money at one other time. Defendant come to our house about a month and a half after my child was born, and lie, I, and my sister were sitting in the room together talking. Defendant took out a $5 bill, threw it my lap, and said, ‘If you girls will let me stay with you to-night, I will give you that and as much more as you want.’ I threw it in the fire and told him to leave; that I was not that kind of a girl. My father was not at home when this occurred. Yes, I did allow one man to be intimate with me. I am not a loose girl, though I did give up my virtue to one man and no other. It was Jim Copeland, to whom I was engaged to be married. I never married him. He left the country. These are the only times defendant gave or loaned us any money. Before the time I borrowed the $30 I told Mr. Cave that father was going to put this whole matter in court; that father had said that the law should take its course with men who would come and ruin his family while he was away. I thought all along defendant was offering us money as hush money, because he would beg us to keep it out of court; that it would send him to the penitentiary and ruin him and his family. Defendant often begged me not to swear against him, and if I was called to court to not tell anything; but I told him if I was called in court I would swear the truth. Defendant offered at one time to send me off to school in another State, or to get me into business somewhere where I was not known. He said he would furnish the money to send me off; would see Barton Willingham and have him to put up some of the money. He never did it, though. This was after my child was born, in February or March, 1893. I told father of this, and he said if they would do this, and I desired it, that he would not make me stay, but that he did not want me to accept the proposition. Tes, I told defendant I would go if he would send me. No, I am not swearing against defendant because he failed to put up. I told him all the time that if I was called to court I would swear the truth about this whole matter. No, it is not a fact that I, my father, and my sister at any time entered into a conspiracy to extort money from defendant by threatening him with prosecution, nor did I ever intimate such a thing to defendant; nor did I, my father, or sister, in my hearing, ever state to defendant such a thing, or promise him to not swear against him if he was prosecuted in case he would pay us money, or send me off to school, or put me in business. No such threats were ever made by us or agreed to by us. I can’t say the bottles shown me are the very bottles defendant brought me, but I believe they are. I identify the label by being torn in a peculiar shape on the turpentine bottle, and by a paper stopper being in it. I identify the small vial which had the red medicine by its shape, size, and general appearance, and it has some of the dried fluid in it, which is the same color. The whisky bottle looks just like the one I had and I think this is the one, because I never saw one like it before. I gave these bottles all to the county attorney some time ago. Some of them have paper stoppers, which I know. I did swear in the complaint which the county attorney wrote out and showed me, that this medicine was calculated to abort. I was bothered when I signed it, and I can’t say that these medicines would do it, but defendant said they would, is why I swore it. I have told all the conversations had with my father about the money and school matters, as near as I can recollect.”</p> <p>Redirect examination: “Yes, I thought these medicines would abort because of their effect on me, and because defendant said they would, and it was understood between us that thatwas what they were for when he gave them to me.”</p> <p>Recross-examination: “I don’t think that my father knew that I was taking this medicine until after my child was born. At one time I noticed that the bottles were misplaced where I kept them in my trunk, and father afterwards told me that he saw them in there, but thought nothing of it. He told me this after my child was born, and when I was telling him about taking the medicine.”</p> <p>OrrieBrowp testified: “My name is Orrie Brown. I reside in Fisher County, Texas, about twelve miles west of Roby. Was. living there in August, 1892. Am a sister of Livie Brown. Livie was pregnant in August, 1892. I know H. D. Cave. [Here she pointed defendant out.] I saw him bring her medicine twice. I saw him give her a dose of red medicine. I saw him bring the red medicine. About one week after bringing the red medicine he brought a bottle of turpén-tine, a bottle of alcohol or whisky, and a black powder; was in the room and saw defendant dose out a dose of medicine and give it to my sister, and saw her take it as Mr. Cave walked out of the room. The dose was one teaspoonfnl of turpentine, two teaspoonfuls of the black powder, and enough whisky to dissolve the powder. This dose was put in a teacup. I often saw my sister take the medicine defendant brought her. I heard him give her directions how to take the medicine. I also heard Mr. Cave tell Livie the medicine would abort her. My sister took these medicines some time in August, 1892, in Fisher County, Texas. I often heard my sister complain of severe pains in her back and abdomen while taking these medicines. She complained more of the pains while taking the medicines than before or after-wards.”</p> <p>Cross-examination: “Mr. Cave brought the medicines with the black powder first, I think, but am not sure as to that. He brought her about one pint of the black powder. She took all of the black powder and the whisky. I don’t think she took all of the turpentine. I don’t know anything about my sister getting any $30 from Mr. Cave. I did not see Mr. Cave give my sister $2 at any time, but I saw her give him $2 and tell him she did not feel right to take money from a stranger that way. Defendant often offered us money but we did not take any of it. About the last of December, 1892, defendant came to our house, and he, my sister, and myself were sitting together in the room talking, when defendant took out a $5 bill and threw it in my sister’s lap and said, ‘I will give you that and as much more as you want if you girls will let me stay with you to-night.’ My sister threw it in the fire and told defendant to leave; that she was not that kind of a girl. There was no understanding whatever between myself, my father, and sister before sister’s child was born, nor after-wards, that we would not prosecute defendant if he would send her (sister) off to school or set her up in business. I never saw Cave, the defendant, drive up to our house in a buggy and deliver to my sister any goods or medicine. I never saw him with any medicine only in the house. Defendant often came there in a buggy, but if he brought anything in it I did not see it. No, we did not propose to defendant at any time that if he would pay us money we would not prosecute him; nor was there ever any such understanding between father, sister, and myself. Mr. Cave knew that father had threatened the courts. He did it because he said he would not let people in his absence ruin his family.”</p> <p>Joe Yantis testified: “My name is Joe Yantis. I live in Fisher County. Was a member of the grand jury at the April Term of the District Court of Fisher County, 1893. I remember a statement made by H. D. Cave to the grand jury, and can give substantially all he said. I may have forgotten some of it, but don’t believe I have. Before be made bis statement be was warned by tbe county attorney that any statement made by bim could and might be used against bim, and that be was not compelled to make any'statement; that be was being investigated and could make a voluntary statement. Cave said be bad come there to tell it all, and would freely do so. He said Livie Brown, sometime in August, 1892, asked bim to get her some medicine that would produce an abortion on herself, and that be took her a bottle of calomel at one time, and at another a bottle of turpentine, a bottle of whisky, and some gunpowder, and that be dosed her out a dose of tbe medicines and gave it to her. He also told her bow to take all tbe medicines. He said be gave tbe medicines to her to produce an abortion on her.”</p> <p>Dr. Heifer testified: “My name is F. Heifer. I am a physician, having been practicing medicine since 1867. Calomel given continuously for some length of time, such as a week or two, is calculated to abort. I do not regard it as a safe medicine to give to .a pregnant woman. One teaspoonful of turpentine, with two teasponfuls of gunpowder in whisky, is calculated to produce an abortion. I would not give it. I would be afraid to give it, because it would be dangerous to tbe child and also to tbe pregnant woman.”</p> <p>No briefs with tbe record.</p>

Appear from the District Court of Hood. Tried below before Hon. J. S. StraughaN. This appeal is from a conviction for burglary, with the punishment assessed at two years’ imprisonment in the house of correction and reformatory, the jury having found by their verdict that appellant was under 16 years of age. John G. Swafford testified: “I live in Granbury. I lived here about the 1st day of January, 1894.

Tried below before Hon. J. O. Woodward. Tbis appeal is from a conviction for burglary, tbe punishment assessed being two years’ imprisonment in tbe penitentiary.

Tried below before Hon. George H. NooNAN. Appeal from a judgment final on a forfeited bail bond. On tbe 24th day of October, 1891, A. J. Hill was indicted by tbe grand jury of Bexar County for embezzlement of over $20. Said indictment was presented in tbe District Court of Bexar County, and tbe cause was docketed as number 9045, Tbe State of Texas v. A. J. Hill, embezzlement.

Tried below before Hon. H. Teichmxtller. This appeal is from a conviction for assault with intent to murder, the punishment assessed being two years in the penitentiary. The assaulted party, Dubie Harris, was the wife of Louis Harris, and was jealous of Louis’ attentions to the defendant, Tilda Moore.

Tried below before Hon. M. F. Lowe. Appellant was indicted for theft of eleven head of cattle, the property of Peter Mikaska. At his trial he was convicted, with punishment assessed at two years’ confinement in the penitentiary. The opinion discloses most of the important facts in the case. Dave Odom testified for the State, as follows: “I know defendant. C. B. Eix.

Tried below before Hon. Felix J. McCord. This appeal is from a conviction for burglary, the punishment assessed being a term of three years in the penitentiary.

Tried below before Hon. George H. NooNAN. ' This appeal is from an order 'and judgment, on habeas corpus, remanding appellant to custody under a warrant of arrest issued by the recorder of the city of San Antonio. The facts are sufficiently stated in the opinion.

Tried below before Hon. A. P. McKinnon, Special Judge. This appeal is from a judgment of conviction for burglary with intent to commit theft, the punishment assessed being six years in the penitentiary. The honse of O. D. Harris was burglarized on the night of January 22, 1894, and a pistol belonging to Harris was stolen from the house. On the next day appellant was found in possession of, and was arrested for carrying, a pistol.

Tried below before Hon. O. L. Crouch, County Judge. Appellant was indicted in tbe District Court of De Witt County, at tbe December Term, 1891, for unlawful playing at a game with cards, at a bouse for retailing spirituous liquors. Tbe entries upon tbe minutes of tbe District Court recited tbe offense as “playing cards in a public place.” On tbe lltb of January, 1892, tbe cause was transferred for trial from tbe District to tbe County Court of De Witt County.

<p>Appeal from the District Court of Bexar. Tried below before Hon. George H. Noonan.</p> <p>Appellant was prosecuted, tried, and convicted on a complaint in the Justice Court which charged him with willfully poisoning a dog, the property of Dr. J. H. Moore. The punishment assessed against him in the Justice Court was a fine of $25. He appealed the case to the District Court, where he was tried and again convicted, the punishment again assessed being a fine of $25. From this judgment he endeavors to prosecute this (another) appeal to the Court of Criminal Appeals.</p> <p>No briefs in the record.</p>

Tried below before Hon. C. W. CottoN, Special Judge. This appeal is from a conviction for aggravated assault and battery, the punishment assessed being a fine of $200 and one month’s imprisonment in the county jail. The case is sufficiently stated in the opinion.

Tried below before Hon. D. E. Barrett. ■ ' This appeal is from a judgment of conviction for burglary of a railroad car or “caboose,” tbe punishment assessed being a term of two years in tbe bouse of correction and reformatory, tbe jury by tbeir verdict having found appellant to be under tbe age of 16 years. A motion to quash tbe indictment was overruled. Tbe grounds of ' this motion are fully stated in tbe opinion.

Tried below before Hon. W. A. Blackburn. This appeal is from a conviction for burglary, wherein the punishment assessed was two years’ imprisonment in the State reformatory, the jury having found the defendant to be under the age of 16 years. Appellant and one Ed Yining were jointly indicted for said offense, but defendant was alone put upon bis trial.

Tried below before Hon. George H. NooNAN. This is an appeal from a conviction for assault witb intent to rape, tbe punishment being two years’ imprisonment in tbe penitentiary. Tbe facts are sufficiently stated in tbe testimony of tbe prosecutrix, wbicb is as follows: Freda Mink testified as follows: “My name is Freda Mink. On tbe 7tb day of January, 1894, I was going borne from Mrs. Buckman’s place, where I was working. It was on Sunday afternoon, about 3 o’clock.

<p>Appeal from the Criminal District Court of Dallas. Tried below before Hon. Charles F. CliNT.</p> <p>The case is thus concisely stated in appellant’s brief: Appellant was confined on the county farm as a punishment for his gambling proclivity. One evening in April, 1893, he and several other prisoners were returning from the field where they had been at work, when he grabbed the guard and shouted to the other prisoners, who were some distance away, “Come on, boys; now is our time to get our liberty,” or words to that effect. Appellant ordered one of the prisoners to unload the guard’s shotgun and another to take the guard’s pistol, and appellant bound the guard, after which they all escaped, taking with 'them the gun and pistol. And for this taking the grand jury returned an indictment charging appellant, in three counts, with robbery, embezzlement, and theft of over $20. The State elected to dismiss as to the first two counts, and try appellant for theft over $20. Tbe jury assessed appellant’s punishment at two years’ confinement in tbe penitentiary.</p>

Tried below before Hon. W. S. RobsoN, County Judge. This appeal is from a conviction for swindling, under an information which charged appellant with obtaining $15 from one Dunn upon the false pretense that he (appellant) was a practicing physician and member of the San Antonio Medical Institute, of which Dr. Herff was president, and that he was associated with the said Dr. Herff in the practice of medicine.

Tried below before Hon. J. B. Dibkell, Special Judge. This appeal is from a conviction for rape, the punishment being assessed at death. This is the second appeal in this case from a like conviction, with a like penalty. Wilcox v. The State, 32 Texas Crim. Bep., 284. Under instructions of the court, the evidence on the former appeal was reported in full.

Tried below before Hon. O. L. Crouch, County Judge. The indictment contained two counts: First, unlawfully playing at a game with cards in a public place, to wit, a house for retailing spirituous liquors; second, playing cards in a public place, to wit, a room, above and attached to a house for retailing spirituous liquors, and commonly resorted to and used by people for gaming. At his trial appellant was convicted, aud his punishment assessed at a fine of $10.

Tried below before Hon. A. B. WATKINS.' Appellant, Bob Stewart, and Will Baynes were separately indicted for the theft of eleven hogs, the property of S. H. Book. Bob Stewart pleaded guilty, Will Baynes was convicted, and appellant at the trial was also convicted, his punishment being assessed at two years’ imprisonment in the penitentiary. S. H. Book testified to losing eleven hogs that he had running in an old field.

When I got to the stove I stumbled over some wood, and she just behind me stumbled over the same. I said, ‘God Almighty,’ or something to that effect. She said, 'What was that?’ and I said, ‘Stove-wood.’ I got me a drink of water and was standing on the ground outside. She had drank, and was standing on the step with her hand on my shoulder, and all at once she began to scream and grabbed the water bucket and threw it at me. I went on off.

Tried below before Hon. D. S. Chesser, County Judge. Appellant was indicted for adultery with one Sarah Tary, and at his trial was convicted, his punishment being assessed at a fine of $100. The evidence showed that appellant and Sarah Tary had picked cotton together; that they bought a house in Taylor together, with, their joint funds, and lived in said house together, the house having but one bed in it.

<p>Appeal from tbe District Court of Guadalupe. Tried below before Hon. John Ireland, Special Judge.</p> <p>This appeal is from a conviction for theft of a horse, the property of one J. H. D. Berry, the punishment being assessed at five years’ imprisonment in the penitentiary.</p> <p>The opinion sufficiently states the case.</p> <p>No briefs have come to the hands of the Reporter for either party.</p>

Tried below before Hon. JOHN H. Pice, County Judge. This appeal is from a conviction for keeping and exhibiting a gaming-bank, wherein tbe punishment assessed was a fine of $25 and imprisonment for ten days in tbe county jail.

Tried below before Hon. A. P. McKiNNON, Special Judge. This appeal is from a conviction for assault with intent to rape, the punishment assessed being two years’ imprisonment in the penitentiary.

Tried below before Hon. James Greenwood, County Judge. Appellants were convicted under an indictment charging them with failure to make their butchers’ report to the regular term of the Commissioners Court, at the August Term thereof, 1892, and were fined in the sum of $50 each.

Tried below before Hon. W. A. BlackbueN. This appeal is from a conviction for burglary, the punishment assessed being two years’ imprisonment in the penitentiary. In view of the disposition of the appeal as made in the opinion, it is unnecessary to make a statement of the case.

<p>Appeal from, the District Court of Coleman. Tried below before Hon. J. O. Woodard.</p> <p>This appeal is from a conviction as an accomplice to robbery, the punishment being assessed at five years’ imprisonment in the penitentiary.</p> <p>The indictment charged that Will Teague and Minden Alexander were the principals, and that appellant, Noah Armstrong, prior to the commission of the crime, advised and encouraged them to commit the same, and prepared arms and aid in the way of pistols, guns, and horses, to be used by Teague and Alexander in the commission of the offense; he, the said Armstrong, not being present when the offense was committed by the other parties.</p> <p>The prosecution grew out of the robbery of the Wells-Fargo company express messenger on a passenger train on the Gulf, Colorado & Santa Fe Railroad, within some 500 yards of the depot, at Coleman City, Coleman County, about half-past 11 o’ clock on the night of the 24th of May, 1893. The express messenger was one John G. Barry, and the money taken from his possession by the robbers consisted of one package containing $3000 in United States currency money, expressed from the Austin National Bank, at Austin, to the Concho National Bank, at San Angelo, Texas. Also two other packages of money, paper currency, containing $500 each, addressed to two banks at Ballinger, in Runnels County. The train of cars had just gone down on the T, some 500 yards west of the depot, and had stopped at about one of the switches, when two gun shots were fired, one on each side of the train; and almost immediately thereafter one of the masked robbers appeared at the engine with a pistol in each hand, who made the engineer and other employes get off the engine and go with him to the express car, and at his demand upon the express messenger to open the door, which he did, they were ordered to climb into the express car, the robber following them, after which he held them up in the express car while he made the express messenger open the safe and give him the packages of money above mentioned. In the meantime the other robber, who was armed with a Winchester rifle, and also masked, had come around to the same side of the car, and stood there until the robbery was accomplished. After the money had been received by the robber in the express car, he made the parties in there get out on the ground, and he and his companions backed off some distance and disappeared.</p> <p>The night was a bright moonlight night, and there was a lamp burning in the express car at the time of the robbery. The robber in the express car wore a peculiarly shaped and colored hat, and the parties in the car were able to, and each did, describe his personal appearance, size, action, and manner of speech. One of the passengers sitting in the car immediately behind the express car, when he heard the guns fire, looked out of the window and saw the second robber when he came around, armed with a Winchester. He described him as a boy between 16 and 19 years of age, both from his personal appearance and the tone of his voice, heard while he was cursing some of the parties. A day or so after the robbery, the express messenger saw Will Teague in a barber shop in the town of Coleman,' and from his size, the tone of his voice, and the hat which he wore, recognized him as the man who had robbed him, and Teague was arrested. Teague lived with the defendant, Noah Armstrong, on Armstrong’s farm, some ten miles from the city. Some few days before the robbery Min-den Alexander, commonly known as “the kid,” a boy about 19 years of age, and a man named Randall Waites, came to defendant Armstrong’s house, and were known to be there up to the night of the robbery. The next day they left with some horses claimed by Waites, and started off by the way of Dallas for their home, Mount Vernon, in Franklin County. There was picked up the next day after the robbery, on the north side of the T, an empty 32-calibre Winchester rifle shell; and on the same day, at a mesquite bush some 50 or 100 yards from the Y, signs were discovered as though two horses had been hitched there. The tracks of one of these horses made a peculiar impression on the ground, and this track was carefully measured, and the tracks followed to the horse lot of the defendant Armstrong. “The kid” (Alexander) and the man Randall Waites were also arrested at Mount Vernon in Franklin County. Alexander was placed in the jail at Greenville, and the passenger who saw the boy robber at the train was taken over to Greenville, where he recognized and identified him as the boy he had seen that night with the Winchester rifle,'by his size, appearance, and the tone of his voice. After Teague’s arrest, as above mentioned, the officers found at defendant Armstrong’s house a Winchester rifle, which was loaded with cartridges of the same size and make as the empty hull picked up at the railroad Y the day after the robbery. It was also proved that the hat which Teague wore on the night of the robbery was the hat of, and belonged to, the defendant Armstrong. After “the kid” (Alexander) was arrested and placed in jail in Greenville, he gave an order to the officers for $560, which had been left by him with Joe Waites at Mount Vernon, which money the officers got.</p> <p>At the trial of this defendant, both “the kid” (Minden Alexander) and Randall Waites turned State’s evidence and testified. Waites testified, that he was not present at the robbery and had nothing to do with it. That the matter had been talked oyer between himself and Teague in the presence of Armstrong, but that he had declined to go into it; and he proved an alibi. The witness Alexander testified, that the robbery was committed by Teague and himself, but that Armstrong knew all about it, and that he rode Armstrong’s horse, and that it was Armstrong’s Winchester rifle which he carried with him and used at the time of the robbery. He testified, that after they had returned that night from the scene of the robbery to Armstrong’s house they went into a cellar and counted the money. That Teague counted the money, and said that there was $2840, of which he gave him (witness) $1440 — one-half. That he put this $1440 in his pocket that night. That the next morning after he got up he went into the pasture after his horse, and defendant went with him. That after they started he gave defendant $200 of the money, and told defendant that he thought they had better leave the balance of the money out in the pasture, which they did, and covered it with a chunk. That they did not find his horse, and went on back to the house. That he staid at the house that day, and Teague and defendant went off to town. That that night he found his money had been moved from where he had left it under the chunk. That defendant saiil that he had moved the money, and that there was not near as much money in the pile as they had said there was. He said there was only $840 in the pile. That they had some words about it, and he said he would go and get the money and count it again; and defendant and Teague went to the house to get the money. That Randall Waites, who was present, told him, after they had gone, not to say anything; that they had all the advantage of us. That when they returned they counted him out $840, which he took. That he turned the money over to Randall Waites to carry for him, and that that night, after they had started towards home, he agreed to give Waites one-half of the money for a half-interest in the horses that they were taking off to trade and sell. That they sewed the money up in the boot-leg of Waites for safe-keeping, and used it as they needed it, until they got back to Mount Yernon, where they turned over the $560 that was left, to Joe Waites, for safe-keeping.</p> <p>Defendant testified in his own behalf, and denied all the material facts stated by the other witnesses implicating him in the robbery.</p> <p>Certain portions of the witness Mart' Cook’s testimony taken at the examining trial were shown to him, which tended to contradict his testimony, and he admitted that the statements made at the examining trial were “true.” The State then proposed to read these statements made on the examining trial, to which defendant objected, because, having offered them for the purpose of impeaching that witness, and he having admitted them to be “true,” that was an end of the matter, and such statements could not be read as evidence of defendant’s guilt. This objection was overruled, and defendant excepted and saved his bill of exceptions.</p> <p>No briefs found with the record.</p>

<p>Appeal from tbe District Court of Gillespie. Tried below before Hon. W. M. AllisoN.</p> <p>Appellant was indicted for tbe rape of Mary Washington, a female under tbe age of 12 years. His trial resulted in bis conviction, witb tbe punishment assessed at imprisonment for a term of ninety-nine years in tbe State penitentiary.</p> <p>Tbe following is tbe testimony in full of Mary Washington, tbe pros-ecutrix, who testified for the State: “I know tbe defendant, Alonzo Bussell. [Points him out to the jury.] I knew him on the 12th day of August, 1893. On that day my mother sent me to my sister’s (Mrs. Thompson’s) to carry a chicken. I went some time in the morning, I think about 9 o’ clock; can not say exactly how early. I went by Mr. Bussell’s place as I went to Mrs. Thompson’s. I met defendant, Alonzo Bussell, in Salt branch, about 200 yards from Mr. Bussell’s house. He spoke to me, and said ‘Good morning.’ I told him ‘Good morning.’ He asked me where I was going. I told him I was going to my sister’s, Ann Thompson’s. He went on down the lane. I went on to my sister’s house; and she was not at home. I then went on to Mrs. Britton’s, 200 yards further, and got her to plait my hair. After my hair was plaited I started on home, and I again returned by Mr. Bussell’s. Before I got to Mr. Bussell’s I met a white man in the lane; don’t know who; did not speak. I went on, and in the road that Mr. Gehman had made in hauling rock, where the road runs between Mr. Brown’s fence and the river (Pedernales), my horse shied, and the defendant got up from behind a pecan or walnut bush and asked me to let him see my bridle. I told him, he had already seen it; that it was my brother-in-law’s, Ben Wren’s. He said he had not seen it. I stopped to let him see the bridle. He came up and examined it. I thought he had looked at it long enough, and started my pony on. He held on to the bridle with one hand and pulled me off my horse with the other. He led the horse with one hand and pulled me with the other. I hallooed, and told him I would tell mamma. About fifteen steps from the road he turned the bridle loose, and caught hold of both of my hands and threw me down. He crossed both of my hands on my breast and held them with one hand, and pulled up my dress with the other, and unbuttoned his breeches and took his old thing out, and got on top of me and pushed his privates up into my privates. I hallooed, and told him I was going to tell mamma; and he asked me to lie still and not halloo, and not tell mamma, and that he would get through in a little while. I tried to get loose. When he got up off me he started off, but stopped and asked me if I wanted him to help me on my horse. I told him no, I did not want any black negro helping me. I led my horse to an elm stump, and got on him and rode straight on home. I saw Ben Wren standing at the gate. He said ‘Hello’ to me, and I said, ‘Hello.’ Then my mother called to me, and told me to turn my pony into the cow-lot. I did so, and then went around to the front part of the house and told my mother what the defendant (Alonzo Bussell) had done. I was crying. My mother examined me, and my clothes were bloody, and I was bleeding. He hurt me when he pushed his old thing up in me. When I got up I was bleeding.”</p> <p>Question: ‘ ‘ Tell the jury whether he put his private parts, or penis, into your private parts. That is, did he get it into you1?”</p> <p>Answer: “Yes, be did. In a few minutes after my mother examined me, my brothers Lawrence, Willie, and myself went back to the place where defendant had me down, and I showed them the place. We all walked there. This all took place in Gillespie County, State of Texas. I will be 12 years old the 12th day of next December.”</p> <p>Cross-examined: “It is a mile or more from my father’s house to Mrs. Thompson’s, and about a quarter of a mile from my father’s house to the place where defendant pulled me off my horse and had me down. The road I was on at the time was between Mr. Brown’s field and the Pedernales river. The place he dragged me to, about fifteen steps from the road, was on the left-hand side of the road, behind a thicket of bushes, between the fence and the road. I could see the river bank; could not see a house across the river; there was considerable bushes between there and the river, but up towards Brown’s there were some trees. There was two ways from our house to my sister’s, Mrs. Thompson’s — one around by Mr. Russell’s; the other bent around the other direction; both ways came together before getting to Mrs. Thompson’s. The two ways were about the same distance. We sometimes went by Mr. Russell’s, as I did that morning, and sometimes the other way. When I came up to the fence where Ben Wren was I had been crying. When I saw him I wiped my face. He said to me, ‘Hello,’ and I said, ‘Hello.’ I did notsee my brother Lawrence about there that I remember, nor did he speak to me. I could see my mother as I rode up. I went on around, and she called to me and told me to put my horse into the cow-lot. I was riding barebacked. I had no saddle. It was between 11 and 12 o’ clock when I got home. I went directly home from the place where defendant had me down. When I got up after defendant got off of me I saw I was bleeding.”</p> <p>Belle Washington, being sworn, testified: “I am the mother of Mary Washington. She will be 12 years old on the 16th day of December, 1893. On the 12th day of last August I sent her to her sister’s, Mrs. Thompson’s, about 8 or 9 o’clock in the morning. When she. came home it was about half-past 11 o’clock. I did not see her as she came up, but heard her talking to the boys, and called to her to put her pony in the cow-lot. She came around to the front part of the house, where I was, and told me what Alonzo Russell had done, and said she was bleeding. She was crying. I examined her, and found her private parts bleeding; there was blood on her drawers and on her other underclothing. I took a cloth and wet it, and held it to her private parts until it quit bleeding. Mary’s monthly sickness had never appeared then, neither has it up to this date; she not being yet 12 years old, she has not reached the years of womanhood. Her drawers were torn; so was her dress ripped part of the way off of the waist, and two or three buttons-burst off of the back of her dress. They were not in this condition when she left home in the morning. In a little while after she came borne sbe and ber two brothers, Lawrence and Willie, went off in tbe direction of where sbe said it happened.”</p> <p>Cross-examined: “After Mary bad returned tbe second time, that is, after going off with ber brothers, I also went on towards Mr. Bus-sell’s, and within one or two hundred yards of Mr. Bussell’s I came up with my sons, Lawrence and Willie, talking to defendant. I went up and talked to him a good deal. I did most of tbe talking. He denied it, and said be bad done nothing to Mary; be bad only stopped ber and looked at tbe bridle.”</p> <p>Lawrence Washington, sworn for tbe State, testified: “ On tbe 12th day of August last, me, brother Willie, and Ben Wren had been working in tbe field, and got through and came home about 11 o’clock. When Mary came home Ben Wren was standing at the back gate of tbe yard fence. I was standing not far off. When Mary came up sbe said ‘Hello’ to Ben Wren, and ‘Good morning’ to me. Sbe was not talking in an ordinary tone of voice. I discovered that something was wrong; sbe was crying a little. My mother called to ber to put ber horse in tbe cow-lot. Sbe did so, and then went round to tbe front part of tbe bouse, where my mother was. I think in about ten minutes I and brother Willie and Mary went backhand Mary showed us the place where sbe said Alonzo Bussell bad pulled ber off ber horse, and threw ber down and got on top of ber. It was where tbe road goes between Mr. Brown’s fence and the river, about twelve or fifteen steps from the road, behind some bushes, and between tbe river and tbe road. I saw some horse tracks near there, and saw tbe place where sbe said sbe bad been thrown down by defendant. I saw where somebody had been lying. Also tbe prints of somebody’s toes and knees on tbe ground. Mary then went home, and Willie and I went on towards Mr. Bussell’s, across Brown’s and Bussell’s fields, to a lane running past Bussell’s bouse to tbe river. About 200 yards from Bussell’s bouse we saw Willie Baag coming meeting us, and defendant going up towards bis father’s bouse. I whistled to him, and be stopped and waited until we came up to him. Before we overtook him Ben Wren came up on horseback. We accused him of having mistreated Mary, and told him what Mary bad said. He denied it, and said it was not true. He said be bad stopped Mary there to examine tbe bridle sbe bad on ber horse, because be wanted to trade for it. My mother also came up to us as we were talking, and talked to defendant.”</p> <p>Cross-examined: “When Mary came up to where Ben Wren and I was, mother was in tbe front part of tbe bouse, and us on tbe back side. Sbe. could not see mother from where sbe was when sbe spoke to me and Ben. There is a road between Brown’s fence and the river. Mary showed us a place on this road where sbe said that defendant bad pulled ber off ber horse; also a place where she said defendant bad thrown her down and got on top of her; this was between the road and the river.”</p> <p>The testimony of Lawrence ’Washington as to defendant’s statement denying that he had raped the girl, and stating that he had only stopped her to examine the bridle, was corroborated by several of the other witnesses.</p> <p>Defendant, Alonzo Russell, testified: “ On Saturday morning, about 8 or 9 o’clock, I went down to Mr. Brown’s to tend to some stock, and met Mary Washington in the road and spoke to her. She asked me if my mother and Brown’s folks had gone to Mason. I told her yes, and after she had passed I asked her what was the matter with her bridle. I did not touch the bridle or her. I did not see her but once that day.”</p> <p>Cross-examined: “I went down to feed Brown’s stock about 8 or 9 o’clock. I did not return to my father’s house any more that morning until after I met Mr. Baag. I had been out in the pasture looking at some poles I wanted to cut. It was not my father’s pasture; it was Mr. Schmidtzinsky’s pasture. I was on my way home from there when I met Mr. Willie Baag. I met Mary in the road, not at the place she said I did. I did not tell Willie Lawrence, Ben Wren, or Henry Washington that I stopped Mary and examined her bridle because I wanted to trade for it. I thought something was the matter with the head-piece of the bridle.”</p>

Tried below before Hon. W. D. Harris. Appellant was indicted for the murder of one H. W. Spear, by shooting him with a pistol, and at the… Held: that it was not error to allow the State on cross-examination to prove that one of the witnesses for the defense “was then under indictment for theft.” In affirming the conviction, Judge Sim-kins limits such cross-examination “to transactions comparatively recent, bearing directly upon the present character of the witness, and…

Tried below before Hon. T. H. SpooNER. This appeal is from a conviction for horse theft, the punishment assessed being imprisonment for ten years in the penitentiary. The opinion sufficiently states the case.

■ Appeal from the District Court of Bexar. Tried below before Hon. Georg-e H. NooNAN. The indictment in this case charged appellant, W. S. Exon, with rape upon one Martha Hein. At his trial appellant was convicted, and his punishment assessed at a term of fifteen years in the penitentiary. The evidence in substance shows that Martha Hein, the prosecutrix, attained her twelfth year of age in July, 1893.

<p>Bigamy — Defendant’s "Wife Incompetent as a Witness. — The first, or lawful, wife can not he used as a witness against her husband in a prosecution against the latter for bigamy.</p>

<p>1. Rape — Indictment—Election Between Counts. — Where an indictment for rape contained two counts: first, for rape by force and fraud; second, rape of a woman so mentally diseased as to have no will to oppose the act: Held, the two counts charge but different phases of one transaction, and it was not error to refuse to require the State to elect upon which count a conviction would be claimed.</p> <p>2. Same — Charge.—On a trial for rape, under an indictment containing two counts, as set out in paragraph 1, supra, Held, that it was error for the court, in the charge, to submit the law applicable to the second count, where the prosecutrix herself testified, that she “fought and knocked” defendant with her hands, and that defendant told her, when he left her, that “other white girls did not tell on him, and that if she told on him he would kill her;” and where, in addition, her physician testified, “when she is cool and quiet she has very good sense.” In view of this evidence (introduced by the State) in connection with the other testimony in the case, the second count was not supported by the evidence with that degree of cogency as rendered it proper for the court to submit it to the jury; and as the verdict does not specify upon which count it was based, the charge submitting this second count may have misled the jury.</p> <p>3. Same — Prosecutrix as a Witness — Competency and Sanity. — On a trial for rape, where the charge is that the prosecutrix was so mentally diseased as to have no ■will power to oppose the act, and the State makes a witness of such prosecutrix, this fact is an indorsement of her competency, and it is tantamount, in effect, to saying to the jury that the witness is now sane, and was sane at the time when the events happened of which she is called to testify.</p> <p>4. Evidence. — See evidence summed up in the opinion, which is held to he insufficient to support a verdict and judgment for rape, with the death penalty assessed.</p> <p>5. Argument of Counsel. — On a trial for rape, where the prosecuting counsel in argument to the jury said, “The friends of the prosecutrix had not in their anger taken the law in their own hands and lynched or applied the torch to- defendant, therefore the life of this demon should pay the penalty.” Sdd, to constitute reversible error.</p>

Tried below before Hon. E. D. CavTN. On a trial under indictment for tbe murder of one John F. Morris, in tbe county of Harris, on tbe 17tb day of January, 1894, appellant was convicted of manslaughter, bis punishment being affixed at a term of two years’ imprisonment in tbe penitentiary. In view of tbe disposition made of the case on this appeal, it is unnecessary to make a general statement of tbe case.

Tried below before Hon. T. H. Spooner. This appeal is from a conviction for murder of the second degree, the punishment assessed being ten years’ imprisonment in the penitentiary. In conformity with instructions from the presiding judge in his opinion below, we give the facts in full, as follows: ■ Dave Cunningham, sworn for the State, says: “I know the defendant, Dan Cline, and see him-in court. I knew Spencer Cunningham. He was my brother. He is dead.

Tried below before Hon. Chas. Feed. Ttjokee. On a trial under an indictment charging bim with tbe murder of one W. G. Veal, appellant was convicted of murder in tbe first degree, his punishment being assessed at imprisonment for life in tbe penitentiary. This is tbe second appeal in this case. Tbe first was an appeal from a trial on a writ of habeas corpus refusing bail after he was indicted for tbe murder of W. G. Veal.

<p>1. Malicious Mischief — Recognizance—“ Knowingly” — Want of Consent of Owner. — Where a party has been convicted of the offense of “knowingly” causing sheep to go within the inclosed lands of another, under provisions of article 684 of the Penal Code his recognizance on appeal will be fatally defective if, in reciting the offense of which he was charged and stands convicted, it omits to state that the same was ‘1 knowingly ’ ’ done, and fails to negative the want of consent of the owner of the land.</p> <p>2. Same — Jurisdiction on Appeal — Without a proper and legal recognizance, jurisdiction will not -attach in this court to misdemeanor causes unless the party be in jail.</p>

<p>Appear from tbe County Court of Caldwell. Tried below before Hon. George W. Ketser, County Judge.</p> <p>This appeal is from a conviction under an information charging appellant with theft of four spools of wire of the value of $15, the same being the property of, and in possession of, Jeff McMullen. The punishment assessed was a fine of $100, and imprisonment for thirty days in the county jail.</p> <p>The points decided are sufficiently illustrated by the facts stated in the opinion.</p>

<p>Appeal from the District Court of Parker. Tried below before Hon. J. W. PATTERSON.</p> <p>This appeal is from a judgment of conviction for burglary, the punishment assessed being two years’ confinement in the reformatory and house of correction, the jury having found appellant to be under 16 years of age.</p> <p>The indictment alleged the ownership and possession of the burglarized house to be in one A. H. Cleveland.</p> <p>A. H. Cleveland testified: “I live in Parker County, Texas, and am acquainted with the defendant, Frank Linhart. Last October I owned and was in possession of a stock of goods, consisting of confections, tobacco, hay, etc., which said goods were situated in a storehouse formerly occupied by A. J. Lane, and owned by Mr. Lindsy, on North Main street. Sometime after I went into possession of said property I missed some goods from the store, and put Mr. D. C. Newberry, my deputy, down there at night to watch and see if he could not catch some one. If the defendant went into said house or took anything therefrom, he did so against my consent; and if Pete Cook went into said house, he did so without my consent; and if he took any property from said house, he did so without my consent. Said house is situated in 'Weatherford, Parker County, Texas. I took possession of said storehouse by virtue of said writ of attachment, and kept said goods-in the said house until they were sold. I had the keys.to said house.”</p> <p>Cross-examined: “I did not pay Mr. Lane anything for the goods in said house, nor did I buy them from him. I did not get possession of said property by any voluntary act of Mr. Lane, who was the owner of the goods, and who had the building rented. A writ of attachment was issued out of the County Court and placed in my hands, and I was directed to levy said writ on said goods. I am the sheriff of Parker County, Texas, and have held said office since the last general election-. It was by virtue of the above writ of attachment that I held said Lane’s goods in my custody, as sheriff, at the time of the alleged burglary. As an individual or a citizen I had no interest in any of said property, and had nothing to do with it except to execute the above writ, which I did; and I afterwards sold the goods under an order from the County Court. The goods were simply in my custody as sheriff, and as an individual I paid no rent on said building. The goods in said house were in my possession and under my control at the time the alleged offense was committed. I paid the rents on the house, but paid them out of the proceeds of the sale of said goods. All I did in the premises was by virtue of said writ of attachment.”</p> <p>D. C. Newberry, sworn for the State, said: “Sometime last October Sheriff Cleveland put me to watch in the storehouse of A. J. Lane, the goods in said house having been attached by the sheriff. The first night I watched nothing occurred; but on the second night, about 10 o’clock, I heard some noise around the back door, and pretty soon the door was opened and I saw Peter Cook come in. He went down towards the front, and behind the counter, to where the candy and tobacco was. He filled his pockets with the goods, put some in a paper sack, and started back, when I grabbed him and told him to keep quiet. While he was in said house the defendant came up to the back door two or three times, and said, 'Hurry up, Pete.’ The last time he came up and stuck his head around the door where I was standing. I grabbed him by the arm and took both of the boys to jail. This all occurred on October 26, 1893, at about 10 o’clock at night. I could not say whether Pete Cook and defendant came up to the back door together. Just before Pete Cook entered the door I could hear two voices at the door, but could not say what they were saying or who they were. Pete had to walk to the front of the house to get the goods, and about the time he got to the goods defendant pushed the door open and put his head around the door, and said, 'Hurry up, Pete;’ and while Pete was getting the goods he repeated that remark several times. After I arrested them they told me where they had hid some goods they had gotten before. I think Pete and Frank are about the same age. Frank may be the largest. The goods Cook got were held by the sheriff.”</p> <p>Cross-examined: “I did not find any of the stolen goods except what Peter Cook had that night. The back door was not locked, but was closed and had a bale of hay against it. I was in the house in my stocking-feet. Do not know whether defendant came up with Pete Cook when Cook first entered the house or not.”</p> <p>~W. Linharb, for defendant, said: “ I am the father of defendant, and was present when he was born. He was born .between 1 and 2 o’clock on the morning of October 27, 1880, and was 13 years-old on the 27th of October, 1893. I am sure he was not born before 12 o’ clock. We had taught the boy that his birthday was on the 26th of October.”</p> <p>Cross-examined by the State: “The defendant was born on the 27th day of October, 1880, between 12 and 1 o’clock in the morning, and the burglary was committed on the 26th of October, 1893, at about 10. o’clock at night.”</p> <p>No briefs on file with the record.</p>

Tried below before Hon. M. T. Lowe. Appellant was indicted in Zavalla County for tbe rape of one Dolores Mata. By agreement of parties the venue was changed to Frio County, because, on account of sparseness of population, a jury could not be obtained in Zavalla to try tbe case. At bis trial in Frio County be was convicted, bis punishment being assessed at five years’ imprisonment in tbe penitentiary.

Tried below before Hon. EugeNE Archer. This appeal is from a judgment of conviction for murder of the second degree, wherein the punishment assessed was a term of twelve years’ imprisonment in the penitentiary. This is the third appeal taken in this case. The first appeal will be found reported in 13 Southwestern Reporter, 650. The second appeal will be found in 30 Texas Criminal Appeals, 160. In both cases the conviction was for murder in the second degree.

Tried below before Hon. E. D. Caven. Appellant was indicted for the murder of one John Green by stabbing him with a knife, and at his trial was convicted of murder of the second degree, with the punishment assessed at twelve years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

Tried below before Hon. T. H. CONNOR. This is the second appeal in this case. Richardson v. The State, 32 Texas Crim. Rep., 524. The conviction at each trial was for murder in the second degree, with penalty assessed at five years’ imprisonment in the penitentiary. The case is sufficiently stated on former appeal, 32 Texas Criminal Reports, 524. No briefs found with the record.

Tried below before Hon. S. E. Scott. Tbis appeal is from a conviction for murder of tbe first degree, wherein tbe penalty is assessed at death.

Tried below before Hon. I. N. Boach, County Judge. This appeal is from a conviction for playing cards in a public place, wberein tbe penalty assessed was a fine of $10. Held: that a room kept for the common resort for persons desiring to play cards is a public place within the meaning of the statute, although all who desire to play may not be permitted or have access to it. This covers the point at issue in this case.

Tried below before Hon. Dbtjby Field, Special Judge. On tbe 16tb day of June, 1894, appellant killed one Jim Williams, in tbe village of Joaquin, Shelby County, Texas, by shooting him twice with a double-barrel shotgun.

Tried below before Hon. Felix J. McCord. Appellant was indicted for the murder of one J. L. Wagner, in Wood County, by inflicting mortal wounds and bruises upon him with a stoye-leg, a chamber, and a certain heavy and hard instrument, to the grand jurors unknown, on the 30th day of April, 1893, from which the said Wagner died on the 10th day of June, 1893. At his trial he was convicted of murder of the first degree, the penalty being assessed at death.

Tried below before Hon. W. A. BlackburNE. Appellant was convicted under an indictment charging him with unlawfully pulling down, breaking, and injuring the fence of M. E. Spears, and his punishment was assessed at a fine of $10. The opinion states the case.

Tried below before Hón. Frank E. Hunter, County Judge. Appellant was convicted in a Justice Court under a complaint charging him with an 'affray, and fined $5. He appealed to the County Court. A motion was made by the county attorney to dismiss his appeal: first, because defendant failed to make and file his motion for new trial in the lower court in the time prescribed by law; second, because the appeal bond misdescribes the judgment of the Justice Court.

Tried below before Hon. H. T. Bhea, County Judge. Appellant was convicted for a disturbance of tbe peace, bis punishment being assessed at a fine of $1. The indictment is set out in tbe opinion.

Tried below before Hon. Drury Field, Special Judge. This appeal is from a conviction for arson, tbe punishment being-assessed at a term of seven years in tbe penitentiary. Tbe building alleged and tbe one proved to bave been destroyed by tbe fire was the dwelling bouse of one W. J. Crump, in Shelby County. Tbe fire occurred on tbe night of tbe 25th of July, about 11 o’clock.

Tried below before Hon. W. H. Teague, County Judge. The prosecution was by information which charged an aggravated assault with a deadly weapon. At the trial defendant was found guilty and a fine of $10 was assessed against him; but neither the verdict nor judgment specify whether he was convicted of a simple or an aggravated assault. The verdict is set out in the opinion below. There is no charge of the court nor statement of facts in the record. No briefs on file.

Tried below before Hon. ~W. B. THOMPSON, County Judge. Held: and was held, on the 17th day of December, 1892.

Tried below before Hon. Rtjeus Hardy. Appellant was indicted for tbe murder of J. G. McKinnon, in Limestone County, on tbe 2nd day of May, 1894. Tbe trial resulted in bis conviction of murder of tbe first degree, bis penalty being assessed at death. Appellant made an application for continuance, wbicb was overruled. Tbe facts pertaining to this matter are sufficiently stated in tbe opinion. Tbe deceased, McKinnon, was a white man, 65 years of age; defendant a negro.

Tried below before Hon. T. S. Reese. This appeal is from a conviction for perjury, the punishment being assessed at five years in the penitentiary.

<p>1. Malicious Mischief — Information—Allegation of Ownership. — Indictments for malicious mischief (except in cases of wanton cruelty to animals, under provisions of article 680, Penal Code), to be sufficient, must allege the ownership or possession of the property injured to he in some person other than the accused; and averments charging the offense must be certain and positive, and not by way of argument or inference.</p> <p>2. Same — Malice—Intent.—In prosecutions for malicious mischief malice is the gravamen of the offense, without which it would be a mere trespass. The intent is also a material, essential element; and if it be shown that the defendant acted in good faith and under a claim of right, the charge can not be sustained.</p> <p>3. Same — Evidence.—In prosecutions for malicious mischief, any evidence tending to rebut the charge of malice, or going to show the animus of defendant, is admissible.</p>

Tried below before Hon. W. M. AllisoN. This appeal is from a conviction for perjury, the punishment being assessed at five years’ imprisonment in the penitentiary. The matters essential to an understanding of the case are sufficiently stated in the opinion.

<p>Carrying a Pistol — Sanger Imminent and Threatening. — On a prosecution for unlawfully carrying a pistol, where it appeared that defendant had heen forced into a fight in his own house, and some few minutes later the parties came together again in front of his house, at which time his antagonist was seeking to use a knife upon him, whereupon defendant drew and fired his pistol, Held, that there being no time to admit of the arrest of his antagonist, and the danger being imminent and threatening, the facts do not justify a conviction.</p>

<p>Transfer of Indictment from District to County Court — Plea to Jurisdiction. Where a cause has been transferred for trial from the District to the County Court, if the transcript of transfer to the County Court fails to show a presentment of the indictment hy a grand jury in the District Court, a plea to the jurisdiction or motion to dismiss upon that ground should he sustained.</p>

- Appeal from the District Court of Mills. Tried below before Hon. W. A. BlackburN. This appeal is from a conviction for seduction, the punishment being assessed at two years’ imprisonment in the penitentiary. The important facts connected with this transaction will be found in the testimony of the prosecutrix, as follows, to wit: “My name is Missouri Emma Morrison. I will be 20 years old in April next.

Tried below before Hon. L. B. Hightower. Appellant was indicted for tbe murder of Steve Small, by cutting him witb a knife, and at bis trial was convicted of murder of tbe first degree, tbe penalty being assessed at a life term in the penitentiary. There is no statement of facts in tbe record. No briefs on file.

<p>1. Statement of Pacts — Practice on Appeal. — A statement of facts filed, subsequent to tbe time allowed by order of tbe court can not be considered on appeal.</p> <p>2. Same — Continuance.—In tbe absence of a statement of tbe facts, tbe court on appeal can not determine tbe materiality or probable truth of tbe matters set up in tbe application for continuance.</p>

Tried below before Hon. R. L. Parker, County Judge. This appeal is from a conviction for theft of a hog of the value of $3, the punishment being assessed at a fine of $50 and one day’s imprisonment in the county jail, against each of said defendants.

Tried below before Hon. T. S. Beese. This appeal is from a conyiction for theft of a cow, the punishment being assessed at two years’ imprisonment in the penitentiary. The two errors assigned, and which are discussed in the opinion, were: “1. The court erred in not charging the law of accomplices, as the evidence of the State’s witnesses, S. L. Elgin and H. Blagrove, required such charge. “2.

Appeal'from the District Court of Falls. Tried below béfore Hon. S.B. Scott. This appeal is from a conviction for burglary with intent to commit rape, the penalty being assessed at five years’ imprisonment in the penitentiary. This is the second appeal in this case. See Mitchell v. The State, 32 Texas Crim. Bep., 479. The case is sufficiently stated in the opinion. No briefs have come to the hands of the Beporter.

Appeal froin the District Court of Bell. Tried below before Hon. W. A. BlaceburN. This appeal is from a conviction for murder of the second degree, the penalty assessed being fifteen years’ imprisonment in the penitentiary.

<p>1. Local Option Election — Voting Precincts Embracing City Wards. — Where the validity of a local option election was contested upon the ground that the County Commissioners Court in laying off the voting precincts for the same, embraced within four precincts the city of H., which had theretofore been divided into four voting wards, thereby totally ignoring the said city wards, in contravention of the provisions of article 1664, Revised Statutes, Held, the law in reference to voting precincts, prescribing the duty of the Commissioners Court in regard thereto, fails to declare that n noncompliance therewith will invalidate the election as to those precincts, and that the law having failed to make the observance of the city wards, in the laying out of such voting precincts, an essential prerequisite to the validity of such election, the court would not make it so, there being no suggestion of fraud or wrong on the part of the Commissioners Court or any one else. Following Davis v. The State, 75 Texas, 420.</p> <p>2.Same — Constitutional Law. — In 1885 the Commissioners Court of Hill County established the four election precincts, which took in the city of Hillsboro, without reference to the established wards of the city, and the voting boxes used for the precincts were in the northwest, southwest, and northeast comers of the court house, said court house being in no one of said precincts, but common territory to three of them; the other precinct (number 1) by mistake stopping short at the court house yard, some sixty feet from the room subsequently used as its voting place. After the precincts were thus laid off and voting boxes thus established, all elections had been held in conformity therewith without objection, prior to the one in question. At this election the same rooms were voted in, except the southwest room, which had been assigned to, or occupied by, precinct number 2. The voters of this precinct cast their votes in a room on the same side of the building, but across a hallway, and thirty feet distant from the one customarily used by them, and adjoining the voting room for precinct number 3. It was objected that the election was void, because in contravention of section 2, article 6, of the Constitution, which provides, that “all electors shall vote in the precinct of their residence.” Held, the objection is not maintainable.</p> <p>1. The object of the constitutional provision is to insure a fair and honest election, by requiring each voter to cast his ballot at the same place where his neighbors voted, and those to whom his qualifications were best known, and by whom, if necessary, he could be challenged.</p> <p>2. The voters in precinct number 1, though by mistake it did not embrace any portion of the court house, had honestly used the room, for years, therein assigned to them for election purposes, supposing it to be their true and legal place of voting; and thus brought their action within the exception to the general rule, that it is essential to the validity of an election that it be held at a time and in the place provided by law.</p> <p>3. As to the polling room of precinct number 2 being changed from its usual and assigned room across the hallway of the court house to another room, Held, that the room used was practically the same place. The change could in no possible way have affected the election, and there was no improper motive suggested in making the change.</p> <p>3. Elections — Disfranchisement of Voters. — In order to invalidate an election, on account of the fact that voters were disfranchised because the territory occupied by them was not embraced in any election precinct, Held, that the number so disfranchised must bear such relation to the number actually voting as would suggest a probability that their participation in the election might in some way have affected the result.</p> <p>4. Same — Duty of Courts with Reference to. — Where the sovereign will, as expressed at an election, is fair, free from taint of fraud or charge of improper conduct, it becomes the duty of courts to sustain them, if it can be done, by a liberal construction of the laws relating thereto, rather than defeat them by requiring a rigid conformity to law.</p>

Tried below before Hon. T. S. Reese. Appellant was indicted for the murder of John Dees, in Waller County, on the 27th day of June, 1894, by shooting him with a gun. The trial resulted in his conviction of murder of the second degree, his punishment being assessed at a term of five years in the penitentiary. The testimony in brief shows, that defendant and deceased, John Dees, were cultivating tracts of land which were separated from each other by a lane.

Tried below before Hon. Bueus Hardy. Appellant was indicted for the murder of J. M. Farley, in Navarro County, on the 11th day of November, 1893. His trial resulted in his conviction of murder of the first degree, the penalty being assessed at death. The facts proved for the State were, substantially, that the deceased, J. M. Farley, had been picking cotton for the defendant during the second week of November.

<p>1. Special Venire — Service upon Defendant — Statutory Law. — Article 617 of the Code of Criminal Procedure provides, that “no defendant in a capital case shall he brought to trial until he has had one day’s service of a copy of the names of persons summoned under a special venire facias, except where he waives the right or is on bail.” Held, that the statute is mandatory. Following Kellumv. The State, ante, p. 82.</p> <p>2. Same — Service upon Counsel Insufficient. — The fact that defendant “could not read,” and that the venire was served upon his counsel, is insufficient.</p>

Tried below before Hon. B. E. Moore, County Judge. This appeal is from a conviction for disturbance of religious worship, the punishment assessed being a fine of $25. No statement necessary. No briefs on file with the record.

<p>Appeal from tbe Criminal District Court of Dallas. Tried below before Hon. Charles F. CliNT.</p> <p>Appellant was charged by indictment with the murder of one W. W. Holman, in Dallas County, on the 29th day of July, 1891, by shooting him with a gun. At his trial he was convicted of murder of the second degree, with punishment assessed at six years’ imprisonment in the penitentiary.</p> <p>The statement of facts is very voluminous, comprising the testimony of some twenty-eight witnesses. The defensive theory, as well as the facts and circumstances attendant upon the killing, are best shown and illustrated by the testimony of defendant as a witness in his own behalf, and are as follows:</p> <p>H. L. W. Gilcrease, the defendant, testified in his own behalf, as follows, to wit: That in 1891 he lived on a farm owned by himself, about one and a half miles from Riley, in Dallas County, and also had the Wanderlick farm, about one mile from Riley, leased, and which farm he had in cultivation in cotton and corn in 1891, going from his home place with his wife and farm hands to work the crop when necessary. The defendant knew the deceased and Pleas Holman and Mrs. A. Holman, and by his permission Mrs. Holman, Henry Holman, and Effie Holman, her children, were permitted to stay in the house on said place, tbe defendant reserving tbe use of a crib upon tbe place and tbe use of tbe entire premises, except two bouses occupied by Mrs. Holman and ber children. Mrs. Holman paid no rent, and only agreed to keep tbe stock out of tbe field for tbe use of tbe two small bouses used by ber, and tbe smokehouse. Hnder tbe agreement she bad no use or control of tbe premises other'than tbe bouses occupied by ber, and only so long as tbe defendant should permit or consent thereto. Mrs. Holman moved into tbe house several months preceding tbe killing, at which time tbe entrance and exit to tbe premises was a wagon gate near tbe well, about 400 yards from tbe house, near where tbe pasture fence joined tbe field fence, tbe pasture being outside tbe farm. Said gateway was left for use as long as she remained on tbe place, and opened out upon tbe public road. Another wagon gateway was in front of the bouse, about seventy yards from tbe bouse, and led into tbe pasture. Sometime after tbe occupancy of tbe bouse by Mrs. Holman, tbe defendant for bis own convenience put in a wagon gateway in tbe pasture fence, opening upon tbe public road, and in front of tbe bouse, and about ten or fifteen steps from said field gate connecting tbe field and pasture. Tbe stock bad been depredating upon defendant’s crop in said field, for which reason be bad put a lock and chain upon tbe outside pasture gate, and kept it locked in order to keep stock from getting into tbe pasture and into tbe field through or over tbe field fence, be having found the gate open upon several occasions, and stock in tbe field. Two or three of tbe locks and chains previously put upon the gate bad been broken and thrown away by some person unknown to defendant. Prior to tbe day of the homicide defendant bad not been to tbe Wanderlick place for a week or ten days, at which time be left said gateway leading from tbe pasture to tbe road locked. Tbe fences were good, and the danger from stock was in leaving tbe gates open. Defendant bad requested Mrs. Holman to vacate tbe bouses occupied by ber, previous to tbe date of tbe killing, but she refused, and continued in possession thereof over objection of defendant. Her sons, Pleas Holman and W. W. Holman, did not live with ber on tbe place. Pleas occasionally visited ber. Tbe first time defendant ever saw W. W. Holman on the place was the date of the killing. On Wednesday, July 29, 1891, tbe defendant, with his wife and Andy Clark, an orphan boy being raised by them, and two hired bands, Charles Young and William Coots, went from defendant’s home to work in tbe crop on said Wanderlick farm, and reached tbe place about 8 o’clock in tbe morning, and found tbe pasture gate open, and lock and chain thereon gone. “I took tbe gate down and wired up tbe gateway space, so as to keep stock out; left the wagon, dinner, etc., at tbe crib used by me for that purpose, and went with my wife, Andy Clark, and tbe bands to tbe field to work. I bad several times complained to Mrs. Holman about tbe stock being in tbe field, and she told me to lock the gate, and I commenced to lock the gate in May, 1891, and carried the key with me. It was after this that I requested Mrs. Holman to vacate the premises, and she was occupying them, over my objection, at the time of the homicide. When I reached the place that morning I only saw Mrs. Holman and some small children; did not see Pleas Holman or W. W. Holman. We went to work in the field 300 or 400 yards from the house. Shortly before noon I heard two guns fire near the house of Mrs. Holman. At noon I quit work, and sent Andy Clark with a sack to the cornfield to get corn with which to feed the horses. ■ The balance went to the crib reserved and used by me for dinner, storage, and other purposes. I built a fire and my wife commenced to make coffee, when my attention was called to the pasture or outer gate. The wires had been knocked down, the gate put back, and was open so that stock could get in. I told Charles Young and William Coots to come with me and help fix the gate. About this time Jack Love, a cousin of the Holmans, came up and went along with Coots. We reached the gate, and I commenced work fixing it. I heard some one say, ‘Lookout; yonder comes the Holman boys.’ I looked up, and saw Pleas Holman and W. W. Holman nearly half-way between the house and the first gate, coming towards me with their guns. Pleas Holman cursed me and hallooed something about the gate. Jack Love, William Coots, and Charles Young started off in a run. I asked them not to leave me, and called to my wife, who was at the crib, to bring me my gun; and started towards the crib, going to the gate in the field fence. I believed from the manner and appearance of the Holmans that it was their purpose to attack me and kill me with their guns. I called to my wife to bring me my gun for the purpose of protection, and went to the gate to meet her, and to hold the tree, on which the gate was hung, between me and the Holmans, and which was- only ten or fifteen steps from the gate upon which I was at work. The Holmans reached this field gate as soon as I did, coming thirty-five or forty yards, while I travelled the ten or fifteen steps between the two gates. When I was near the inner gate I said to the Holman boys, ‘Boys, don’t shoot me. I do not want any trouble with you.’ Pleas Holman replied, ‘G — d d — n you, we are going to kill you,’ and had his gun up to his face in a shooting position. W. W. Holman was behind him with a double-barrel shotgun, holding it in a shooting attitude. They were on the inside of the field inclosure; I was in the pasture. The fence separating the field and pasture was made of rails, and I was holding the big tree, upon which the gate was hung, between me and them, and pulled the gate around towards me as additional protection. The gate was made of plank, six inches wide and one inch thick; the planks were very close together, and they could not get a good shot at me. When Pleas Holman said they were going to kill me, I drew an old pistol which was in my pants pocket, and bugged the tree. Pleas Holman continued advancing and rusbed through the gate into the pasture, and shot me in the right arm and body. He was so close to me that the flash from his gun set my coat afire, and I was enveloped in smoke. My wife ran up to the fence and handed me my gun, which I took with my left hand. Pleas Holman ran off. I heard Charley Young say, ‘Look out, you will get shot again.’ I told him as he came up to me that I was badly shot, and he replied, ‘Look out, or you will be shot again.’ I saw W. W. Holman behind a tree fifteen or twenty steps distant, with his gun in a shooting position, and trying to get a shot at me. I moved my position. He sprang from behind the tree, and I fired. It was from two to four seconds after I got my gun until I shot. There was not more than thirty or forty seconds between the shot fired by Pleas Holman and the one fired by me. W. W. Holman did not say for me not to shoot. W. W. Holman was trying to shoot me, and when he sprang from behind the tree I believed it was to get a better shot at me. He was armed with a double-barrel shotgun. I fired only one shot — only one barrel of my gun would shoot; the tube was off of the right-hand barrel. I shot with my left hand; my right arm was paralyzed and hung uselessly by my side. When I got my gun I could have shot Pleas Holman, but he ran, and then there was no further danger from him, and I was trying to avoid being shot by W. W. Holman. It was my habit to carry a gun to and from the farm; had done so all the year. When I drew the pistol I threw down a monkey-wrench which I had in my right hand, and took the pistol from my right-hand pants pocket. I did not put my hand through the gate or try to shoot Pleas Holman through the gate; nor did I ever present the pistol at him. I did not extend my arm with the pistol in hand towards Pleas Holman. My arm was half bent, with the hand near the chest, when I was shot. The pistol was 32 calibre. It belonged to Mrs. Cox, and I had fixed it for her and had it for the purpose of returning it to her, if I saw her or had an opportunity in going to or from the farm on that day. She is in attendance upon this trial. The pistol was no account, but I thought I might protect myself with it. I believed that Pleas Holman was trying to kill me, and that W. W. Holman was trying to do the same thing, and I shot him to keep him from shooting me.”</p> <p>Cross-examined: “W. W. Holman had his gun in a shooting position when he sprang from behind the tree. If he had left the tree and gone towards the house his side would have been towards me. I did not see the Holman boys until they were coming towards me where I was at work on the gate. I did not know that they were on the place until that time. They were both armed. Pleas Holman said, ‘Hold up there, God damn you, ’ before I called to my wife to bring me my gun ; I saw the two men coming towards me; heard them cursing; they were armed, and seemed to be mad and coming to attack me, and I called for my gun to protect myself. Mrs. Holman had no right to the gate I was closing up. This gate was in the pasture. It opened upon the road, and was put in by me for my own convenience after she moved upon the place. The whole place was under my control and used by me, except the houses occupied by her. Mrs. Holman had no right upon the place after she became troublesome, and I had notified her to vacate the premises. She was occupying the houses without my consent at the time of the homicide. I had requested her to vacate some weeks before the killing, which she declined to do. On that morning I closed up that gate so as to keep stock out; no purpose in so doing to annoy Mrs. Holman. I had tried to keep the gate locked, and locks and chains were broken off, and I closed the gate to protect my crop from stock. On that morning when I went to the field to work I left my gun in the crib. The gate was at the well; opened into the public road. I had never had a quarrel with Pleas Holman or W. W. Holman, and had no unkind feelings towards them. I had no ill-will towards Mrs. Holman. I did not ask Mrs. Holman for permission to close up the pasture gate. She had no authority in the matter. She had consented to my locking the gate in May, 1891, when I first began .locking it. When Pleas Holman and W. W. Holman were coming towards me, and before I left the pasture gate, they hallooed to me to let the gate alone, and said, ‘Hold up, God damn you.’ I do not know where the deceased was struck. When I reached Mrs. Hall’s, after the shooting, I have no recollection of stating that if my ammunition had not given out I would have killed more of the Holmans. Only one barrel of the gun could shoot, and the balance of the ammunition was at the crib, and I could not have made that remark.”</p> <p>This testimony of the defendant is fully corroborated by his witnesses.</p> <p>On the other hand, the State’s witnesses testified, that deceased was unarmed and behind a tree at the time his brother Pleas Holman shot defendant, and that when defendant’s wife handed him the gun deceased jumped from behind the tree and started to run, and was running when defendant shot him in the back with a load of buckshot, killing him almost instantly.</p> <p>Defendant’s second application for a continuance was overruled by the court. By this application, it was alleged that defendant could prove the following facts by the absent witnesses:</p> <p>By the witness Elijah Pike the defendant expected to show, that on the Sunday preceding the homicide the deceased met said witness and informed him that he had heard of some trouble between the defendant and Mrs. Holman, mother of the deceased; that he was going to her house and returning home for the purpose of killing defendant; and he was prepared and intended so to do. And the application alleged that defendant expected to show a communication of said threats by the witness to the defendant prior to the homicide.</p> <p>By the witness Alf Woody, that on the Sunday preceding the homicide the deceased told witness that he was advised by his mother that the defendant was making trouble for her, and that he (deceased) was coming home for the purpose of killing defendant, and intended remaining in Dallas County until he did kill him.</p> <p>By the witness Veon the defendant expected to prove, that immediately after the homicide said witness went to the house of the deceased and saw a double-barrel shotgun hid between mattresses on the bed in said house; that said gun was not brought to said house by Love and Little after the homicide, as claimed by them; and that said gun so hid between the mattresses corresponded with the description of the gun had by deceased at the time of the killing, as described and stated by the eye-witnesses.</p> <p>It was contended by the State that the defendant was the aggressor, and the deceased unarmed at the time of the killing. The evidence was conflicting upon these issues, and the testimony alleged in the application for continuance, it was claimed, was material in the determination thereof.</p> <p>That portion of the testimony relating to the threats of the defendant, and which occasioned the motives, acts, and conduct of the deceased and brother, Pleas Holman, in going armed to the place of the killing, and which was admitted over defendant’s objection, is thus stated in his bill of exceptions:</p> <p>It having been proven that the homicide occurred on the Wander-lick place, in Dallas County, and that the defendant immediately preceding said homicide was putting wires upon and closing up the pasture gate on said premises, which was under his control; and it further having been proven that Mrs. A. Holman, mother of the deceased, was a tenant at will or by sufferance on said premises, being such tenant of the defendant. And that while defendant was so engaged in closing up said pasture gate, that the witness Pleas Holman, armed with a gun, and W. W. Holman, unarmed, as contended by the State, and armed with a double-barrel shotgun, as contended by the defendant, came hurriedly from a house upon said premises used by their said mother, and advanced towards the defendant, commanding him to desist from closing up the gate. The State offered to prove, and did prove, by its witness Pleas Holman, that he and his brother, W. W. Holman, were advised of the defendant’s closing up the gate by a message sent from his mother by a niece of said Pleas Holman; which testimony was admitted without objection. And then the State, over the objection of the defendant, introduced the following testimony by said witness Pleas Holman, to wit: That upon receiving said message,that he, the said Pleas Holman, picked up his gun and started out of tbe bouse and went, together with bis brother, W. W. Holman, towards tbe defendant, said witness being permitted to state, over objections of tbe defendant: “I took my gun because I bad beard from my mother of tbe threats made by tbe defendant to her on tbe day before. My mother told me on tbe day before tbe killing, that tbe defendant (Gil-crease) on said date bad told her that tbe next time be came down to tbe place be would come prepared to kill tbe whole G — d d — n bunch. My mother told me this tbe day before, and that is why T carried tbe gun with me when I went out of tbe bouse towards tbe defendant.” Which testimony was objected to by tbe defendant at tbe time it was given, upon tbe following grounds, to wit: That it was hearsay, irrelevant, and incompetent; that tbe same was in explanation of the motive and intent of Pleas Holman, a party to said difficulty resulting in tbe homicide, which motive and intent was unknown to tbe defendant; and that said testimony did not tend to throw light upon tbe motive and intent which prompted tbe defendant in tbe commission of tbe homicide, and was a trial of tbe defendant from tbe standpoint of Pleas Holman. But tbe court overruled said objections and admitted said testimony, upon tbe grounds that it was competent for tbe witness to explain tbe motive and intent which prompted him to arm himself and go to tbe defendant, and as tending to show tbe making of threats by defendant, and tbe communication thereof to tbe witness Pleas Holman. To which decision and ruling of tbe court tbe defendant then and there excepted.</p> <p>There was no proof by Mrs. A. Holman of any threats made by tbe defendant. ■ The record discloses no threats made by tbe defendant.</p> <p>Numerous exceptions were taken to tbe charge of tbe court, which are not discussed in tbe opinion of tbe court below. With reference to self-defense, provoking tbe difficulty, and manslaughter, tbe opinion sufficiently discloses tbe errors in said charge.</p> <p>1. Tbe court erred in overruling defendant’s application for continuance, and in refusing tbe motion for new trial on account thereof, in that tbe testimony of tbe absent witness was material, true, and would probably have effected a more ■favorable verdict in behalf of tbe defendant. Tbe testimony of tbe absent witness Pike in relation to tbe communication to tbe defendant of tbe threats of tbe deceased was not supplied from any other source, and tbe testimony of said witness in regard to tbe facts alleged could not be proven from any other source. Willson’s Crim. Stats., secs. 2169, 2186, and authorities cited.</p> <p>Tbe absent testimony in relation to threats was material, as tending to show the deceased to have been tbe aggressor in tbe difficulty resulting in tbe homicide, and as tending to show malice and a conspiracy between the deceased and Pleas Holman to provoke the difficulty and kill the defendant.</p> <p>The testimony of the absent witness A. Yeon, in relation to the gun hidden between the mattresses, was corroborative of the testimony of the defendant’s wife, Charley Young, and Andy Clarke in relation to the deceased’s being armed when killed, and tended strongly to establish the truth of that fact.</p> <p>2. The testimony of Pleas Holman as to threats of defendant communicated to him by his mother, and the reasons and motives which prompted him to arm himself and seek defendant, was hearsay and incompetent, and is a trial of defendant from the standpoint of the witness. Willson’s Crim. Stats., sec. 2494; Segura v. The State, 16 Texas Crim. App., 231; Cochran v. The State, 28 Texas Crim. App., 422; Bell v. The State, 20 Texas Crim. App., 445.</p> <p>The court erroneously charged the jury upon the law of manslaughter, in that said issue, together with self-defense, was predicated upon the theory that the defendant produced the occasion of the homicide by an original wrongfal act, and restrained and limited said issues upon the finding of the intention of the defendant, without reference to any overt act; and erroneously submitted the issues of provoking the difficulty by the defendant, and imperfect self-defense, without evidence therefor; and limited sudden passion to the acts of the deceased, without reference to the acts of Pleas Holman; and failed to submit the issue of manslaughter upon the theory raised by the evidence, of a deadly assault by Pleas Holman, and the killing of deceased in sudden passion under circumstances not sufficient to justify, induced by his co-operation, or apparent co-operation, in said assault; and said charges were wholly without specification as to the character of such wrongful act of the defendant referred to, or of any wrongful act, and failed to make any affirmative application of the law thereto; and were upon the weight of the testimony.</p> <p>The law of imperfect self-defense was not applicable to the case, nor legitimately raised by the evidence.</p> <p>The charge does not submit to the jury any issue of fact or transaction for their determination as to whether the defendant was in the wrong therein, nor what act or any act was calculated to produce the occasion or provoke the difficulty; and under said charge any act which was calculated to produce or provoke the difficulty, no matter how legal or rightful, destroyed the right of self-defense.</p> <p>The charges thereon erroneously circumscribed said issue and virtually eliminated it from the case; charged upon aggression by the defendant, not warranted by the evidence; submitted the issue of such wrongful aggression by the defendant, with less than felonious intent; and by the erroneous charge in reference to the legal presumption against the defendant from the use of a deadly weapon, and to which exception was reserved, as shown by exception number 1, construed with the erroneous charges upon the law of manslaughter, said issue was eliminated from the case.</p> <p>The court erroneously failed to submit the issue of manslaughter upon the theory raised by the evidence: that if Pleas Holman was the aggressor and shot defendant, and from the acts and conduct of W. W. Holman defendant believed his life in danger, and, actuated by sudden passion, shot with the intent and purpose to protect his life or his person, and the circumstances were not sufficient to justify such belief on the part of the defendant, then his right of self-defense was imperfect, and his offense no greater than manslaughter.</p> <p>The court erroneously charged upon provoking the difficulty and producing the necessity for the homicide by the defendant, and upon the issue of imperfect self-defense, in that the same was unwarranted by the evidence.</p> <p>The record shows a deadly assault by the Holmans, occasioned by the defendant’s wiring up a gate in the exercise of his legal right so to do, without knowledge of the presence of the Holmans; the wounding of the defendant by Pleas Holman, the killing of the deceased, while aiding or apparently aiding in such deadly assault. Said issues in the charge were not legitimately raised by the evidence. Will-son’s Crim. Stats., 981, 1030; Meuly v. The State, 26 Texas Crim. App., 274, 302, 305-308; Howard v. The State, 23 Texas Crim. App., 265, 278-280; Hobbs v. The State, 16 Texas Crim. App., 517, 522, 523; Ball v. The State, 29 Texas Crim. App., 107, 125, 126.</p> <p>3. The court therein erroneously instructed the jury, in effect, without warrant of evidence therefor, that if defendant sought the deceased with the intention, unheralded by any act, of bringing on a difficulty without intention to kill or do serious injury, and the deceased, seeing it, made a violent assault, and the defendant resisted and killed deceased to save his own life, the offense would be manslaughter; and murder if the intention in seeking was to kill, although the intention was unheralded by any act. And under the charge, intention without reference to acts was made the test of crime; and self-defense forfeited upon intention alone. Ball v. The State, 29 Texas Crim. App., 107, 125, 126.</p> <p>4. • The court erroneously, in said charge and elsewhere, failed to submit the issue of manslaughter upon the phase of the casepresented by the evidence of the deadly assault by Pleas Holman and wounding of the defendant, the killing of the deceased under sudden passion engendered by such assault while aiding or apparently aiding therein, under circumstances insufficient to justify the belief of danger from him. And erroneously failed to apply the law relating to the acting or apparent acting together of the deceased and Pleas Holman in such, deadly assault. Howard v. The State, 23 Texas Crim. App., 265, 305-308; Cartwright y. The State, 16 Tesas Crim. App., 473, 487, 488; McLaughlin y. The State, 10 Texas Crim. App., 340, 359, 360; Jones v. The State, 20 Texas Crim. App., 665, 670-672.</p> <p>5. And the Court therein and elsewhere failed to instruct the jury that the Holmans were not justified in attacking the defendant by reason of the wiring up of the gateway, irrespective of whether that act was lawful or unlawful. And the court failed to instruct the jury that if the wiring up of the gate was unlawful, that the Holmans were justified in using only so much force as was necessary to procure a de-sistance therefrom; and if in so doing they or either of them made or were apparently about to unlawfully make an assault upon the defendant with deadly weapon or weapons, and the homicide resulted under such facts, as to the issue of manslaughter and self-defense arising therefrom. The court erroneously failed to present this phase of the case to the jury.</p> <p>6. The charge of the court embraced in the third and fourth exceptions erroneously confined sudden passion to the provocation given by the deceased, in that Pleas Holman was the aggressor, if such aggression was without intent to kill, in that the same was unwarranted by the evidence, and a restriction upon the law of self-defense. And erroneously instructed, in the consideration of the sufficiency of the provocation, etc., to weigh the past conduct of the deceased and those connected with him in the matter toward the defendant, his threats and bearings, without specification as to what matter was referred to, and without evidence of threat by the defendant.</p> <p>[The other portions of the able brief of counsel are devoted to isues not discussed in the opinion, and are therefore omitted. — Bepobteb.]</p>

Tried below before Hon. J. T. MaeoNEV, County Judge. Appellant was prosecuted by information for committing an aggravated assault upon one Sam Cherry, with a piece of iron called a “socket wrench” — a deadly weapon. The first trial was a mistrial,' the jury being discharged for failure to agree upon a verdict.

Tried below before Hon. JAMES T. POLLEY. This appeal is from a conviction for theft of a steer, the property of one Johnson Hill. The punishment assessed was a term of two years in the penitentiary. No statement is necessary. No briefs found to be reported.

Tried below before Hon. M. F. Lowe. This appeal is from a conviction for the theft of eleven hogs, the property of G. M. Eutledge, of the value of $4 each, and wherein the punishment was assessed at a term of two years in the penitentiary. In view of the fact that the case is disposed of in the opinion by a discussion of matters pertaining to the charge only, it is unnecessary to state the evidence in the case.

Tried below before Hon. J. W. PATTEESON. This appeal is from conviction for theft of one head of cattle, the punishment assessed being two years in the penitentiary. The conviction was had upon the count in the indictment which charged the theft of an animal, the ownership of which was to the grand jurors unknown.