Volume 34 — Texas Criminal Reports

This appeal is from a conviction for slander, the punishment assessed being a fine of $150. It is only necessary to give the material portions of the testimony of the State’s witness, Bob Goodman. This witness testified: “I know the defendant, John Dickson; saw him about the time mentioned in the information. I know Miss Julia Chambliess, also.

Tried below before Hon. T. S. Reese. Appellant was indicted for assault with intent to murder one Henry Williams, and at his trial was convicted and his punishment assessed at a term of two years in the penitentiary. On the 28th of April the appeal came on to be heard, and the judgment was affirmed. Motion for rehearing was filed, and is disposed of in the opinion below. Ho general statement of the case is required.

<p>Habeas Corpus to Recover Custody of a Child—Jurisdiction.—A habeas corpus sued out by a parent to recover possession and custody of a child is a civil proceeding, and the Criminal Court of Appeals, as organized under the amended Act of 1889, has been deprived of jurisdiction of such cases, the object of that amendment being to separate entirely the criminal from the civil jurisdiction in appellate proceedings.</p>

<p>1. City Ordinances in Towns of Less than One Thousand Inhabitants— Sunday Law.—The city council of a town of less than 1000 inhabitants, which had been incorporated under the general law, enacted into an ordinance the Sunday law, as contained in articles 186 and 186a, Penal Code. Held, the ordinance was valid, and could be enforced in a proceeding, instituted before the mayor, for its violation. Held, further, that without the enactment of such ordinance, the mayor would unquestionably have jurisdiction to hear and determine violations of the Sunday law within the limits of the corporation, under provisions of article 528 of the Revised Statutes.</p> <p>2. Cases Distinguished.—The cases of Ex Parte Grace, 9 Texas Criminal Appeals, 381, and Flood’s case, 19 Texas Criminal Appeals, 584, distinguished.</p>

Tried below before Hon. Charles F. Clint. This appeal is from a conviction for robbery, the punishment assessed being five years’ imprisonment in the penitentiary.

Tried below before Hon. E. B. Muse, County Judge. Held: to wit, the sum of $69.90, and that the inflammatory sore eyes with which he became afflicted on the 19th day of June, 1894, was occasioned by no fault of his, but that by reason of said affliction he was disabled from work, and that it was by order of the superintendent, Arnold, after being subjected to close examination by the…

Tried below before Hon. H. Teiohmuller. This appeal is from a conviction for receiving stolen property over the value of $20, knowing the same to have been stolen, the punishment assessed being eight years in the penitentiary. The indictment alleged, that one Zennie Moore fraudulently took from one E. J. Moore money in bills aggregating $50 in value, and that thereafter appellant fraudulently received the same from Zennie Moore, knowing it to have been stolen.

The information upon which the prosecution was based is set out in the opinion. A motion in arrest of judgment was made by defendant, upon the ground that the information charged no offense in law. This motion was overruled by the trial court.

Tried below before Hon. J. S. Stbaughan. Appellant was indicted for an assault with intent to commit rape upon one Alice Smith, and at his trial was convicted of that offense, his punishment being assessed at four years’ imprisonment in the penitentiary. The case is fully shown by the testimony of the prosecutrix, which is as follows: Alice Smith testified: “ My name is Alice Smith. I am wife of W. A. Smith. I live in Stephenville, Erath County, Texas.

Tried below before Hon. J. B. Straughan. This appeal is from a conviction for assault with intent to rape, the punishment being assessed at two years’ imprisonment in the penitentiary. It is unnecessary to state the case in detail, in view of its disposition by the opinion.

<p>Fact Case—Murder of the First Degree—Circumstantial Evidence—Charge on Murder of the Second Degree Not Required Nor Demanded.—See facts stated in the opinion which, though circumstantial in character, are so conclusive of defendant’s guilt of murder of the first degree that it is Held, that the trial court did not err in refusing or failing to charge upon murder of the second degree.</p>

<p>1. Gaining—Private Room or Residence—Craps.—By express provision of article 364, Penal Code, the playing at a game of craps in a private bedroom or residence is not an indictable offense. Held, that a private bedroom up stairs in the same building over a drinking saloon, but which is in no other' way connected therewith, is a private residence, and playing any of the prohibited games in such room is exempt from indictment and prosecution.</p> <p>2. Repeal of the Proviso—Suggestion by the Court as to.—Note the suggestion of the court to the Legislature as to the propriety of repealing the proviso to article 364, Penal Code.</p>

<p>Assault with Intent to Rape—Evidence Corroborative of Prosecutrix—Fact Case.—See facts summed up in the opinion, upon which it is Seld, that the testimony of the prosecutrix is sufficiently corroborated, and the evidence sufficient to warrant and support a conviction for assault with intent to rape.</p>

<p>Habeas Corpus to Obtain Custody of a Child—Jurisdiction.—A proceeding by habeas corpus, sued out by parents to obtain possession and custody of their child, is a civil action of which the Court of Criminal Appeals has no jurisdiction. Following Ex Parte Reed, ante, p. 9.</p>

Tried below before Hon. B. L. Parker, County Judge. This appeal is from a conviction for unlawfully carrying a pistol, the punishment assessed being a fine of $25. Ho statement is necessary.

<p>Murder—Indictment—Allegation of Weapon or Means Used.—An indictment for murder which fails to allege the means used or weapon with which the homicide was committed, is fatally insufficient and defective.</p>

Appellant was indicted for the murder of Christobal Ramirez by shooting him with a pistol, in De Witt County, on the 4th day of March, 1893. At his trial he was convicted of murder of the second degree, his punishment being assessed at eleven years’ imprisonment in the penitentiary. The opinion sufficiently states the case.

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

This appeal is from a conviction for murder of the second degree, the punishment being assessed at a term of twenty years in the penitentiary. Appellant was indicted in the District Court of Dallas County, at the January Term, 1893, for the murder of E. S. Randall. The indictment was found by the grand jury, and was returned and presented in and to the District Court of the Forty-fourth Judicial District in and for the county of Dallas.

This appeal is from a conviction for theft of four horses, the property of Miguel de la Garza, the punishment being assessed at five years’ imprisonment in the penitentiary. The indictment contained two counts, and the conviction was upon the first count. No statement is necessary.

Tried below before Hon. John W. Rountree, County Judge; This appeal is from a conviction for aggravated assault and battery, the punishment being assessed at a fine of $25. The opinion sufficiently states the facts.

Tried below before Hon. Sam R. Scott. Appellant was indicted for the theft of three bales of cotton, of the value of $113.70, from T. J. S. Sanders. He was convicted at his trial, his punishment being assessed at two years in the penitentiary. The testimony showed, that the three bales of cotton were stolen from a lot of fourteen bales which Sanders had piled in front of his yard gate in Hill County, near Mt. Calm, on the night of the 8th of ¡November, 1893.

<p>Appeal from the City Court of Dallas. Tried below before Hon. Kenneth Forge, Judge of the City Court.</p> <p>Appellant was prosecuted by a complaint in the City Court of Dallas which charged her with keeping a disorderly house, and at the trial was convicted, the penalty assessed being a fine of $200.</p> <p>The complaint is as follows:</p> <p>“The City of Dallas</p> <p>“v. “Ho. 417.</p> <p>“ Mrs. Beaumont.</p> <p>“Personallyappeared before me, the undersigned authority, C. F. Durham, who, after being duly sworn, deposes and says that Mrs. Beaumont, whose given name is to affiant unknown, a better description of whom affiant can not give, in the city of Dallas and the State of Texas, on the 21st day of May, A. D. 1894, and before the filing of this complaint, was the owner, tenant, and lessee of a house, building, and edifice then and there situated. And she, the said Mrs. Beaumont, did then and there unlawfully keep, was concerned in keeping, and knowingly permitted to be kept, the said house, building, and edifice, for prostitution, where prostitutes were then and there permitted by the said Mrs. Beaumont to resort and reside for the purpose of plying their vocation, contrary to ordinances in such cases made and provided. [Signed] “C. F. Durham.</p> <p>“Sworn to and subscribed before me, this 24th day of May, A. D. 1894. [Signed] “M. C. Kahn,</p> <p>“Clerk of the City Court, City of Dallas, Texas.”</p> <p>Ho briefs on file.</p>

Tried below before Hon. E. D. McClellan. This appeal is from a conviction for theft of one bale of cotton, the punishment assessed being a term of four years in the penitentiary. There is no statement of facts in the record. A motion was made in arrest of judgment for supposed defects in the indictment. The matters pertaining to the questions raised are fully stated in the opinion.

Appellant was jointly indicted with one W. B. Cox for an attempt to burglarize the house of W. J. McDowell, with intent to steal. He was alone put upon trial, and the trial resulted in his conviction, the punishment assessed being a term of two years in the penitentiary.

Tried below before Hon. S. P. Greene. This appeal is from a conviction for theft of property over the value of $20, the punishment assessed being two years in the penitentiary.

Appellant was prosecuted by information for an aggravated assault and battery upon one Jouette Harris, “ by striking him with a metal key used by motormen on electric cars,” said key being a deadly weapon, and with which serious bodily injury was inflicted upon said Harris. At this trial he was found guilty of a simple assault, with the penalty assessed at a fine of $5. The opinion states the essential facts.

Tried below before Hon. E. D. Gavin. This appeal is from a conviction for assault with intent to murder, the punishment being assessed at imprisonment for two years in the penitentiary.

Tried below before Hon. Egbert G. Johnson, County Judge. This appeal is from a conviction for exhibiting a faro bank for purposes of gaming, the penalty assessed being ten days’ confinement in the county jail and a pecuniary fine of $50. Fo statement required.

Tried below before Hon. Robert G-. Johnson, County Judge. Appellant was convicted of selling liquor to a minor, and his punishment assessed at a fine of $25. Ho statement necessary.

Tried below before Hon. W. D. Harris. Appellant was indicted for the burglary of the house of one Hick Lechter, with intent to commit theft, and was convicted at his trial for said offense, the punishment being assessed at a term of two years in the penitentiary. The important features of the ease as made by the evidence are sufficiently shown in the opinion.

<p>Impeached "Witness May be Sustained and Corroborated by Similar Statements, When.—A witness impeached by general bad reputation for truth and varacity can not he sustained and corroborated by showing that similar statements to those testified to had been made previously to other parties. Such sustaining testimony is only admissible when it is sought to he shown that a witness has testified under corrupt motives, or that his testimony is recently fabricated.</p>

Tried below before Hon. E. D. Gavin. This appeal is from a conviction for theft of property over the value of $20, the punishment assessed being six years and eleven months in the penitentiary. Ho statement is required.

Appellant was tried upon an indictment charging him with assault with intent to murder Len Porter. He was convicted of an aggravated assault, his punishment being assessed at a fine of $300. The parties engaged in the occurrence out of which this prosecution arose were negroes, and the difficulty occurred at a church festival. The opinion sufficiently states the case.

■ Writ of Error from the District Court of Throckmorton. Tried below before Hon. Ed. J. Hammer, Special Judge. On the 8th day of April, 1892, Sam Cox, as principal, with C. F. Cox and H. H. Landsaw as sureties, entered into a bail bond in the sum of $300 for the appearance of said Sam Cox before the District Court of Throckmorton County, to answer to an indictment for assault with intent to murder.

Tried below before Hon. D. H. Scott, County Jndge. The conviction in this case was for violation of the Sunday law; the punishment was assessed at a fine of $150.

<p>1. Complaint Sworn to on Belief.—A complaint which is sworn to on “belief” of affiant is sufficient. Code Crim. Proc., art. 236.</p> <p>S. Jury—Challenge to the Array.—That the jury heard and tried a ease against another party charged with an offense of the same character, is no ground of challenge to the array; the only grounds for such challenge are those named in the statute. Code Crim. Proc., arts. 624, 625.</p> <p>3. Charge in Misdemeanor—Practice on Appeal.—A charge in a misdemeanor case, where not radically wrong, will not be revised on appeal unless it was excepted to in the court below, and instructions were asked and refused concerning the supposed error.</p>

Tried below before Hon. Robert G. Johnson, County Judge. This appeal is from a conviction for betting at a game played with dice, the punishment being a fine of $25. The statement of facts contained the stenographer’s notes (questions and answers) of each of the witnesses examined at the trial.

Tried below before Hon. D. E. Singleton, County Judge. An information was filed in the County Court against appellant, charging her with adultery with one Dan Levine, a married man. Upon her arrest, she executed a bail bond for her appearance to answer at the next regular term of the court. Railing to appear at said term, her bond was forfeited, and judgment nisi rendered against her and her sureties.

<p>Ho statement necessary.</p>

<p>The opinion states the case.</p>

This appeal is from a conviction for a violation of the local option law, in Justice Precinct Ho. 8 of Ellis County, the punishment assessed being a pecuniary fine of $25 and twenty days’ imprisonment in the county jail. Ho statement is necessary, inasmuch as the facts pertaining to the questions decided are sufficiently stated in the opinion.

<p>1. Recognizance—Selling Liquor on Sunday, as Agent, etc.—A recognizance on appeal from a conviction for selling liquor on Sunday as agent, etc., for another, is fatally defective if it omits the allegation of agency.</p> <p>2. Selling on Sunday.—It is not an offense to sell on Sunday, except in violation of the statute.</p>

<p>City Ordinances—Work on Streets—Construction of Statute.—Where a city has been incorporated under the general laws (Revised Civil Statutes, title 17), Held, that under the Act of March 30, 1889, amending article 375, Revised Statutes, which empowers such cities to “cause all able-bodied male inhabitants over 18 years of age, except ministers of the gospel,” to work on the streets, an ordinance, passed to compel such labor under penalty of fine or imprisonment, is valid, and it is not essential to its validity that such ordinance should have defined who are “able-bodied.” See New Revised Statutes,, article 419.</p>

Tried below before Hon. J. W. Patterson. This appeal is from a conviction for robbery, the punishment being assessed at five years’ imprisonment in the penitentiary. Ho statement necessary.

<p>County Convict—Right to Allowance of $3 per Day on Fine and Costs.— When a party who has been convicted in the County Court makes affidavit before the clerk of said court that he is too poor to pay the fine and costs adjudged against him, and has said affidavit filed with said clerk, it is the duty of the court to take notice thereof and hire him out, and if the court fail to do so, the convict is entitled to a credit of §3 per day from the date of the filing of said affidavit; and should said sum at §3 per day aggregate an amount sufficient to discharge the fine and costs adjudged against him, the same is satisfied, and he is entitled to be released from custody.</p>

<p>Public Weighers—Construction of Statute.—The Act of April 19, 1879 (Will-on’s Criminal Statutes, articles P. C. 478a, 478b), as amended by Act of April 12, 1883. (General Laws Eighteenth Legislature, p. 84), permits any person to weigh cotton, wool, or hides when requested to do so by the owner, notwithstanding there may be a public weigher in the city or town where the same is weighed.</p>

Tried below before Hon. Robert G. Johnson, County Judge. Appellant was convicted upon an indictment for playing at a game of cards in a public place, and his punishment assessed at a fine of $10.

The following is the petition submitted to the Court of Criminal Appeals for mandamus: “To the Honorable Presiding Judge and Associate Justices of the Court of Criminal Appeals for the State of Texas: ‘‘ Comes now A. W. Seeligson, informant and demandant, attorney for John Quesada, alias John Clanton, and respectfully shows to the court, that heretofore, to wit, on the 20th day of June, 1891, the said John Quesada, alias John Clanton, was, in a case entitled ‘ The State of…

Tried below before Hon. E. D. Gavin. This appeal is from a conviction for passing a forged instrument, the punishment being assessed at two years in the penitentiary. The forged instrument was as follows: “Ho. 374. “Houston, Texas, July 18, 1894. “ Planters and Mechanics National Bank: “Pay to Walter E. Davis, or bearer, $15 (fifteen dollars). [Signed] “C. Eisman.” The facts attendant upon the passing of said instrument are sufficiently stated in the opinion.

Tried below before Hon. Robert G. Johnson, County Judge. This appeal is from a conviction for betting at a game played with dice, the game not being played at a private residence. The punishment assessed was a fine of $25. Defendant pleaded a former conviction for this same offense, setting out in his said plea the indictment and the judgment in said case of former conviction, and alleging the identity of defendant and the identity of the two offenses.

Tried below before Hon. S. P. Greene. Appellant was indicted for the theft of $10 in money from the person of one Annie Lansky, and at his trial was convicted of said offense, his punishment being assessed at a term of three years in the penitentiary. As to the main fact involved in the case, it is only necessary to give in substance the testimony of Annie Lansky for the State, and that of the defendant as a witness in his own behalf.

Tried below before Hon. S. A. Denny, County Judge. Appellant was convicted of selling liquor to a minor, and his punishment assessed at a fine of $25. hTo statement necessary.

<p>1. Theft—Indictment—Counts—Election.—Where an indictment for theft of a, horse contained two counts, the first alleging possession in the general owner, and the second in a special owner, who was holding the same for another, the general owner, Meld, the prosecution could not be required to elect upon which count the conviction would be claimed.</p> <p>2. Same—Where Charge is Equivalent to an Election.—Where an indictment contains two or more counts, and the court in the charge to the jury submits only one of the counts, this is tantamount to an election by the State.</p> <p>3. Evidence—Practice—Bill of Exceptions.—Objections to the admission of confessions as evidence will not be considered on appeal where a bill of exceptions was not reserved to the admission of such evidence.</p> <p>4. Cumulative Sentence.—It is expressly enjoined upon the court, where two convictions have been bad against the same defendant, to make the last cumulative of that pronounced in the preceding conviction. Code Grim. Proe., art. 800.</p>

Appeal' from the District Court of Eastland. Tried below before Hon. T. H. Conner. This appeal is from a conviction for burglary of a railroad car, the punishment being assessed at two years in the penitentiary. The indictment was for burglary from a railroad ear with intent to commit theft. It contained two counts, the first for a night-time burglary, and the second for a day-time burglary.

The court on appeal affirmed the judgment, and would not consider the statement of facts, because filed without an order of court to that effect, after adjournment of the term.

Tried below before Hon. J. S. Straughah. This appeal is from a conviction for assault with intent to murder, the punishment assessed being two years’ imprisonment in the penitentiary.

Tried below before Hon. R. L. Parker, County Judge. This appeal is from a conviction for violation of the local option law in Shelby County, the punishment assessed being a fine of $100. Bo statement required.

One-Macduff Larkin was convicted in a Justice Court for violating the Sunday law, and prosecuted his appeal to the County Court of Smith County, executing an appeal bond in regular form for $100, with appellants as sureties thereon. At the May Term said Larkin appeared, and was tried in the County Court and convicted, the fine and costs amounting to $94.

Tried below before Hon. E. D. Gavin. This is an appeal from a judgment final for $500 on a forfeited bail bond. Judgment was rendered against each of the defendants for $500, which was the amount of the penalty in the bond. Ho further statement necessary.

This appeal is from a conviction for theft of one head of cattle, the property of L. F. Wilson, wherein the punishment was assessed at two years’ imprisonment in the penitentiary. Defendant made an application for continuance, which was overruled.

Tried below before Hon. M. J. Hickey, County Judge. This appeal is from a conviction for dogging stock in an inclosure surrounded by an insufficient fence, the punishment assessed being a fine of $10. Ho statement necessary.

<p>1. Disorderly House—Liability of Tenant.—Where appellant was the tenant of a certain house, at which malt liquor was kept and sold by him, and lewd women, or women of bad repute for chastity, were permitted to display and conduct themselves in said house in a lewd, lascivious, or indecent manner, Held, he was guilty of keeping a disorderly house.</p> <p>2. Same—Evidence; Admissibility of.—Evidence that women who visited the house were.of bad reputation for chastity was both competent and admissible, made so by the very terms of the statute defining the offense. Evidence as to the reputation of the house was also competent. Such is the settled rule.</p>

Tried below before Hon. Don A. Bliss. This appeal is from a conviction for theft of property over the value of $20, with punishment assessed at five years in the penitentiary. The opinion states the case as far as it is necessary to be stated.

<p>Disturbing Public Assembly— Sufficiency of Evidence.—Where, on atrial for disturbing a public assembly and rudely displaying a pistol, the evidence showed that appellant fired a pistol near a public assembly, and it was contended, that the firing of the pistol did not constitute ‘1 rudely displaying it,” within the meaning of the statute, Held, the contention is not maintainable, and it was not necessary that the congregation should have actually seen the pistol at the time it was fired, to constitute “rudely displaying” it.</p>

Tried below before Hon. A. B. Dung ah, County Judge. The appellant in this case was charged by information with the offense of playing cards in a public place commonly resorted to for the purpose of gaming. He was convicted, and his punishment assessed at a fine of $15, from which he appealed. The opinion sufficiently states the facts.

Tried below before Hon. B. M. Daniel, County Judge. Appellant was convicted of keeping a disorderly house, and his punishment assessed at a fine of $200. Ho statement necessary.

<p>1. Cattle Theft—Evidence.—On a trial for theft of one head of cattle, where it ■was proved that defendant was seen one evening driving the animal in the direction of his house, Held, that it was admissible for the State to prove the fact that on the next morning the son of the defendant was seen dragging the fresh' hide of the animal in the yard at defendant’s house.</p> <p>2. Same—Charge of the Court.—Where, on the trial for theft of one head of cattle, the State had been permitted to prove that defendant’s son was seen dragging the hide of said animal in the yard of his father’s house, and the court instructed the jury, in effect, that the possession by defendant’s son of the hide would be no evidence against defendant, unless they believed that he received said hide from defendant or got it by his authority, and-that then it would only be a circumstance to be considered by them in connection with all the evidence in the case, Held, that the charge was warranted by the circumstances proved, was not objectionable as being upon the weight of evidence, and properly eliminated the effect of the testimony, except in the contingency indicated by the court.</p> <p>3. Same—Recent Possession and Reasonable Explanation—Charge of Court.—On a trial for theft of one bead of cattle, where it was proved, that on the evening of the day the animal was last seen defendant was found driving her with a buuch of cattle towards his house, and upon being asked what he was doing with the cattle, said that he was driving them up to neck a steer which was in the bunch, Held, it was the duty of the court, as was done, to give the defendant the benefit of such explanation, and instruct the jury, that if they found the defendant’s explanation was reasonable and probably true, and the State had not shown the falsity thereof, to acquit the defendant.</p>

<p>Appeal from the District Court of Wichita. Tried below before Hon. George E. Miller.</p> <p>This appeal is from a conviction for assault with intent to murder, the punishment being assessed at imprisonment in the penitentiary for two years.</p> <p>The testimony of the witness Jim Craft shows the principal evidence for the prosecution. He testified: “I reside in Iowa Park. I know the defendant. 1 am the Jim Craft upon whom the defendant is charged with making an assault with intent to murder, about February 20, 1894. The difficulty occurred between the defendant and myself, in the evening. I was sitting in the O. K. saloon, in the town of Iowa Park, Wichita County, Texas, just before the difficulty occurred, when defendant came to the rear door of the saloon and opened it, and motioned for me to come out. I got up and went to the back door, and after I had been there a few moments the defendant caught hold of me and commenced backing me off and cutting me with a knife. I backed up against a barrel of beer bottles, and pulled out a beer bottle and struck defendant over the head. Defendant did not quit cutting me until I beat him off with a beer bottle. He cut me six times. He- cut me in the arm, in the back, and in the side, just over the heart. And he cut me twice to the hollow, so that I could breathe through my ribs. I did nothing to provoke this difficulty, and I was in bed six weeks from the effects of the wounds. I like to have died from the result of said wounds. This difficulty occurred in Wichita County, Texas, in February, 1894.”</p> <p>Cross-examined: “I did not go dowh to Mr. Barlow’s blacksmith shop just before the difficulty and call the defendant away from the blacksmith shop, and take him up to the saloon with me. I did not call Frank Hardisty just before the difficulty occurred. Frank Hardisty came out just before the time we began to have the difficulty at the rear of the saloon. I had come out, and we were talking about a bottle of whisky, but when I came out there was no one at the rear end of the saloon except myself and the defendant. Frank Hardisty did not say to us that he thought we had dropped the matter about the bottle of whisky that morning; and Hardisty did not say, ‘Hush that, and come in the saloon and behave yourselves;’ and I did not say then and there to White, that ‘ I would cut his damned throat;’ and I did not then and there put my hand in my right hip pocket and draw out a knife and push White back two or three steps, and Hardisty did not tell meto put up that knife. I did not strike White with but one beer bottle, and he quit cutting me as soon as I struck him over the head with the beer bottle. I did not go backward further than the beer barrel. White did not say, when Hardisty first came back to the rear end of the saloon, ‘ I never said that you stole the whisky;’ and' I did not reply thereto, that ‘Ton have said that I stole the whisky;’ and White did not reply, that ‘I never said it;’ and I did not reply, that ‘ I don’t want any horse’s ass going around over town saying that I stole the whisky.’ White did not say, ‘Look here, Jim, I don’t want you to call me a horse’s ass; but I never said you stole the whisky;’ and I did not say, that ‘I would call him a horse’s ass if it was necessary.’ When Hardisty started back into the house, and before the cutting came off, I did not say to White that I would cut his damned throat.”</p> <p>This witness was impeached, as to truth and veracity, by five witnesses.</p>

<p>1. Murder—Intoxication—Charge of Court.—On a trial for murder, where the defendant had testified, that “he was very drunk; that he did not know what he was doing;” and the court charged the jury, that “intoxication produced by the voluntary recent use of spirits constitutes no excuse for the commission of crime. However, you may take into consideration the mental condition of defendant for the purpose of determining the degree of murder, if you should find him guilty of murder.” Held, that the charge was more favorable to defendant than the law accords to mere drunkenness not amounting to temporary insanity. Penal Code, art. 40a.</p> <p>2. Same—Imperfect Self-Defense—Manslaughter—Instructions Given.— Where, on a trial for murder, it was insisted that error was committed by the court in failing to charge upon imperfect self-defense with reference to manslaughter, Held, defendant has no ground of complaint, it appearing that this phase of the objection was fully covered by an elaborate and proper charge on manslaughter prepared by defendant’s counsel, and given at his special request; and furthermore, the court gave the defendant the benefit of a charge on the absolute right to self-defense, regardless of who made the first assault.</p> <p>3. Murder of the First Degree—Fact Case—Evidence Sufficient.—See facts stated in the opinion which are held to be sufficient to support a verdict and judgment for murder of the first degree, with the penalty assessed at a life term in the penitentiary.</p>

Tried below before Hon. Charles F. Clint. This appeal is from a conviction for murder of the second degree, with punishment assessed at imprisonment in the penitentiary for a term of twenty-five years. The court has instructed the Reporter to give all the facts in the case.

This appeal is from a conviction of murder of the second degree, with punishment assessed at imprisonment in the penitentiary for a term of thirty-five years.

Tried below before Hon. J. M. Hall. Appellant was convicted for rape, and his punishment assessed at thirty-five years in the penitentiary.

<p>This appeal is from a conviction for an attempt to commit rape, wherein the punishment was assessed at two years’ imprisonment in the penitentiary.</p> <p>Omitting the formal commencement, the indictment is as follows : “That Aldridge Franklin, on or about the 8th day of October, one thousand eight hundred and ninety-three, and anterior to the presentment of this indictment, in the county of Collin, State of Texas, did then and there unlawfully, in and upon D. M. Pennington, a woman, make an assault with the intent then and there to commit the offense of rape upon the said D. M. Pennington, by then and there, without the consent of the said D. M. Pennington, attempting by force and fraud to have carnal knowledge of her, the said D. M. Pennington. And the grand jurors aforesaid, upon their oaths in said court, do further present, that the said Aldridge Franklin did then and there, with the intent then and there to commit the offense of rape upon the said D. M. Pennington, attempt by force and fraud to have carnal knowledge of the said D. M. Pennington, without the consent of the said D. M. Pennington; and the grand jurors aforesaid, upon their oaths in said court, do further present, that the said Aldridge Franklin did then and there, with the intent then and there to commit the offense of rape upon the said D. M. Pennington, a married woman, attempt by fraud to have carnal knowledge of the said D. M. Pennington without the consent of the said D. M. Pennington, against the peace and dignity of the State.”</p> <p>Defendant made a motion to quash the indictment, for the following reasons, viz:</p> <p>“1. Because no offense against the law is charged therein, and the same is vague, indefinite, and uncertain.</p> <p>“2. Because the fraud relied on to constitute any of the offenses charged is not set out, and no specific act or acts of defendant necessary to constitute fraud are alleged, and the indictment only charges a conclusion, and contains no allegation that the woman was induced to believe that the defendant was her husband; and does not charge that any substance producing any unnatural sexual desire or stupor, as prevents or weakens resistance, was administered to her without her knowledge; nor that the alleged offense was committed while she was under the influence of such substance.</p> <p>c'3. The indictment fails to allege the name of D. M. Pennington’s husband, and defendant is entitled to know his name, in order to meet the issue raised as to whether or not D. M. Pennington was a married woman at the time of the alleged attempt.</p> <p>“4. The indictment does not charge the commission of rape, and under the statute a man ca.n not be convicted of an attempt to rape except when tried on an indictment which charges rape.”</p> <p>This motion to quash was overruled. The matters pertaining to defendant’s application for continuance and subsequent motion to postpone the trial, after the return of his attachment for the absent witness Mrs. E. J. Franklin, his mother, and the affidavits of these witnesses in support of his motion for a new trial, are sufficiently stated in the opinion.</p> <p>The case as made by the prosecution is fully developed by the following portions of the testimony of the prosecutrix, Mrs. D. M. Pennington, and the confessions of defendant to the witness E. P. Billing-ton, on the day after the offense was committed.</p> <p>The prosecutrix, Mrs. Pennington, testified, on her examination in chief, as follows: “On the night of October 8, 1893, I was awakened by some noise on the outside of the house, and thought it was my husband returning home. It sounded like some one cleaning their feet, or something being dragged over the floor. I called to my husband, saying ‘Henry?’ and no one answered. In a few moments I heard the noise again inside the house, about the foot of my bed. I then said, ‘Henry.’ And the person at the foot of my bed, who was the defendant, said ‘Hu!’ in a sort of a grunt. Defendant was then pulling off his shoes and coat. He then got up, with his shoes and coat off, and came around to the north side of my bed, where my baby’s cradle was, and before he got to the cradle I said again, ‘Henry, is that you?’ and he said, ‘Uh hu’ [meaning yes]. About this time, as he was moving the cradle away, I discovered by his voice and by the light shining through the window that it was not my husband, but the defendant. I then said, ‘Ho, it is not Henry; no such a thing; you get out of here.’ He kept on getting in the bed, and laid down on it; caught hold of my arm, and said he had come down to have a little fun. He held my arm as tight as he could. While defendant was moving the cradle to get in my bed, I reached up over the head of my bed to get a match to strike. When he caught hold of my arm I jerked loose from him; told him to get out of there, and ran out into the yard. Defendant followed me out into the yard. As I was going out of the house I looked back and saw him coming, with his coat and shoes in his hand. When I got out in the yard I hallooed as loud as I could for Mrs. Franklin, who lived closest to us, and about 200 yards off. I called her several times. When defendant was coming out of the house he said, ‘ Come back and I will tell you who I am; ’ and I replied, ‘I know who you are, sir; you get out from here.’ When defendant got out of the house, I ran back to the house and slammed the door and fastened it. Defendant then said, ‘If you want to tell this you can do it, but I’ll tell you what I’ll do.’ I said to him, ‘You go off from here.’ Defendant then went around to the chimney corner and stood there a few minutes. I then lit the lamp in the house, and put on my clothes. This occurred about 2 o’clock in the morning. I looked at the clock after I had lit the lamp and come back in the house. Defendant then went off and came back about 6 o’clock in the morning; came around the house, and laughed, and said: ‘I am well; how are you?’ I said to him, ‘You go on away.’ Defendant then went off, and the next time I saw him was just about sunrise, when my husband bad come home. Defendant was then on horseback, riding in a gallop, and going west. There was no one at home that night but me and my little children; my husband was gone over to cousin John Hurse’s, to sit up with the sick. I told my husband about it as soon as he came back. I was telling him about it when defendant rode by on his horse. This all happened in Collin County, Texas.”</p> <p>B. P. Billington testified: “I remember the time of the trouble between Mrs. Pennington and defendant. I saw defendant the day of the difficulty, on Sunday, and after it occurred. Allen Barrington was with him. I had been to defendant’s mother’s after a pair of mules which I had a mortgage on. I met defendant and Allen Barrington south of Snow Hill about 200 yards. He was going towards Payburg. I asked him where he was going, and he said home. I said to him, ‘Do you know the officers and citizens are after you?’ and he said, ‘Ho; what have I done?’ Just then several people came up, returning from singing, along the road, and I told him to come up to my barn, I wanted to talk with him; and we went up there. My son Tommy Billington, Allen Barrington, and Jim Jones were along. I said to defendant Aldridge, ‘ Do you know that Mrs. Pennington says that you were in her house last night? Tell me the truth about it. Understand, she will swear positively that it was you.’ Defendant said he was there. I asked him how he got in the house. He said he pushed the door open and walked in. He said that she said, ‘Henry, is that you?’ and he replied to her, ‘Yes’—trying to answer as much like Henry as he could. That he afterwards told her it was not Henry, but some one that could do her more good than Henry. He said he grabbed her by the arm, and she broke loose. He said that she said she knew who he was then. That she ran out of the door, and be followed her. He said he did not go there to rape her. He said she had thrown out hints to him. I pinned him down, and asked him how and what hints she had thrown out. I asked him if she had ever led him to believe that she was not a lady, and he said no, that he reckoned that he was mistaken about the hints; that she did nothing that was not within the bounds of a lady. I asked him if he had ever been there before or had intercourse with her, and he said no. But he created the impression on my mind that he had. The defendant and I had been good friends. I was an elder of the church of which he was a member. Defendant, at the time of our conversation, had a pistol in the waistband of his pants. He and Allen Barrington then made arrangements for him to leave the country that night. Barrington was to meet him that night at a certain place near a certain bridge. Defendant started off, but after he had gone a little ways he turned around and came back, and said, ‘ By God, he didn’t have to run off; that he had done nothing to run off for.’ I then told them they had best give me their pistols; that the officers would arrest them with them on. I advised the defendant before this to give up. They turned the pistols over to me, and defendant said he was going to Farmersville to give up.” Cross-examined, he said: “I told defendant it would be best for him not to have a pistol. Defendant had a good reputation for being a law-abiding citizen up to the time he got into this trouble.” Defendant fled from the neighborhood the morning after the occurrence and was not arrested for ten or twelve days after. Defendant’s witnesses, the two Barringtons, testified to having seen Mrs. Pennington several times sitting in defendant’s lap, and to defendant’s going into her house at night on several occasions, and remaining sometime, when her husband was absent. Several witnesses testified to the good reputation of defendant as a law-abiding citizen prior and up to this occurrence.</p> <p>That portion of the charge of the court defining “fraud,” which was complained of by defendant as being erroneous, is set out in the opinion. Defendant’s refused special instructions were as follows:</p> <p>“5. If you believe defendant attempted to have carnal knowledge of D. M. Pennington, but if at the very time of such attempt she knew he was not her husband, and that defendant also knew at that very time that she was aware of the fact that he was not her husband, then the defendant would not be guilty of an attempt to rape by fraud.</p> <p>“6. Before you can convict the defendant of an attempt to rape by fraud, you must find and believe from the evidence that defendant used some stratagem by which D. M. Pennington was induced to believe that the defendant was her husband.</p> <p>“7. If D. M. Pennington did not believe that the defendant was her husband, then the proof of fraud would not be sufficient, and the defendant would not be guilty of an attempt to rape by fraud.</p> <p>“8. In order to convict of an attempt to rape by fraud, you must believe from the evidence that the defendant used some stratagem; that is, some artifice, plan, scheme, or trick, upon D. M. Pennington, and the stratagem must have induced her to believe that defendant was her husband.”</p>

Tried below before Hon. E. D. McClellan. Appellant was indicted for murder. At the trial he was convicted of murder in the second degree, the punishment being assessed at imprisonment in the penitentiary for a term of twenty years. This homicide occurred during the month of August, 1893.

<p>The opinion sufficiently states the case.</p>

This appeal is from a conviction for pursuing the occupation of a liquor dealer without having obtained a license, the punishment as-, sessed being a fine of $450. The evidence showed, that appellant was carrying on a drugstore at Prospect, in Clay County, and that he sold the liquor as medicine, and upon the prescription of a regular practicing physician, and only in cases of actual sickness.

<p>1. Murder—Charge—Provoking Difficulty—Abandonment of.—On a trial for murder, where the evidence in substance showed, that the parties were friendly, and that the difficulty originated in a sudden quarrel, which did not clearly appear to have been provoked by either; that after the first demonstration made by either party, defendant got his gun and started towards town, whereupon deceased pursued him some seven or eight steps with a drawn knife, and in a threatening manner; Neld, error for the court to charge the jury upon the law of provoking a difficulty, in connection with defendant’s right of self-defense. But conceding that such a charge was called for, the court, in view of the facts stated, should further have instructed the jury as to defendant’s rights in case they believed, that after provoking the difficulty he had abandoned the same in good faith, and was then pursued and attacked by deceased.</p> <p>2. Same—Imperfect Self-Defense.—In every case in which the facts authorize a charge on provoking a difficulty, the court should indicate from the evidence the act of provocation, and define its effect and bearing upon the case, and to what extent such act would limit or abridge defendant’s right of self-defense. The jury should not be left to speculation and conjecture as to the nature and quality of the act, nor the extent of the limitation and abridgment it would operate upon the defendant’s rights.</p>

Tried below before Hon. J. G. Kenan, County Judge. Defendant’s counsel made a motion to quash the indictment, and also, after verdict, a motion in arrest of judgment, both based upon the insufficiency of the indictment, in that it failed to allege that there was betting upon the game, which motions were overruled by the court. Ho further statement necessary.

Tried below before Hon. James T. Polley. This is an appeal from a conviction for murder of the first degree, with the punishment assessed at death. The evidence which brought about the conviction of appellant is entirely circumstantial in character.

Appellant was indicted for the murder of one Frank White, on May 4, 1894, in Wichita County. At his trial he was convicted of mnrder of the second degree, his punishment being assessed at twelve years’ imprisonment in the penitentiary. In view of the disposition made of the appeal, no statement can be made as to the evidence adduced at the trial. The agreement with reference to the filing of the statement of facts and bills of exception will be found copied in the opinion.

Tried below before Hon. J. O. Woodward. Appellant was convicted in the court below as an accomplice to robbery, the punishment being assessed at seven years in the penitentiary. This is the second appeal in this case, and the case will be found stated in Armstrong v. The State, 33 Texas Criminal Reports, 417.

Appellant was convicted of theft, by conversion, as a bailee, of property over the value of $20, and his punishment assessed at three years’' imprisonment in the penitentiary. In view of the disposition made of the case on this appeal, a general statement of it is unnecessary.

Tried below before Hon. W. G. Taliaferro. This appeal is .from a conviction for the theft of two bales of cotton, with punishment assessed at two years in the penitentiary.

<p>The case is sufficiently stated in the opinion.</p>

Tried below before Hon. W. J. Graham. Appellant was indicted for assault to commit rape upon one Fannie Mullins, and at his trial was convicted of an aggravated assault, with punishment assessed at one year’s confinement in the county jail and a fine of $500. The main.

This appeal presents a companion case to Dawson v. The State, 32 Texas Criminal Reports, 535, and with a very few minor exceptions appears to be almost a duplicate of said case, even to the briefs of counsel. For a statement of this case we deem it only necessary to refer to that case.

<p>1. Embezzlement from an Incorporated Company—Indictment.—An indictment which charges embezzlement of funds of an incorporated company, to be sufficient, need not further allege the charter or act of incorporation, nor that the company was incorporated under the laws of any State or foreign power.</p> <p>2. Same—Allegation and Proof as to Want of Consent.—Upon a trial for embezzlement by an express agent of the funds of an incorporated company, where the indictment charged that the money was taken without the consent of the company, Held,, that the proof was sufficient which showed a want of consent of an agent who had direct supervision of the office at which the money was received by the company, and it was not necessary to further prove want of consent by the president or the secretary of the company.</p> <p>3. Same—Admissions and Confessions Tantamount to Proof of Want of Consent, When.—On a trial for embezzlement by an express agent, his admissions and confessions that he had taken the money, and had lost it at poker, Held, tantamount to an admission that he had used the money without the consent of the company.</p> <p>4. Same —Charge—Circumstantial Evidence.—On a trial for embezzlement, where defendant had confessed to taking the money, and the court charged the jury on circumstantial evidence, Held, defendant had no ground of complaint in-this matter, because the charge was more liberal than he was entitled to.</p> <p>5. Same—Bond of Indemnity—Effect of.—On a trial for embezzlement by an agent of an express company, where he was permitted to introduce proof, that at the time of his appointment he had been required to give, and had executed, an indemnity bond to the company for any losses which might be occasioned by his defalcations, Held, that such bond had nothing to do with the case, and that the repayment of the money by the obligors on said bond furnished defendant no immunity from criminal liability, and that it would be a monstrous doctrine, that on account of such bond a party could steal his company’s money and go unwhipped of justice.</p> <p>6. Same—Fraudulent Intent—Evidence of Want of Concealment—Confession.—On a trial for embezzlement, a fraudulent intent is sufficiently shown where it appears that defendant secretly took the money, and did not confess to the taking until he was found out and charged with it; and that a mere want of concealment, had such been the case, and confession that he had taken the money, when taxed with it, could not and did not wipe out the stain of embezzlement.</p>

Tried below before Hon. A. A. Aldrich, County Judge. Appellant applied to the county judge for a writ of habeas corpus, praying that he be released and discharged from imprisonment in the county jail, in which he was confined for failure to pay the fine and costs which had been adjudged against him in a misdemeanor case tried by a justice of the peace; and claiming, that he was entitled to his release, because he had laid in jail, after he had filed his affidavit of…

Tried below before Hon. T. P. Hash, County Judge. Appellant was convicted of selling beer to a minor, and his punishment assessed at a fine of $25. Ho statement required.

Tried below before Hon. B. D. Gavin. Appellant was convicted of assault with intent to murder, and his punishment assessed at two years in the penitentiary. Ho statement necessary.

<p>Appeal from the District Court of Harrison. Tried below before Hon. W. J. Graham.</p> <p>This appeal is from a conviction for murder of the first degree, with the penalty assessed at death.</p> <p>The following succinct statement of the case, which is substantially correct, is taken from the brief on file for the State:</p> <p>On June 18, 1894, defendant D. L. Spearman, left his house in a buggy about 4 a. m. The deceased, Horace Stephens, left his house about 4:30. They lived in houses adjoining each other, and about five and one-half miles northeast of Marshall. This was the last seen of Horace Stephens in life. The defendant was next seen a few minutes after 6 o’clock at J. H. Henderson’s, about six miles north of Marshall, on the Jefferson road, but was still in his buggy, and had a bundle covered up with a bed quilt in the buggy with him. He was next seen somewhere between 6 and 8 o’ clock in the morning at William Durkee’s, about three and one-half miles northwest of J. H. Henderson’s. Sometime during that morning he came to Marshall and purchased a sack of meal, and also purchased a box of black paint from Lake & Co. When next seen he was about three miles north of town, on the Jefferson road, going in the direction of his own house. After he had returned home he told Mitchell Turner that Horace Stephens was gone; had run off with a girl; that the girl had two or three bad brothers, and they would kill him if they caught him. He repeated this story to Mitchell Turner twice on that day. Horace Stephens not reporting for duty on the section on which he worked, inquiry was made for him, and the section house keys were wanted, but neither could be found. On the 26th of June the body of Horace Stephens was found in a pool of water about one and three-fourths mile from the defendant’s house, and in the direction of Marshall. Buggy tracks were found at the pool, and were traced off from there, and it was established, by reason of the marks on the timber and the marks on the ground, that it was the defendant’s phaeton buggy that made the tracks. The defendant was arrested twice. After the second arrest, he told that he had put the bundle that he had with him in a creek between Henderson’s and Durkee’s. He claimed that John Fagan had given him the bundle, and told him to make away with it. John Fagan was arrested upon this statement, and put in jail. The defendant was taken out at the time Fagan was put in, and A. S. Curtis, after duly cautioning the defendant, talked with him, and defendant admitted to him that he bought the black paint to paint the blood-stains out of his buggy. But though he claimed that John Fagan had borrowed his buggy on the 17th of June, that Fagan did not tell him what he wanted with it, and that he had not seen John Fagan from the time that he loaned him his buggy up to the time that John Fagan was put in jail. He did not answer the direct pointed question Curtis asked him, that, “If that is so, when was it that Fagan told you to make way with the clothes % ’ ’ On the next day after this conversation, the creek in which the clothes were said to have been thrown was seined, and a hat and shoe were found that were identified as the property of the deceased, and two pieces of a torn bed quilt identified as being a quilt that defendant used to cover his buggy with while under the buggy shelter, which quilt had disappeared about this time. After the defendant was released from the first arrest, and before he was arrested the second time, he had his horse shod. The rope with which the rocks were tied to the body of the deceased was shown circumstantially to be the rope of the defendant.</p> <p>Through inadvertence of the justice of the peace no post-mortem examination was had. On the 19th of August the district attorney had the body exhumed, and the skull and neck bones were taken out and examined by Drs. Rosborough and Taylor. These physicians testified, that the third vertebra was fractured, and that there was a hole, which they thought was made by a bullet, which extended up from the base of the skull and came out at a point near the nose and left eye.</p> <p>The only motive shown for the killing by the defendant was, that he desired to get rid of deceased, so that he could live with his (deceased’s) wife.</p>

Tried below before Hon. E. D. Gavin. This appeal is from a.conviction for theft of one head of cattle, the property of one J. H. W. Cobb, the punishment of appellant being assessed at a term of two years in the penitentiary. Ho statement necessary.

Tried below before Hon. Robert G. Johnson, County Judge. Appellant was prosecuted by information, and convicted for an aggravated assault upon one George Meaehum, by cutting and stabbing him with a knife, a deadly weapon, his punishment being assessed at a fine of $25. Ho statement is necessary.

An information was filed against appellant in the County Court, charging him with a violation of the local option law, in a subdivision of Hunt County, by selling whisky to one P. C. Long, on the 31st day of January, 1895. He was arrested under a capias issued under said information, and he applied to the county judge for a writ of habeas corpus, to be discharged from said arrest.

Tried below before Hon. Geo. H. Noonan. The appeal herein is from a conviction for murder of the second degree, with the penalty assessed at a term of fifty years in the penitentiary. This is the second appeal in this case. The first appeal was from a judgment of murder in the first degree, with the penalty assessed at death. Franklin v. The State, 30 Texas Crim. App., 628.

<p>1. Theft—Taking in Good Faith—Charge.—On a trial for theft of a watch, where the charge instructed the jury, in effect, that the defendant would not he guilty if he in good faith took the watch, believing he had a right to do so, in order to secure the payment of a debt which the owner of the watch owed him, but added, “and that his intention in taking said property was to secure said debt, and not to deprive the owner of the value of said property and appropriate it to his own use;” and it was insisted that this latter clause or addition negatived all that had gone before, Held, that while the charge in question was not well drawn, yet, when the charge as a whole was considered, the jury could not well have been confused or misled by this portion of it.</p> <p>2. Same.—-In larceny, if the object of the taker was to compel, though in an irregular way, the owner of the goods to do what the law required him to do with them, namely, to pay his debt, there is no legal principle rendering the act a felony. Disapproving Butler v. The State, 3 Texas Criminal Appeals, 403, and approving Wolf v. The State, 14 Texas Criminal Appeals, 210.</p> <p>3. Recent Possession and Explanation—Charge.—Where the property was taken in October, and the evidence showed that in the following December, when defendant traded it to a third party, he stated that he had won it at poker, Held, in connection with the evidence, the court did not err in charging with reference to an explanation of possession.</p> <p>4. Theft—Value—Charge as to Misdemeanor.—On a trial for theft, where the only witness who testified as to value placed the value of the property at over §20, Held, the court was not required to charge on misdemeanor theft.</p> <p>5. Fact Case—Evidence Sufficient.—See opinion for evidence summarized, upon which it is Held, that a judgment of conviction for theft of a watch is fully sustained, though the defense was that it was taken in good faith, and for the purpose of securing a debt.</p>

<p>"Unlawfully Carrying a Pistol.—Where, on a trial for unlawfully carrying a pistol, defendant claimed to be carrying the weapon from his place of business to his home, but his own evidence showed he was in the habit of carrying a pistol between the two places, Held, a person has the right under the statute to carry a pistol at his home and at his place of business, but this court is not inclined to extend a construction of the statute so as to embrace an habitual carrying between one’s home and his place of business.</p>

<p>The opinion states the case.</p>

<p>1. Bigamy—Evidence of Former Marriage—Reputation.—On a trial tor bigamy, had reputation been the only evidence of former marriage, a charge asked by appellant, to the effect that such testimony was not sufficient proof of marriage, should have been given. But this was not the only evidence of that fact, and the charge was properly refused.</p> <p>2. Same—Evidence of Suit for Divorce Pending.—On a trial for bigamy, the State offered in evidence a petition for divorce filed by appellant, alleging her marriage. Held, that this evidence was admissible, and in connection with the testimony of reputation, was sufficient to show her former marriage.</p>

This appeal is from a conviction for aggravated assault, the punishment assessed being imprisonment for two years in the county jail. The case is sufficiently stated in the opinion.

<p>Appeal from the District Court of Bastrop. Tried below before Hon. Ed. R. Sinks.</p> <p>This is an appeal from a conviction for the theft of two horses, the property of one W. A. Murchison, wherein the punishment assessed was a term of five years in the penitentiary.</p> <p>W. A. Murchison testified, that the two mares were taken from his possession and without his consent, in February, 1892; that he recovered them from J. B. Baskin, in Milam County.</p> <p>G. W. Thomas testified, that he bought the animals from defendant in February, 1892, and took defendant's bill of sale to the same, which he produced, and it was read in evidence; that he sold the mares to one John Hanse, in Robertson County.</p> <p>John Breneger testified, that he was present in Milam County when J. B. Baskin bought the mares of John Hanse, of Robertson County.</p> <p>J. S. Perry testified, that in February, 1892, he (witness) and his brother C. E. Perry and defendant met a negro in the road, near the Cedar Creek crossing, riding one and leading the other of the two mares; that defendant traded with the negro for the mares, giving a bay horse in exchange, and that the negro gave a bill of sale (which was produced and read in evidence), which witness and his brother C. E. signed as witnesses.. He had never seen the negro before, and had never seen him since. Don’t know where he came from, nor where he went.</p> <p>C. E. Perry testified as did J. S. Perry, his brother.</p>

Tried below before Hon. Sam B. Scott. The appellant was convicted of theft of property under the value of $20, and his punishment assessed at a fine of $100 and confinement in the county jail for one day. The opinion states the facts sufficiently.

Tried below before Hon. W. A. Blackburn. This appeal is from a conviction for robbery, the punishment being assessed at seven years’ imprisonment in the penitentiary. The following is substantially the testimony as to the important features of the case: Frank O’Briant, the party robbed, testified, that he reached Temple at noon on Saturday, December 1, 1894, having $23 in his pocket. He went from the train to Mike Glenn’s saloon.

Tried below before Hon. W. A. Blackburn. This appeal is from a conviction for robbery, the punishment being-assessed at a term of six years in the penitentiary. This is a companion case to that of E. T. Gallagher v. The State, ante, p. 302, and the evidence in the two cases is substantially the same, with the exception, that in this case E. T. Gallagher, who had been previously convicted, did not testify.

Tried below before Hon. A. H. Cardigan, County Judge. Appellant was convicted of carrying a pistol, and his punishment assessed at a fine of $25. The judgment in this case was affirmed at a former term of the court, and a rehearing granted for the reasons shown in the opinion. The facts are sufficiently stated in the opinion.

<p>The case is fully stated in the opinion.</p>

The case is sufficiently stated in the opinion. The charge of the court which was excepted to was as follows, viz: “In order to justify a conviction under this charge, the State must show, beyond a reasonable doubt, that the defendant was then and there the owner, lessee, or tenant of said house; or, knowing the unlawful intent of such owner, lessee, or tenant, then and there acted with such owner, lessee, or tenant, and then and there had such control over such house and…

This appeal is from a conviction for selling spirituous and other intoxicating liquors in quantities of one gallon and less, without first obtaining a license, the punishment assessed being confinement in the county jail for a period of ten days. The case is sufficiently stated in the opinion.

Tried below before Hon. W. P. Skeen, County Judge. Appellant was prosecuted by information for an indecent publication, and at his trial was convicted, his punishment being assessed at a fine of $5. Defendant’s counsel made a motion to quash the information, because it shows no offense against the laws of the State; which motion was by the court overruled.

<p>1. Burglary—Continuance.—On a trial for a day-time burglary, where defendant sought a continuance in order to prove by the absent witness that it was not necessary to break said house or open any door, in order to enter the basement of the building, Held, the continuance was properly refused, inasmuch as the evidence showed that it was from the second story of the house that a considerable amount of the property was stolen; and further, that it was not possible to enter said second story from the basement of the house.</p> <p>2. Same—Confessions—Discovery of Stolen Property by Means of.—Where, after defendant’s arrest, and after he had been duly warned as to any confession he might make, the owner of the house told him that he intended to procure a search warrant and search the premises of his (defendant’s) mother-in-law for the stolen goods, whereupon defendant proposed, and did send his brother-in-law for the goods, which were found by means of the information given by the defendant, and at the place where he stated he had secreted them, Held, the confessions were clearly admissible in evidence.</p>

A brief statement of the facts is as follows: Defendant, Bob Land, was an ex-hackdriver, and lived in the city of Dallas. Frank Daniel and Oscar Daniel, his brother, were the two parties who were robbed. They were farmers, and lived in the southern portion of Dallas County.

Tried below before Hon. H. Teichmullee. The appellants, John Carson and Will Payne, were jointly indicted and jointly tried for the theft of a steer, the property of H. C. Story and Andrew Cowan. At the trial they were both convicted, and given each a term of two years’ imprisonment in the penitentiary. Ho statement necessary.

Tried below before Hon. P. H. Green, County Judge. Appellant was convicted of embezzlement of an amount under the value of $20, and his punishment assessed at a fine of $1 and confinement in the county jail for one hour. The opinion states the facts.

This appears to be an attempt at appeal from the Criminal District Court of Dallas, in a case tried below before Hon. Charles F. Clint. The opinion states the case.

Tried below before Hon. W. H. Jenkins, County Judge. This appeal is from a conviction for exhibiting a gaming table and bank for purposes of gaming, the punishment assessed being a fine of $25 and ten days’ imprisonment in the county jail. The opinion states the case.

Tried below before Hon. T. H. Spooner. This appeal is from a conviction for murder of the second degree, the punishment assessed being a term of five years’ imprisonment in the penitentiary. This is a companion case to Dan Cline v. The State, 33 Texas Criminal Beports, 482. The facts will be found fully reported in that case, in connection with the facts stated in the opinion below.

<p>1. Theft—Recent Possession and Reasonable Explanation—Proper Charge Upon.—On a trial for theft, where the issue is recent possession with reasonable explanation, the following is a proper charge to be given to the jury: “If you believe from the evidence that the property described in the indictment had been stolen from the prosecutor, and that recently thereafter the defendant was found in possession thereof, and when his possession was first questioned he made an explanation of how he came by it, and you believe that such explanation is reasonable and probably true, and accounted for defendant’s possession in a manner consistent with his innocence, then you will consider such explanation as true, and acquit the defendant. If, on the contrary, you believe such explanation was unreasonable, and did not account for defendant’s possession in a manner consistent with his innocence, or you believe that the same accounted for defendant’s possession in a manner consistent with his innocence, but the State has shown the falsity thereof, then you will take the possession of defendant, together with his explanation, in connection with all the other facts and circumstances, if any, in evidence, and if yon believe the defendant guilty beyond a reasonable doubt, you will so find; otherwise, you will acquit the defendant.”</p> <p>2. Same—Purchase—Charge.—On a trial for theft, where there is distinct substantive evidence of a purchase by the defendant of the alleged stolen property, it is the duty of the court to give a charge upon that issue, whether requested to do so or not, and a failure to give such a charge is reversible error.</p> <p>3. Same—Receiving Stolen Property—Charge.—On a trial for theft of hogs, where there was evidence showing, or tending to show, that defendant was not present and participating in the original taking, the charge of the court should have informed the jury, that if they so believed, the defendant could not be convicted of the theft; and in that connection the jury should have been further instructed, that the receiving of the property after it had been stolen, though with guilty knowledge on the part of the defendant, would not authorize them to convict him of the theft of the same.</p> <p>4. Charge—Sufficiency of.—It is the duty of the court without request to give in charge to the jury, on behalf of defendant, every defense reasonably called for by the evidence adduced.</p>

Tried below before Hon. W. B. McGill. The appellant was convicted of incest, and his punishment assessed at five years in the penitentiary. In view of the disposition made of this case, a statement.of the evidence can not be made.

Tried below before Hon. E. D. McClellan. This appeal is from a conviction for manslaughter, the punishment assessed being a term of two years in the penitentiary. The opinion states the case very briefly, but sufficiently.

<p>1. Forgery—Indictment, Purport and Tenor Clauses—Variance.—Where, in an indictment for forgery, it was alleged that the instrument purported to be the act of C. R., a fictitious person, which said instrument was to the tenor of the following, etc., and then setting out the instrument, which was signed C. R., and a variance was claimed between the two clauses, because the instrument does not on its face purport to be the act of a fictitious person, Held, that the purport clause simply described C. R. as a fictitious person, and did not allege that the act was that of a fictitious person, and there was no variance.</p> <p>2. Same—Fictitious Person.—The law is settled, that the signing of a fictitious name to an instrument, with fraudulent intent, constitutes forgery.</p> <p>3. Circumstantial Evidence—Charge as to Links in a Chain of.—Where it was objected to a charge on circumstantial evidence, that it failed to instruct the jury, “that each fact or circumstance relied on by the State.as constituting a link in the chain of circumstances must itself be proved by competent evidence beyond a reasonable doubt,” Held, the objection states the rule too broadly. In a majority of cases, the ultimate and necessary facts to the conclusion sought are constituted by grouping insufficient isolated facts together, and it is only required that these ultimate facts, so established, should be proved as satisfactorily and to the same extent as the main fact.</p> <p>4. Same.—See a charge on circumstantial evidence in a forgery case, which the court holds sufficient when applied to the evidence.</p> <p>5. Forgery—Venue of the Prosecution.—Under provision of article 206, Code of Criminal Procedure, the offense of forgery, or uttering a forged instrument, may be prosecuted in any county where the instrument was forged, or where the same was used or passed, or attempted to he used or passed; and where the instrument purported to he executed in one county, hut was passed in the county of the prosecution, Held, the venue was sufficiently established in the latter.</p>

Arreal from the County Court of Bee. Tried below before Hon. Felix J. Hart, County Judge. Appellant was convicted of aggravated assault and battery, and his punishment assessed at a fine of $25.

Appellant was convicted as a county convict who had willfully and unlawfully escaped from his hirer, the punishment being assessed at five days’ imprisonment in the county jail. Appellant was arrested for some offense, the nature of which is not disclosed, and the County Court held a special term to try and dispose y— of the case, upon his plea of guilty. He was convicted at said special/ term, and a fine of $10 was assessed as his punishment.

The indictment charged appellant with the murder of one John Baker, in Taylor County, on the 26th day of December, 1892.

The salient features of the case are concisely stated in the opinion, but in order to illustrate further the nature and character of the conspiracy between defendant and his confederates, after the first difficulty between defendant and deceased, we reproduce the following portions of the testimony from the statement of facts. J. H. Maddox, for the State, testified: “I am city marshal of Port Worth, Texas, and was when Waller was killed.

Tried below before Hon. Edward Gray. This is the second time this case has been before the Court of Criminal Appeals. The judgment of conviction for murder, of the first degree, with the death penalty, was affirmed on the former appeal (Miller v. The State, 32 Texas Criminal Reports, 319), and a very full statement of the evidence will be found in that case.

<p>Appeal from the District Court of Baylor. Tried below before Hon. W. R. McGill.</p> <p>This appeal is from a conviction for theft of one head of cattle, the punishment being assessed at imprisonment for two years and nine months in the penitentiary.</p> <p>The essential matters pertaining to the grand jury which found the indictment are fully stated in the opinion.</p> <p>Defendant was charged by indictment in King County with the theft of one head of cattle, the property of J. T. George. The venue was changed from King County to the county of Baylor. The evidence showed, that said George owned a certain red yearling with a bald face, some white on its leg, branded C on left side of neck and T C on left side. On the 4th day of June, 1894, the cow, mother of the yearling, came up without her yearling. Said George and daughter went out to look for the yearling, and about one-half mile from defendant’s house found where some one had killed a beef, leaving on the ground the hide and head. The brand on side was cut out; the C brand was left on neck; the ears were cut off. Both recognized the flesh marks as George’s yearling. They followed the tracks of a wagon from the place to defendant’s house, and found the four quarters of a beef hanging in a mesquite tree near the house of defendant, and blood on the hounds of the wagon. George said to defendant, “I see you have a beef,” and asked defendant who had killed a beef out there, pointing to the place where he found the hide. Defendant admitted that he killed a beef out there. “ I asked him whose beef it was that he had killed, and he said it was his (defendant’s.)”</p> <p>Mrs. Yance, mother of and who lived with defendant, testified to owning cattle on the range, and among them a yearling of that description; that her son, defendant, had control of them, and a right to kill a beef of them whenever he chose; she had not seen that yearling since the killing of the beef in controversy.</p> <p>The court, in his charge to the jury, failed and refused to submit the issue of.ownership as raised by the evidence, and also as to defendant’s explanation of his possession, at the first time he was accosted after killing the beef and asked directly whose beef it was that he had killed.</p>

<p>1. Continuance—Alibi—Cumulative Testimony—Hew Trial.—On a motion for new trial based upon the overruling of defendant’s application for continuance, which application was for two witnesses, by whom defendant proposed to prove an alibi; and where it was shown that one of said witnesses appeared and testified; that a number of other witnesses testified to this alibi; and that other witnesses were present who could have testified to the same facts, but were not called by defendant; Held, the absent testimony was cumulative; that it would not probably have influenced the verdict; that defendant has no ground for complaint, and that the new trial was properly refused.</p> <p>2. Juror—Challenge of, Because Challenged on a Former Trial.—The mere fact that a juror was challenged peremptorily at a former trial constitutes no cause for challenge at a subsequent trial. Following Wilson v. The State, 3 Texas Criminal Appeals, 64.</p> <p>3. Murder—Evidence—Motive—Testimony of Deceased Witness at Examining Trial.—On a trial for murder, where the testimony of the deceased taken at the examining trial was admitted as evidence over defendant’s objections, Held, that the evidence was admissible to show malice and motive on the part of defendant, inasmuch as it showed that deceased was a witness in a cattle-stealing case against a brother-in-law of defendant, and tended strongly to establish the fact that the murder was committed to prevent him from testifying as a witness in said case.</p> <p>4. Impeachment of Deceased’s Testimony at Examining Trial—Evidence Supporting Said Testimony.—On a trial for murder, where the defendant had attempted by a witness to impeach the testimony of deceased, taken at an examining trial previous to his death, by proof of contradictory statements afterwards made by him before his death, Held, that the State had the right to sustain and support the testimony of deceased by proving, by other witnesses, that he had always made the same statement as that sworn to by him at said examining trial.</p> <p>5. Impeachment of a Party’s Own Witness.—Where a witness on cross-examination gives testimony injurious to the party interrogating him, and as to matters about which he was not examined in chief, the rule, that as to such matters he was the witness of said party, does not debar the latter from impeaching the witness.</p> <p>6. Juror—Competency of—Convict Pardoned After Serving Out Sentence. Under section 11, article 4, of the Constitution, the Governor, in all criminal cases except treason and impeachment, is empowered, after conviction, to grant pardons, etc. Held, that this power authorizes the pardon of a convict after he has served out his sentence of conviction; and that a pardon so granted removes disabilities and restores the convict to his full rights of citizenship, and revives his competency as a juror; and that the statute, articles 636 and 639, Code of Criminal Procedure, is subordinate to this right of pardon.</p>

This appeal is from a conviction for assault with intent to murder, the punishment assessed being three years’ imprisonment in the penitentiary. The opinion sufficiently states the case.

Tried below before Hon. T. H. Spooner. This appeal is from a conviction for theft of money over the value of §20, the punishment being assessed at three years in the penitentiary. The money stolen belonged to Will Williams, the stepfather of defendant. Will Williams testified, that he was about 100 years old.

Tried below before Hon. T. H. Spooneb. Appellant was charged by indictment with the theft of a horse, the property of one H. P. Hilmer, and at his trial was convicted, the punishment assessed being a term of ten years in the penitentiary. Ho statement necessary.

<p>1. Statement of Facts—Filing of—Practice on Appeal.—A statement of facts not filed until after the expiration of the ten days allowed after the term will not be considered on appeal.</p> <p>2. Bills of Exception.—Objections not mentioned in bills of exception are deemed to be waived.</p> <p>3. Bail Bond—Requisite of—Date of Indictment.—The date of the filing of the indictment is not one of the requisites of a bail bond given for appearance to answer same.</p> <p>4. Scire Facias—Evidence.—On a scire facias trial on a forfeited bail bond, where the State introduced in evidence a bail bond, judgment nisi, and capias for the principal in the bond, and no objection was interposed to the introduction of the same, Held, that a mistake in the bail bond, as the date of the indictment, was immaterial.</p>

Tried below before Hon. W. A. Little, County Judge. Appellants were convicted of fornication, and their punishment assessed at a fine of $50 each. : The opinion sufficiently states the facts.

- This is a second'appeal in this case. See Woodring v. The State, 33 Texas Criminal Reports, 26. After the case was reversed on the former appeal, the venue was changed from the county of Fisher to Jones County, on motion of defendant, owing to the fact that Fisher County was sparsley settled, and the case having been once tried in that county, it was wholly improbable that another jury could be obtained.

The charging part of the indictment is set out in the opinion. A motion in arrest of judgment called in question the sufficiency of the indictment, in that it did “not charge an assault with intent to rob, but charges an assault and attempt to rob; and there is no such offense known to the law,” etc. This motion was overruled.

Tried below before Hon. W. H. Ragsdale, County Judge. Appellant was arrested upon a capias to answer an information charging him with a violation of the local option law in Justice Precinct Ho. 5 of Hunt County. He applied for and was granted a writ of habeas corpus by the county judge, that the legality of his arrest and restraint of liberty might be inquired into.

<p>1. Indictment—Assault with. Intent to Rob—“Attempt,” for “Intent.”— It is generally sufficient, in charging an offense, to follow the language of the statute; but where words of equivalent or more comprehensive meaning are used, this is sufficient. Held, the word “attempt” is more comprehensive than “intent,” and when used in the indictment sufficiently charges intent in setting out the offense of assault with intent to commit robbery. Following Atkinson v. The State, ante, p. 424.</p> <p>. 2. Same—Certainty in Indictment.—The certainty required in an indictment is, (1) that the offense be charged in ordinary and concise language, in such manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense of which he is charged, and enable the court, on conviction, to pronounce the proper judgment. Code Grim. Proc., art. 428a. (2) The averments must be sufficiently certain to enable the accused to plead the judgment given upon it in bar of any prosecution for the same offense. Code Grim. Proc., art. 422.</p>

Tried below before Hon. John C. Main, County Judge. This appeal is from a conviction of theft of one banana, of the value of 5 cents, the punishment being assessed at five days’ imprisonment in the- county jail. Ho statement necessary.

<p>1. Gaming in House Not a Private Residence—Evidence.—Where, on a trial for permitting betting on dominoes played in a house under his control, said house not being a private residence, the court rejected evidence that appellant had established a rule prohibiting betting on dominoes at his house, Neld, the evidence was properly rejected, as it could not have constituted a defense to this action under evidence adduced.</p> <p>2. Same—Betting.—It is not necessary that money be bet on such games to constitute a violation of the law. Betting anything of value is a betting. The statute does not require that money be bet.</p> <p>3. Charge—Defining Words.—Where a word used in a statute constituting the offense is one generally and commonly used, and familiar and easily understood, it is not necessary for the court to define same in the charge.</p>

<p>1. Murder—Means Used—Intent, Presumption of.—On a trial for murder, where the important question, in consideration of the weapon used, is the intent of the accused, the statute prescribes certain rules by which the intention is to be ascertained. 1. The intention is presumed whenever the means used’ is such as would ordinarily result in the commission of the forbidden act. Penal Code, art. 50. 2. If the instrument he one not likely to produce death, it is not to he presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears. Penal Code, art. 612. It follows from these statutes, fl) that the weapon or means used must possess the quality of “a deadly weapon,” without regard to the manner in which it is used; or, (2) though not deadly, the manner of its use must show an evident intention to kill. In other words, the character of the weapon can not he fixed or determined by the manner of its use—it must ordinarily he a deadly weapon per se to warrant any presumption arising from its use; or if not such a weapon, the intent to kill must evidently appear from the manner of its use.</p> <p>2. Same'—Charge of Court.—On a trial for murder, where the court instructed the jury as follows: “Every person is presumed by law to intend whatever would he the reasonable and probable result of his own acts and the means used by him; and, when a homicide is committed, and the instrument used in committing the homicide, or the manner in which it was used, was reasonably calculated to produce death, then the law presumes that such was the intent and design of the party committing the homicide.” Held, that the portion with reference to the manner in which the instrument is used erroneously omits the important part of the rule, which requires, that when the intent to kill is inferred from the manner in which the weapon is used, that the intention to kill shall evidently appear; and instead of the expression, '‘or the manner in which it was used was reasonably calculated to produce death,” it should have been, “or by the manner in which it was used the intention to kill evidently, appeared.”</p> <p>3. Same.—Presumptions of law which are against the defendant should not ordinarily be given in charge to the jury; and when they are, great care should be observed to properly guard the rights of the defendant.</p>

Tried below before Hon. E. W. Terhune. Appellant was convicted of murder of the second degree, and his punishment assessed at confinement in the penitentiary for ten years. This is the second appeal in this case. See Josef v. The State, 33 Texas Criminal Reports, 251.

Tried below before Hon. T. H. Spooner. This appeal is from a conviction for robbery, the punishment being assessed at ten years in the penitentiary. A motion made by defendant to quash the indictment was overruled by the court. Omitting formal allegations, the charging part of the indictment is as follows: “That J. iST.

Tried below before Hon. D. E. Barrett. This appeal is from a' conviction for bringing stolen horses from Oklahoma Territory into Cooke County, Texas, the punishment being assessed at seven years’ imprisonment in the penitentiary.

Tried below before Hon. T. F. Hash, County Judge. This appeal is from a conviction for slander, the punishment being assessed at a fine of $100. The opinion sets out the charging portions of the information. Ho general statement necessary. Defendant proposed to prove by several witnesses, separate and distinct acts of carnal intercourse by the prosecutrix, Katie Lynch, with other parties, before the alleged slander; which evidence the court refused to permit to be introduced.

Tried below before Hon. J. M. Hall. This appeal is from a conviction for uttering or passing a forged instrument, the punishment assessed being a term of two years in the penitentiary. Omitting formal allegations, the indictment is as follows: “That oneD.

Appellant was arrested upon a capias by the sheriff, to answer an information charging him with a violation of the local option law in Justice Precinct Ho. 6 of Hunt County. He applied to the county judge for a writ of habeas corpus, that the legality of his arrest and restraint of liberty might be inquired into, and he be discharged from custody.

Tried, below before Hon. J. M. Hall. Appellant was indicted for fraudulently disposing of a mare which he had previously mortgaged to one Taylor Evans. At the trial he was convicted, with the penalty assessed at two years’ imprisonment in the penitentiary. Evans testified to the execution of the mortgage to him by the defendant, and that on the day it was executed he filed it for record in the county clerk’s office. That defendant sold the mare to one Rogers.

• Appeal from the District Court of Hill. Tried below before Hon. J. M. Hall. ■ ... This appeal is from a conviction for-horse-theft, the punishment assessed being a term of five years in the penitentiary. The facts as to the theft are-stated in the opinion.

Tried below before Hon. M. F. Lowe. This is an appeal from a conviction for burglary, the punishment being assessed at two years’ imprisonment in the penitentiary. There is no statement of facts in the record.

Tried below before Hon: Wm. Von Rosenberg, County Judge. This cause wás commenced by a sworn complaint filed' by Dennis Sheehan, made before and filed with ■ P. P. Barbour, justice of the peace of precinct number 3, Travis County, Texas, on July 23, 1894, charging the defendant, Mike Dean, with knowingly entering upon the land' and premises of Dennis Sheehan, in the county of Travis, and taking and removing therefrom sand and gravel, without the' consent of said Sheehan.

<p>Appeal from the District Court of McCulloch. Tried helow before Hon. J. O. Woodward.</p> <p>This appeal is from a conviction for unlawfully carrying a pistol, the punishment assessed being a fine of $25. The opinion states the case.</p>

A statement of the facts as to the theft is not necessary. Ho additional statement is required to illustrate the matter discussed in the opinion.

Trial below before Hon. E. E. Sinks. This appeal is from a conviction for assault with intent to commit rape, the punishment assessed being imprisonment in the penitentiary for a term of six years. The opinion states the facts.

<p>1. Bill of Exception—Practice on Appeal.—Bills of exception, to be entitled to consideration on appeal, must have been filed in the court below during the term, and not later than ten days after the trial is concluded.</p> <p>2. Charge of the Court.—A charge of the court should contain the law of the case; that is, the law applicable to the indictment and evidence adduced on the trial.</p> <p>3. Same—Assumption in of Issues Hot Raised.—If a court, in the charge, assumes and instructs upon a theory not raised or indicated by the evidence, it is radical error, and fatal to the conviction.</p> <p>4. Same—Assault with Intent to Murder—Provoking Difficulty.—On a trial for assault to murder, when the court, in connection with self-defense, which was an issue in the case, instructed the jury with regard to provoking a difficulty, as to which there was no evidence, Held., such a charge was necessarily prejudicial to defendant’s rights.'</p>

Tried below before Hon. Charles F. Clint. The defendant was indicted for murder, and at his trial he was convicted of manslaughter and his punishment assessed at three and a half years in the penitentiary. The facts are sufficiently stated in the opinion.

Tried below before Hon. D. E. Barrett. This appeal is from a conviction for murder of the second degree, the punishment assessed being twenty years’ imprisonment in the penitentiary.

The statement of facts is most voluminous, embracing some fifty-six closely written pages of the transcript. The salient features of the evidence will be found sufficiently stated in the two opinions below.

<p>Appeal from the Criminal District Court of Harris. Tried below before Hon. B. D. Cavut.</p> <p>This appeal is from a conviction for horse-theft, the punishment having been assessed at five years’ imprisonment in the penitentiary.</p> <p>Ho statement necessary.</p>

<p>Robbery—Allegation and Proof—Paper Money—Variance.—Where, in an indictment for robbery, the money taken is described in general terms as 620, paper money, current money of the-United States, a better description- thereof being to the grand jurors unknown; and the proof was, that the money taken was a 610 and a 65 currency bill of the United States; Meld, there was no variance. Under the allegation in the indictment, the State could prove any number of currency dollars of the United States, not more than $20.</p>

<p>The opinion states the case.</p>

Tried below before Hon. Egbert B. Green. This appeal is from a conviction for forgery of a railroad ticket, wherein the punishment is assessed at two years’ imprisonment in the penitentiary. The allegations of the indictment are sufficiently set forth in the opinion, and the essential features of the case are also stated. Defendant’s motion in arrest of judgment, which the court overruled, was as follows: “1.

On an indictment charging him with rape, appellant was convicted of an attempt to rape, his punishment being assessed at two years’ imprisonment in the penitentiary. The material facts are stated in the opinion.

Tried below before Hon. E. D. Gavin. This appeal is from a conviction for forgery, the punishment assessed being a term of two years in the penitentiary. The opinion states the essential facts in the case.

<p>1. Justice Courts—Entry of Judgments in.—Justice Courts are not courts of record. Their judgments are announced ore tenus, and the entry thereof is a ministerial act.</p> <p>2. Same—Construction of Statute—Practice.—While article 941, Code of Criminal Procedure, requires, that judgments and final orders of justices of the peace shall he rendered in open court and entered upon the docket, yet it does not prescribe that the act of entry shall be done immediately, though the better practice would be quire that it be done contemporaneously.</p> <p>3. Same—Absence of Defendant.—The fact that the entry of the judgment of a justice is made in the absence of defendant does not affect its validity. The statute, Code of Criminal Procedure, article 804, does not require his presence even at its rendition.</p>

<p>Pulling Down the Fence of Another—Indictment—Want of Consent.— Where one party builds a fence upon the land of another, and a third party pulls the fence down, in order to hold this latter party liable for the statutory offense, the indictment must negative the want of consent of the owner of the land inclosed by the fence, as well as the want of consent of the builder of the fence.</p>

Tried below before Hon. J. R. Burnett. This appeal is from a conviction for arson, the punishment assessed being a term of five years’ imprisonment in the penitentiary. Ho statement additional to that in the opinion is called for.

<p>1. Slander of Wife by Her Husband.—On the trial of a husband for the slander of his wife, where the evidence showed that he had had repeated acts of carnal intercourse with her previous to their marriage, a statement by him that he had been deceived, and that her child, born within a month after their marriage, was not his child, is not slander in contemplation of law, because slander is only predicable upon the fact that the alleged slandered female is a chaste woman.</p> <p>2. Same—Statutes Construed.—Our statutes relating to slander are intended only for the protection of the chaste woman, whether married or unmarried.</p> <p>3. Husband and Wife as Witnesses Against Each. Other—Statute Construed.—The Code of Criminal Procedure, article 735, expressly provides, that the husband and wife “shall in no case testify against each other, except in a criminal prosecution for an offense committed by one against the other.” Seld, that this statute, properly construed, means an act of personal violence by one against the other.</p> <p>4. Same.—The wife is an incompetent witness against her husband, where he is being prosecuted for a slander uttered against her. Following Compton v. The State, 13 Texas Criminal Appeals, 271.</p>

Tried below before Hon. D. G. Hill, County Judge. This appeal is from a conviction for aggravated assault, wherein the punishment was assessed at a fine of $25. In compliance with the instructions of Presiding Judge Hurt, we give the testimony of the following witnesses, as embracing or proving all the essential facts on the trial: Allen Middleton testified: “ I am the Allen Middleton named in the complaint and information.

<p>This appeal is from a conviction for robbery, the punishment being assessed at five years’ imprisonment in the penitentiary.</p> <p>The essential facts will be shown by the testimony in chief of Henry Selz, first witness for the State, who testified as follows: “My name is Henry Selz. I live at Pilot Point, Denton County, Texas; have been living there for the past eighteen years. I am in the public gin business at that place. J. P. Cooper and Matt Williams are in partnership with me in that business, under the firm name of Cooper, Selz & Co., and were on the 27th of October, 1894. I have charge of the business of the firm, and had on October last; and I do the paying out and receiving money for the firm. I know the defendant, P. E. Williams; first became acquainted with him on the 27th day of October, 1894. And I know Mrs. W. J. Stewart; first became acquainted with her at my house about the 10th of last October. My wife, who was about that time at Mrs. Rose’s, nursing a sick child, employed Mrs. Stewart to come to our house and do general household work; and after my wife employed her, Mrs. Stewart began work about the 10th of October. Mrs. Stewart worked at my house something like two weeks, and left on Thursday. I was not at the house when she left. On Sunday morning, before Mrs. Stewart left my house on the following Thursday, she demanded $500 of me, claiming that I had insulted her on the night previous, which was Saturday night. On that Saturday night I went up town to the barber shop before 9 o’ clock, and Ad Alexander, a witness in the case, came back home with me. We got back between 9 and 10 o’clock; went together in the dining room of my house; talked in there with each other awhile, about ten or fifteen minutes, and he went to his room, which is down stairs across a small hall from the dining room, and I went to my room, which is up stairs. This was on Saturday night before Mrs. Stewart left my house on the following. Thursday. After we left the dining room that night, I went to the door of my room, made an effort to open my door, and found that it was locked; then I made a second effort to open it, when Mrs. Stewart, who was inside my room, unlocked and opened the door, and remarked that she had been in my room reading. She then went to the room she was occupying, which is directly opposite mine, across a hall about eight feet wide. I went in my room, got the pitcher, and went down stairs to get some water for my little children; brought it in my room, put it on the stand table, pulled off my coat, preparing to retire, when Mrs. Stewart called to me from her room. I stepped to her door, and she remarked that she had a sore finger, caused from a burn, holding her hand out, and wanted to know of me what was good for it; to which I replied, ‘Mutton suet is good for a burn.’ Then she said, ‘There is none here;’ that she and Mrs. Selz, my wife, had looked for it and could not find it. She then went back in her room, and I went into my room and retired. This was all that was said and done between Mrs. Stewart and me that night. The next morning, which was Sunday morning, I went into the kitchen to make a fire in the stove, and Mrs. Stewart came in there, and I said, ‘Good morning, Mrs. Stewart,’ and she said, ‘Mr. Selz, you insulted me last night.’ I replied, ‘I did not, Mrs. Stewart.’ And she said, ‘You did, and you have got to pay me $500 or I will make trouble in your family, and ruin your reputation.’ I said, ‘I did not insult you, and don’t owe you $500; don’t owe you anything.’ She said, ‘You have got it to pay. I’m a woman, and you are a man, and I have the advantage of you. They —.’ I then told her that to keep down trouble with my family and friends, I would pay her $50. She studied awhile, and said, ‘Double that, and I will take it.’ I said, that before I would have trouble I would pay the $100, and she said all right. I told her that I did not have the money then, but would get it for her the next day. I got the money Monday and paid it to her myself. My wife paid her wages to her. When I paid Mrs. Stewart the $100 on that Monday evening, she counted it, and said, ‘That’s correct.’ She left my house on the following Thursday. On Wednesday following this Monday her time was up, and my wife, after paying her wages, told her she could remain there at her house until she, Mrs. Stewart, could find another place to go to. At this time my wife did not know of my having paid Mrs. Stewart the $100, nor did she know anything about the affair. After she left my house I did not see her any more until I saw her with P. E. Williams, the defendant, at the gin in Pilot Point, on Saturday, the 27th day of October, 1894. My residence is about 100 yards from the gin. Mrs. W. J. Stewart and the defendant, P. E. Williams, drove up the road, which is forty or forty-five feet south from the office of the gin. The office is not connected with the gin, there being a space of twenty-five or thirty feet between them. There is a platform between the office and gin. The gin is west of the office. The defendant and Mrs. W. J. Stewart came in a two-horse buggy, and they had a double-barrel shotgun in the buggy with them when they came up. When they came up I was in the office. Mrs. Stewart remained in the buggy out in the road, and the defendant, P. E. Williams, whom I had never seen before, came into the office, introduced himself to me, and said, ‘ Mrs. Stewart is out there in the buggy, and wants to see you.’ I went out with Williams to the buggy, where Mrs. Stewart was, spoke to her, and asked her what she wanted, and she said, 11 want $400 more money.’ I said, ‘Mrs. Stewart, I don’t owe you any money, and can’t pay it.’ When I told Mrs. Stewart that I did not owe her any money, and could not pay it, the defendant, P. E. Williams, who was standing by, reached in the buggy, got the gun, pulled it down on me, pointed it at me, and said, ‘You insulted my mother-in-law, and you have got to pay it, and that God damn quick,’ with the gun pointing at me. I said, ‘I did not insult her, and don’t owe her any money.’ Then Williams, the defendant, said, ‘You have got to pay that money, and that right now, or I will kill you,’ with the muzzle of the gun pointing at mo. I was scared, and thought that Williams meant what he said. I thought he intended to kill me if I did not pay the money. Then Williams drew the gun on me the second time, and said, ‘God damn you, you have got it; pay it right now.’ I told him I had no money, to which he replied, ‘Your check is good, and you have got to pay it or give a check for it right now.’ I told Williams that I would have to go to the office to write the check, and we started off towards the office, when I asked him to leave the shotgun there. He stopped, and said, ‘You want to trap me.’ I told him that I had no arms in the office. Then Mr. J. W. Phelps, who was standing not far off, remarked to Williams, 'I have known Mr. Selz a long time, and whatever he tells you is all right.’ Then Williams said, ‘I am fixed for you, anyway. I’ve got one here [putting his hand on the side of his breast], and one here’ [placing his hand on his hip]. Williams and I went on then into the office of the cotton gin, I walking in front, and he not far behind me. I noticed the handle of his pistol up about his breast pocket. When we got into the office I was frightened—was scared. First became scared, for I thought he meant what he said when he told me he would kill me if I did not pay the money; and then after I got into the office I saw the handle of his pistol. He held his hand on the pistol while he was in the office. Williams was standing by me when I wrote the check. I delivered the check to P. E. Williams, the defendant. He got in the buggy with Mrs. W. J. Stewart, and they drove off together. After that, in about fifteen or twenty minutes, they both came back together in the same buggy. Williams came into the office where I was, and Mrs. Stewart remained out in the buggy by the gin lot gate. When Williams came into the office the second time he said, ‘This check is wrong, and I believe you made the mistake purposely. You have got to correct it, and correct it damn quick.' When he said this, he had his hand up about his breast, where I had seen the handle of the pistol before. He did not take the check out of his pocket; had the check in his left hand. I looked at the check he handed me, and saw that I had made a mistake in the figures; that instead of putting it $400, I wrote it in figures $4.00, placing the dot in the wrong place, while the written part was ‘four hundred,’ all right. I wrote a new check for $400, and delivered it to P. E. Williams, who took it, got in the buggy with Mrs. W. J Stewart, and they drove off together in the buggy. I gave that check to P. E. Williams because I had to. I was frightened, because he had his hand where I had seen the handle of a pistol before, and I was still afraid. If I had not been afraid of his killing me, I would not have given this check to him. I still thought he meant what he said when he threatened to kill me, and I was frightened and scared when Williams was in the office the second time. The check I gave Williams was paid by the Pilot Point National Bank, and was returned to me after payment, and I destroyed it. The bank returns the checks I give on the first of every month; and I compare my books with the bank’s statement of my account, and if I find they correspond, I destroy all the checks. This check in question was returned to me in a bunch of other checks, and I destroyed the entire bunch without thinking about this particular one. This is my custom, and I rarely ever keep one of my old checks returned to me by the bank after payment. [Here check was handed witness.] Except the red writing on the face of the check, this is an exact copy of the one I gave P. E. Williams, and which was paid by the Pilot Point National Bank; and this check is written on the same form I used in writing the check delivered to P. E. Williams—the firm of Cooper, Selz & Co. Mr. A. H. Gee is president of that bank, Mr. McFarland is Cashier, and Mr. J. P. Clifton is assistant cashier.” [Here the check was introduced in evidence and read to the jury, except the red writing on the face. The check reads as follows: “No. 233. Cooper, Selz & Co., Merchants and Public Gin, and Dealers in Bagging and Ties. Pilot Point, Texas, October 27, 1894. Pay to the order of W. J. Stewart $400 (four hundred dollars). To Pilot Point National Bank, Pilot Point, Texas. Cooper, Selz & Co.”] Continuing, he said: “At the gin, on that Saturday evening, when P. E. Williams came into the office and told me that Mrs. Stewart wanted to see me, I went from the office through the gate of the gin lot fence, and went around the horses’ heads to the south side of the buggy. Mrs. Stewart was sitting on that side of the buggy. The road runs east and west, and the horses’ heads were facing west. I was on the south and left side of the buggy, and Williams was on the north and right side. When Williams drew the shotgun on me, he pointed it across the buggy at me. I had never seen Mrs. Stewart in my room before that Saturday night she claimed I insulted her. My wife had been nursing the sick child for about two weeks. I did not consent to give the check to Williams. I executed, it because I had to do it. All this occurred in Denton County, State of Texas.”</p>

Appellant was indicted in the District Court of Cooke County for the murder of Thomas Murrell, in said county, on the 12th day of April, 1894. The venue was changed from Cooke to Denton County, and at his trial in this latter county defendant was convicted of murder of the first degree, the penalty being assessed at death. The facts are sufficiently stated in the opinion. The portions of the charge which were excepted to and complained of are also set out in the opinion.

Tried below before Hon. Charles F. Clint. This appeal is from a conviction for murder of the second degree, with the punishment assessed at five years in the penitentiary. The indictment in this case was filed on March 20,1894, and charged appellant with the murder of one Henry Kirk, in Dallas County, on the 30th day of April, Í883, nearly eleven years prior thereto.

L. F. Burris was indicted in the District Court of La Salle County, in case number 530, and with the appellants executed the bail bond in the sum of $500, upon which there was a forfeiture on the 23rd day of December, 1891, and judgment nisi was rendered thereon by the court, and the entry of this judgment nisi was not such an entry as the statute required, but was defective in form only. This cause was numbered on the docket 315.

Tried below before Hon. B. W. Terhune. Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for seven years.

Tried below before Hon. B. W. Terhtjne. This appeal is from a conviction for perjury, the punishment being assessed at six years in the penitentiary. Bo statement of facts in the record.

Tried below before Hon. E. D. McClellan. John McDonald and Mary Williams were jointly indicted as principals in the theft of one $10 bill, two $5 bills, $1 in silver, one watch and chain, two pairs of spectacles of the value of $2, two scarf pins of the value of $1.25 each, one cuff button of the value of 25 cents, ■one money purse of the value of 10 cents, all of the aggregate value of $37.85, the corporeal personal property of one R. W. Emerson.

Tried below before Hon. J. W. Patterson. Tom Phipps, the defendant, was convicted of murder in the second degree, and his punishment assessed at twenty years in the penitentiary. The facts are fully stated in the opinion.

<p>1. Hew Trial—Hewly Discovered Evidence—Affidavit for—Requisites of.— A motion for new trial bn the ground of newly discovered evidence must he sworn to by defendant; and this must'not only he done, but defendant’s affidavit must negative the fact that he was cognizant of the alleged newly discovered evidence at the time of the trial.</p> <p>2. Conflicting Evidence—Practice on Appeal.—Where evidence is directly conflicting, the court on appeal will not disturb the judgment.</p>

<p>Appeal from the District Court of Montague. Tried below before Hon. D. E. Barrett.</p> <p>Appellant was convicted of murder in the second degree, and punishment assessed at five years in the penitentiary.</p> <p>This is a companion case to Bob Leftwich v. The State, ante, p. 489. The facts in the two cases are almost identical.</p> <p>In compliance with the instructions of Judge Davidson, we give the testimony of the following witnesses, as embracing or proving all the essential facts on the trial:</p> <p>J. W. Stallings testified: “I live at Bowie. I am the father of Jack Stallings, the deceased. I last saw him at Bowie on the night of October 28, 1893, at my house, where he lived. He took supper there that night. That was Saturday night. I next saw him one week from that time, the Saturday night following, when the body was found.. It was found southwest of Bowie, about one-half mile from the town, and in Montague County, Texas. He was considerably swollen, but I identified the body as being my son by its general appearance and the clothing, by a ring he had on, and.by a breastpin he had in his vest pocket.”</p> <p>■ James C. Stallings testified: “I am a brother of the deceased, Jack Stallings. I last saw him alive at my father’s house, in Bowie, at supper on the night of October 28,1893. I next saw his dead body on the next Saturday evening, on the night of November 4, 1893, at 4 or 5 o’ clock in the afternoon. I identified his body by its general form, by his clothes, and by a K. of P. pin and diamond ring in his pocket, and by some keys. He left home between 6 and 7 o’clock that Saturday evening, October 28, 1893. I was intending to go back to town with him, but he got done supper before I did, and when I came out from supper he had gone, and I never saw him again, until I saw him dead. On November 4 I heard that O. S. Williams had found the body of a man, and I went up to town to see him. He and some others then went with me to the body; it was about three-fourths of a mile from the business part of the town, nearly south, on a high hill in the pasture. He was lying with his head to the northwest, with his face to the southwest. His hat was lying with one side of the brim on the ground, and the other on one side of his head. I saw a wound on the back of his head, where he had been shot. Under this wound, on the ground, I saw a little blood. The body had evidently been there several days; decomposition had set in. I have lived in Bowie about seventeen years—ever since before there was any town there—but was never right at the place where the body was found before. I was with the first crowd that got to the body. The body was badly swollen. I saw a piece of iron, claimed to have been found in an up-stairs room of defendant’s hotel. It had something on it that looked like blood or water; I could not tell what it was. It also had a couple of hairs sticking on it, that were a little lighter than my hair, and corresponded, as well as I could judge without comparison, with the length and color of Jack Stallings’ hair. I did not compare it with any hair that I knew to be his. Jack’s hair was a little lighter than mine. The hair was adhering to the iron by what I took to be blood.”</p> <p>H. Eiley testified: “ I live in Bowie. I am a regular practicing physician, a graduate, and have been practicing medicine for twenty years. I knew Jack Stallings in his life-time. He is dead. I first saw his body on the hill, south of Bowie, in Montague County, Texas. I recognized the body from its size, shape, and clothing. I examined the body for wounds. There was a wound, which I afterwards found to be a bullet wound, in the back of the head a little to the left of the center line, and ranged forward and upwards, and came through the skull about three inches above the right eye. There was another wound on the right wrist. It seemed that the flesh had been lacerated before he was dead, by something around his wrist. The skin seemed to be blood-shotten at the wrist. The body was swollen and badly decomposed. The bugs, flies, and worms had eaten away the face and some parts of the body. The body had been lying where found several days. It was some three or four hundred yards to the nearest house. I made a post-mortem examination. I was assisted by Drs. Mitchell and Elliot. The mark on the wrist was about four inches above the hand. The skin was not broken, but was contused and blood-shotten. 1 found the bullet about two or three inches above the right eye. There was an ex-travasation between the periosteum and skull. This was caused by a blow. It was on top of the head, from the front edge of the hair back about four inches, and was about the width of a man's hand. The blow which caused it was struck before the man was dead, and was done with a blunt instrument. The skull was not broken. The bruise was three or four inches wide. It was a severe blow, and hard enough to knock a man down. The shot, in my opinion, is what caused death. There were powder-burns on the skull where he was shot, at the back of the head. I saw the room in the Dodson Hotel where it is claimed by the State that Jack Stallings was killed. I saw a good many stains on the floor. Some of them were not blood, but some of them appeared to be blood. The stains were up stairs in the room to which the back stairway leads in.”</p> <p>Cross-examined: “The stains were just in spots, about the size of where a man would spit amber. I would not be certain that the stains were blood; some of them I know were not blood, and some of them I thought looked like blood, and they were, to the best of my opinion. From where I noticed the stains on the floor in the room there was some of the same kind of stains out on the platform, and some on the back steps, that I took to be blood. There was a trail way of stains leading from the stains in the floor across the floor to the head of the stairway, and down two or three steps, as if a dripping object had been carried along. I examined the iron found in the room. It had some hair sticking to it, and had on it what I took to be blood. ’ The hair was like Stallings’ hair.”</p> <p>Dr. E. H. Mitchell testified, corroborating the testimony of Dr. Eiley, in making the post-mortem examination.</p> <p>O. V. Bray testified: “l am the city marshal of the town of Bowie, and was during the year 1893. I made an examination of the up-stairs room, the room into which the back stairs.run up, in the Dodson Hotel, in the town of Bowie. This was sometime after Dodson moved out, sometime in ¡November or December, 1893. I found in that room a piece of iron. [The witness here exhibits a piece of iron about twelve or fourteen inches long, about two, two and one-half or three inches wide, and about three-fourths of an inch thick.] It is a part of a fish plate used to fasten the ends of the railroad rails together at the ends. When I found it, I found some hair on it at one side. They compared, as well as I could tell, very well with Jack Stallings’ hair; might have been a little lighter. The Dodson House fronts on Mason street, to the eastward. It is about 180 feet from the northeast corner of the block. There is an alley twenty feet wide that runs east and west on the north side of the Dodson House. The hotel is about 621 feet east from the southeast corner of the block. There is another alley that runs through the middle of said block from north to south. The calaboose is situated northwest of the Dodson Hotel. It (the calaboose) is in the north and south alley, and is north of the east and west alley. The block is 300 feet square. Mrs. Jarrott lived on the south side of the block, 225 feet from the south corner, and on the side next to the Fort Worth & Denver City Railroad. There were a couple of splotches on the piece of iron, which looked that they might be blood or water. I had Hillia Wilkerson in the calaboose, on the 15th day of October, 1893, on a charge of vagrancy.”</p> <p>Cross-examined: “I did not compare the hair with any hair that I knew to be Jack Stallings’. I will only say that it was about the same color, or a little lighter, from my memory of the color of Jack Stallings’ hair, having been acquainted with Jack Stallings for a long time. I remember putting Hillia Wilkerson in the calaboose; it was on the 14th or 15th of November, 1893. I do not know whether there was anybody in the calaboose on the night of the 28th of October, 1893, or not. I have no recollection about the matter. My books will show, however, whether there was anybody in the calaboose that night, as I keep a record of every person I put in there. The northeast corner of the calaboose is about eight feet from the southwest corner of the old grain house.”</p> <p>Recalled by the State: “Since being on the stand before, I have examined my books, and they do not show that anybody was put in the calaboose on October 28, 1893.”</p> <p>Mrs. Getting testified: “In ¡November, 1893,1 lived in the town of Bowie, and kept a hotel adjoining the Dodson Hotel on the south, and fronting Mason street. On the night of October 28, 1893, about 10 or II o’ clock, and after I had gone to sleep, I heard some kind of a noise that woke me up. After I had been awake awhile, I heard a pistol shot, which sounded like it was up stairs in the back room on the south side of the Dodson Hotel. The reason I know it was about that time, a boarder came in about 11 o’clock that night and engaged a bed; the next day he engaged board, and staid at my house a month. My books show that he began boarding there the 29th of October, 1893.”</p> <p>Cross-examined: “Mr. Dodson and I were competitors in the hotel business at the time, and up until the time he moved out of the hotel. I saw Hillia Wilkerson at my doors the next morning after the shot was fired, and. talked with her. It was Sunday morning. There is but one wall in the addition of my place to the Dodson House. It is a plank wall, and I was sleeping just under the southwest room, where it is said Stallings was killed, and the shot seemed to be just over my head in the southwest room of the Dodson House. There were several boarders came in my house that night.”</p> <p>W. T. Keith testified: “I lived in Bowie at the time Jack Stallings was killed. On the night of October 28, 1893, I was doing business on the west side of the block that lies directly north of the block on which the Dodson Hotel is situated. My business house fronted the west, and was seventy-five feet from the southwest-corner of the block on which it was situated. About 11 o’clock that night, and just before closing up, I walked out at the back end of my business house, and while there I heard a shot in the direction, of the Dodson Hotel. It had a muffled sound, as though it were in a house.”</p> <p>Cross-examined: “My hearing is not good at times, but was unusually clear that night. I sometimes have catarrh, and it affects my hearing. I did not have it that night. My.hearing was very good at that time.”</p> <p>Mrs. Jarrott-testified: “In the year-18931 kept a hotel in the town of Bowie. My hotel was situated on the south side of the block on which the Dodson Hotel was situated. It fronts south, next to the railroad, and was situated on the first lot west of the north and south alley. On the night of the 28th of October, 1893, I.heard a shot in the direction of the windmill, as well as I could guess. It was about 10 or 11 o’clock that night. The windmill is in the street, northeast of the Dodson House, almost opposite the Dodson House from where I lived. In the afternoon of October 28, 1893, I also saw Hillia Wilkerson. She came to my door. I know the time she came there was the 28th, because I went to the Dallas fair that week, and came home on the 26th, and it was the Saturday evening after I came home. I know the date from the fact that I got a letter from my brother to meet him at the Dallas fair on the 26th of October, and I went on the 25th, and did not see my brother, and came back home on the 27th, and the day I saw Hillia was the day after I got home, and it was Saturday.”</p> <p>Will Cates testified: “I was in the town of Bowie on the night of October 28, 1893. I was northeast of the windmill, and was on . the northeast corner of the block that lay directly east of the Dodson House. I was about seventyrfive yards from the, Dodson House. I heard a shot on that night about 10 or 11 o’clock, andas near as I could judge it was in the direction of the Dodson House. I went to bed about 9 or 10 o’ clock that night. I was lying down and reading a paper when I heard the shot, which I took to be in the direction of the Dodson House. There were several houses between my house and the Dodson House. I slept in a little house, and the south door was open. There is no house immediately between where I slept and the Dodson House.”</p> <p>Hillia Wilkerson testified: “I lived in Bowie, in Montague County, Texas, on the night of the 28th October, 1893, and was in Bowie, Montague County, Texas, and at the Dodson Hotel, kept by the defendant. I came there on the night of the 21st of said month, and had been there the rest of the week. I remember the circumstances of the killing of Jack Stallings. On Saturday night about 10 o’clock I heard a noise up stairs, and went up the inside stairway and out on the front gallery on Mason street, and went in at the east door of the southeast corner room, and opened that door and went, through the room to the door of the next room, which is the southwest corner room. There is no shutter on this door on the inside. As I came to the door I saw Jack Stallings and Dodson. Jack seemed to be starting towards the door in the direction of where I was. Defendant and Bob Leftwich and Jack were all on-their feet near the table, and as Jack took a step or two in my direction Bob Leftwich struck him from behind with something I took to be a flatiron. He seemed to hit him on the side of the head, and Jack staggered and fell back, and as he staggered he sunk down, and told me to tell his folks how this is. Bob Leftwich told me if I told it he would kill me, and if he did not live to do it, his folks would. I was badly frightened, and turned and ran to my room, and in a few minutes after I got there I heard a pistol shot that seemed to be in that room where I saw Jack knocked down, and shortly after this Mrs. Harris came into my room. I slept in that room that night, and left the Dodson House on the next Monday and went to Karr Switch, and got off and went to my sister’s, Mrs. Moberly. I staid there about a month. I saw Mrs. Getting the next morning after I saw Jack knocked down. It was Sunday morning. I had some conversation with her. I went to her door. I had never seen Jack Stallings but a time or two before. I was in the calaboose in Bowie on Sunday, about .the 15th of October. Fred Smith paid my fine. I went from the calaboose to Dodson’s, and staid there until the 17th, and went from there to the Dallas fair. The defendant had gone down a day or two before; he met me at the depot, and took me to a hotel and staid with me: I came back to Bowie on the 21st. The next day was Sunday. I went to the Pipes Hotel. On Monday, the 23rd, I went to my farm after my rent money. Mr. Pennock went with me. The money had been paid in at Bellevue, and I went there and got it and came back to Bowie, where I found my sister. She wanted me to go home with her, and I started with her and got on the train after supper, but after the train started I got off on the right-hand side and went back to the Dodson Hotel, and I staid there until the next Monday after the killing. I saw Hr. Palmer at the depot. I had got on the train, and he came up to the window and was talking to me, and gave me a note. I also saw Sam Cannon, and spoke to him as he was passing through the aisle; he stopped and talked a moment. I did not go on with my sister to her house, but got off as the train started towards Bellevue. I was put in the calaboose at Bowie on a charge of prostitution. It was the only time I was ever arrested on such a charge. I had lived for about ten years near Bellevue, in Clay County. Since the trial of Leftwich I have been married to Palmer. I saw the defendant, Bob Leftwich, Brit Bolen, and another man I did not know, in the room on the night of the 28th. Bolen and the other man were sitting down around the table, and the defendant and Leftwich and Stallings were on their feet. I did not see the defendant do anything. I first told about seeing Leftwich strike Jack to Mr. J. W. Stallings. I had been sworn before this and examined, but denied knowing anything. I was afraid to tell it, but when I saw old man Stallings, and found out he was the father of Jack, I made up my mind to tell him, and I told him one night at the Vanzant House, in Bowie. I bad been arrested a day or two before this at Belcher as an accomplice to the killing, and brought back to Bowie and examined before Squire Cook. Mr. Thomas, the attorney for the State, told the squire to dismiss my case, and I went from there to the place where I afterwards saw Mr. Stallings, and made the statement to him of what I saw. On the Saturday afternoon before the 28th I was at Mrs. Jarrott’s house, in Bowie. I went to the door after a bundle of things I thought was there. I saw Mrs. Jarrott, and spoke to her on that evening. I and Mrs. Harris went out riding; we drove a gray team; I don’t know where Mrs. Harris got it. My twin sister Hattie looks a great deal like me, and people frequently take one for the other. There were a good many people coming and going from the Dodson Hotel. It was in Montague County, Texas, that I saw Jack Stallings struck in the manner that I have detailed, and on the 28th of October, 1893.” Cross-examined: “I first went to the Dodson House about the 9th of October, and staid there until about the 17th of October. I left there about the 17th, and went to the Dallas fair. I was put in the calaboose on October 15, 1893. Mr. Dodson had gone ahead of me to Dallas. When I got to the depot at Dallas Mi'. Dodson met me; he went with me to the national Hotel. I staid in Dallas until the 22nd. On that day I came back to Bowie. I staid two nights at the national Hotel. The defendant staid with me part of the time. A man by the name of Smith was at my room at the national Hotel, and staid with me awhile. I charged him $5, which he paid. Dodson did not come with him to my room. He came alone. I had been engaged in prostitution about that time. While I was in Dallas I fell out with Mr. Dodson. It was because he took me to such a low-down place. He took me away from the national Hotel and took me to one of the most lowdown places I ever saw. He took me to aplace where there was a man and his wife living, or they said it was his wife. He took me there one morning after we left the National Hotel. The man kept a beer saloon. I did not go in the saloon and drink beer and ‘carouse’ that night. We just went to a side window of the back room of the saloon, and they handed the beer out to us. The saloonkeeper’s wife went with me to the saloon. I do not know how many glasses we drank. I slept that night at the saloonkeeper’s house, Mr. Dodson and I. I slept with the saloonkeeper and his wife. The saloonkeeper slept in the middle. Mr. Dodson slept on a cot by himself. I do not know whether the saloonkeeper spooned or not. The next morning Mr. Dodson and I had a racket, and he went off and left me there. I fell out with him for taking me to such a low-down place. That day I went to another place tliat the saloonkeeper’s wife told me about, and staid all day. The place was kept by a young white woman, and she had an old woman and a negro woman living with her. That evening I went back to the saloonkeeper’s home and staid all night there again. That was the last night I staid in Dallas. A man by the name of-came home with me. He had been to my room at the National Hotel at Dallas, and had paid me some money. He went with me to. the Pipes Hotel, known as the Travelers’Home, October 22, 1893, the night I got back from Dallas.. The next day I got a buggy and went to Bellevue to collect the rent on my farm. I got back after night. When I got home my sister, Mrs. Moberly, was there waiting for me, and wanted me to go home with her. I agreed to go home with her. She went to the Dodson Hotel, and had my trunk taken to the depot. I went with her to the depot, and when the train came we got on the train. Just before the train came I was talking to a man by the name of Corbett. Will Palmer handed me a note through the car window after I had gotten on the train. After the train started, I jumped off and went to the Dodson Hotel. After I jumped off I did not see Corbett nor Palmer, nor Mrs. Dodson, nor any of the folks that were with her, about the depot. T went back to the Dodson Hotel alone, and staid there until October 30, 1893. On that day I went to Bellevue, on the Fort Worth & Denver City Bailroad, and from there to my sister’s, Mrs. Moberly’s. Will Palmer and I had been sweethearts, and he had been intimate with me, but I did not see him or any other man that I had been intimate with after I had got off of the train on the night of the 23rd. I do not remember anybody being sick at the Dodson Hotel. Don’t remember of ever seeing Harry Wicks about there. During that week I don’t remember anybody that was there except the family and Mrs. Harris, and Bertie Beard. Mrs. Harris was there all that week, and done the cooking. I left her there when I went away. I did not sleep up stairs at the Dodson Hotel on the night of the 28th. I don’t remember ever having seen John Patchen about that hotel. l am familiar with every part of that hotel. I know the room up stairs at the head of the stairway, where it is claimed that John Patchen slept on the night of the 28th of October, 1893, and I know the room across the hall, opposite it. ' This last room was a dark room. It had no windows in it and only one door, and had rooms all around it except the side next to the hall. It was an old cobweb lumber room that nobody ever slept in. It was used to keep rubbish and old plunder in, and the wall was canvassed on the outside on the hallway, so that nobody could have seen through it. I did not pay any board at the Dodson Hotel that week. Mr. Dodson told me to tell his wife that I had paid him. I was in the calaboose on Sunday, the 15th of October, 1893. They had me in there on a charge of vagrancy. Fred Smith paid me out. I did not tell my sister, Mrs. Moberly, that I was forced to tell what I told. I was arrested, charged with the murder of Jack Stallings. Was arrested at Belcherville, fourteen miles north of Bowie, by Bud Taylor, a deputy sheriff, who was a cousin of Jack Stallings. I was sick at the time at the Antram Hotel. After they had arrested me, they carried me over to the Bilbo Hotel. The next day I was taken to Bowie, and was sworn to testify in regard to this case, and I swore that I did not know anything about it. I did not tell Mrs. Moberly that Bud Taylor, or any one else, told me on the road from Bowie to Montague, near the bridge, that that was a good place to hang a woman. That one woman had been hung near that place, and that a rope would make a woman talk. I did not tell Mrs. Moberly I was forced to tell what I did tell. She told there would have been $60 for me to have taken the other side, and I told her she knew I was in Bowie, and was telling the truth, and that she ought to tell the truth herself. That was what I told my sister. They did not try to scare me, and I did not get scared at what they said. I saw Sam Cannon on the train at Bowie on the night of October 23,1893. He spoke to me and I spoke to him, and he passed on. I did not talk to him all the way from Bowie to Bellevue. I would not have talked with such a man. I was well acquainted with him, and did not consider him a nice gentleman, nor a man fit for a girl to talk to or associate with. The saloonkeeper that I slept with two nights in Dallas conducted himself in a nice and gentlemanly way. Mr. Dodson did also the night he slept with me. At the time I made my first statement in regard to this, I don’t think Will Palmer had been arrested for the murder of Jack Stallings. He was arrested immediately afterwards. Will Palmer had been intimate with me before that time, and I have since married him, and I am now living with him as my husband.”</p> <p>Redirect: “I first told about this to "Mr. Stallings, the father of Jack Stallings. Mr. Thomas had told the justice of the peace, before that time, to have me discharged.”</p> <p>Recross: “At the time I made this confession I was still under arrest. Bud Taylor had me in charge. It was at a beer joint on Smythe street. I had been drinking some beer. I had a dram of whisky this morning just before I went on the witness stand. Jack Stallings’ father gave it to me. He also gave me a dram just before I went on the stand in the Leftwich case. At the time I saw BobLeftwich hit Jack Stallings, the defendant did not say or do anything, nor did old Brit Bolen, nor any of the men who were in the room at the time, say or do anything either.”</p> <p>Scott Johnson testified: “I was in Bowie in the morning of Tuesday or Wednesday following the time when Jack Stallings was missing on Saturday. I saw the defendant and Bob Leftwich there. They were in the southwest corner room of the Dodson House, the room that was entered by way of the back stairs. There was a game of poker played there. There were several in the house. Somebody said that Jack Stallings was missing, and had been missing since Saturday. I said I saw Jack Stallings to-day talking with a girl, and she was crying. The defendant said, ‘I guess not. His folks have been telegraphing everywhere about him.’ ”</p> <p>Cross-examined: “I might have told W. S. Jameson or John P. Slaton, attorneys for the defendant, on the evening that I came to this court, that this talk I had was with Bob Leftwich, and that the defendant said nothing about it. I remember to have seen them and had a conversation with them, and I do not now undertake to say that the defendant said anything in said conversation. The conversation was general. I merely state the substance of the conversation, but do not undertake to say what any particular person said. It has been a long time since, and I have thought nothing particular about it until lately, since I have been summoned in this case. I was honest in what I said about seeing Jack Stallings, but was mistaken. I learned afterwards that it was his brother.”</p> <p>W. A. Stephens testified: “I live in Gainesville, Cook County. I lived in Bowie during the year 1893, and was in the laundry business. I was in that business when Jack Stallings was missing and when he was found. I was doing washing for the Dodson Hotel at that time. About that time I received some bloody towels from the Dodson Hotel. I am not certain as to the time.”</p> <p>Cross-examined: “It might have been before or it might have been after Jack Stallings was missing. I could not undertake to be certain about it. I had gotten bloody clothes from the Dodson House before that time. It is not an unusual thing to get bloody clothes at a laundry. The clothes are frequently received in that condition. The bloody towels that I speak of were rolled up, and that is what attracted my attention to them.”</p> <p>J. S. McBride testified: “I live in the town of Bowie, and lived there in 1893, at the time Jack Stallings was missing. I lived in the southwest part of Bowie, and lived about three or four hundred yards from where Jack Stallings was found. On the night of October 28, 1893, about 10 or 11 o’clock, and while I was at home, I heard a pistol shot in the direction of where Jack Stallings was afterwards found.”</p> <p>Birdie McBride testified: “I boarded at the Dodson House awhile in October, 1893. I came there on Sunday, the 14th, and left there on Friday, the 27th of October, and was there all the time between those days. I knew Mrs. Harris. She was cooking there when I went there. She left there about the 21st, or the next Saturday after I got there. She said her little boy at Wichita Falls was sick, and she was-going to see him. I never saw her there any more. If she was ever there any more I did not see her nor hear of her. Hillia Wilkerson was also at the Dodson House when I went there. I remember when she went away, about the time Mr. Dodson went to the Dallas fair. This was in the early part of the next week after I went there—a few days before Mrs. Harris left. I never saw her again but one time. She was never back at the Dodson House again when I was there, or, if she was I did not know anything about it. I am certain I never saw her there any more. I never saw her but one time after Dodson went to Dallas to the fair. I then saw her at the depot on the night of October 23, 1893. She was then with her sister, Mrs. Moberly. She took the excursion [no such word used] that passes through Bowie, on the night of the 23rd, going west in the direction of Bellevue. The way I came to see her, Mrs. Dodson, the wife of the defendant, and Eoena Bindley, stepdaughter of defendant, and Mrs. Hayney, an old lady who is an aunt of Mrs. Dodson, and myself, all of whom staid at the Dodson Hotel, had gone from the Dodson Hotel to meet Mr. Dodson, who was expected to come back on that train from the Dallas fair. Mr. Dodson did not come on that train, as we expected. I was in company with them when they went to the depot. We staid there until the train had moved out. We saw Hillia Wilkerson and her sister get on the train, and after they were in the train. We then went back all together to the Dodson House. Hillia Wilkerson did not fall in company with us going back, nor did I ever see her again at the Dodson Hotel. I staid then at the Dodson House until Friday, the 27th of October, 1893. On that day I left the Dodson House, and went to live with Mrs. Worley, and I lived with Mrs. Worley continuously up until the time I married. Mrs. Worley is a sister of Jack Stallings, the deceased.”</p> <p>J. F. Elliott testified: “I am a practicing physician, and live at Bowie. I have resided there for many years. I was practicing medicine there in the fall of 1893, and was called to see a gentleman sick at the Dodson Hotel, by the name of Harry Wicks. He was sick when I visited him. I found him at the Dodson Hotel, in the southeast corner room, up stairs. The way I got up stairs, I went up the front stairway from the street, and went out on the front gallery, and entered the room in which he was sick, from the gallery, fronting east on Mason street. I examined the patient and prescribed for him. I don’t remember how often I visited him. I only have a distinct remembrance of having visited him once. Don’t have the distinct remembrance of the date.” Witness here being shown a prescription bearing date October 26, 1893, says: “I wrote that prescription, and from the date on it I am willing to say the date is correct, and that I visited him on that day. It was not in the day-time that I visited him. I can not say what time of night it was, but think it was in the early part of the night. The reason that I know that it was after night, I remember that he asked me to write a letter for him to his folks in Hew York, and I sat down by a little table in his room, and wrote the letter by lamp light. I am unable to say how long he was sick, or when I first saw him after I last visited him. He was quite sick. About a week or ten days after I had seen him in the sick room, I saw hi in up town on the streets, and he paid me my bill. I made no memorandum of my charges on my book, and have nothing to refer to, to refresh myself about dates. The reason that I made no memorandum of it was because he was a stranger and appeared to be a transient man, and I did not have much expectation of getting pay for my services. The way I estimate the time he paid me the money, after the time I had visited him in his sick room is, that I remember that when he paid me, I estimated that it had been about long enough since I wrote the letter for him to receive an answer from Hew York.”</p> <p>George O. Slaughter testified: “I am prescription clerk for Foreman & Greer, druggists, at Bowie, Texas, and was so acting during the year 1893.” Witness here being shown prescription dated October 26,1893, says: “This prescription was given by Dr. Elliott for Harry Wicks, and was filled on the date it bears.” Witness being shown another prescription, which bore no date, says: “This prescription was also given by Dr. Elliott for Harry Wicks, but the number it bears shows it was given after the other one.”</p> <p>Brit.Bolen testifies: “I was in Bowie on the night of October 28, 1893. I staid at the Pipes Hotel, what was called the Travelers’ Home. I went to bed at my usual time, about 8 o’clock; was some 150 yards from the Dodson Hotel. After I went to bed I remained in bed all night, and was not at the Dodson Hotel that night, and did not see the defendant or Bob Leftwich or Hillia Wilkerson on that night. Hor was I in the room, where it is claimed by the State that Jack Stallings was knocked down, when Jack Stallings was there.”</p> <p>Cross-examined: “I have been in that room. I have been arrested on an indictment for the killing of Jack Stallings, and the case has been dismissed at this term of court. I did not want it dismissed, and my attorney objected to my case being dismissed. I told my father before I came over here that I did not think there would be any trial in my case, as I thought it would be dismissed.”</p> <p>Sam Cannon testified: “I was on the train that went up from Fort Worth to Wichita Falls on the night of October 23, 1893, and was on the train as it passed Bowie and Bellevue. When the train stopped at Bowie, the witness Hillia Wilkerson, in company with another woman, got on the train. Hillia told me that the other lady was her sister. I talked with Hillia until the train got to Bellevue, and saw her get off at Bellevue. Her and her sister got off, and I saw her no more. Hillia Wilkerson did not get off the train at Bowie. I know she did not, because I remember distinctly that I talked with her on the train all the way from Bowie to Bellevue, and saw her get off at Bellevue.”</p> <p>Cross-examined: “I am in the produce business at Wichita Falls. I have been in jail on a charge of gambling. Was in jail only a short time—long enough to get a friend to go on my bond, and when I was tried I was acquitted of the charge. I never talked to anybody about this case until I was attached in the Leftwich case. I had never known Leftwich, or any of his friends, or any of his kinfolks, until I was brought to court by attachment.”</p> <p>Tom Sweazer testified: “lama farmer, and reside in Clay County, and have lived there for ten years. Live near Bellevue. I went to Henrietta on the train from Bellevue—on the passenger train—October 30, 1893. There is a platform above Bellevue a few miles, called the Karr platform, where passengers sometimes get on and off. I know Hillia Wilkerson, and have known her several years. I first saw her and her sister, Hattie Miller, standing on said platform, before the train reached the platform. The train stopped at the platform and Hattie Miller got on, and Hillia Wilkerson remained on the platform, and the train passed on. I know it was on the 30th of October, 1893, because I was going to Henrietta on a business transaction, and I know the day I went to transact that business. I am but slightly acquainted with Bob Leftwich. Am not acquainted with Dodson, the defendant. I never knew anything about him until I was attached in this case.”</p> <p>J. M. McCray testified: “I live in Clay County, near J. E. Moberly. Have lived there for many years. Am a farmer. Have known Hillia Wilkerson five or six years. I saw her in the evening, somewhere between 3 and 4 o’clock, on October 28, 1893. I saw her at her brother-in-law’s, Mr. Moberly’s. I went after some old wagon tires to use in building a chimney. I had some trouble in getting them. One of the tires was in an old well, and I had trouble in getting it out. I got tired and thirsty, and went to the house to get a drink of water. I saw Hillia Wilkerson and her sister, Hattie Miller, both there that day. I know both of them well. If the excursion to Fort Worth was on the 23rd of October, then the time I speak of when I was at Moberly’s after the old tires was October 28th. My son went to Fort Worth on that excursion.”</p> <p>J. H. Majors testified: “I live at Bellevue. I am a farmer and land agent. My principal business is farming. I have known Hillia Wilkerson for several years. I saw her on Sunday, in the latter part of October, 1893. I could not be certain as to the date. I am pretty well satisfied in my own mind that it was on October 29,1893. It was not the next Sunday after that, for on that Sunday I was at home all day. Had some neighbors visiting us, and know it was not on the first Sunday in November. I know Hillia Wilkerson and Hattie Miller apart. Know them well. I also saw Mrs. Moberly there that day. They were all three there that day, and Mr. Moberly, too. It was about 12 o’clock when I left there, probably awhile before 12, for I did not take dinner there. I remember that after I left there I drove south in the direction of the school house, and met several parties coming from church, and that I met Remos Graves, and stopped and talked with him. I. remember distinctly that the time I met that crowd and talked with them was the same day I talked to Hillia Wilkerson, and after I had left Moberly’s. And I know it was bn Sunday. The object of my visit to Moberly was to see Hillia Wilkerson, because I was a land agent, and I had heard that she had a piece of land she wanted to sell, and that is the reason I wanted to see her in order to get the agency for the sale of her land. I have no acquaintance with the defendant or any of his folks, nor knew anything about him until I was attached in this case.”</p> <p>Remos Graves testified: “I live near Bellevue, in Clay County, Texas. Am a farmer, and have lived there several years. I remember the day I met Mr. Majors and talked with him in the lane south of Moberly’s field. I had been to church, and met him on my way from church. It was the 29th day of October.”</p> <p>J. E. Moberly testified: lil live in Clay County, Texas. Am a farmer. Live a few miles west of Bellevue. I live about a mile and a half from Karr Switch platform. I have lived there several years. Mrs. Blanche Moberly is my wife. Hillia Wilkerson and Hattie Miller are sisters. I know where they were during the latter part of October, 1893, in company with my wife. This was Monday night. I met them at the depot and carried them home. She staid there all the time for about a month. She was there all the week following on October 23rd. She was there on October 28th, Saturday. That is, she was there to my knowledge when I left home in the morning, and she was there when I came back. I went to Port Worth on the train that day, and came back late at night. She was there when I came back late that night. They made a light, and prepared my supper. She slept that night with her sister. Hattie Miller was there in bed with her when I got home. She was there the next morning, the 29th of October, which was Sunday. Mr. Majors came there that day to see Hillia Wilkerson to get the sale of her land. She was there on the morning of the 30th of October, 1893. Her and her sister Hattie that day walked from my house to the Karr platform. I saw them start. Hattie Miller was going for the purpose, as she expressed it, of taking the up train on the Port Worth & Denver City Railroad, and Hillia went along to accompany her. Hillia was to come back from the platfrom after Hattie took the train. After they had been gone awhile, my wife suggested that it was a long trip for Hillia to the platform and back, and that I take a horse and meet her. I accordingly got a horse and went in the direction of the platform, and met her coming back. She had gotten but a little way from the platform on her way back when I met her. I got down and walked, and she rode my horse back home. I never was acquainted with defendant until this case came up, and I have no interest in this case except to tell the truth about what I know.”</p> <p>Blanche Moberly testified: “lam the wife of J. B. Moberly. My husband is a farmer. We live near Bellevue, Clay County, Texas, and. have been living there five or six years. On the 23rd day of October, 1893,1 went from Bellevue to Bowie on the train. I went after Hillia. When I got to Bowie, I went to the Dodson House and asked Mrs. Dodson about her. She was not there. I then went to the Pipes Hotel, and found that she had been staying there. I waited at the Pipes Hotel until Hillia came in that evening. Her trunk was at the Dodson Hotel. After she came in at the Pipes Hotel, I went over to the Dodson House and got a man to take her trunk over to the depot. The train was late. We had to wait some time at the depot for the train. When the train came she and I got on it, and took adjoining seats, and went to Bellevue, where we got off of the train. Hillia did not get off of the train that night until she reached Bellevue. Hillia talked all the way from Bowie to Bellevue with a gentleman who was on the train. Hillia said his name was Sam Cannon, and that he lived at Wichita Falls. He was a stranger to me. I had never seen him before. My husband met Hillia and I at Bellevue, and took us out to our home. She staid at my house for about a month. Hillia staid at my house all that week, and was there on the night of October 28, 1893. On the night of the 28th my husband went to Fort Worth, and came back late at night. Hillia and Hattie slept together that night in the same room that I slept in; the room that Mr. Moberly occupied when he came back from Fort Worth. On the day that my husband went to Fort Worth, Mr. McCray came to my house to get some wagon tires to use about his chimney. On the 29th, which was Sunday, Mr. Majors, the land agent, came there to see Hillia to try to get the agency to sell her land, and saw her and talked with her. On the 30th, which was Monday, Hillia and Hattie went to the Karr switch on foot, and Hillia was going along to accompany Hattie to the Karr switch, and was coming back. Hattie was going to take the train at the Karr platform to Wichita Falls, and Hillia was coming back from the platform. After they had gone awhile, I asked Mr. Moberly to get on a horse and go and meet Hillia, so that she would not have such a tiresome long walk on her way back to our bouse. He did as I requested. He came back with Hillia. He was walking and she was riding his horse. Hillia staid there until November 27, 1893. I have talked to Hillia several times since the trial of Bob Leftwich. She don’t pretend, when she is with me alone, that she was at Bowie on the 28th of October, or that she told the truth about the circumstances. She claims that she was forced to tell this story, and that she would have to stick to it. She says she was scared when she told the story, and that she was afraid to change it and tell the truth. She has never made any pretense to me, whatever, that she has told the truth; she knows that I know better. I never did tell her that there was money in it for her to tell it differently. I never thought of such a thing. I know the story she had told was untrue, and all I said was that she should tell the truth about it, and I have always told her that. She said that she had been threatened and that she was afraid to do otherwise than the way she had done. She said that one time as she came to Montague when Bud Taylor was with her, about the place where the bridge is, between Montague and Bowie, she was told that that would be a good place to hang a woman, that there had been one woman hung there, and that a rope was what would make a woman talk. Hillia was going along to accompany Hattie to the Karr switch. Hattie was going to take the train to Wichita Falls; Hillia was coming back. After they had gone awhile I got Mr. Moberly to get a horse and meet her so she would not have such a walk back; he came back with her, he walking, she riding. Hillia staid there until ^November 27,1893. I have talked to Hillia several times since the trial of Bob Leftwich. She does not pretend with me that she was at Bowie. I told her to tell the truth. She claims that she was forced to tell this story, and would have to stick to it. She said she was scared when she told the story. She knows I know she is not telling the truth. She told me that .one time when she was going to Montague that Bud Taylor told her near the bridge that that would be a good place to hang a woman, that there had been a woman hanged there,, and that a rope would make a woman talk.”</p> <p>Cross-examined: “I heard of Hillia being arrested a day or two after the arrest. I did not try to get her to take the other- side of this question. I have always told her to tell the truth. I have never been offered any money to testify in this case.” .</p> <p>Jack Patching testified: “I live in Clay County. I have lived in Clay and Montague seventeen years. • I was in Bowie on the night of October 28, 1893, and slept at the Dodson Hotel that night. I first went to the Dodson Hotel between 12 and 2 o’clock, to get a bed. I went from over on Smythe street to the Dodson Hotel. I went east along Wise street on the south side of said street until I got to Joe Lewis’ blacksmith shop; then I turned in south, in behind Joe Lewis’ blacksmith shop, and south of the grain, store and across to the front of the Dodson Hotel, over on Mason street. I went in the Dodson Hotel, made a racket, and stamped on the floor, but could not raise any one at the hotel. As I went there I saw some parties near the calaboose. Looked like two or three men carrying off a drunken man. I did not pay much attention to them, and did not know any of the parties. When I went to the hotel I stamped on the floor and made considerable racket, but did not seem to attract any one’s attention, as no one came out. I then went-back on Smythe street and staid ten or fifteen minutes. Then I afterwards went back to the Dodson Hotel. As I went back I went by the calaboose. I sat down there on a couple of planks that were on an old wagon, a half or three-quarters of an hoar. I then went on the Dodson House again, and made a racket, and the defendant came out in his night clothes, and I called for a bed. He struck a light and took me up stairs, and gave me a bed in the first room at the head of the stairs on the north side of the hallway. The door opens from the right at the head of the stairway into the room which I slept in. I staid there until about peep of day. I woke up, and got up, and went down stairs. I then went back up stairs and lay down again, and I heard a peculiar kind of a noise that attracted my attention in the room just opposite mine, on the other side of the hall. I got up and slipped across the hall, and saw a man and a woman" on the bed. The bed was about the middle of the room. I watched them through a crack between the plank on the hallway wall of the room. After they finished up their performance, I went back in my room and laid down, and in a little while I heard the door open, and I watched and saw a woman come out of that room and go down the stairs. She had on a green or blue checked dress. I have seen the woman since; it was Hillia Wilkerson. I spoke to Mr. Dodson about seeing her there, and what I saw. He answered me that he did not allow anything of that kind to go on there. Ho, I am not mistaken. He said it was the governess playing with the children. It was sixty or seventy-five yards from where I was to where I saw the parties carrying a man.”</p> <p>Cross-examined: “I did not tell before about peeping through the crack, when I testified in the Leftwich case. Heither did I tell in said trial about stopping, on my second trip to the Dodson House, at the calaboose, and sitting on the wagon a half or three-quarters of an hour. I was not asked about these matters. When Red Dodson came out he was in his night clothes. I staid in Montague County until Wednesday following the missing of Jack Stallings. Then I left Bowie and went to Bast Texas, and never came back any more until the sheriff followed me and brought me back. I never told what I knew in regard to this case until then. I told it to the sheriff. As I went to the Dodson Hotel the first time, I went between the calaboose and the grain house.”</p> <p>Mrs. Dodson testified: “I am the wife of Mr. Dodson. We kept hotel in Bowie in October, 1893. On the night of the 28th of October, 1893, Mr. Dodson and I went to bed about 8 or 9 o’clock. Mr. Dodson was not up after he went to bed. If he had gotten up he would have woke me, as I am very easily awakened. I did not hear any shot or any noise about the house that night. I never saw the witness Patching about the hotel. He did not stay there on the night of the 28th. I slept on the north side of the house, downstairs, next to the front room. There could not have been shots fired there that night without my hearing them. Mrs. Harris was not there that night; neither was Hillia Wilkerson. About the 21st Mrs. Harris went to Wichita Balls; said her little boy was sick. She never came back any more until the week after Jack Stallings was missing. Hillia Wilkerson left my house about the 17th of October, and I did not know where she went to. She left her trunk there. She never came back to my house any more. The next I saw of her was Sunday night, October 22, 1893. I saw a woman get off the train and go in the direction of the Pipes Hotel, known as the Travelers’ Home, whom I took to be Hillia. On the next day, the 23rd, Mrs. Moberly, her sister, came to my house, inquiring for Hillia, and I told her where I saw the woman go. The way I come to see her get off, I had gone to the depot to see if Mr. Dodson wouldn’t come in on a train from the Dallas fair. I went to the train on the 23rd, at night, to meet the excursion, thinking that Mr. Dodson would be on it. I was in company with Mrs. Haney, my aunt, my little daughter Boena, and Birdie Beard. Went from the Dodson Hotel to meet Mr. Dodson. While there I saw Hillia and her sister, Mrs. Moberly, at the depot. I also saw them get on the train when the excursion arrived, and they were on it when it started. I never saw Hillia Wilkerson afterwards for more than a month. It is not true that either Hillia Wilkerson or Mrs. Harris was at my house any time between the 21st day of October, 1893, and the 30th day of said month. Mrs. Harris did not cook for me that week, or any part of that week. When Mrs. Harris left on the 21st Harry Wicks took her place, and cooked a few days and got sick, and was confined to his room for six or eight days. His room was the southeast corner room, up stairs. Dan Fisher occupied it with him. He was sick in that room on the night of October 28, 1893. Mrs. Haney and my little daughter Boena occupied the middle room on the front, on Mason street, that night. Will Tribble and Jim Brooks occupied the back room on the middle row, up stairs, that night. They usually went to bed about 8 or 9 o’clock. Went to bed early and got up early. They did not board with me—only had a room and slept up there, and worked at the saloon restaurant on Smytbe street. I do not know where they are now. They have left Bowie, and I can not find where they are at. Me and my husband have made inquiry. John Pearson occupied the back room up stairs on the north side as a bedroom. It is the room which the back stairway on the outside leads into. The stairway is on the outside of the house, and comes down from the southwest corner of the room to the westward, as shown on the plat. The north side was occupied by Corbett, and the room at the head of the stairs on the north was occupied by-. The' front room on the northeast corner, up stairs, was unoccupied. It had been occupied by Birdie Beard, but was vacated on the 27th of October, 1893. The room opposite to the room that Mr. Patching claims to have occupied was not occupied by any one. It could not be occupied with any comfort. It was a dark room; was surrounded on three sides by other bedrooms; had no ventilation; rooms were all tight walls, and it had no opening except the door that opened out into the hallway, and when it was shut, the room was as dark as a dungeon. It was canvassed and papered in the hallway. It was never used for any purpose except for an old lumber room. Nobody had ever occupied it as a sleeping apartment or for any other purposes. The stains referred to, on the floor, I know all about! They were caused by Indian peaches that were spread out in that room. I put the peaches out on a chicken coop at the back of the house to dry, and it came up a rain and I had to move them into the house. They were very ripe and juicy, and stained the floor. We moved them in the room at the head of the back stairs—the room that the State claims Jack Stallings was killed in.”</p> <p>Cross-examined: “My name was Latón before I married Mr. Dodson. My husband died on the- of February, 1893. I married Mr. Dodson on the- day of May, 1893. The room that the back stairs lead to was occupied by John Pearson as a bedroom. If there was any card playing in that room, I never knew anything about it. The peaches I speak of were put out on the chicken coop. The coop was made of a large box. The peaches were cut up and pealed of a night, and carried out the next morning and put out to dry. They were ripe and very juicy when I spread them out. They were put out there in July or August, as well as I can remember. Before the peaches were put out to dry there was a large waiter covered with them, and the peaches were piled up on the waiter as high as I could pile them. The chicken coop was a large goods box, and I put a cloth on it and spread the peaches on the cloth. There was not room enough to spread them out nicely on the coop, but after they were spread there were still some piled on top of one another.” [Witness being asked if she did not say on a former trial that the peaches were on a veranda, said, that she had stated that part of them were on the veranda and part on the chicken coop. Being further asked what she meant by veranda, she said, that she meant the platform at the head of the back stairs, outside of the back door. Witness being then asked if she did not say that they were on the front gallery, on the trial of the Leftwich case, said she did not, but said that she did dry peaches on the front gallery up stairs during the summer of 1893.]</p> <p>Redirect: Witness stated at the January Term of this court, 1894, while Bob Leftwich was on trial, that Mr. Templeton, the attorney for Leftwich, in company with Mr. Baker, then county attorney, came to her hotel, and by her permission went to the room in which the State claimed Jack Stallings to have been killed, and sawed out a large section of the floor of said room—a piece about three feet square—embracing portions of the floor on which the State claims there was blood, and brought the same to Montague to be used in evidence in the Leftwich trial. Defendant’s counsel here produced said section of said floor and offered it in evidence, which was identified by the witness, and admitted by the State’s counsel to be the same section of the floor which was used in evidence on the trial of the Leftwich case, and that the same had been in the custody of the district clerk ever since the trial of the Leftwich case. Witness being further recross-examined, being asked if there were not some stains on the upper steps at the back stairway, replied, that there were some peaches on the platform at the head of the stairway and some on the top steps, and that while the peaches were in the house during the wet weather the children ran up and down the back stairs with peaches from that room, and might have dropped some in going up and down the stairs and tread on them.</p> <p>Jud Sides testified: “My name is Judson Sides. I keep a restaurant in Wichita Falls. I kept a restaurant there during the fall of 1893. I am acquainted with Mrs. Harris, and was at that time. Her little boy, Jack Johnson, worked for me in the restaurant. The little boy got sick about the 20th of October, 1893. I wrote her word that he was sick, and she came to see him immediately, and got there about the 21st or 22nd. She remained there, to the best of my knowledge, constantly from that time until October 30, 1893. Did not see her every hour, but called every day, sometimes two or three times a day, where the little boy was sick, and always found her there. I gave her orders at various times during the week for medicines for the little boy, and she took the orders to the drugstore and got medicine for him. I gave her one order on October 26th, one on the 27th, and one on the 30th of October, 1893. The little boy first got up on Sunday. I don’t think Mrs. Harris was away during all that time. I think if she had been away I would have known it. I can be certain she was not absent from Wichita Falls a day or two at a time during that period. I first saw the little boy up on Sunday morning, the 29th of October, 1893. He was in company with his mother walking down the street to the restaurant to get his breakfast.”</p> <p>Dan Fisher testified: “ I boarded at the Dodson Hotel, in October, 1893, and also roomed there. I staid there from the time I went there until after the time Jack Stallings was found. My room was the southeast corner room, and joined the room in which it is claimed that Jack Stallings was killed. There was only a thin partition wall between that room and the room I was in. There is also a door between the two rooms. I was occupying that room on the night of October 28, 1893, and sleeping with a man by the name of Morgan. Harry Wicks was also sick, and was occupying that room with us. There were two beds in the room, and Harry Wicks slept by himself. I do not know what time I went to bed that night. I went to bed between 9 and 10 o’clock, unless I staid out at the oil mill that night to try and get a night job of work. Ingoing to the room where Jack Stallings was said to have been killed, by way of the front stairway, one would have to go up stairs in the hallway, thence out on the gallery on Mason street, then pass through the room in which I slept. Ho one passed through my room on that night after I went to bed. If so I knew nothing of it. To the best of my recollection, I went to bed at my usual hour, between 9 and 10 o’clock, on that night. I heard no disturbance in that room where Stallings is said to have been killed. There was no shot fired in that room while I was there. Hillia Wilkerson was there two or three days about the time when I first went there. I knew her only by sight. I went to Dodson’s about the middle of October, 1893. Hillia Wilkerson was there a day or two after I went there. Then she left, and I never saw her there afterwards.”</p> <p>J. W. Baines testified: “I am deputy sheriff at Bowie. Have lived at Bowie several years. I am well acquainted with the Dodson Hotel. I know the room at the head of the stairway where Jack Patching claimed to have slept on the night of October 28, 1893. Am also well acquainted with the room opposite to that room. It is a dark room, and is closely canvassed and papered, and it would be impossible for said Patching to have seen in the said room at that time unless the door had been open.”</p>

Appellant and Tom Casteele were indicted jointly for the murder of Ann Beberly, alias Ann Belville. The case was dismissed as to Tom Casteele, and appellant was convicted of murder of the second degree, with punishment assessed at twenty years’ imprisonment in the penitentiary.

<p>1. Perjury—Materially of Assignment for.—On a prosecution for perjury, charged to have been committed hy defendant in the trial of a civil suit instituted hy one S. against one E. for half the commissions on the sale of a tract of land by E. to defendant; and in which the assignment for perjury was, that defendant as a witness in said suit testified, “that he did not tell E., on the morning of said sale, that S. had said to him (defendant), ‘he had washed his hands of the entire matter.’ ” Held, that the statement was not of sufficient materiality upon which to assign perjury, because, if made hy defendant, it would neither have absolved E. from liability to S. nor have affected S.’s right of recovery in the civil suit.</p> <p>2. Same.—On a prosecution for perjury, charged to have been committed hy defendant on the trial of a civil suit instituted by one S. against one E. for half the commissions on a sale of land by E. to defendant, in which the assignment for perjury was, that defendant in said suit, as a witness, testified, that on the evening of the day of said sale E. did not say to him, “that he would not have anything to do with what S. had said and done in reference to the sale of the land to him (defendant), and that if he was not willing to buy the land independent and regardless of what S. had said and done in reference to the sale and purchase, that he (defendant) could go away, and let the matter alone.” Held, that said statement was not of sufficient materiality upon which to support an assignment for perjury, because nothing that E. might have said to S. could aifect the rights of S. to a recovery in the civil suit.</p>

<p>Original Application for habeas corpus to the Court of Criminal Appeals.</p> <p>The facts are stated in the opinion.</p>

Tried below before Hon. J. E. Dillard. This is an appeal from a refusal of bail after an indictment for murder. The facts are sufficiently stated in the opinion.

Tried below before Hon. W. M. Allison. This appeal is from a conviction for betting at a gaming table and bank known as a pool table, the punishment being assessed at a fine of $10. Ho statement necessary.

E., W. Terhune. This appeal is from a conviction for burglary, the punishment being assessed at two years’ imprisonment in the penitentiary. All the parties to this transaction, were, negroes. Amanda Isom testified, that she lived in a two-room frame house, which she rented, occupied, and had in possession. The rooms were separated by a partition with a door in it. Each room had a door and two windows leading to the outside.

Appellant was indicted- for, the murder of one Tom Daves. At his trial he. was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.., The opinion of the court sufficiently states the material evidence in the case, and no further statement .is deemed necessary.

<p>The opinion states the case.</p>

Tried below before Hon. J. W. Patterson. M. V. Phipps was convicted of murder in the second degree, and punishment assessed at five years in the penitentiary. This is a companion case to Tom Phipps v. The State, ante, p. 560. The facts in that case are substantially the same as in this, and the opinion in that case states substantially all the material facts.

Tried below before Hon. Rufus Hardy. This appeal is from a conviction for rape, the punishment being assessed at twenty years’ imprisonment in the penitentiary. A very brief but clear statement of the case will be found in the latter part of the opinion of the court below.

Tried below before Hon. Rufus Hardy. This conviction is for an assault with intent to murder, the punishment being assessed at a term of four years in the penitentiary. The facts are concisely stated in the latter clause of the opinion.

Tried below before the Hon. Felix J. Hart, County Judge. This appeal is from a conviction for simple assault, the punishment assessed being a fine of $5. Ho statement necessary.

Tried below before Hon. ■ B. D. McClellan. Appellant was indicted for incest with his daughter, Lucinda Clements, and at the trial was convicted, with punishment assessed at ten years in the penitentiary. The prosecutrix, Lucinda Clements, testified to her father’s efforts to have carnal intercourse with her for several years before he accomplished his purpose.

<p>The case is fully stated in the opinion.</p>

<p>The opinion states the case.</p>

<p>1. Special Venire—Amendment of Return.—It is allowable for the court to permit the officer’s return, on a special venire to be amended.</p> <p>2. Same—Contest Over the Return.—Where, on a contest over the amended return of a special venire, evidence was adduced which showed that neither the sheriff nor his deputies, who were present, summoned the veniremen, but that they were summoned by other deputies, who made the report to the sheriff, Held, that such character of service was allowable, and no error is shown, it appearing that defendant did not exhaust his challenges, and that he was not forced to take an objectionable juror. Following Williams v. The State, 29 Texas Criminal Appeals, 89.</p> <p>3. Same—Statutes Directory.—The provisions of the statutes relating to the summoning of a special venire are directory, and a failure to conform to them is not reversible error unless injury to the defendant be shown.</p> <p>4. Charge of Court—Reasonable Doubt—Refused Instruction.—On a trial for murder, where the court charged the reasonable doubt as between the degrees, and further instructed the jury to acquit, if they did not believe beyond a reasonable doubt that defendant was guilty, Held, it was not error to refuse a request to charge “ reasonable doubt ” upon every phase of the defense.</p> <p>5. Murder—Charge—Self-Defense—Antecedent Threats and Malice.—On a trial for murder, where the court in its charge on self-defense instructed the jury, that if defendant was not engaged in mutual combat with deceased, but deceased made the first attack upon him, or did any act from which defendant might reasonably infer or believe that his life was in danger, or that he was in danger of serious bodily injury, he was authorized to slay the deceased, Held, sufficient, and that it was not error to refuse a requested instruction, to the effect, that antecedent malice or threats on the part of defendant towards deceased would not deprive him, of his right of self-defense.</p> <p>6. Same—Charge—Manslaughter.—On a trial for murder, where the evidence in the case presents only two theories, murder or self-defense, it is not error to refuse to charge upon manslaughter.</p>

This appeal is from a conviction for hog theft, the punishment being assessed at imprisonment for two years in the penitentiary. The indictment simply alleged the theft of a hog in general terms, without alleging any “value,” and was brought under the Act of March 15, 1893, which makes hog theft a felony per se without reference to value.

Tried below before Hon. W. M. Allison. Appellant was convicted of hog-theft, and his punishment assessed at confinement in the penitentiary for two years.

Tried below before Hon. C. H. Willingham, County Judge. This appeal is from a conviction for unlawfully permitting cards to be played in a public house under control of appellant, to wit, an outhouse, where people resorted for the purpose of gaming, the punishment being assessed at a fine of $25. Ho statement necessary.

Tried below before Hon. S. F. Grimes. Appellant was convicted of horse-theft, and his punishment assessed at nine years in the penitentiary.

<p>1. Evidence Not in Rebuttal Admitted Before Argument—Practice.— Where an indictment charged the surname of the injured party to he Daniels, and the evidence showed his surname to be Daniel, Meld, that the court did not err in permitting the prosecution to prove, after defendant had closed his testimony, but before the argument was begun, that the injured party was generally called “Daniels,” though such testimony was not in rebuttal to any evidence offered by defendant.</p> <p>2. Robbery—Constituents of—Refused Instruction.—Robbery maybe committed by assault or violence, as well as by putting in fear of life or serious bodily injury. Penal Code, art. 722. And where the evidence shows only an assault or violence, it is not error to refuse a requested instruction to acquit, unless the jury found beyond a reasonable doubt that the injured party was put in fear of death or serious bodily injury.</p>

<p>The case is stated in the opinion.</p>

<p>Appeal from the County Court of Coke. Tried below before Hon. D. T. Averitt.</p> <p>This is an appeal from a conviction of playing cards in an outhouse, the punishment being assessed at a fine of $17.50.</p> <p>Ho statement necessary.</p>