Volume 35 — Texas Criminal Reports

This is an appeal from a conviction for disturbance of religious worship, the punishment assessed being a fine of $25. No statement of the case necessary.

<p>1. Manslaughter—Provoking a Difficulty—Self-Defense.</p> <p>There is no question that one may speak, in a quiet and peaceable manner, to another about derogatory charges or statements made and circulated by such other person against him without intending or even desiring to provoke a difficulty; and, knowing such other person is armed, he may also arm himself, where his intention is not to provoke a difficulty or produce an occasion for injuring the other, but to protect himself, if necessary, in self-defense. And if, under such circumstances, his adversary not only persists in his insulting and derogatory charges, but makes a violent assault upon him in which he kills his assailant, he cannot be held guilty of any crime.</p> <p>2. Same.</p> <p>In order to affect a forfeiture of the right of self-defense upon the ground that the defendant provoked the difficulty, he must knowingly and willingly have used the language or done the acts reasonably calculated to lead to an'affray or deadly conflict ; and unless his acts and conduct were clearly intended to have such effect, his right of self-defense is not compromitted by the fact that he armed himself before seeking the interview which resulted in the homicide.</p> <p>3. Manslaughter—Evidence.</p> <p>See evidence held insufficient to support a judgment of conviction for manslaughter.</p>

<p>This appeal is from a conviction for aggravated assault and battery, wherein the punishment was affixed at a fine of §50 and one month’s imprisonment in the county jail. The indictment contained two counts, one charging an assault and battery, which inflicted serious bodily injury, the other an assault and battery with a piece of iron, a deadly weapon. The evidence showed that defendant beat J. V. Wilson, the injured party, over the head with the coulter of a sulky plow, inflicting several wounds upon him and which rendered him unconscious for some time. Wilson testified, that he did not regain consciousness until he reached home—several miles away—where he had been hauled by a neighbor in a wagon; and that he was unable to do any work for about three weeks.</p> <p>The principal error complained of on the appeal was as to the charge of the court, which is set out in the opinion.</p> <p>No further statement necessary.</p>

<p>Appeal from the District Court of Wharton. Tried below before Hon. T. S. Reese. This apjieal is from a judgment final for §300 on a forfeited recognizance. All that is necessary to be stated will be found in the opinion below'.</p>

Tried below before Hon. W. M. Allison. This appeal is from a conviction for perjury, the punishment being assessed at a term of five years’ imprisonment in the penitentiary. The case is sufficiently stated i;i the opinion.

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

<p>Appeal from the District Court of Llano. Tried below before Hon. W. M. Allison.</p> <p>The indictment in this case charged appellant with the murder of Captain Thomas II. Dunn, in Llano County, on the 24th day of March, 1894. At his trial in the District Court of said county, on the 4th day of June, 1894, he was convicted of murder in the first degree, his punishment being assessed at imprisonment in the penitentiary for life. He appealed to the Court of Criminal Appeals, and, by order of the District Judge, was removed for safe custody to the jail of Travis County, to await the result of the appeal. On the 8th day of July, 1894, he and other prisoners succeeded in effecting their escape from the jail of Travis County. The Assistant Attorney General made a motion to dismiss the appeal upon the ground that appellant had escaped from custody pending his appeal, and had not voluntarily surrendered to the proper officer within ten days. This motion was sustained by the court, and the appeal was dismissed. The facts pertaining to the escape, and defendant’s surrender, are stated in the opinion below. After the dismissal of the appeal defendant filed a motion to set aside the judgment of dismissal and reinstate the appeal, upon the ground that the sheriff of Burnet county, to whom he surrendered, was acting for and as the agent, and under the express authority of R. E. White, sheriff of Travis County, who had been notified that defendant desired to surrender; and who instructed the sheriff of Burnet County to receive the defendant’s surrender and take him into his custody—which he did as agent for said White. This motion to reinstate the appeal was overruled.</p>

<p>This appeal is from a conviction for adultery, the punishment assessed being a fine in the sum of $1000.</p> <p>The indictment charged defendant, “did unlawfully live together and have carnal intercourse with one, Alice Carlock, he being then and there lawfully married to another person living.”</p> <p>The State proved that defendant was married to one Rosa Cleveland, in Bosque County, in 1888. The marriage license showed that the rites of matrimony were celebrated on the 28th of February, by one W. H. Roberts, who signed the certificate of marriage and attached to his name the letters “O. M. G.” (signifying, we presume, that he was an ordained minister of the gospel.) These parties lived together several years, when they separated. Defendant left the county soon thereafter, and when he returned, in January, 1893, he brought back with him one Alice Car-lock, to whom the evidence showed he had been married in Clay County, Texas, on the 4th day of July, 1892.</p> <p>The defense was that defendant had never been legally married to Rosa Lee Cleveland, because W. II. Roberts, who performed the marriage ceremony, was not an ordained minister of the gospel, and consequently had no authority to celebrate the rites of matrimony. The evideuce as to this matter, ivas as follows: W. II. Roberts testified, “That he came to Bosque County about ten years ago and had performed the marriage ceremony many times. That he married the defendant to Rosa Lee Cleveland in 1888. That about twenty-five years ago in Alabama, he was licensed by the Methodist E. Church, South, to preach, and after-wards he concluded to join the Protestant Methodists, and exhibited his license from the M. E. Church, South, and the Protestant Methodists endorsed them, and I went on preaching for them afterwards, and jirior to the Holder and Cleveland marriage applied to the Cumberland Presbyterian synod for license to preach for that denomination; that they told him they would license him to preach, but they never gave him any written authority to preach, and if they made any written record of this he does not know; that this synod belonged to the Waco Presbytery, and he performed this ceremony under the authority of the Presbyterian church; that he has married many people; that in 1890, ho applied to the M. E. Conference, presided over by Rev. Nelms, of Fort Worth, for license to preach for that denomination, and failed to get the license.</p> <p>Defendant attacked the authority of Roberts to perform a legal ceremony. Rev. Nelms swore for defendant that he is the Methodist Episcopal presiding elder of the Fort Worth district, and Bosque County is in his district; that in 1890 the witness, W. II. Roberts, applied to . him for a license to preach and Avas refused because he Avas incompetent and because he could not tell hoiv he got out of the Presbyterian Church, but told him that he (Roberts) had left it about íavo years ago, (which Avould be in 1888); that in the Methodist Episcopal Church, South, a license to ¡breach does not give authority to perform marriage ceremonies; that Avhen a licensed minister left one State or a conference and moved to another the license was void and of no effect. D. C. ICinnard swore for defendant that he was Secretary of the Waco Presbytery, and as such keeps the books, records and minutes of the same; that W. II. Roberts had no connection with the Presbytery for the past eighteen years, nor since 1885, and any rites performed by him as a minister of the gospel during said term, Avas without authority of said Presbytery and void. A. W. Dumas, for defendant, sAvore that he Avas a member of the Waco Presbytery, and did not knoAV Roberts as a minister of said church; that D. C. Kinnard is secretary of Waco Presbytery, and keeps the records of all licensed and ordained ministers belonging to the same; that no one has authority to perform the ordinances of said church except ordained ministers; that a licensed minister only has authority to bury the dead, etc., and such license only lasts six months, and after that time becomes null and void unless renewed or he becomes ordained Avithin the six months. Defendant introduced marriage license to himself and Miss Alice Corlock, with the return shoAving they Avere married in Clay County, Texas, on the 4th day of July, 1892.</p> <p>Over objection of defendant the State Avas permitted to introduce in evidence the copy of petition in divorce case in Eastland County, Texas, filed June 1, 1892, showing that defendant and Rosa Cleveland were married in 1888, and lived together as man and wife until 1890; that defendant asked for a divorce on the ground of the violent temper of said Rosa and cruel conduct, and that she refused to allow defendant to have sexual intercourse with her; that said petition was not signed by defendant, but by attorneys.</p>

Tried below before Hon. W. B. Hopkins, Comity Judge. This appeal is from a conviction for knowingly permitting the keeping of a disorderly house oivned and controlled by defendant, the punishment assessed being a fine of §200.

Tried below before Hon. John M. Furman, County Judge. This appeal is from a conviction for disturbance of religious worship, wherein the punishment was assessed at a fine of §25.00. The disturbance occurred at a prayer meeting at Bell Plains Church, on the night of October 30th, 1892, at which there were some thirty persons, men and women, present. T. M. Poteet led the services.

Tried below before Hon. John M. Furman, County Judge. This appeal is from a conviction for keeping open a barroom on election day, the punishment being assessed at a fine of §100. Held: the same was illegal and not authorized bylaw,” etc. This motion to quash was overruled.

Tried below before Hon. S. F. Grimes. On a trial under an indictment charging him with the murder of one Jose Aguilla on the 22nd day of January, 1893, appellant was convicted of manslaughter, with punishment assessed at four years imprisonment in the penitentiary. On the night of the 22nd of January, 1893, a number of Mexicans, men and women, were congregated at the house of one Fred Moro, in Victoria county, Texas, sitting up with the corpse of Moro’s wife.

Tried below before Hon. T. H. Connor. This appeal is from a conviction for forgery, wherein the punishment assessed was a term of two years imprisonment in the penitentiary. The forged instrument, as set forth in the indictment, was a promissory note for §150, purporting to have been signed by S. P. Sweedon, John Alexander, Z. W. Leatherwood.

This appeal is from a conviction for murder in the second degree, with punishment assessed at eight years in the penitentiary. The testimony shows that on-the night of the iVth day of May, 1894, Juan Rios and Anastacia Tenoria, his wife (the deceased) and their daughter, were returning home about 9 o’clock from Miguel Sauseda’s. On the road the wife and daughter, who were ahead, met the defendant, who was on horse-back.

Tried below before Hon. Charles Hogan, County Judge. This appeal is from a conviction for keeping a “blind tiger,” wherein the punishment was assessed at imprisonment for two months in the county jail and a fine of $100.

Tried below before Hon. Charles Rogax, County Judge. Appellant was convicted in the lower court for illegally giving a prescription to purchase intoxicating liquors in a local option district, without personally examining the applicant and finding him actually sick and in need of said liquor. The punishment assessed was twenty days confinement. in the county jail, and a fine of $25.

This is an attempted appeal from a conviction for playing at a game with cards in a public place, to-wit: In a room over, and attached to a house for retailing spirituous liquors, etc.; the punishment being a fine of $10. The recognizance did not state the offense as charged in the information, nor, in fact, state any offense.

Tried below before Hon. W. M. Allison. This appeal is from a conviction for a violation of local option, the punishment being a fine of §25 and 20 days’ imprisonment in the county jail.

Tried below before Hon. W. D. Harris.- This appeal is from a conviction for uttering or passing a forged railroad passenger ticket, the punishment assessed being two years imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. George W. Armstrong, County Judge. This was a proceeding by habeas corpus, on the application of J. E. Logsden, to have Charley Logsden discharged from illegal confinement and restraint by the Sheriff of Tarrant County. At the hearing of the writ the application was .denied, and he was remanded to the custody of the respondent. The opinion states the case. Ho briefs have come to the hands of the Reporter.

<p>Appellant was indicted in the county of Henderson for the murder of one Thomas Fulton in that county on the 1st day of September, 1887. On application of defendant, the venue was changed to the county of Van Zandt. At his trial, in this latter county, he was convicted of murder of the first degree, his punishment being assessed at imprisonment for life in the penitentiary.</p> <p>Thomas Fulton was killed sometime between 8 and 10 o’clock on the night of the 11th day of August, 1887. He had eaten his supper, and gone out upon his gallery and taken a drink of water at a water bucket, and walked up the gallery, and placing his hand upon a post, stood with his face toward the gate. His position threw him in a flood of light from the dining room door. He had hardly taken his position before a gun was fired outside, in front of the house, and he fell, having been killed instantly. His daughter, now Mrs. Mattie Davis, was sitting on the gallery, and witnessed the shooting, but the night was very dark, and she could not see the party who did it.</p> <p>Mrs. Fredonia Fulton testified: “I am the widow of Thomas J. Fulton, frequently called Tom Fulton. My husband is dead. He was shot and killed in Henderson county, Texas, on the night of the 11th day of August, 1887. He died instantly after being shot. The killing occurred, about two hours after dark, somewhere between 8 and 10-o’clock at night, and while my husband was standing on our front gallery. On the night he was killed I came from my son-in-law’s, Mr. Millard Wills’, and got home a little after dark. Mr. Wills lived about 400 yards from our house. When I reached home the family had finished supper. Supper was then prepared for me, and I had finished eating when I heard the report of the gun. I heard my daughter scream, and I ran out on the front porch and called my husband. He failed to answer, and I knew he was dead. It was so dark I could not see him. I began to feel around on the gallery for him. I found him lying on his back on the porch. I took his head up in my arms and found that he was dead. I immediately began to call my son-in-law, Mr. Wills, and heard him reply at once that he was coming. I could tell from his voice that he was at home when he answered. I kept screaming and he kept answering, his voice seeming nearer and nearer, until he reached us. My husband, myself and my two daughters and my little grandchild, were all that were present that night my husband was murdered. We have no sons. My daughters were then single; they have since married. I saw no one after the gun was fired, and heard no one running off. I know Lee Coker, the defendant. There he is. (Witness points out defendant). I know the father of Lee Coker; his name is Jim Coker; was sent to the penitentiary from Henderson county about two years before my husband was killed. My husband and myself were witnesses against Jim Coker, and on our testimony he was convicted. That trouble came up in this way: About two years before the murder of my husband, one night, when all the family, except my husband and myself, were away from home, the defendant, Lee Coker, and his father, Jim Coker, came to our house. The first we heard was some one crying at the front gate “hello!” My husband went to the front door and asked what was wanted. The parties at the gate, (who proved to be the defendant and his father), replied that they were strangers in the country; that they were1 trying to find their way to Athens, and asked for directions. The two Cokers were not strangers in the country, but had lived there for years, and were perfectly familiar with all the roads and directions. My husband went out to the gate to give them directions, and left me standing on the gallery. About the time my husband got to the front gate, I heard some one say to him with an oath: “You had the advantage of me on yesterday, but we have got it of you now.” I then ran out to the gate, where my husband was, and there found the defendant, Lee Coker, and his father, Jim Coker. They were both armed and mounted. Defendant had a pistol, and the old man had a shotgun. Old man Coker threw the shotgun down on my husband and said he was going to kill him. My husband begged him not to kill him in the presence of his family, but if he was determined to kill him, to carry him off from his house and away from the presence of his family, and then kill him. Old man Coker cursed him, and swore that he would kill him then; and again threw his shotgun down on .him. I grabbed the gun, and struggled with Mr. Coker for its possession. In the struggle I was jerked up against the gate, and the gun was wrenched out of my hands. Then the old man again threw the gun down on my husband. I seized it again and held it, while I begged them not to kill my husband. Old man Coker replied, that if they did not kill him, my husband would report them. My husband replied that he had never reported any one yet. While this was going on, the defendant, Lee Coker, had got down off his horse and was standing on the ground, near my husband, with a pistol in his hand. After awhile, the Coker’s agreed to let my husband off, and mounted their horses and rode away. As they rode off, old man Coker said, that if my husband did report them that they would get him yet. My husband did not report them; but the next grand jury was informed of the occurrence and they were indicted, and old man Coker was sent to the penitentiary for two years for an assault to murder my husband—committed that night. I do not know who shot my husband. I made no effort myself to track the assassin the next morning. The sheriff of Henderson county, Mr. Osborne, and Ms deputy, Mr. McRae, and several others, came to my ■house about daylight after the killing, and began the search.”</p> <p>The indictment and judgment in the case of the State v. James Coker, for assault to murder Thomas Fulton, were put in evidence; and his record shows that Thomas Fulton was one of the witnesses for the State in that case. The judgment showed that the penalty assessed was two years in the penitentiary.</p> <p>Sam Nunn testified: “I assisted the sheriff and his deputy, in searching for tracks, to see if we could ascertain who did the murder. We first examined near the front gate. There, we found some tracks, as if a party had been squatting down and standing close to the front gate post. We saw some tracks leading away from that place, but they were not very distinct. We then went West of the house to the trail way that led from the house to the spring. About 100 yards we found a track in the path. We tracked this back to the spring. The party who made it was coming from the spring towards the house of the deceased. Out to the left of the path, we found where the party making the tracks, had hung his foot under a black jack bush, that had been cut nearly off at the bottom and bent over. The party had stumbled, and it showed where he had fallen to his hands. The bush was about six inches from the ground. We then followed the track to where it went back to the spring. We found the track around the spring. Mr. Osborne measured the track where we found it, near the spring. These tracks were all about a number 7 or 8, one of the shoes was run down, and in one of the soles of one of the shoes there was a ‘V’ shaped cut. After examining these tracks, at the request of the sheriff and his deputy, I piloted them to the house of Lee Coker, the defendant. In a lane about 200 yards before reaching the house where defendant lived, I saw a track which had the same peculiarities as the track I have been describing, and I took it to be the same tracks. The track led up the lane to Lee Coker’s house. I also saw a track with the same peculiarities in the corner of the yard where the defendant lived. I don’t know how long these tracks'had been made, but they appeared to me to be fresh.”</p> <p>George Osborne, witness for the State, testified: “In August, 1887, and at the time of the killing of Thomas Fulton, I was sheriff of Henderson County. On the night of the 11th of that month, I was notified of the murder. I reached the scene of the killing about daylight, and found Thomas Fulton dead on his front gallery. He was shot in the breast with a shot-gun. I began at once to investigate. Between the front gate and the gallery where deceased was shot, I found the gun wadding. It was a part of a printed newspaper. I picked up the pieces of gun-wadding, spread them out and carefully put them away in my pocket-book. I next examined and found where some of the shot had entered the door and the walls of the house. There were three sizes of the shot. I took them to be buck-shot, turkey-shot and duck-shot. I next looked for tracks, where the assassin stood. By that time there had been so much walking about the gate I could not tell anything definitely. My party then went down in the direction of the spring. Between the house and the spring we found a track coming from the direction of the spring, and coming in the direction of the house. The size of track was about a number 7 or 8; one of the shoes was run down, and there was a peculiar cut in one of the soles. I tracked this track back, and sometimes it was in the path and sometimes out of it. At one place, I found where the party making the track had hung his foot under a sapling. The sapling had been cut off with an axe, and bent over, but was still fastened to the stump; the foot had been slipped under and pulled back, and made a plain track under the sapling. He appeared to have stumbled. It looked like some one had did it, who was walking in the dark and could not see the sapling. I then followed the track on back to the spring, and there it appeared, that the party making the track had walked backwards and forwards and stood about there some considerable time. I took the measure of the track there on my gun scabbard, but I have since lost it. I then followed the track, in a direction that would have led towards the defendant’s home, about 400 yards to where I struck a hard glade and could track it no farther. My deputy and I then got Mr. Sam Nunn to take us to the home of Lee Coker, the defendant. When we reached the mouth of the lane leading up to his house, we saw a track in the lane that looked just like the track I have described, and I took it to be the same track. When we reached the house, we found out from defendant’s mother that he was at Joe Coker’s at work. I went into the house and took a shotgun out of the house, and shot-pouch and newspaper hanging up by the shot-pouch. The newspaper was a part of the ‘Comanche Chief.’ In the shot-pouch I found a small piece of paper, that I took out and put in my pocket-book, separate from the pieces that I picked up at the dead body. I also found in the shot-pouch three sizes of shot; being buckshot, turkey-shot, and duck-shot. The* shotgun was a double barreled gun, and one barrel of it had been freshly discharged. I am used to fire arms, and I think I can say certainly, that this gun barrel had been freshly discharged. This barrel had been reloaded. I carried this gun, the newspaper, the shot-pouch and the wadding with me back to Athens. It was not out of my possession until I gave it up, as I will proceed to tell. On our way over to Joe Coker’s where we arrested the defendant, we saw a track between the home of the defendant and where we arrested him, that in all respects was just like the tracks we found at the spring and at the other places I have mentioned. At Joe Coker’s house, my deputy, Mr. McRae, arrested the defendant. The defendant then had on an old pair of shoes that seemed to be too short for him, and had been cut at the toes. On our way to Athens with the defendant, we went by his home, and he asked permission to change his clothes. We granted it, and he changed his clothes and changed his shoes; and we have never seen those shoes since. I carried the defendant to Athens and put him in jail. I also carried the defendant’s gun and the shot-pouch, newspaper and the wadding, to Athens. I carried the gun to a blacksmith and had the wadding carefully removed from both barrels. I kept the contents of each barrel carefully separated from the other, and from everything else. I then got Gus Davis, and J. J. Faulk, Esq., the District Attorney, to assist me. We first took the wadding and put each lot in a separate envelope, and labeled them; that is, we put the wadding found at the dead body in one envelope; that extracted from the defendant’s gun in two separate enrelopes; the piece of paper found in the defendant’s shot-pouch in another, and so on. We likewise kept all the shot separated. (Witness was here handed the envelopes, and stated that they were the original envelopes used and labeled by himself, Gus Davis and J. J. Faulk, as above stated). These envelopes read just as we marked them. They are as follows: (First envelope)— ‘Got out of the defendant’s shot-pouch, containing a piece of newspaper, August 12, 1887.’ (And in the upper corner of the envelope) ‘Henry McRae, George Osborne.’ (Second envelope)—‘The piece of wadding in envelope was found at the dead body, and corresponds with the piece found in the shot-pouch of Lee Coker, the defendant.’ (Signed) ‘Osborne and McRae.’ (Third envelope)—‘This wadding was taken out of the right hand barrel of Lee Coker’s gun, the morning after the shooting, by Sheriff Osborne and Deputy McRae.’ (Fourthenvelope)— ‘This wadding from the barrel freshly loaded; left-hand barrel.’ (From the next envelope)—‘This sample of shot was taken from Lee Coker’s shot-pouch the morning after the shooting of Tom Fulton.’ (Signed), ‘Osborne and McRae.’ (From the next envelope)—‘Shot cut out of wall of deceased’s house.’ (From the next envelope)—‘Shot taken from the shot-pouch of defendant.’ (From the next envelope)—‘This envelope contains the shot found in the left-hand barrel of the defendant’s gun, taken from Lee Coker’s house by Sheriff Osborne and Deputy McRae, the morning after the shooting. This barrel showed to be freshly loaded when the gun was taken from Coker’s house.’ (From the next envelope)—‘This envelope contains the shot taken from the right-hand barrel of the gun taken from Lee Coker’s house, the morning after the shooting, by Sheriff Osborne and Deputy McRae. And the shot corresponded with the wounds in the dead body of Tom Fulton, and in the walls of the house.’</p> <p>(After identifying the envelopes, and reading the endorsements upon them, the witness proceeded as follows:) “These endorsements on these envelopes were made upon them in my office, in the presence of Gus Davis and J. J. Faulk, as I have before stated, the day after the homicide. Mr. Faulk, Mr. Davis and I took all the wadding and carefully fitted it up together to see if it would correspond. The wadding I found at the dead body had the picture of a man’s head and an advertisement of a dry goods firm on one side of it, and a portion of Talmage’s sermon on the other. And where the paper was torn in two, it was the word ‘quantity’ in the advertisement referred to. We found, by putting the wadding found at the dead body with the piece found in the shot-pouch, that the first portion of the word ‘quan’ was on the wadding found at the dead body, and the remainder of the word, ‘tity,’ was found on the piece in the shot-pouch. Putting the pieces of paper found at the dead body beside that found in the defendant’s shot-pouch, we found that they fit right up, and read right off. It was a part of an advertisement of a Comanche firm containing the words, ‘Allover and hamburger laces in any quantity,’ the word ‘quantity’ being torn as above stated. Turning the paper over they each fit exactly together and read connectedly, and each contained a portion of Talmage’s sermon. The pieces of paper found in the barrels of the gun also fit and corresponded with the balance of the wadding. They all showed to be a part of the samé paper, and read right along and made sense. The wadding found in the right-hand barrel of the gun contained the heading of Talmage’s sermon, preached from the text, ‘The Swelling of the Jordan.’ Putting all this wadding together, that found in the gun, that found at the dead body, and that found in the defendant’s shot-pouch; and putting all this with the balance of the newspaper, found in the house, they all showed to be a portion of ‘The Comanche Chief,’ a paper published at Comanche, Texas, on the 12th of March, 1887. On the opposite side of the papers containing the word ‘quantity,’ and the advertisement, there was this part of Talmage’s sermon: ‘Who watched you last night? Who has been kind and good to you all your life long? O, how ungrateful we have been! Methinks the goodness of God ought to lead this whole audience to repentance.’ This quotation is found in the published sermon of Dr. Talmage on the subject, ‘The Swelling of the Jordan.’ A portion of this quotation was found on the separate pieces of the wadding, and by putting them together they formed the words and would read exactly as they were found in the newspaper published at Comanche on March 12th, 1887, called the ‘Comanche Chief.’ The shot we found in the two barrels of the defendant’s gun, the shot in the defendant’s shot-pouch, the shot in the wall of deceased’s house, and the shot in the body of deceased were all alike. They were mixed shot of three sizes—buck-shot, turkey-shot and duck-shot. After making this investigation, we put the wadding back, and the shot as well, in its each separate envelope, and turned them over to the Clerk of the District Court of Henderson County. All of this evidence was here on the other trial of this case. It is not all here now, some of it has been lost. I do not find the wadding we found at the dead body here. Some of the shot has been lost also, since the last trial. The envelopes are here just as we marked them when we made the investigation, as I have just described. The grand jury met in September following the homicide, and a very diligent, thorough investigation was made into this crime. We had everybody in the neighborhood of the killing before the grand jury. Lee Coker was in jail at the time. Everybody was summoned who was supposed to know anything about the crime. The grand jury did not have W. P. Towery before them, but they did have Mrs. Sallie Coker as a witness. We tried two or three times, by subpoenas duces tecum, to get the shoes which Lee Coker had on when arrested, but we failed to secure them.”</p> <p>Sam Cox, witness for the State, testified: “About a year before the homicide I was coming from Athens with Lee Coker, and we had a talk about the deceased. Old man Coker had been sent to the penitentiary for an assault on Fulton, and I asked Lee Coker how long it would be before his father’s time was out. . He replied, ‘about a year, but it is not half done with.’ He said he was going to get his shot-gun and kill old Tom-Fulton, and I would hear of it. He said that he would shoot his life out. I told him not to tell me anything about it, for if Tom Fulton was killed I might have to testify against him.”</p> <p>Mrs. Laura Brown, witness for the State, testified: “Some time in 1886, about a year before the death of Thomas Fulton, I was going home from Athens in company with my little brother, when the defendant, Lee Coker, overtook us and rode up beside me. We began a conversation, and finally got to talking about his father being in the penitentiary for trying to kill Mr. Fulton. The subject seemed to enrage him very much, and he finally said to me, ‘that while his father was serving his term in the penitentiary, Tom Fulton will be serving his term in Hell.’ He was very angry. There was no one present except myself, the defendant and my little brother.”</p> <p>Frank Cotton, witness for the State, testified: “I lived in Athens, flenderson County. I lived there in 188V, and was clerking in a hardware store. I remember when Thomas Fulton was killed. About two or three weeks before Fulton’s death the defendant, Lee Coker, came into the store and said he wanted to buy some shot. He finally selected the sizes of shot that he wanted, and I sold him a quarter’s worth of shot. They were turkey-shot, duck-shot and buck-shot mixed.”</p> <p>Dr. Will Mathews, witness for the State, testified: '“I live in Athens, Henderson County, Texas. My father was postmaster at Athens in 188V, and I worked in the office. During that year two copies of the ‘Comanche Chief,’ a paper published at Comanche, Texas, came to that office. One of the copies came to W. R. Coker, a cousin of the defendant. Lee Coker, the defendant, would frequently call for the "Colter mail, and when he did I would give him out the ‘Comanche Chief,’ which was taken by any one in the section of the county where the defendant lived, was the one taken by W. R. Coker, and sometimes taken from the postoffice by the defendant.”</p> <p>J. J. Faulk testified substantially as did Sheriff Osborne about the contents of the envelopes in which they placed the wadding, pieces of the “Comanche Chief,” and the bullets or different sized shot. The following is his testimony with regard to the investigation of the case by the grand jury and himself. “The grand jury met after the homicide (in August) on the first Monday in September. We investigated the murder thoroughly, and ransacked the whole county for testimony. We sent two subpoenas duces tecum to get the shoes the defendant had on at the time he ivas arrested, and we failed to get them. W. P. Towery Avas not before the grand jury. I never heard of his knowing anything about the case. There was a habeas corpus trial. W. P. Towery Avas a witness then, and I never heard of his being a witness until that trial. I testified in this case at the former trials.”</p> <p>The defense was an alibi, and the principal witnesses were, 1st, W. P. Towery, and 2nd, Mrs. Sallie Coker; and these two witnesses testify positively to defendant’s being at his home on the evening that Thomas Fulton was killed, Towery testifying' that he remained there talking to defendant until near 10 o’clock; and Mrs. Coker testifying that defendant was at home all that night after Towery left. That she saw him frequently during the night, as she was up and down on account of a sick child.</p>

Tried below before Hon. A. L. McLane. Appellant, Jesus Prieto, Eugenio Benevides and Adolfo Gomez, were jointly indicted for fraudulently taking from T. E. Cole, in the State of Tamaulipas, republic of Mexico, 210 goat hides, of the value of 50 cents each, and which stolen hides they brought into Webb county, Texas. Jesus Prieto was alone put upon trial in this proceeding, and the trial resulted in his conviction, with punishment assessed at five years in the penitentiary.

Tried below before Hon. E. D. McClellan. This appeal is from a conviction of robbery, with punishment assessed at twenty years imprisonment in the penitentiary. Appellant is a negro who had, from his own statement as a witness, served a term in the penitentiary. The party robbed was an old negro who lived in the Chickasaw Nation Indian Territory, and who had come to Paris to employ an attorney to defend his son, who .was under indictment in the Federal Court.

<p>Horse Theft—Recent Possession and Reasonable Explanation—Evidence.</p> <p>Where possession of property stolen is relied on as a criminative fact against the accused, any explanation given by him of his possession, at the time he is found in possession, is admissible evidence in his behalf.</p>

<p>Graining Outhouse—Evidence.</p> <p>On a trial for playing cards at an outhouse, evidence that during the time covered by the indictment lights were seen at different times in said house, is admissible to prove the necessary allegation that people commonly resorted to said house.</p>

<p>1. Local Option Election—Writs of Issued to Presiding Officers.</p> <p>Where a county election, for local option, held at each and all ¡the [precincts of the county, was fair, just, honest and without fraud, the fact that writs for holding the election were not issued to the presiding officers of the various election districts in the county does not invalidate or render said election void. The law does not provide, that such election shall be void for such cause.</p> <p>2. Same—Counting Votes Before the Close of the Election.</p> <p>While the statute provides that the votes shall be counted after the polls have closed, this is not an inhibition against counting the votes before its close.</p> <p>3. Same—Petition—Entry on Minutes of the Court.</p> <p>It is not necessary t'o enter a petition of the qualified voters for a local option election, upon the minutes of the Commissioners’ Court.</p> <p>4. Same—Order for Changing Voting Boxes and Establishing Mew Ones. Where, after issuing the order for the election to be held at the regular voting</p> <p>places, the Commissioners’ Court, at a regular term discontinued one of the voting boxes and created three new voting boxes, or election precincts, and the election was held at the voting boxes as changed and created. Held: The election was not invalidated by such change.</p> <p>5. Same—Adding up Tally Sheets Instead of Counting Polls.</p> <p>Where the Commissioners’ Court, in ascertaining the result of a local option election did not count the polls, but simply added up the tally sheets; Held: That</p> <p>this was sufficient in the absence of evidence tending to show that the result was not as declared by the court.</p>

<p>Stenographic Statement of Facts—Questions and Answers—Practice on Appeal.</p> <p>A statement of facts containing questions to, and answers throughout, of the witnesses, will not be considered on appeal, as it is in direct violation of the rules of the court.</p>

<p>1. Statement of Facts—Diligence to Obtain.</p> <p>Where ten days were allowed, after adjournment, in which to prepare and file a statement of facts, but no effort was made by defendant to procure such statement within the time. Held: That he could not be heard to complain that he had been unjustly deprived of his right to have the case, on appeal, passed on, in the light of the evidence.</p> <p>2. Same—Practice on Appeal.</p> <p>If an appellant uses due diligence to procure the approval of a statement of facts, such statement will be considered on appeal, notwithstanding it was not filed until the expiration of the time allowed in the court below. Following, George v. State, 25 Texas Crim. App., 229.</p> <p>3. Same—Bills of Exception.</p> <p>Bills of exception should be full and explicit within themselves as to the matters complained of, in order to entitle them to consideration in the absence of a statement of facts.</p> <p>4. Witness—Beading Question—Harmless Error.</p> <p>While it is error for a party to be permitted to ask his witness leading questions, such error becomes harmless, if the facts thus elicited are legally proved by other witnesses.</p>

<p>Appeal from the Criminal District Court of Dallas. Tried below before the Hon. Charles F. Clint.</p> <p>Appellant was tried upon an indictment which charged him with the murder of one Y„ M. Langdon, in Dallas county, on the 22nd day of October, 1893, by striking him with a piece of gas pipe. At the trial he was convicted of murder of the first degree, the penalty being assessed at death.</p> <p>The statement of facts, contained in the record, is most voluminous, and such portions are only reproduced as bear upon the questions discussed in the opinion.</p> <p>R. L. Cornwell, witness for the State, testified that he was a police officer in the city of Dallas, and had been since May, 1891. He knew defendant, and knew him prior to the 20th of October, 1893. He went to San Angelo to arrest John Paris, but found him in jail at Lampasas. On the train between Lampasas and Temple, he told the defendant that the best thing he could do was to tell Mr. Cabell, the sheriff, the truth about the matter, ‘ ‘and I told him it might make it easier for him.</p> <p>Ben Cabell, sheriff of Dallas County, testified that he met the defendant a,t Temple, Texas, in charge of two officers, Cornwell and Furlong; that he had a conversation with defendant, who said, “I ought to tell all about this thing, and am going to do it.” “I told him to tell the truth, and the only promise I made him was that I would investigate what he said and let the result of the investigation be known in the court. I warned him before he told me, that anything he might say to me would be used against him on trial, and I called on Bob Cornwell to witness what he said; and after he had finished his confession Cornwell repeated it to me. Defendant requested me to bring him before the grand jury.”</p> <p>Ripley Harwood, secretary of the grand jury of Dallas County, testified that he reduced to writing the statements made by the defendant to the grand jury, and that said statements were read over to defendant, that defendant, before signing the statement, asked that some agreement be given him, and was told in reply that no agreement would be made with him by the grand jury, but that would have to be done by the County Attorney. The foreman of the grand jury told him that anything he said could not be used for him. We told him we could not in any way help him, nor relieve him from the prosecution against him.</p> <p>W. H. Lewis, witness for the State, testified that he was foreman of the grand jury of Dallas County, that defendant made a statement to the grand jury, which was reduced to writing by the secretary and signed by defendant. Defendant asked if making the statement would “get him out of it,” and I told him we could not make any agreement whatever. When he came before the grand jury I warned him, and told him any statement made by him would be voluntary on his part, and any statement he made might be used against him on the trial of the case should a bill be found, and that he could make his statement or retire, as he pleased. I told him it could not be used for him.</p> <p>The following statement was made to the grand jury and signed by the defendant: “About one year ago I met this man, W. G. Parish; I blacked his shoes and cleaned his room, etc., and my mother washed for him. One day he asked me would I help him if a man was going to kill him. About five months ago he said a certain man had swindled him out of five thousand dollars that he put into the firm. I want, he said, to ask you to help me get my money back. About two months after he told me Mr. Langdon had got his money, and he wanted to get the money out of the damned son-of-a-bitch, and had nobody to help him out of it but me. I said, ‘Nobody would help me get out of the trouble,’ and he said, ‘You won’t be in any danger; I will have a man arrested for it at Leggett.’ I got the first pistol from a house where he roomed. Mr. Parish gave me the pistol at Oak Cliff, and I gave it to a boy that worked for Mr. Lett, who worked at Oak Cliff. It was during last summer. He, Mr. Parish, gave me another pistol not long before October 24th, as he said it had to be done before that. I soaked it at Goldstein’s for fifty cents. The first piece of gas pipe I got from a house that burned where Scruggs’ storage house was. The next piece, he gave me the money, thirty-five cents, to buy. He told me to get it about two and a half feet long, and met me at 7:30 at Masten and San Jacinto streets. I did so. Never saw the pipe any more until the night I killed the man. I drove him out between times. He sent me notes by a boot-black at' the bank, a light, brown-skin boy; used Mr. Bartlett’s horse. Mr. Bartlett lives on Patterson avenue. The gas pipe was bought Thursday or' Friday before the killing on Sunday. He told me to come over to his house on Sunday night. I met Mm at the dark patch of wo'ods on the branch at Masten street, at 7:30 or 8 o’clock. He proposed we should take a walk. He had his umbrella and overcoat. We walked up Ross and San Jacinto streets, thence to Germania, and on Bryan street to the convent. On October 14th, a man just beyond Mr. Loomis’ offered me a j ob; and Mr. Parish said I could not take that j ob and work for $7 per week and pay him for what he had done for me and pay my board out of it. I told him I thought I could, for I said, ‘You have not done no million dollars worth for me.’ He tapped me on the shoulder at the corner of the convent and said, ‘Here, young man, I am here for business to-night,’ then he opened the umbrella and gave me the piece of gas pipe, and said, ‘That man either dies to-night or you die, you damned son of a bitch. You have been frauding me out of money .long enough,’ and he drew out a pistol. I proposed to go by myself, but he said he would go with me. I said no, somebody might know him; then he changed his hats; he said nobody ever saw him. with that hat on; when he changed hats he said, ‘He’s bound to be on this car,’ and walked back. I struck the man and reached down to pick up the pipe; didn’t pick it up, and then ran. I caught up with Parish near the convent fence, by Mr. Gibbs’; he caught me by the shoulder and said, ‘Didyou strike him?’ I told him, ‘Yes.’ He said, ‘If you have not done a good job you will have to do it over again.’ After we walked a little piece I told him we had better separate, as somebody would see us; somebody saw me hit him and might catch us. Mr. Parish changed hats about the middle of the north side of the convent fence. I ran back to Ross avenue, and Mr. Parish ran down Bryan street. I ran back to Haskell and Ross. I did not meet him, any more for three or four days, when he gave me $100; another time $50. About 5 o’clock Tuesday morning he gave me $20 and told me it would be advisable for me to take a trip. I told him if ever I was caught I would keep nothing hid. I left on the '7:30 Santa Fe train. He said, ‘Write to me and sign your name ‘Mollie’ and I will sign ‘Susan,’ and address it to me ‘W. G. Parish, Personal.’ ’ I went to San Angelo; he wrote that everything was all right. ‘Do not send any more notes by woman; I am being watched closely. You have telegraphed me twice and sent many letters. They may catch me through the telegraph office; the postoffice cannot be watched.’ He said he would send mé $20 for each day for five days. I telegraphed for money. He wrote me not to telegraph any more. He sent me $20 at San Angelo and told me to leave there. He sent a letter to me at Lampasas with two $50 bills in it. Will Gaines got the change for a $50 bill. I had soaked my watch for $1, bought a scarf pin, and gave Will Gaines $3 in silver to redeem my watch; bought a ring for a girl. .The sheriff arrested me at a jewelry store and said they wanted me at San Angelo; was there an hour and a half or two hours before Mr. Cornwell and the detective came. Mr. Cornwell did not speak, just said ‘Hello, John.’ The detective says, ‘You do not know my name; my name is Furlong.’ He said something about pipe. I do not know what they wanted; have seen two boys from whom I bought the pipe with Mr. Ben Cabell at Temple. I bought the clothes next day or two after the killing. It was' after Mr. Parish gave me the $100. When I bought the gas pipe I had on a gray coat, a one-button cutaway. Mr. Parish said, ‘You hit him and take his watch and throw it in the Trinity, or anywhere, to make it appear he was robbed.’ I had on a brown hat. I recognize the pieces of letter shown me as the one I got and tore up near the postoffice at Lampasas. He says, ‘I send you $100; I was afraid to risk it by express. I am at home sick in bed; unless something is done I will die. Tear this up quick.’ I wrote letters from San Angelo directed to ‘W. G. Parish, Personal,’ as he told me to do; the letter shown me was written and signed by me. I marked it personal; I never marked any ‘personal’ except those to Parish. Sherman Dudley has seen us together on the long bridge near the branch back of Mr. Mitchell’s. Mr. Parish came down and motioned me; I told Dudley what Mr. Parish wanted, and if he did not believe it, follow me, but do not recognize me; he did so. John Warner saw us talking on the branch -at Hasten street. I told three boys about what Mr. Parish and I were doing—Sherman Dudley, Willie Goodson and Johnnie Warner; Goodson is at Fort Worth. Have seen Mr. Parish at his office; know Mr. Gill. Parish asked me if I would know Mr. Lang-don at' night. I sáid I would not. He said, ‘Meet me at 7:30, prayer meeting night. I will wait at Linskie’s corner and watch him go in.’ I did so, and he said, ‘There is the man I want you to kill—will you know him? Be sure and meet him here again.’ I did so and followed Mr. Godley; it was on Sunday over a month before I killed him. Mr. Parish picked out other places where I met him. I recognize this as the gas pipe with which I hit the man. Mr. Parish had his gun in his hands. It was midway of the vacant lot on Live Oak street. He turned back and looked at his watch and said, ‘He ought to be on this car.’ I sent two telegrams from Angelo. These were all I sent. He said he had the hat in his trunk for several months.”</p> <p>[Signed] “John M. Paris.”</p> <p>The foregoing written statement of defendant, made before the grand jury, was read on the trial by witness Ripley Harwood.</p> <p>The following is the testimony of the defendant, as a witness in his own behalf at the trial: “My name is John Paris; I am 22 years old; I have lived in Dallas since 1882; I lived in Navasota before I came to Dallas; I lived there all my life until I came to Dallas; Jerry Paris is my father; I have three sisters and my mother; my mother is visiting her mother in Bryan; I last saw her in November sometime. I was arrested in November about the 13th or 14th. I was arrested at Lampasas by the sheriff there. On October 22 I was at home. I remember that I went home late Saturday evening. .1 had rheumatism in my ankle. I went home because I was feeling sick. I remained at home until Monday about noon. From home I went to Miss Kate Morris’ on Jackson street. I saw Miss Kate there. From there I went to Miss Ida Fuelers, on Jackson street. I first heard of' the murder of Y. M. Langdon on Monday morning when I- came up town. I saw it in the paper at Miss Kate’s. She lives at 406 Market street. I next heard of it on Thursday evening. I was at home at. supper, and a man came and called for me. He said his name was James O. Fosdick. I never saw him before that time to my recollection. I saw him again the same Thursday night. He came to my gate and called for me. I heard him, and went out to the front gate, I think I answered the call myself, and I went out again to see what he wanted, and he said to me, ‘This is John Paris,’ and I said ‘Yes, sir;’ and he says, ‘I have come down here to see you on particular business, and I would like to see you where we won’t be interrupted—do you know of a place where we can go?’ I went and got my hat, and went with him back to east of Columbia street, where the Oak Cliff railroad goes to Oak Cliff, and we walked down until we got to the Santa Fe switch, and we stopped, and he told me what business he wanted me for. He asked me did I know W. G-. Parish. I told him yes. He then asked if I did not know a murder had taken place lately. I told him I had seen something of it in the paper. Then he said, ‘Well, how long have you known Mr. Parish?’ I told him what I did for him, and that I had known him in Dallas for about three years; that I had worked for him; would clean his shoes, etc., and my mother washed for him, and he said, ‘I have found out you have done served round Mr. Parish a good deal, and worked for him.’ I said, ‘Yes, sir,’ and he said what he wanted me to do was this: ‘I want you to lay this killing of Mr. Lang-don on Mr. Parish.’ I asked him how I was to do it; I did not know anything about it. He said he was here investigating the case, and asked me what I thought about it. I told him I guess I had better see something about it before I had anything to do with it, and he told me to meet him there Friday night. He told me to wait for him on the corner of Main and Lamar streets. He would pass me and I was to follow, and I followed him over to Patterson avenue, and we went straight up Patterson avenue until we got to North Akard, and went out Alcard to Ross avenue, and out Masten street to a clump of woods, and stopped there. He said, ‘What do you think about it; there’s money in it for you,’ and said there was 85000 in it, and said, T will see that you get your money, and you will not be prosecuted by law,’ and said he wanted me to go and make evidence in the case. He told me he was from a private detective agency in St. Louis, and told me he could get all the evidence against him he wanted. I stood there with him awhile, and he gave me 850. This was the second time I had met him. He told me to go on and have a good time, and I left him, and he said, ‘If you have nothing particular to do Saturday, I would like to see you again, and see how you feel about it, and what progress you have made.’ I met him again Saturday night where the Oak Cliff trains cross, and he says, ‘how do you feel.’ I told him I felt all right about it. He said, ‘I will see that you get your money, and you will not be bothered about it. What are you doing?’ I told him I was not doing anything particular. He said, ‘Well, I am going to have something else for you to do.’ He told me how far he had investigated the case; that this man had gone out on the car and had been knocked in the head with a piece of pipe; and told me that they might tell the boy that bought the piece of pipe, because Mr. John Bolick and one of the boys that sold the pipe was looking for the man that bought the pipe; and on Friday morning when I went down to the court house, Mr. Williams was talking to this young man, and Mr. Bolick and I went past them. That same Friday I went out to the fair and came back. On next Sunday I was to meet him; and I was at Oak Cliff with this man Battisle, and I missed the 7 o’clock train, and I borrowed money enough to hire a double-seated rig, and 1 came over to Dallas and got here about 7:25, and I saw him on Maple avenue and we drove out to the corner of McKinney and Maple avenue. I met him there and he gave me 8100 and asked me if I would like to go to the springs for the rheumatism. I told him I did not care, and I could go other places. I told him I would like to go to San Angelo; that I had a girl there, and he told me he wanted me to write here everything so as to make evidence against Mr. Parish, and I went there and telegraphed Mr. Parish—I believe it was three times. I wrote to him twice, and he said, ‘You stay in San Angelo five days, positively, and 1 will send you §20 every day that you are there.’ I got to San Angelo and staid there, and the last time I wrote him for money he told me to go to Lampasas and wait there for further instructions. It was all understood I should do this before I left here; it was the understanding that I was to be arrested there, and I went on to Lampasas, and Will Gaines, the train porter, asked me what I was going there for? The next time I saw Fosdick was when I was brought back here. I saw him in jail; he was going to be in jail under the name of Harwood or Harbold; it was ‘Har’ something; I have forgotten what it was. I saw Fosdick before I left town on Tuesday morning about 5 o’clock on the corner above the Windsor Hotel, standing at Swope and Mangold’s corner, and I told him I was going to leave on the Santa Fe. I had no appointment to meet after that time. I saw him in jail. I was arrested at Lampasas. I saw a Dallas officer there. When I got to Lampasas I was arrested by the sheriff and put in jail. Everything went smooth until I got in jail at Lampasas, then I saw what I had , undertaken, and did not think I could go against a man who had been a ¡ better friend to me than anybody on earth, and knowing it was not true. 11 did not want to go back on parties whose money I had used, and I thought that rather than be in trouble I would end it all there, and that is why I decided to do so. I only saw one Dallas police officer and that was Mr. Bob Cornwell. Mr. Furlong was with him. On the train I had a conversation with Mr. Furlong. He came up to me and says, ‘John, you don’t know me?’ and I said ‘No, sir.’ He said, ‘Do you know this man with me?’ and I replied, ‘Yes, sir,’ and he told me it was Mr. Bob Cornwell; that he lived in Dallas, and that he was a police officer, and said, ‘My name is Thomas Furlong.’ Mr. Cornwell had a conversation with me and told me it was very foolish of me in trying to take my life in that way, and said, ‘It is not you we are after prosecuting, but other parties,’ and he told me to go on and make a statement to Mr. Cabell, that he would do his best for me. I had two or three minutes’ conversation with Mr. Furlong when Mr. Cornwell got off to send a telegram, and he said to me, ‘You are taking a whole lot of chances. Suppose you had died. I know all about the understanding between you and • the other fellow. You will get your money and you will be protected. This will make stronger evidence than before.’ When I got to Temple I saw Mr. Cabell and two young men there. I was sitting in the waiting room when these two young men came up. I was with the officers. I think Mr. Cabell asked me if I knew the two men and I told him ‘yes,’ and he turned to them and says, ‘There is the man that bought the gas pipe from you,’ and I said to them: ‘I bought the gas pipe.’ The purpose of that was, that I was to own that they were the parties, that was agreed before I left Dallas that I would not deny being the person who bought the pipe, and I never denied it. I was brought to Dallas from there. I had a conversation with Mr. Cabell. Can’t say exactly where it was. He asked me about the case, and asked me whether there were other parties connected with the case, and said: ‘Why don’t you tell about it; make a plain statement about it. It will make it very much better for you if you would tell the truth about the matter.’ I could not say how long I was on the road from Lampasas to Dallas. Left Lampasas Tuesday morning and got to Dallas Tuesday night or Wednesday morning, and was placed in jail. Can not state whether it was two or three days after I was in jail that I made my statement to the grand jury. Yes, sir, I made the statement that was read in evidence. I saw Fosdick when I was in jail. I saw him before I went before the grand jury. I think the first time I saw him was down ■stairs, when I was lying on a cot. The next time I saw him was up stairs. I had a few words conversation with him, and he said to me: ‘Go before the grand jury tomorrow, and we will be there and see you get a written agreement,’ which I asked the grand jury for. I did not see him after I went before the grand jury, and have not seen him since. The first time I ever made known these facts was the second day of the trial. That is the first time I ever said anything about it. I knew the first statement I made was not the truth, and I told you then I was going to tell the truth about it. I have not seen Mr. Fosdick any more. I think I saw Mr. Furlong since I have been in jail, once. I am not certain, however. I don’t know anything of him leaving here at all. Mr. Parish never spoke to me about Mr. Langdon. I swear he never spoke to me about killing anyone in his life. I saw Mr. Parish every day until the day I left, and that is the reason I did not see him that day. I read those letters which were shown me before the grand jury. It was understood I should write those letters, the letter signed ‘Susan,’ the ‘Susan’ was Mr. Fosdick. I ain’t received any letter from Mr. Parish. I did not receive any from him. I know Florence. I sent her on an errand to Mr. Parish twice, each time for §1.50, and he loaned it to me. He gave it to the woman for me. That was Tuesday before I left, I think. I don’t know positively the day of the week. I came up town that day. I sent Florence up there and he said: ‘John, owing to where this girl is staying I would not like to have you send her to me, as people might think I was receiving notes from some woman down there.’ She was living at Miss Kate Morris’. I made those figures in that memorandum book, which you have just handed me. It was all understood that I should make all those figures in there. I was to do every little thing like this to make further evidence. I was to make evidence against Mr. Parish. I don’t think there are any other entries in there. Twenty dollars was the first money I got from Mr. Fosdick; then §50; then §20; then §100, and §50 again. I received that money from Mr. Fosdick. I know something about a poem. It was written in that book. I got it from Mr. Fosdick. I saw it published in the News. It was to make further evidence against Mr. Parish.” The defendant offered the poem in evidence as follows:</p> <p>“Here I sit, a doomed prisoner,</p> <p>Looking through the iron bars,</p> <p>Longing for a moment’s freedom,</p> <p>Underneath the shining stars.</p> <p>Once I was as free as Venus,</p> <p>Living through this world of time,</p> <p>But now I am a murderous villain,</p> <p>Driven to commit a crime.</p> <p>I was taken into confidence</p> <p>Of a man I thought a friend;</p> <p>’Twas he who caused me all this trouble,</p> <p>And to my pleasures brought an end.</p> <p>Now he’s gone to meet his maker;</p> <p>I am left to bear the blame,</p> <p>And be punished for a crime committed,</p> <p>Just to save his name.</p> <p>But some day I hope to meet him Face to face, midst joys and mirth,</p> <p>And then tell him how he used me As his slave through days on earth.”</p> <p>The defendant continued: “I said something in this statement before the grand jury about a pistol. I had two pistols, and gave one away; I soaked one at Goldstein’s; one I kept myself; I won the last pistol playing poker. Mollie Evans? Well, that was an agreement between me and Mr. Fosdick. I was with Detective Fosdick as Mollie Evans, and I was to get my letters as Susan, on the inside. When I addressed Mr. Parish I always called him Mr. Parish. Mr. Fosdick told me when I wrote to him to address him ‘personal,’ which I did. I mentioned in my statement to the grand jury something about John Warner, Sherman Dudley, etc. So far as John Warner is concerned, I had but one conversation with him in regard to one woman. How it came that I mentioned their names to the grand jury was thus: Fosdick asked me did I know of any boys I could trust, and I told him I frequently went with Sherman Dudley, and I mentioned Willie Goodson and John Warner. He told me he would talk to these boys about the matter, and they would swear to what I would swear to, and I thought he did speak to them, is why I mentioned it in the grand jury room. I frequently used to drive Mr. Parish out at night with a certain lady here in town, and I used to deliver the buggy back to the stable on Patterson avenue. These boys were all boarding at 365 Elm street. I don’t think I stated I went to see them; I am satisfied I have not said that. Mr. Fosdick said he would see them, after I mentioned their names and told him what kind of looking boys they were. I did not see those boys after I told Mr. Fosdick about them. The statement I made before the grand jury was not true. Mr. Fosdick gave me the details of the statement I was to make before the grand jury; they were not in writing:”</p> <p>The matter relating to the impeachment of the defendant’s witness, Rosa Paris, by showing contradictory statements made by her before the grand jury, and the failure of the court to limit and restrict the purposes of such testimony in the charge are so fully stated in the O])inion that any further statement with relation thereto is unnecessary.</p>

Tried below before Hon. Charles F. Clint. Appellant was convicted of theft of cattle, and his punishment assessed at two years’ confinement in the penitentiary. No statement necessary. This is the second appeal in this case. See 30 Texas Crim. App., 597.

Tried below before Hon. John C. Russell. This appeal is from a conviction for murder of the second degree, the punishment assessed against each of the appellants being five years imprisonment in the penitentiary. This is a second appeal in this case. See, Conde v. State, 33 Tex. Crim. Rep., 10. The facts will found sufficiently stated in the former and present opinions.

This was a prosecution for forgery, under an indictment containing three counts. At the trial defendant was convicted upon the first count, his punishment being assessed at a term of two years’ imprisonment in the penitentiary.

<p>Appeal from the District Gourt of McLennan. Tried below before Hon. S. R. Scott.</p> <p>The opinion states the case.</p>

This appeal is from a conviction for manslaughter, the punishment being assessed at five years’ imprisonment in the penitentiary.

<p>This appeal is from a conviction for the theft of two head of cattle, the property of R. G. Smith, wherein the verdict and judgment assessed the punishment at two years’ imprisonment in the penitentiary.</p> <p>The testimony shows that the two cows were branded J I on the left hip, and L S on the left side. Smith had driven one of the cows back with other cattle to the pen; he told defendant that inasmuch as he, defendant, had bought the J I brand, he Smith, would put her and the other cow, which he described to defendant, in his, Smith’s, brand. Defendant said he had purchased the J I brand, and that Smith need not change the holding brand on his two cows, as he knew they were Smith’s, and they would not be troubled; that he knew the cows better than Smith did. Smith never saw his cows afterwards.</p> <p>Joe West testified: That he had gone to Frio County to get two yearlings Dock Lawrence, a brother of defendant, had sold him. Not finding the yearlings, John Lawrence, defendant’s father, told defendant to go with witness into the pasture and get two cows, and that witness could have one of the cows for his yearlings. That they got the cows and necked them, and that he and John Lawrence, defendant’s father, drove them to witness’ house in Atascosa County, some forty miles, and that after reaching there he killed his cow for beef, and John Lawrence killed the other. That when be heard the cows had been stolen he reported the above facts.</p> <p>As to the charge of the court, the complaint was, that the charge was the identical one which the court had given, at a former term, in the companion case of John Lawrence; that the name of this defendant was substituted for that of John Lawrence; and that other erasures and obliterations had been made so as to conform said charge to the facts in this case.</p>

This appeal is from a conviction for murder in the second degree, the punishment being assessed at five years’ imprisonment in the penitentiary. The indictment charged defendant with the murder of P. L. Medrano, in Bell County, on the 8th day of August, 1894, by shooting him with a pistol and with a gun.

Tried below before Hon. Felix J. McCord. This appeal is from a conviction for murder in the second degree, the punishment being assessed at twenty-five years’ imprisonment in the penitentiary. The indictment charged defendant with the murder of Lavinia Webb, in Upshur County, on the 10th day of March, 1895. It contained two counts—one charging the murder to have been committed with an ax, the other, by means to the grand jury unknown.

Tried below before Hon. Tom C. Davis, County Judge. This appeal is from a conviction for aggravated assault, the punishment being assessed at a fine of $25.

Tried below before Hon. W. G. Taliaferro. This appeal is from a conviction for theft of one bale of cotton, the punishment assessed being imprisonment for two years in the penitentiary. The opinion sufficiently states the case.

<p>This appeal is from a conviction for murder, in the first degree, with penalty assessed at life imprisonment in the penitentiary.</p> <p>The parties to this killing were negroes. The deceased’s name was. Will Adkins; he was engaged to Silvia Wood, and they were to have been married on the night of the killing. Silvia testified, that appellant, Harrison Seals, was her uncle by marriage, and that she had been living with him five or six years, and he had been “keeping” her most of the time. About a week before the killing, she had told him she was going to marry deceased, and he became very angry and said, before she should do so he would kill deceased. Appellant made threats to others to the same effect. He borrowed a gun and ammunition from a friend. On the night of the killing, Will Adkins and Silvia Wood had gone to a ball at Sealy Cambies, and Will was standing in front of the fire-place, when he was shot through a crack in the wall by some one on the outside, standing near the chimney. Parties coming to the ball heard the shot and saw appellant, whom they recognized, come running by them. His tracks were found going to, at and returning from the chimney, where the assassin stood. Appellant did not testify.</p>

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

<p>1. Offer to Bribe an Officer—Indictment.</p> <p>It is not essential to the sufficiency ot an indictment for offering to bribe an officer, under provision of Art. 120, Penal Code, that the indictment should allege that, the accused offered to bribe said officer to do or omit to do an act in violation of his duty as an officer. The offense is complete whenever the offer to bribe is made for the purpose, and with intent to influence, in a certain way the action of the officer in his official capacity, and this too whether it would be the duty of said officer to so act or not.</p> <p>2. —Same.</p> <p>Under the latter portion of said Art. 120, if the indictment seeks to charge an offer to bribe an officer to do any act or thing in violation of his duty as an officer, then it is proper that the indictment should set out the matters or acts which it was proposed the officer should do in violation of his duty as said officer.</p> <p>3. Refused Instructions.</p> <p>It is not error to refuse requested instructions which do not present law applicable to the case.</p> <p>4. Evidence—Written Instrument, and Parol Evidence.</p> <p>Where an offer to bribe an officer was in writing, and the instrument had been offered in evidence by the State. Held: That this did not preclude the State from "proving subsequent parol offers by the accused to bribe said officer, which were different from the one contained in the written instrument, since all the propositions went equally to establish the charge of an offer to bribe, and the rule that a written instrument cannot be contradicted by parol does not apply in such a case.</p> <p>5. Record Evidence as to Election of Officer.</p> <p>On a trial for offering to bribe an officer, it is not necessary to introduce record evidence as to the election and qualification of the officer.</p> <p>6. Offer to Bribe—Suggestion of Made by the Officer.</p> <p>On a trial for offering to bribe an officer, it is immaterial that the suggestion of the offer to bribe came from the officer, for the fact that the latter might have been willing to be bribed, would be no justification or excuse in defendant’s offering the bribe.</p>

<p>1. New Trial—Absence of Counsel.</p> <p>Where, on a motion for new trial, based on absence of counsel, it was made to appear that no complaint as to such matter was made until after conviction; and,further, that the connsel did not represent him because defendant did not pay or secure his fee. • Held: Why defendant should have a new trial upon such ground is not apparent.</p> <p>2. Fact Case—Burglary to Commit Theft—Evidence of Intent.</p> <p>See facts stated in the opinion which are held sufficient to establish a burglary with intent to commit theft.</p>

Tried below before Hon. George F. Burnett, County Judge. This appeal is from a conviction for pursuing the occupation of selling intoxicating liquor without license, the punishment being assessed at a fine of $450. The case is sufficiently stated in the opinion.

Tried below before Hon. J. L. Sheppard. This appeal is from a conviction for murder in the second degree, the punishment being assessed at five years’ imprisonment in the penitentiary. A concise statement of the case will be found in the opinion.

Tried below before Hon. J. L. Sheppard. This appeal is from a conviction for assault to murder, the punishment being assessed at two years’ imprisonment in the penitentiary. This is a companion case to Washington v. State, ante p. 154. The indictment charges an assault with intent to murder one Jim Edwards. During the rencounter, defendant shot at Edwards and missed him, and killed one Black.

Tried below before Hon. T. H. Spooner. This appeal is from a conviction for burglary, the punishment being assessed at two years’ imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. Doe A. Bliss. Appellant was convicted of theft from the person, and punishment assessed at seven years’ confinement in the penitentiary. No statement necessary.

<p>Appeal from the District Court of Lampasas. Tried below before Hon. W. A. Blackburn.</p> <p>This appeal is from a conviction for murder in the second degree, the punishment assessed being a term of eleven years in the penitentiary. This is the second appeal taken in this case. The first appeal was from a conviction for murder in the second degree, with punishment affixed at seven years and a half in the penitentiary. Campbell v. State, 30 Tex. Crim. App., 645.</p> <p>The murder was committed'on the 27th day of November, 1889. The first trial was had in Mason County, to which county the venue had been changed by the court of his own motion. A second trial in Mason County, at the March term, 189,3, resulted in a mistrial, the jury being unable to agree. On the 18th day of March, 1893, the District Judge of his own motion, again changed the venue to the County of Lampasas, in an adjoining judicial district. The grounds for this second change of venue, as stated by the j udge in his order, being, 1 ‘because the County of Mason being comparatively a small county, with a limited number of qualified jurors, and this case, having been heretofore twice tried by a jury in this county, with a mistrial at a former day of this court, and because of extraordinary notoriety of the facts and evidence in the case to such an extent as to render it improbable that a jury could be had in this county to finally agree upon "a verdict in this case.”</p> <p>A plea to the jurisdiction of the District Court of Lampasas County was filed by defendant, in which, among other grounds, it was claimed that said court was without jurisdiction, because, “It is not shown that the District Court of Mason County did properly exercise its right or authority to change the venue in this case, and it is not shown, and it does not appear that a fair and impartial trial could not be had in Mason County, Texas.” This plea was overruled at the May term, 1894, and the case having proceeded to trial, a mistrial was again had from the failure by the jury to agree. The trial, from which the appeal herein was taken, occurred May 27th, 1895, with the result above stated.</p> <p>In addition to the facts, as stated in Campbell v. State, 30 Tex. Crim. App., 045, the facts discussed in the opinion of the court, are sufficiently stated, and no further statement of the case is necessary.</p> <p>At the trial a bill of exceptions was taken to the allusion, by the District Attorney in his closing argument, to former trials had in the case. This bill of exceptions is qualified by the trial judge as follows, to-wit: ‘ ‘Be it remembered that in the trial of this cause in the closing argument for the State, State’s counsel, in reply to the argument of Judge Fulton, one of defendant’s counsel, who had stated to the jury that for six long years the defendant had been prosecuted by able paid counsel, and the defendant had, every six months, to appear and stand trial; yet, notwithstanding the prosecution by able paid counsel, aided by the machinery and unlimited resources back of the prosecution, the defendant had successfully resisted all the attacks made against him for six long years.” That the State’s counsel, in his said closing address to the jury, repeated the language used by defendant’s counsel as above, and stated to -the jury as follows: “Gentlemen, in reply I will state, in passing, that during those six long years, and all the trials had during that time, no jury ever turned the defendant loose, and the defendant stands here to-day before a jury to answer the charge of murder of Edward Hartman.”</p> <p>The foregoing exception as qualified is given as correct.</p>

Tried below before Hon. J. S. Straugiian. The appellant and his brother, Dove Lindsey, were jointly indicted and jointly tried for the murder of E. G. Ivey. At their trial they were each convicted of manslaughter, the punishment assessed against this appellant being imprisonment in the penitentiary for a term of four-years and six months; and the punishment assessed against Dove Lindsey being two years’ confinement in the reformatory, he being under sixteen years of age.

Tried below before Hon. G. A. Brown. Appellant was indicted for the murder of one E. M. Bull, alleged to have been committed in Childress County, on the 28th day of November, 1894, by shooting him with a pistol. At his trial, he was convicted of manslaughter, the punishment being assessed at two years’ imprisonment in the penitentiary. In view of the disposition made of the case on this appeal, a statement of the evidence is not called for.

<p>1. Juror—Qualification of—Previously Formed Opinions.</p> <p>Where, on his voi dire examination, the juror stated that he had formed an opinion from general talk and rumor, and that he had also talked with a witness in the case, but that he could, notwithstanding this, give the defendant a fair and impartial trial, whereupon he was held competent. Held: That the bill of exceptions should have disclosed what witness he talked with; whether the witness was a material one in the case, and whether the conversation with the witness was a factor in the opinion formed.</p> <p>2. Robbery—Indictment—Description of Foreign Money.</p> <p>On a trial for robbery, where the indictment described the money taken as “one dollar in Mexican money of the value of fifty cents.” Held: That there being no statute upon the subject of foreign money, our courts take no judicial cognizance of the same; and hence, in describing the same in an indictment, it must be treated as property within the purview of Article 427, Code Crim. Proc,, and should be described by name, kind, quantity and ownership; and that the indictment, having failed to so describe the money, is fatally defective. Overruling, Bravo v. State, 20 Tex. Crim. App., 177.</p>

Tried below before Hon. Sam R. Scott. This appeal is from a conviction for incest, the punishment being assessed at five years’ imprisonment in the penitentiary. The alleged incest was charged to have been committed with Mamie Tannehill, the daughter of defendant’s wife by a former marriage. Appellant had been previously prosecuted for rape upon the said Mamie Tannehill, and acquitted.

Tried below before Hon. E. D. McClellan. This appeal is from a conviction for knowingly attempting to pass as true a forged instrument, the punishment being assessed at three years’ imprisonment in the penitentiary. The forged instrument was a note executed to the order of the First National Bank of Paris, for $212.

Tried below before Hon. J. E. Dillard. Aqipellant was convicted of fraudulently converting a horse to his own use, his punishment being assessed at a term of five years in the penitentiary. No exceptions having been reserved during the trial, and there being no statement of facts in the record, no further statement is necessary.

<p>Appeal from the District Court of Fannin. Tried below before Hon. W. A. Evans, Special Judge.</p> <p>This appeal is from a. conviction for forgery, with punishment assessed at two years’ imprisonment in the penitentiary.</p> <p>No statement necessary.</p>

<p>This appeal is from a conviction for murder in the first degree, with the penalty assessed at-death.</p> <p>The party alleged to have been murdered was Mrs. Lou Williams, wife of defendant.</p> <p>A general statement of the case is not called for. As to the point upon which the case is disposed of on this appeal, the same is fully shown by defendant’s fourth bill of exceptions, as follows:</p> <p>“Be it known, that on the trial of the above entitled cause, the following proceedings were had, to-wit: After the evidence had been introduced, and after the argument of counsel on both sides had ended, the court read his charge to the jury, the charge having been theretofore properly filed, and the ¡iroper file and indorsement had been made thereon and officially signed by the clerk of the court. After reading the instructions to the jury, the court was about to hand the charge and indictment to the deputy sheriff in charge of the j ury to be carried to the j ury room in their retirement. At this point counsel for the defendant arose and, asking the court to have the jury wait a moment, verbally moved the court to instruct the jury to return a verdict of “not guilty,” for the reason that the State had nowhere in its evidence proved that the name of the deceased was “Lou” Williams. Counsel said, further, that the indictment charged the defendant with the murder of “Lou” Williams, describing deceased in no other way; that the proof had disclosed only that defendant had killed a woman; that the woman was Mrs. (?) Williams, and the wife of the defendant; but had failed to prove that the woman’s name was “Lou.” The court thereupon instructed the sheriff to take the jury to their room for a few minutes, and when they left he examined the statutes for several minutes. While the court was reading the statutes, defendant’s attorney informed the court that he had a written instruction to the same effect as his verbal request, and laid on the court’s desk the requested charge in writing on that subject, which is on file marked “Refused” by the court. After examining the statutes the court stated, to counsel for the defendant, that without passing upon the question as to whether the State had or 'had not proved the woman’s name to be “Lou,” he would then permit the State to introduce testimony on that point if so desired by the County Attorney. The County Attorney then asked for time to send for some of the witnesses, they having all been discharged the day before, when the argument began, and had gone home, which the court granted, first having inquired if there was any witnesses in the court now who could swear to the woman’s name. To this action of the court the defendant’s attorney objected, and began to read Art. 661, Code of Grim. Proc., and the notes thereunder, stating that he objected to the introduction of any evidence after the argument liad ended. The court responded: “I am familiar with the statutes, but I do not believe that an obstacle of this kind should be permitted to interfere with the ends of justice;” and he permitted the County Attorney to take process for said witnesses. The defendant, by his attorney, excepted to this ruling of the court, and to the language of the court, on the ground that the ruling of the court was in direct violation of the statutes, which provide that no evidence should be permitted after the argument was ended, and was contrary to, and in violation of, the Constitution of the United States, and of the State of Texas, both of which provide that a man shall not be twice placed in j eopardy of life or liberty.</p> <p>That the ruling was hurtful to the rights of the defendant, as the case was now entirely ended so far as the trial was concerned, the jury having been charged; and, that the only thing now to be done was to receive the verdict of the jury, which verdict should be, not guilty, and the jury should be so told.</p> <p>To this action of the court defendant also excepted, on the ground that it was injurious to the rights of defendant and prejudicial for his •cause for the court to take charge of the prosecution and piublicly call witnesses in behalf of the State. At this point the court took a recess to await the arrival of the witnesses. To this delay defendant also excepted at the time.</p> <p>All of the above objections and exceptions of defendant having been by the court overruled, the defendant demanded a bill of exceptions in regard thereto. The defendant’s attorney further stated to the court, that he desired it to be understood that he was excepting, and would except to every word to be said and every step) to be taken in this cause, and he desired that a record of the entire proceedings, from this pioint to .the termination of the case, should be kept, in order that it should be fully understood that all was done over his objections, and his bill of exceptions should be understood as covering the entire proceedings.</p> <p>This objection was based upion the grounds that any subsequent proceedings herein will be virtually a second trial, the first trial having been -ended. lie asks that this, his bill of exceptions, be signed and approved by the court, and by him ordered filed and made a poart of the record, which is done.</p> <p>The above is signed, with the explanation, “that during the entire pro-ceedings set forth in this bill, from the time the oral motion was made requesting the court to instruct the jury to return a verdict of not guilty, to the close, the jury were not in court.”</p>

Tried below before Hon. M. F. Lowe. This is an appeal from a conviction for perjury, wherein the punishment assessed was imprisonment in the penitentiary for a term of five years.

This appeal is from a conviction for theft of one head of cattle, the punishment assessed being two years’ imprisonment in the penitentiary. The offense was alleged to have been committed in McCulloch County, and the indictment was presented in that county.

<p>Appeal from the District Court of Fannin. Tried below before Hon. W. A. Evans, Special Judge.</p> <p>This appeal is from a conviction for incest, the punishment being assessed at ten years’ imprisonment in the penitentiary.</p> <p>We copy the following from the statement of facts relative to the witness Flora Waggoner. “Flora Waggoner being sworn, testified for the State as follows; ‘I am 1*1 years old; the defendant is my father (points him out in court). My mother has been dead eight years. I lived with my father in Fannin County, about ten miles southeast from Bonham.’ At this point, defendant’s counsel addressed the court in presence of the witness, and stated that he had been informed that the witness did not want to testify against defendant, and with the court’s permission, stated to the witness that she was not compelled to testify in this case. Thereupon counsel for the State asked#the witness the following question: ‘Did your father ever come to your bed at night?’ To which the witness replied that she did not want to testify in this case, and thereupon declined to testify further.” Then next, the State introduced the witness M. S. Keller, and after the conclusion of his testimony, we copy the further facts from the statement of facts: “Flora Waggoner being recalled as a witness for the State, the District Attorney, A. J. Nichols, propounded to her the following question in the presence of the court and jury: ‘Now, Flora, if you will testify in this case, and tell the whole truth about this matter, I, as the District Attorney of the State of Texas of this district, promise you in writing that I will not prosecute you for the offense of which your father is here charged, and will see that no other officer of the State of Texas prosecutes you for this offense, and my promise to you will serve as a complete bar against any prosecution that may be made against you for this offense; did your father ever come to your bed?’ To which the witness replied that she declined to testify.”</p> <p>The evidence in this record which tends to show the alleged carnal knowledge, in addition to that hereinbefore set out, and in addition to the fact that it was proven that Flora Waggoner was pregnant about seven months quick with child, was the testimony of the witness, Esther Waggoner, which is here copied in full: “Esther Waggoner being sworn, testified for the State as folknvs: T am a daughter.of defendant; am 15 years old; my mother has been dead eight years; defendant is my father; Flora Waggoner is my sister. Myself, sister Flora, my father and three smaller children have been living together about ten miles from Bonham in Fannin County, Texas; have been living together as one family for the last two years. There are three rooms in my father’s house; two rooms fronting south and one room on the north of the west room of my father, and one or two of the little children slept in east room. Flora and myself occupied separate beds in west room; the bed occupied by Flora was in the S. E. corner of the room; my bed in N. E. corner of the .room; there was one door between the room occupied by my father and the room occupied by us. Our home was on a farm, and my father was a farmer. I have seen my father frequently come into my room, generally about day break, and go to the bed of sister Flora and get in bed with her. These occurrences transpired within the last year. I saw the defendant several times, some time about last June and ¡irior thereto; that on such occasions I would hear Flora’s bed creak and pop. On several of these occasions when father would go to Flora’s bed, I would see him get on top of her. I saw my father come to Flora’s room and get on top of her several times during the month of June, 1895, in Fannin County, Texas.’ The witness, Esther Waggoner, being cross-examined by defendant said: ‘Each of the rooms were about 16 feet square; there were two windows in my room. My father usually made the fires in my room, about day break, and would make us get up. The bed occupied by my sister, Flora, was about six or eight feet from my bed. It was akvays about day or before day when father would come in and get on sister’s bed. I never did, on any of these occasions, see sister Flora’s limbs exposed. Sometimes they were under cover and sometimes they were not. I would always be in bed on such occasoins. On such occasions there would be no light in my room other than what might be admitted through the windows. I don’t remember that the moon was ever shining on any of these occasions when father would go to sister’s bed. In answer to counsel’s question as to whether or not beds would creak when persons were getting in and out of them, or when persons were turning over in them, she answered they would.’</p> <p>Re-Direct by State.—“Witness said these things about which she testified occurred in Fannin County, Texas, prior to filing bill of indictment in this case, and when defendant would go to sister’s bed and get on top of sister Flora, the bed would creak five or ten minutes.” It was proven that defendant’s reputation for moral character was good.</p>

Tried below before Hon. F. G. Morris. This appeal is from a conviction for perjury, the punishment assessed being a term of five years in the penitentiary. • The perjury was alleged to have been committed by defendant as a witness before the grand jury. The grand jury were investigating an alleged criminal abortion upon the said Lizzie Plummer, charged to have-been committed on or about the 15th day of June, 1894.

Tried below before Hon. W. G. Taliaferro. This appeal is from a conviction for theft of personal property over the value of $20, the punishment assessed being five years’ imprisonment in the penitentiary. The money stolen was taken from the safe of Charles Hanson, agent of the I. & G. N. R. R. at Milano, Texas. It was his receipts for the week, which he had sealed up in an envelope, stitched it up with needle and thread, and placed it in a safe in his office.

Tried below before Hon. W. A. Blackbubx. Appellant, J. F. Elkins, and W. O. Finley were jointly indicted on the 17th day of July, 1895, by the grand jury of Bell County, Texas, charging them with the theft of a horse on July 8th, 1895, the property of W. A. Wilmeth. July 16th, 1895, at the same term of the court, defendant, J. F. Elkins, was alone placed on trial, W. 0. Finley not having been arrested.

<p>Appeal from the District Court of Bell. Tried below before Hon. W. A. Blackburn.</p> <p>Appellant, J. F. Elkins, and W. O. Finley, were jointly indicted on the lHh day of July, 1895, by the grand jury of Bell County, Texas, charging them with the offense of forgery and with having in their possession the alleged forged instrument.</p> <p>The first count charges appellant jointly with W. 0. Finley, of, on or about the 8th day of July, 1895, “unlawfully and fraudulently having in their possession, with intent to use and pass the same as true, a false and forged instrument in writing, to the tenor following:</p> <p>“ ‘Sulphire Springs, July 8, 1895.</p> <p>“ ‘This is to certify that I have sold and delivered one bay mare, 14 hands high, 5 years old, C on jaw; sold by J. C. Rawlings, to J. F. Elkins.</p> <p>“(Witness) W. 0. Finley, O. W. Hill.’ ”</p> <p>The second count in said indictment charges appellant and Finley with the making of the alleged forged instrument.</p> <p>At the same term of the court, defendant, J. F. Elkins, was alone placed on trial, W. 0. Finley not having been arrested. The District Attorney dismissed as to second count, that of making the alleged forged instrument, and a conviction followed on the first count in said indictment, with two years in the penitentiary assessed against him as punishment.</p>

Tried below before Hon. J. W. Patters oh. Appellant was convicted upon the second count in the indictment for fraudulently receiving from Aaron Myers, and fraudulently concealing, one head of cattle, the property of Z. Williams; his punishment being assessed at two years’ imprisonment in the penitentiary. The evidence is conflicting. One of the witnesses, Wm. Cole, testified: that he traded with defendant for one of the cows, and defendant told him that he had raised her.

Tried below before Hon. J. E. Dillabd. This appeal is from a conviction for fraudulently receiving and concealing three horses and a mule which had been stolen; the punishment being assessed at five years in the penitentiary. The stolen animals belonged to J. W. E. Leyerett, who lived at Pedee’s Mill, Kaufman County. He recovered the mares in Ellis, and the mule in McLennan County.

<p>1. Carrying a Pistol—“Traveler.”</p> <p>When defendant had borrowed a pistol to carry with him on a visit to his brother in an adjoining county, which pistol he is seen with several days thereafter at a political meeting in the county of his residence, and there was no evidence showing that he was there en route home from his brother’s. Held: He could not claim exemption upon the ground that he was a “traveler.”</p> <p>2. Same—Apprehension of Attack.</p> <p>The law which exempts one from liability for carrying a pistol upon apprehension of an attack, has reference to the time a party arms himself—the fear of attack must then exist, and must be such as, at that time, he did not have time to appeal to the law for protection.</p>

Tried below before Hon. D. E. Barrett. This appeal is from a conviction for murder of the second degree, with the penalty assessed at thirty years’ imprisonment in the penitentiary. This is a companion case to the case of Elmer Jones v. The State, 34 Tex. Crim. Rep., p. 490. Jones and Magruder were both indicted for the murder of George Humphrey, which was alleged to have been committed in Cooke County, on the 26th of September, 1894, by shooting him with a pistol.

<p>1. Disorderly House— Ownership—Liability of Agent.</p> <p>Where the indictment, for permitting the keeping of a disorderly house, alleged ownership in the accused, and the proof showed him to be the agent of the owner, and that he had the management and control of the house, which he rented with full knowledge that it would be kept as a disorderly house. Held: The ownership was properly alleged in him, and he was liable as an owner. Distinguishing, Mitchell v. State, 34 Tex. Crim. Rep., 311.</p> <p>2. Special Instructions.</p> <p>It is not error to refuse special requested instructions contained in the charge given by the court.</p>

<p>1. Perjury—Evidence—Leading- Question.</p> <p>On a trial for perjury, where the perjury was assigned upon the evidence given by-defendant as a witness at a coroner’s inquest, in which he had stated, that he heard the shot, went near the locality, heard groaning and scuffling, and, looking under a cotton shed, saw a person he took to be deceased, and saw two other parties, one of whom was one H., walking away from the place; and H., on the the perjury trial, having testified that he was not present at the time and did not kill the deceased, it was not error to propound to him, as a question, the very language of the matter assigned as perjury, and permit him to answer, “if the defendant, Rogers, testified to that, it is false.” Under the circumstances of the c%se, the question propounded could not he regarded as leading, and the answer could not be regarded as not being the statement of a fact or facts within the knowledge of the witness.</p> <p>2. Bill of Exceptions to a Question Asked.</p> <p>A bill of exceptions reserved to the ruling of the court, in permitting a question to he asked a witness, is insufficient, if it fails to show that the question was answered.</p> <p>3. Perjury—Evidence.</p> <p>Where perjury was assigned upon defendant’s statement, that one H. was present when one S. was murdered. Held: That, as tending to show that S. was not murdered, but killed himself accidently, and that H. was not present, it was competent to show the loose manner in which deceased carried his pistol, and that from such carelessness he may have shot himself.</p> <p>4. Same—Certificate to Coroner’s Inquest.</p> <p>Where perjury was assigned upon the statement of a witness at a coroner’s inquest, and the coroner’s certificate to the inquest proceedings bore a wrong date. Held: It was competent to show that said certificate bore a wrong date, and that the perjured testimony was, in fact, given at an inquest over the dead body of one S.</p> <p>5. Same—Circumstantial Evidence.</p> <p>A case of perjury may he entirely made out and supported by circumstantial evidence. Following, Plummer v. State, ante p. 202.</p> <p>6. Perjury—Fact Case.</p> <p>See opinion for evidence summed up, which the court ¡holds sufficient to sustain a verdict and judgment for perjury.</p>

This appeal is from a conviction for robbery, the punishment being assessed at ten years’ imprisonment in the penitentiary. A motion was made to quash the indictment, for insufficient description of the money alleged to have been taken, as. to kind and of what nation the money was.

Tried below before Hon. Eugene Archer. This appeal is from a conviction for murder in the second degree, the punishment being assessed at imprisonment for fifteen years in the penitentiary. The leading features of the case will be found to be very briefly, but sufficiently, stated in the opinion of the court, and no additional statement is deemed necessary to illustrate the points decided.

<p>1. Selling Liquor Without Occupation License—Indictment.</p> <p>An indictment for pursuing the occupation of selling liquors without first obtaining a license, is sufficient which alleges that the occupation is one taxed by law, and that defendant is indebted to the State in the sum of $300, occupation tax, for pursuing said occupation; and, an allegation that he was pursuing such occupation on the first day of January, 1895, is sufficient as to the existence of the rate of taxation at that time.</p> <p>2. Same—Evidence—Limitations.</p> <p>On a prosecution for the sale of liquors without an occupation license, the State may allege and prove sales at any time within two years prior to the date of the filing of the indictment.</p> <p>3. Same—United States Revenue License Prima Facie Evidence—Charge. On a trial for selling liquor without occupation license, proof, of the procurement</p> <p>of a United States revenue license by accused, is prima facie evidence that he was engaged in the business; and, it was not error for the court to so instruct the jury.</p> <p>4. Same—Proof of Venue—Judicial Knowledge.</p> <p>On a trial for the sale of liquor without occupation license, proof, that defendant was engaged in the business in Galveston City, is sufficient proof of venue, as the court judicially knows that Galveston City is in Galveston County.</p> <p>5. Same—Evidence—Failure to Prove County Tax.</p> <p>Where the indictment alleged the levy of the county tax by the Commissioners’ Court, but no proof was offered in support of this allegation, it was proper for the court, in its charge, to limit this feature of the case and authorize a conviction only upon the issue of failure to pay the State tax and obtain a license therefor.</p> <p>6. Same—Evidence Sufficient.</p> <p>See, evidence summed up in the opinion, which is, Held: Sufficient to sustain a conviction for pursuing the occupation of selling liquor without an occupation license.</p>

Tried below before Hon. J. W. Patterson. This appeal is from a conviction for conspiracy to commit burglary, the punishment assessed being two years’ imprisonment in the penitentiary. The indictment contained two counts, one for burglary, and one for conspiracy to commit burglary. The house burglarized was the storehouse of one R. J. Waters. On the next day, after the burglary, the defendant and his brother, Dan Dill, were both arrested for the crime.

This appeal is from a conviction for false swearing, in an affidavit made to procure a marriage license, the punishment assessed being a term of two years’ imprisonment in the penitentiary.

Tried below before Hon. E. D. Gavin. This appeal is from a conviction for assault with intent to murder, wherein the punishment was assessed at two years in the penitentiary. The ¡parties to the shooting were negroes, man and wife. When the shot was heard by outsiders they went into the room, found defendant and his wife alone in the room, and the woman was shot.

This appeal is from a conviction for murder in the second degree, the punishment being assessed at twenty-five years’ imprisonment in the penitentiary. The opinion states the case fully.

Tried below before Hon. J. M. Hall. This appeal is from a conviction for murder in the second degree, the punishment assessed being a term of ten years’ imprisonment in the penitentiary. This is a companion case to Moffatt v. State, ante j). 257, and the material facts in the case will be found recited in the opinion of the court in that case. . Ho additional statement is necessary.

<p>1. Continuance.</p> <p>An application for continuance should show whether it is a first or second application. A second application is insufficient, which fails to show, that the absent testimony cannot be procured from any other source. A first application for continuance should allege the facts the absent witnesses would swear to, in such explicit terms as that an indictment for perjury could be predicated upon it, and it is insufficient if the facts be stated in general terms.</p> <p>2. Theft—Evidence—Declarations of Defendant.</p> <p>Declarations of a defendant, to be admissible in evidence for him in a theft case, must be brought within the rule of res gestas, or of reasonable explanation of possession of recently stolen property; or as supporting evidence in rebuttal, where defendant’s testimony has been attacked by proof of contradictory statements.</p> <p>3. Verdict—Affidavits of Jurors.</p> <p>On appeal, the court will not encourage affidavits of jurors, who, by stultifying themselves, seek, by their affidavits, to overturn their verdicts.</p>

<p>Impeachment of a Witness for Credibility—Proof of His Good Character.</p> <p>The credibility of a witness may be attacked by showing that he has been arrested and confined in jail; but, when so attacked, his credibility may be sustained by proof of good character for truth and veracity.</p>

<p>Forgery—Indictment—Evidence—Fictitious Person.</p> <p>An indictment for forgery need not name the party intended to be defrauded; it is sufficient if it alleges an intent to defraud generally. And where the offense is thus charged, evidence is admissible to prove that the name signed to the forged instrument was that of a fictitious person or company.</p>

Tried below before Hon. W. J. Graham. This appeal is from a conviction for passing a forged instrument, the punishment assessed being two years’ imprisonment in the penitentiary. This case is a companion case to Johnson v. State, ante p. 271. No statement necessary.

<p>1. Selling Intoxicating Liquors and “Medicated Bitters”—License—Occupation Tax.</p> <p>Under the Act of 1893, (Penal Code, Art. 411a) it is made an offense to pursue the occupation of selling intoxicating liquors and medicated bitters without license, and to legally sell medicated bitters, a party, unless he is a druggist, must first pay the tax.</p> <p>3. Same—Indictment—“Medicated Bitters.”</p> <p>An indictment, charging the sale of intoxicating liquor, is supported by proof of a sale of so-called medicated bitters, which produced intoxication whenever they had a fair trial—though it did not allege that “medicated bitters” were sold.</p> <p>3. Same—Charge—Penalty.</p> <p>Under the Act of 1893, (Penal Code, Art. 411a), the punishment for selling intoxicating liquor or medicated bitters, without license, is alternative; that is, by fine or imprisonment in the county jail; and a charge of court which authorizes the infliction of but one of these penalties only, is erroneous.</p>

This appeal is from a conviction for aggravated assault, the punishment assessed being a fine of $25.

Tried below before Hon. S. R. Scott. This appeal is from a conviction for theft of one head of cattle, the punishment being assessed at two years’ imprisonment in the penitentiary. No statement necessary.

<p>Slander—Evidence.</p> <p>To warrant a conviction for slander of a female, it is essential that the slanderous language charged must be proved as charged; and proof of words of precisely the same meaning as those alleged in the indictment, will not suffice.</p>

<p>Appeal from the District Court "of McLennan. Tried below before-Hon. S. R. Scott.</p> <p>This appeal is from a conviction for burglary, the punishment assessed being twelve years’ imprisonment in the penitentiary.</p> <p>The indictment alleged that the burglarized house was occupied by B. Haber, and that he was the owner of the goods taken. Haber testified that the house was a store house and in his possession and occupancy as such; and that the same and the goods therein were in his exclusive care, custody, management and control.</p> <p>“Mr. Sanger, of Dallas, was, in fact, the true owner of the goods in the store, and I was forking for him for part of what I could make out of the store; and, as stated, had exclusive care, management, custody and control of all the goods in the house, and had rented and occupied the house myself. Mr. Sanger lives in Dallas, and came to Waco about once a year.” The witness described how the house had been burglarized and the goods taken, and identified some of the stolen goods, which were in court, and the clothing defendant was wearing at the trial as part of the goods stolen from the store.</p> <p>John Kimmet, an accomplice, who had turned State’s evidence, told all about the burglary, implicating this appellant as the instigator and principal actor in the crime.</p> <p>Arthur Gibson, another accomplice, who had turned State’s evidence, corroborated the testimony of John Kimmet.</p>

Tried below before Hon. Tom C. Davis, County Judge. This appeal is from a conviction for aggravated assault and battery by an adult male upon a female, the punishment assessed being a fine of $25.

This appeal is from a conviction for murder in the second degree, the punishment assessed being a term of ninety-nine years’ imprisonment in the penitentiary. A motion for change of venue was made by defendant, which was overruled; but, the bill of exceptions to the ruling having failed to set forth the evidence adduced upon the motion, is not considered by the court, and is therefore elimiated from the case.

Tried below before Hon. M. G. Abebxatiiy, County Judge. Appellant was arrested on the 8th day of May, 1895, by the sheriff of Collin County, under an information which charged him with the violation of the local option law in said connty; and failing to give bond after his arrest, was placed in jail by the sheriff.

<p>Theft—Driving From Accustomed Range—Counts—Erroneous but Harmless Charge.</p> <p>Where an indictment contained two counts for theft, and the conviction was upon the first count. Held: An erroneous charge, in connection with the second count, as to driving from the accustomed range, was harmless, inasmuch as it could not have entered into or formed a factor in the conviction of defendant un,der the first count.</p>

This appeal is from a conviction for aggravated assault and battery, the punishment being assessed ata fine of $500, and six months’ confinement in the county jail. • Defendant’s counsel verbally asked a postponement on account of his mental and physical condition, which was refused.

He, Jno. R. Peel, and another signed the bond as sureties, and Thos. J. Peel, of Montgomery, was desired as a third surety. In the economy of time, Jno. R. Peel, before seeing the said Montgomery Thos. J., procured a certificate from the Clerk of the District Court of Montgomery County, to the effect that the said bond, with the said Thos. J. thereon, would be a good bond, and if submitted to him he would approve the same for the purpose it was to subserve.

Tried below before Hon. John W. Roundtree, County Judge. This appeal is from a conviction for negligent homicide in the first degree, the punishment being assessed at a fine of §75.

Tried below before Hon. E. D. Gavin. This appeal is from a conviction for selling spirituous liquors without having obtained a license therefor, the punishment assessed being a fine of 184o 0 • No further statement necessary.

This is an appeal from a conviction for selling spirituous liquors without having obtained a license, the punishment assessed being a fine of $450. No general statement necessary.

This appeal is from a conviction for murder in the second degree, the punishment being assessed at a term of twenty years’ imprisonment in the penitentiary. Peter Sargent, this appellant, kept the Tremont hotel in the city of Fort Worth. Pat Foley, the deceased, had boarded at the hotel for some time, but it seems had been gone a week or more, and had returned on Saturday morning, the 24th of November, 1894.

<p>1. Sentence Nunc Pro Tunc—Entry of—Judge’s Memoranda.</p> <p>Where the District Attorney made a motion to enter the sentence upon the record nunc pro tunc, and it was objected, that there was no memoranda upon the judge’s minutes, nor in the records showing that sentence had ever before been pronounced. Held: That without such evidences of the fact, the sentence could properly be entered when the judge had the indictment, verdict and judgment all before him; and besides, had personal knowledge that the sentence had been pronounced. There is no reason requiring record evidence to authorize entering the sentence.</p> <p>2. Charge of Court—Kevisable, Though not Excepted to When..</p> <p>A charge of court, in a felony case, though not excepted to, is subject to complaint, and will be considered on appeal; if the same is calculated to injure the rights of the accused. But, unless it was calculated to injure the rights of the appellant, it will not afford ground for reversal.</p>

<p>1. Murder—Self-Defense.</p> <p>On a trial for murder, where the defense was self-defense, and it appeared from the evidence that defendant had heard deceased had threatened to kill him; and having armed himself went into the house of deceased, pistol in hand, and remarked to him, “1 understand you' intend to kill me?” Whereupon deceased moved his hand to his side, and defendant shot and killed him. Held: There was no self-defense in the case-</p> <p>2. Same.</p> <p>Where deceased has threatened to kill defendant, and defendant arms himself, goes into deceased’s house and kills him because he has threatened his life, there is neither manslaughter, self-defense or anything else short of murder in such case.</p> <p>ON MOTION FOR REHEARING.</p> <p>3. Cross-examination of Defendant’s Wife as a Witness.</p> <p>On cross-examination of a wife, who has testified as a witness for her husband, she can be interrogated only as to such matters as naturally spring out of, and appertain to, her examination in chief; and it is error to permit her to be cross-examined as to original matters, which may be used against or are prejudicial to her husband. Following, Bluman v. State, 33 Tex. Crim. Rep., 43.</p>

The injured party was Pearl Owens, the 13-year-old daughter of Jay Owens, the defendant. She testified to sixteen different acts of carnal intercourse with defendant, which she was compelled to submit to through fear and cruel treatment of defendant. Her person was examined by physicians, who testified, that her hymen was ruptured and vagina dilated, and showing evidence that it had been frequently penetrated.

Tried below before Hon. T. F. Nash, County Judge. This appeal is from a conviction for simple assault and battery, the punishment being assessed at a fine of $5.

J. W. Patterson. This appeal is from a conviction for the theft of one head of cattle, the property of some person to the grand' jurors unknown, wherein the punishment assessed was a term of two years’ imprisonment in the penitentiary.

Tried below before Hon. Stephen P. West. This appeal is from a conviction for murder in the first degree, the punishment being assessed at imprisonment for life in the penitentiary. On the night of the 11th day of December, 1893, one Polk Phillips, Avas assassinated at his home in Tyler County, Texas. Monroe Jackson Avas indicted for the murder.

<p>Appeal from the County Court of Dallas. Tried below before Hon. T. F. Nash, County Judge.</p> <p>This appeal is from a conviction for selling intoxicating liquor to a a minor without the written consent of the parent, etc. This case was instituted and prosecuted by complaint in a Justice’s Court, wherein defendant was convicted and fined $50. He appealed to the County Court, and upon trial in that court, was again convicted and fined in the sum of $25, and seeks to prosecute this appeal from the latter judgment.</p>

Tried below before Hon. D. E. Barrett. This appeal is from a conviction for forgery, the punishment being assessed at seven years’ imprisonment in the penitentiary. The forgery was proven to be the signing, by defendant, of the name of Sidney Woods to a note for $30, given by defendant for a buggy bought by him of one Eckleberger. The note and a chattel mortgage on the buggy, to secure its payment, were delivered by defendant to Eckleberger.

<p>Deceased and a party of friends had gone into Prendergast’s saloon and were at the bar and in the act of taking drinks, when defendant drew his pistol, and, without a word, fired upon deceased; deceased rushed towards him when defendant shot again, and deceased fell mortally wounded; was carried to a drug store, and shortly thereafter died. There is no motive shown for the killing, unless it is to be found in the relations borne by deceased to a lady, who had defendant prosecuted for insulting her upon the streets. This young lady’s name was Maggie May, and her testimony is as follows: “I knew the deceased, Marco Gargoravich, and kept company with him one year .and six months previous to his death. I will not say we were engaged, because that is a personal matter. I am not acquainted with the defendant, but I recognize him as the man who insulted me. I cannot use the language Harry Jinks and Will Gray used to me; it occurred on the corner of Twenty-fifth and Market streets, in Galveston, about one month before the killing. I reported the matter to the police, and they were arrested. " The deceased, Marco Gargoravich, found out about it, shortly after the trial, lie learned of these men insulting a young lady on the street, and spoke of the matter to me, and I told him I was the young lady they had insulted. I did not know the names of the parties, but I described them, and after they were arrested, the officer told me their names; but I recognize Harry Jinks as the man who first insulted me, and he laughed at me when the insult Avas offered. There was a third man AA'ith the men I have mentioned, who I do not know.”</p>

Tried below before Hon. S. R. Soott. This appeal is from a conviction for sodomy, the punishment being assessed at five years’ imprisonment in the penitentiary.

Tried below before Hon. Geo. W. Armstrong, County Judge. This appeal is from a conviction for an aggravated assault and battery, by an adult male upon a female. The opinion states the case.

Tried below before Hon. S. F. Grimes. This appeal is from a conviction for assault with intent to murder, the punishment assessed being seven years’ imprisonment in the penitentiary. The case is fully stated in the testimony of the State’s witness, J. A. Thornton, which is reproduced, as follows: “At the time of the difficulty, I was one of the guards of the county convicts working on the public road. We had been moving. I told them it was time to go to work. They all got up.

Tried below before Hon. L. B. Hightower. This appeal is from a conviction for murder in the first degree, the punishment being assessed at death. The facts are sufficiently stated in the opinion.

Tried below before Hon. R. E. Brooks. The indictment contained three counts; one for robbery, one for general theft, and the third for theft from the person. Four ¡parties were jointly charged in the indictment, viz: Alice Blount, Lucy Blount, Bet- tie Blount and Jennie Jones. A severance was had, and this appellant was placed alone on trial.

This appeal is from a conviction for seduction, the punishment assessed being four years’ imprisonment in the penitentiary. In view of the disposition made by the court of this case, on this appeal, it becomes unnecessary to make a statement of the same. It will be seen that the reversal was solely on account of improper and prejudicial argument made by counsel representing the prosecution. The objectionable language is fully disclosed in the opinion.

Tried below before Hon. W. G. Taliaferro. This appeal is from a conviction for receiving stolen property of the value of §50, knowing it to have been stolen; the punishment assessed being two years in the penitentiary. No statement necessary.

Tried below before Hon. W. 6. Taliaeerro. This appeal is from a conviction for assault with intent to murder, the punishment being assessed at imprisonment for two years in the penitentiary. The facts are sufficiently found in the following testimony. Mittie Batts; “I was on the picnic on April 4th, 1895, at Knapp’s Lake. I got cut there by defendant.

Tried below before Hon. Robt. B. Green. This appeal is from a conviction for assault with intent to murder, the punishment assessed being four years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

<p>1. Jurisdiction—Order of Transfer—Name of Offense.</p> <p>Where a case was transferred from the District Court to the County Court, and a plea to the jurisdiction was interposed because the order of transfer did not show the name and nature of the offense charged. Held: The law does not require that when an indictment is presented, into the District Court, that the nature or name of the offense charged against the defendant shall be entered upon the minutes of said court.</p> <p>2. Keeping and Exhibiting Gaming Table and Bank—Indictment.</p> <p>An indictment, which in one count charges the keeping and exhibiting of a gaming table and bank, is not duplicitous.</p>

<p>This appeal is from a conviction for unlawfully keeping and exhibiting a gaming bank for purposes of gaming; the punishment assessed being a fine of 825, and ten days’ imprisonment in the county jail.</p> <p>Appellant was indicted in the District Court, and the case was ordered to be transferred for trial from that court to the County Court. In the County Court, a plea to the jurisdiction was interposed, based upon the insufficiency of the certificate of transfer. The facts as to this matter are stated in the opinion.</p> <p>No general statement necessary.</p>

<p>Appeal from the County Court of Johnson. Tried below before Hon. F. E. Adams, County Judge.</p> <p>This appeal is from a conviction for permitting cards to be played in a house for retailing spirituous liquors, the punishment assessed being a fine of $25.</p> <p>The opinion states the case.</p>

<p>This appeal is from a conviction under an information for a violation of the local option law, in a subdivision of Collin county, -the punishment assessed being inrprisonment for twenty days in the county jail and a fine of $50.</p> <p>The charging part of the information is set out in the opinion.</p> <p>A motion to quash the information was overruled in the trial court.</p>

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

<p>Appeal from the District Court of Bowie. Tried below before Hon. John L. Sheppard.</p> <p>' This appeal is from a conviction for murder in the first degree, the punishment being assessed at imprisonment in the penitentiary for life.</p> <p>The party killed was one G. T. Ellis; and, it was charged in the indictment, that he was murdered by the defendant with a gun, in the County of Bowie, on the 21st day of September, 1894.</p> <p>By consulting the opinion, it will be seen, that what purported to be a statement of facts is held not entitled to consideration; because, it was not shown- when the same was filed. We cannot, therefore, make a statement of the case. The opinion sufficiently explains the matters relating to the questions discussed.</p>

Tried below before Hon. E. W. Terhune. This appeal is from a conviction for burglary, the punishment being assessed at two years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

Tried below before Hob. Rufus Hardy. This appeal is from a conviction for murder in the first degree, the punishment being assessed at death. The defendant pleaded guilty to the indictment. The defects as to the suEciency of the plea are stated in the opinion.

Tried below before Hon. R. V. Bell, Special Judge. This appeal is from a refusal of bail by the trial court on a hearing for bail under a writ of habeas corpus.

This appeal is from a conviction for exhibiting a gaming bank for purposes of gaming, the punishment assessed being a fine of $50 and ten days’ imprisonment in the county jail. No statement of the facts necessary. The opinion fully states the questions involved on the appeal.

Appellant, Martin McGrath, was indicted by a grand jury of Tarrant County on the 19th day of January, 1895, for the murder of James Rushing, alleged to have been committed in said county on the 30th day of December, 1894. He was tried on said charge on the 20th day of February, 1895, and found guilty of murder in the second degree, and his punishment assessed at nine years in the penitentiary, and judgment and sentence accordingly.

The indictment charged appellant with making an assault with intent to rob Louisa Butler, in Hill County, on the 21st day of December, 1894. The offense was committed at the house of Mrs. Sharp, who lived two and one-half or three miles from the village of Derden.

Tried below before Hon. M. L. Shelton, County Judge. W. Goldman, Sam Lockwood and Lazarus Lockwood, composing- the firm of W. Goldman & Co., were indicted for unlawfully selling intoxicating liquors to Frank Iiowels, Hardy Bowles and Walter Kerr, who were minors under the age of twenty-one years. The indictment was transferred to and tried first in a Justice’s Court, and defendants therein convicted, with penalty assessed at a fine of $25 each.

Tried below before Hon. G. W. Dak an, County Judge. Appellant was indicted for refusing and neglecting to make out and render a list of the taxable property owned by him and subject to taxation in the Rising Star Free School Incorporation of Eastland County, when legally called upon to do so by the assessor of taxes for said incorporation. The trial resulted in his conviction, with the punishment assessed at a fine of $50.

<p>From the County of Bell.</p> <p>This was an original application by relator for habeas corpus, made ■ to Hon W. L. Davidson, one of the Judges of the Court of Criminal Ap-. peals, which was granted and made returnable before this court at the Dallas term on the 10th day of January, 1890.</p> <p>The petition shows that on the 24th day of March, 1884, a grand jury was organized by the District Court of Bell County, which was composed of foiirteen grand jurymen. That on the 27th of March, 1884, applicant and one A. J. Moore were jointly indicted by said grand jury for the theft of hogs of over the value of $25; that on the 18th day of October, 1884, applicant was alone placed upon his trial upon said indictment, and was convicted thereunder with punishment assessed at two years’ imprisonment in the penitentiary; and that on the 30th day of October, 1884, he was duly sentenced by the court to the penitentiary under said judgment, and appealed to the Court of Appeals, where the judgment was affirmed. The record does not show what became of applicant from the date of the affirmance of this judgment up to the suing1 out of the writ of habeas corpus in this proceeding. It does show, however, that at the December term, A. D. 1887, his codefendant, A. J. Moore, who had been jointly indicted with him, moved to quash the indictment, because it had been found by an illegal grand jury composed of fourteen members, and that the motion was sustained, and the indictment quashed; that a new indictment was found against Moore, and that he was acquitted, when tried, upon" the same.</p> <p>In his ajrplioation for this writ of habeas corpus, applicant alleges that he is now illegally restrained of his liberty, under the judgment and sentence above mentioned, by Henry C. Purl, the sheriff of Williamson County.</p> <p>No further statement necessary.</p>

This appeal is from a conviction for permitting a gaming table or bank to be kept and exhibited by appellant in his house for purpose of gaming, the punishment assessed being a fine of $25.

<p>Appeal from the County Court of Hood. Tried below before Hon. George W. Riddle, County Judge.</p> <p>This appeal is from a conviction for illegally selling intoxicating liquors to a minor, the punishment assessed being a fine of $50.</p> <p>The opinion sufficiently states the case.</p>

A statement of the case taken from the brief of counsel for appellant, and which is substantially correct, is as follows, viz: Relator was ar- rested on the 8th day of November, 1895, under a warrant… Held: at the time charged in the complaint, but relator claims that he has not violated any law of the State, and that the County Judge erred in not discharging him from custody.

Tried below before Hon. E. W. Hicholsow, County Judge. This appeal is from a conviction for violation of local option, the punishment assessed being a fine of $25 and twenty days’ imprisonment in the county jail. The Assistant Attorney-General moved to dismiss the appeal, because the recognizance was fatally defective. Ho statement necessary. ’

The appellants were jointly indicted for murder of one Andrew Prikryl, in Williamson County, by shooting him with a pistol and gun on the 8th day of May, 1895. They were jointly tried, and the verdict and judgment convicted them of murder in the first degree, with the punishment of each assessed at death.

<p>Murder—Former Jeopardy—Defective Indictment.</p> <p>It is provided in Sec. 14, Art. 1, of the Bill of Rights, that a defendant cannot be put upon trial again for the same offense, after a verdict of not guilty, in a court of competent jurisdiction; and, it is provided, in Sub. 2, Art. 525, Code Grim. Proe., that a defendant can plead that he has been before acquitted by a jury, of the accusation against him in a court of competent jurisdiction, whether acquittal was regular or irregular. Held: Where a defendant has once been placed on trial in a court of competent jurisdiction upon an invalid indictment for murder, and convicted of manslaughter, this is a complete acquittal of the charge of murder, and the State cannot again place him on trial for murder under a new and good indictment.</p>

<p>Appeal from District Court, Kaufman County; Jóel R. Bond, Judge.</p> <p>A. S. Lockhead was convicted of receiving and concealing stolen property, and appeals.</p>

Tried below before Hon. J. L. L. McCall, County Judge. This appeal is from a conviction for playing cards in a public place, the punishment being assessed at a fine of $10. No statement necessary.

<p>1. Rape—Evidence—Complaints by Prosecutrix.</p> <p>On a trial for rape, the State may show by the prosecutrix, or other witnesses, that she made complaint of the outrage recently after its commission, and when, where and to' whom it was made. But the prosecution will not be allowed to prove the name of the person charged with the crime, nor the particulars, as narrated by her; the practice being, merely to ask whether she made complaint that such an outrage had been perpetrated upon her,'and-to receive, in answer, only “yes” or “no.” Such statements and complaints are only corroborative of her testimony, and not evidence of the fact upon which the jury can find the defendant guilty. And when the prosecutrix is not a witness in the case, such evidence is wholly inadmissible.</p> <p>2. Same—Purpose of Such Testimony.</p> <p>The great weight of authority holds, that the admission of the statement of the prosecutrix, made soon after the outrage, is only for the purpose of corroborating or sustaining her testimony.</p> <p>3. Same.</p> <p>If the defendant attempts to prove that the proecutrix charged some one else with the crime or said that she did not know who was the guilty party; or, if he attempts to prove that her testimony, as to his being the man, has been recently fabricated; or, if he attempts to show that improper influences have been brought to bear upon her or any other witness to accuse him of the crime, then, and in either of such cases, it is competent and admissible for the State to prove that soon after the transaction the prosecutrix had charged and stated that the defendant was the party who had committed the outrage upon her.</p> <p>4. Same—Identification of Defendant—Acts and Conduct of Prosecutrix.</p> <p>On a trial for rape, where the State was permitted, as original evidence, to prove by the sheriff of the county, that after defendant’s arrest he placed defendant and eight other negroes in a line in the jail and then brought the son of the prosecutrix into the jail, and that he identified and pointed out the defendant as the man who had committed the rape upon his mother; and, that at the same time and place, and under the same circumstances, the prosecutrix also identified and pointed out the defendant as the man who had raped her, and that the prosecutrix fainted. Held, that the evidence was wholly inadmissible as original evidence. Overruling, Bruce v. State, 31 Tex. Crim. Rep., 590; Ruston v. State, 4 Tex. Crim. App., 432; Fulcher v. State, 28 Tex. Crim. App., 471; Rippey v. State, 29 Tex. Crim. App., 38, in so far as they antagonize the rule here laid down.</p>

Tried below before Hon. Robt. B. Green. This appeal is from a conviction for theft of jewelry of over the value of $50, the punishment assessed being two years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

The charging part of the indictment is as follows, viz: “That one Wm.

<p>1. Indictment—Presentation in Court—Two Courts.</p> <p>Where there are two District Courts in the county, it is not essential to the validity of the indictment that it should show in which of the two courts it was presented. Following, Sargent v. State, ante p. 325.</p> <p>3. Continuance—Sick Wife.</p> <p>Where it was made to appear, in an application for continuance, that defendant’s wife, who was an important witness, had been present in court to testify, but was in an advanced state of pregnancy, and was suddenly taken sick with measles, and, in consequence, removed to her father’s house, twelve miles distant, where she was confined in child birth in a few days. Held: The continuance should not have been refused upon the ground merely that she had not been subpoenaed, there being no-evidence of bad faith in connection with her absence.</p> <p>3. Evidence—Confessions Made While in Arrest.</p> <p>The confessions of a defendant, who is in arrest and not having been warned or cautioned, are not admissible as original evidence against him, and can only be used for the purpose of impeaching him, where he has, as a witness in his own behalf, testified to contradictory statements.</p> <p>4. Same—Charge Limiting and Restricting Such Evidence.</p> <p>Where the confessions of a defendant were made when he was in arrest and had not been cautioned or warned, and the same have been permitted in evidence for the purpose of impeaching defendant as a witness, it is the imperative duty of the court to limit and restrict, in the charge, the purpose for which such confession could only be considered, viz: to impeach the testimony of defendant, and not as original evidence for the purpose of proving his guilt.</p> <p>5. Continuance—Postponement—New Trial.</p> <p>Where a witness, whose name was not endorsed on the indictment, is examined by the State as to a confession made to him by the defendant in jail, in the presence and hearing of one H., and defendant obtains a postponement in order to procure the attendance of H. to disprove the witness’ testimony as to the confession, but fails to get said H., though he used all reasonable diligence; and the trial is afterwards proceeded with to a conviction. Held:- The court should have granted the motion for new trial which was supported by the affidavit of the said H., which traverses every fact as to the confession sworn to by the witness, and, moreover, states facts showing bad blood between defendant and the said witness.</p>

Tried below before Hon. Charles F. Clint. This appeal is from a conviction for burglary. The verdict assessed the punishment at two years’ confinement in the “Reform School,” and the judgment and sentence condemned the defendant to two years’ imprisonment in the State reformatory. No statement of the evidence necessary.

<p>Appeal from the District Court of Wise. Tried below before Hon. J. W. Patterson.</p> <p>This appeal is from a conviction for assault with intent to commit rape, by appellant, upon one Agnes Dockery, wherein the punishment assessed was imprisonment for three years in the penitentiary.</p> <p>Agnes Dockery was the only witness who testified in the case, and her testimony is as follows, viz:. “My name is Agnes Dockery; I am 17 years old, was 17 last birthday; I know the defendant; he is my father. Up to the time of his arrest I lived with the defendant and my mother, who were married and living together; since then I live with my mother. We have lived in Wise County about one year, and moved from Delta County to Wise, and from Arkansas to Delta County.' We only resided in Delta County a few months. About May, 1895, defendant came to my bed one morning just about daylight, and got in bed with me.and pulled up my gown and put his hands on my secrets. I tried to get loose from him; I told him if he did not quit, I would call mamma; he would not quit, and I called mamma, who was in the kitchen; as I called her he hit me on the face with his hands, and as T heard mamma’s footsteps on the steps leading into the house where we were, he turned me loose and went back to his own room. The kitchen is located a few steps away from the house I was sleeping in, and is a log kitchen. When he got in bed with me his pants were unbuttoned, except the top button. The day before the defendant was arrested, and about two months after the attempt just testified to, he again came to my bed about the same time of the morning. My mamma was again in the kitchen. He got in bed with me, under the cover, and tried to pull up my gown, and I kicked him and got loose from him, and crawled out over the footboard of the bed and stood where mamma could see me from the kitchen. The first assault he made that I testified to, that morning I went over to Mrs. Vandiver’s and told Miss Alice Vandiver that defendant had mistreated me, but did not tell her how or in what way he mistreated me. The other assault, when I was in bed, I went that evening over to Mr. Austin’s and told Mrs. Austin about it, and he, the defendant, was arrested the next day after I told Mrs. Austin about it. About a month before the defendant was arrested, I was standing on the floor in front of our looking-glass combing my head, and defendant caught hold of me from behind and threw me down on the bed near by and held me there and pulled up my clothes and tried to pull off my drawers. I kicked and fought loose from him and got out in the yard. My mother was out in the cow pen about fifty yards away. There was no one present on this occasion. At another time we were hoeing cotton in the field, and as we started home defendant sent my little brother by the well for a file, and defendant tried to get me to let him have intercourse with me, and told me that it would be no harm; that he could fix it so I wrould not have a baby, and no one would find it out. I told him it would be just as wrong as if everybody knew it, and told him I would not. All this occurred in Wise County, Texas. I always told my mother about such assaults on me. On one occasion I heard my mother and father talking about it, and the defendant told my mother that if she told it he would kill her and leave the country. All the assaults were made against my consent.”</p> <p>Cross-examined. She testified: “The house where we live is a three-room house, and a partition between the room where I slept and where my father slept; and the kitchen is a log house disconnected from the main house and a few steps away. On both of the occasions, when defendant came to my bed, that I testified to above, my mother was in the kitchen getting breakfast. My little sister "was in the bed with me, my little brother, who is 13 years old, and another smaller brother were sleeping on the floor on a pallet in the same room. Yes, sir, the defendant, just before we moved to Texas, and we lived in Arkansas, had intercourse with me twice. I knew Mr. Vandiver, and knew he was Justice of the Peace. I told mother on every occasion that he attempted to have intercourse with me. We have quite a number of neighbors. T never told anyone about it except Miss Vandiver, my mother and Mrs. Austin. I only told Miss Vandiver that he mistreated me, did not tell her the particulars. About the first of January, this year, I took some tea to bring my monthly sickness. I never told any one that I was afraid I was pregnant. I knew I was not pregnant because I never had intercourse with any one except my father on the two occasions in Arkansas. My monthly sickness not appearing at its regular time was caused by defendant driving me out of the house in the cold. The defend-ant, on several occasions, asked me to let him have intercourse with me, ■ one time was down in the cotton patch, that"! have told about. The defendant frequently came to my bed and felt of my feet and legs, but never tried to force me, except on the occasions that I have testified about. The brother that I have spoken of as being 13 years of age, is only my half-brother. The reason why I know defendant is my father is, that I have been always told he was my father. The kitchen, in which my mother was getting breakfast on the two occasions mentioned by me in my evidence, is just a short space from the house I was in at the time, and you could be in the room where I was and hear one talking in the kitchen where mother was. You could step out of the kitchen into the room I was in.”</p> <p>Re-direct by State: “The reason why I did not tell of these assaults sooner, was because I feared the defendant would kill my mother, as I had heard him threaten to do. My little brother, 13 years old, is not smart and hasn’t got much sense. My little sister, who was sleeping with me, was about 7 years old. When the two assaults were made, they were all asleep. When he came to my bed, as above testified about, he never said anything at all. When the defendant had intercourse with me in Arkansas, the first time, I was about 14 years old; my mother and the children were away from home. He and I were there alone. He seized me and threw me down on the bed, and overpowered me, and had intercourse with me against my consent. The other time he had intercourse with me we were alone in the woods, gathering huckleberries. 'The little children were along, but some distance away. He threw me ■down and held me, and forced me. This is the only two times he ever forced me. He has never succeeded since I have grown older and ■ stronger.”</p> <p>Re-crossed: “I never told anyone about his forcing me in Arkansas, «except my mother.”</p>

Tried below before Hon.. J. L. L. McCall, County Judge. This appeal is from a conviction for playing at a game with cards in a. public house, the punishment assessed being a fine of $10. No statement necessary.

On January 11th, A. D. 1895, a complaint was filed against Martin Steinberger, Jr., (the appellant herein), charging the defendant with the offense of unlawfully and wilfully opening and keeping open a barroom saloon house, an establishment where vinous, malt and intoxicating liquors are sold on a day, the same being an election day, on which an election was being held by lawful authority, for the purpose of electing Governor, etc. Hpon this complaint, the County Attorney…

Tried below before-Hon. Rufus Hardy. This appeal is from a conviction for murder in the 'first degree, the punishment assessed being a life term imprisonment in the penitentiary. The indictment charged Austin Polk and Biz Watts jointly, with the killing of Rufus Jamison, in Navarro County, on the 20th day of January, 1893, by shooting him with a pistol.

This appeal is from a conviction for aggravated assault upon a female, the punishment assessed being a fine of $25, and sixty days’ imprisonment in the county jail. The charging part of the information will be found copied in the opinion.

Tried below before Hon. •J. L. L. McCall, County Judge. This is an attempted appeal from a conviction for violation of local option, in which the punishment was assessed at a fine of $25, and twenty days’ imprisonment in the county jail. The Assistant Attorney-General moved to dismiss the appeal because the recognizance was fatally defective in not specifying the court before which the appellant obligated himself to appear. This motion was sustained and the appeal dismissed.

Tried below before Hon. Charles F. Clint. Tbis appeal is from a conviction for theft of property over the value of $50, the punishment being assessed at two years’ imprisonment in the penitentiary. The indictment charged that, defendant fraudulently took from Doda Lennox, one necklace, of the value of $10; one locket, of the value of $150, and $6.50 in money. Miss Doda Lennox testified, that she lived in DeKalb, Texas, and was going to school in Granburry.

Appellant and one J. M. Crain were indicted in the District Court of Fort Bend County, for the robbery of C. M. Adams, in said county, on the 23rd day of January, 1895. The indictment is as follows: ‘ ‘In the name and by the authority of the State of Texas.

Tried below before Hon. J. M. Hall. This appeal is from a conviction for murder on the first degree, the punishment being assessed at death.

This proceeding embraced two original applications to Hon. John H. Henderson, a Judge of the Court of Criminal Appeals, for relief from custody under a verbal order of the Criminal Court of Dallas County, imprisoning relators for a contempt. The writ was granted and issued February 29th, 1896, and made returnable before the Court of Criminal Appeals on March 2nd, 1896.

Tried below before Hon. Chas. F. Clint. This appeal is from a conviction for forgery of a deed, the punishment being assessed at five years in the penitentiary. There is no statement of facts in the record.

The verdict of the jury was: “We, the jury, find against the defendant for all costs of prosecution;” and judgment was entered accordingly.

This appeal is from a conviction for murder in the second degree, the punishment assessed being ten years’ imprisonment in the penitentiary. The following is the evidence, as shown by the statement of facts; By John Morris it showed that at the time of the killing he lived about 400 yards from the defendant, and about the same distance from the deceased. On the morning of the killing, one F. M. Terrell called to him and told him that appellant had killed deceased.

Tried below before Hon. T. S. Reese. This, appeal is from a conviction for assault with intent to murder, the punishment being assessed at four years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

This appeal is from a conviction for the fraudulent disposition of mortgaged personal property, the punishment being assessed at two years’ imprisonment in the penitentiary. The property, as described in the indictment, was: “1 suit and springs; 4 oak diners; 1 breakfast table; 2 uph. chairs (meaning u¡>holstered); 1 oak rocker; 45f- yds. (meaning yards) matting; 50 yds.

<p>1. Affidavit or Complaint—Credible Person.</p> <p>While it is required that an affidavit or complaint, as the basis for an information, must be made by a credible person, it is not required that it should allege that fact.</p> <p>2. Complaint—Sufficiency.</p> <p>A complaint recited that affiant, “has reason to believe and does believe,” and it was objected to as fatally defective, because it omitted the statutory word “good,” before the word “reason.” Held: The recital is a sufficient compliance with the statute, though the better practice would have been to follow the language of the statute.</p> <p>3. Recall of a Witness Before Argument is Concluded.</p> <p>The statute [Code Crim. Proc., Art. 661] expressly authorizes the introduction of testimony at any time before the argument of the cause is concluded, whenever necessary to the ends of justice, and it is not error to recall a witness to give such testimony. '</p>

Tried below before Hon. Ben H. Denton, Special Judge. This appeal is from a conviction for murder in the second degree, the punishment assessed being thirty-seven years’ imprisonment in the penitentiary. The indictment charged the appellant, Willie Childs, and one Stanley Rogers jointly with the murder of Mrs. Bettie Hickman, in Lamar County, on the 22nd day of August, 1891. Appellant was alone tried in this proceeding, with the result as above stated.

<p>1. Local Option—Order for Election is Conclusive.</p> <p>Under the local option law, as it now stands, the Commissioners’ Court may order the election without any petition for that purpose; and when the order of the court authorizing such election has been entered and the election held thereunder, the order is conclusive and the courts will not go behind it.</p> <p>2. Same—Order Declaring the Result of the Election.</p> <p>After a local option election has been held, it is sufficient that the result is declared by the Commissioners’ Court, and an order entered prohibiting the sale of intoxicating liquors within the prescribed limits. It is not required that the court should order the result of the election to be published in some newspaper, or by posting notices. It is not required that the order shall state when prohibition shall take effect in the precinct nor is it essential that the order requires the County Judge to publish or have the result of the election published.</p> <p>3. Same—Publication of the Result.</p> <p>, While the law requires, that the result of the election be published four successive weeks, in a newspaper or by posting notices, it is not necessary that these matters enter into and form part of the judgment of the court declaring the result. The law makes it incumbent upon the County Judge to attend to these matters.</p> <p>4. Same—Certified Copy of Order Declaring the Result.</p> <p>Where it appeared that the proper entry of the order declaring the result had been made, by the County Judge, on the minutes of the court, this entry' is, in no manner, affected by a failure of the clerk to certify the copy thereof under his hand and seal of office; nor is it any objection to the entry made by the County Judge, that it was made about four weeks from the date of the last publication of the result of the election; and where the certified copy made by the clerk is defective for want of proper authentication, the entry of the judge upon the minutes may be proved aliunde.</p> <p>5. Evidence Sufficient—‘ ‘Boot Pop.”</p> <p>Where the testimony was clear that the “Root Pop,” sold by defendant, was intoxicating, it was sufficient to support a conviction for a violation of local option.</p>

Tried below before Hon. J. L. L. McCall, County Judge. This appeal is from a conviction for a violation of local option, the punishment being assessed at a fine of $25 and twenty days’ imprisonment in the county jail. No statement necessary.

Tried below before Hon. Thos. B. King, County Judge. This appeal is from a conviction for a violation of local option, the punishment assessed being a fine of $25, and twenty days’ imprisonment in the county jail. The opinion states the facts.

Tried below before Hon. J. L. L. McCall, County Judge. This is an appeal from a conviction for violation of local option, the punishment assessed being a fine of §25 and twenty days’ imprisonment in the county jail. The opinion states the case.

Tried below before Hon. J. L. L. McCall, County Judge. This appeal is from a conviction for a violation of local option, the pun ishment assessed being a fine of $25 and twenty days’ imprisonment in the county jail. The opinion states the case sufficiently.

<p>1. Local Option—What Constitutes a Sale.</p> <p>Where a party purchases whiskey for a friend, with money furnished by the latter, this does not constitute the former the seller of the whiskey where he is not interested in making the sale or acting as agent for the seller of the liquor.</p> <p>2. Same—Agent of Purchaser.</p> <p>That subterfuges are, or may be, resorted to in local option precincts, will not authorize the conviction of a party acting as agent of the purchaser unless, in so ■acting, he is interested in the sale or is assisting the seller in some way in procuring such sale. It is the seller and not the purchaser who is liable under the law.</p> <p>■3. Same—Charge.</p> <p>On a prosecution, by information, for violating local option in Precinct No 2, of the county, a charge, excepted to, is erroneous which authorizes a conviction if the sale occurred “in a local option precinct in said county,” since, under the information the defendant could only be legally convicted for such sale in Precinct No. 2.</p>

<p>1. Local Option—Simulated Exchange, or Gift of Liquor—Charge.</p> <p>On a prosecution for violation of local option, it appeared that one B., desiring some whiskey, applied to defendant, who stated that he was going to order a gallon for himself and another, and would put B.’s order in with theirs. B. gave him the money, and on the same day defendant delivered to B. a bottle of whiskey, stating that he had. borrowed it from one K., upon promise to return it to K. when the whiskey ordered came, which he did. Upon these facts, the court instructed the jury, that if they believed, “from the evidence that the defendant exchanged with the said B., intoxicating liquor in good faith, then he would not be guilty; but, if the exchange or gift of the liquor was only simulated—that is, in appearance only an exchange, but, in fact, a sale of liquor—then he would be guilty,” etc. Held: The charge should have gone further, and instructed the jury as to the character of the simulation, viz: that the exchange must be simulated, colorable, and made to hide the real transaction; and that defendant must, in fact, have made the.sale to B., or was interested with the principal in making said sale.</p> <p>2. Same—Charge.</p> <p>On a trial for a violation of local option, a charge is defective which singles out certain facts, upon which to predicate a sale, and does not present the real issues in the case.</p> <p>3. Same—Charge.</p> <p>A defendant is only guilty of a violation of local option for an evasion of the law, if by, or in such evasion he becomes the seller or exchanger, or is interested with the person selling or exchanging, ip making such sale or exchange; and a charge which instructed the jury, in a general way, to convict, if a borrowing or exchange was for the purpose of evading the provisions of the local option law, is erroneous.</p> <p>4. Charge—Fatally Defective When.</p> <p>A charge is fatally defective, which, when reviewed as a whole, nowhere gives, in clear and unmistakable terms, either the State’s theory or the defense set up by defendant.</p>

Tried below before Hon. J. S. Straughan. This appeal is from a conviction for the unlawful conversion, as a bailee, of a borrowed horse, the punishment assessed being five years’ imprisonment in the penitentiary. Will Edens testified, that he was the owner of the horse in question.

<p>1. Sending Threatening Letter to Kill or Injure—Information.</p> <p>An information brought upon that-portion of Art. 966, New Penal Code, making it an offense to send a letter threatening to kill or in any manner injure the person of another, does not state such a threat as the statute contemplates, which charges the sending of a letter for the purpose of extorting money, and which only states, ‘ ‘should you fail to comply with our request, woe be unto you and yours.” To constitute the statutory crime above named, it must be alleged and shown, that the letter clearly contained a threat to kill or injure such other person. The language employed in the letter, which is quoted, is not sufficiently definite and explicit to afford the predicate for the information.</p> <p>2. Same—Pleading—Innuendo as to Name—Variance.</p> <p>Where an information charges the sending of a threatening letter to “Jules E. Schneider,” and the letter introduced in evidence is addressed to “Jules E. Schnioeder.” Held: That the letter being, in this character of prosecution, required to be set out according to its tenor, the variance was fatal. The pleader should have alleged, by innuendo in the information, that the sender meant, by the address, “Mr. Jules E. Schnioeder,” “Mr. Jules E. Schneider.”</p>

Tried below before Hon. T. H. Spooner. This appeal is from a conviction for assault with intent to murder, the punishment being assessed at two years’ imprisoment in the penitentiary. There is no statement of facts in the record.

18th day of March, 1895, information was filed in the County Court of Dallas County, Texas, by John P. Gillespie, County Attorney of Dallas County, Texas, charging that Mustipher Mohammed Elehash did, on the 18th day of March, 1895, before the filing of the information, commit an aggravated assault and battery on John Cunningham.” This information was based on an affidavit filed in said court on the 18th day of March, 1895.

Tried below before Hon. George E. Miller. This appeal is from a conviction for attempt to commit rape—penalty, two years’ imprisonment in the penitentiary. The case is stated in the opinion.

<p>Appeal from the Criminal District Court of Harris. Tried below before Hon. E. D. Gavin.</p> <p>The indictment charged appellant with rape upon one Charlotte Carter, in Harris County, on the 23rd day of July, 1895. This appeal is from a conviction for said offense, the punishment being assessed at a life term imprisonment in the penitentiary.</p> <p>There is no statement of facts in the record.</p>

In November, 1889, the appellant was indicted in the District Court of Guadalupe County for an assault with intent to murder one C. Munk. He was found guilty of an assault to murder and sent to the penitentiary for the term of seven years. The facts in this trial were that the defendant had been hired by Munk in the city of San Antonio and brought by him to the home of said C. Munk in Guadalupe County.

This appeal is from a conviction for unlawfully carrying a pistol, the punishment assessed being a fine of $25. The agreed statement of the case is: (1) That appellant was City Attorney for the city of Cleburne. (2) That, at the time charged, he was in the mayor’s office and court. (3) That at said time, he made the mayor’s office and court his office, and had no other office. (4) That the mayor’s court was in session as a court at said time.

This appeal is from a conviction for keeping and exhibiting a gaming table or bank for purposes of gaming, the punishment assessed being a fine of $25 and ten days’ imprisonment in the county jail. The information contained two counts, the first charging unlawful betting at a gaming table and bank kept for gaming purposes. The second, the unlawful keeping and exhibiting such bank.

Tried below before Hon. Rufus Hardy. ' Appellant, Dick Smith, and one Frank Yeldell were jointly indicted for burglary. A severance was had, and upon the selection of Yeldell as the one first to be tried, the District Attorney dismissed the prosecution as to him and placed defendant upon trial, the trial resulting in his conviction, with punishment assessed at imprisonment in the penitentiary for two years.

<p>Appeal from the District Court of Lamar. Tried below before Hon. Bex H. Dextox, Special Judge.</p> <p>This appeal is from a conviction for murder in the second degree, the punishment being assessed at seven years’ imprisonment in the penitentiary.</p> <p>The indictment charged that defendant murdered one George Rutherford, in Lamar County, on the 26th of November, 1894, by shooting him with a pistol. All the important features of the case are stated in the opinion, and the points raised and discussed on the appeal are also so fully illustrated in the opinion as to render any further statement in connection therewith altogether unnecessary.</p>

Tried below before Hon. Rueus Hardy. This appeal is from a conviction for assault with intent to murder, the punishment being assessed at two years’ imprisonment in the penitentiary. There is no statement of facts in the record.

Tried below before Hon. J. M. Hall. This appeal is from a conviction for burglary, the punishment being assessed at nine years’ imprisonment in the penitentiary. The indictment, which alleged that defendant’s given name was unknown, charged appellant with burglarizing the storehouse of R. N. Warren, in Burleson, Johnson County, on the night of the 25th of November, 1893. It was proved that defendant was seen at the depot at Burleson on that day, in company with one Bishop.

From the County of Dallas. This was an original application to the Court of Criminal Appeals for habeas corpus in a case of imprisonment for a failure and refusal of relator to purge himself of an alleged contempt of the Criminal District Court of Dallas County. The ease grew out of matters stated in Ex parte Kearby and Hawkins, ante p. 531. The facts in this case will be found fully stated in the opinion.

Tried below before Hon. M. L. Shelton, County Judge. This is an appeal from a conviction for keeping open a liquor saloon for traffic on Sunday, the punishment being assessed at a fine of $30. As far as necessary, to be understood iij connection with the points discussed, the opinion sufficiently states the facts.

Tried below before Hon. Thos. B. King, County Judge. This appeal is from a conviction for unlawfully playing at a game with cards, the punishment being assessed at a fine of $20.