Volume 36 — Texas Criminal Reports

Tried below before Hon. L. B. Hightower. This appeal is from a conviction of theft of one head of cattle, the property of an unknown owner, wherein the punishment was assessed at two years’ imprisonment in the penitentiary. Isaac Bennett testified, that on the night of the 14th of July, 1895, he saw defendant on horseback, with two hindquarters of a beef upon his horse in front of him.

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

<p>Forgery—Indictment—Purport and Tenor—Variance.</p> <p>Where an indictment for forgery, in the purport clause, alleged, that the instrument purported to he the act of “Mr. Andrew Arlow ” and the tenor clause set out an instrument in heec verba, which is signed “L. B. P. & Co., and Andrew Arlow.” Held: A motion in arrest of judgment upon the ground of a fatal variance between the purport and tenor clause of the indictment should have been sustained.</p>

Tried below before Hon. M. F. Lowe. This appeal is from a conviction for embezzlement by a private person of money intrusted to him, the punishment being assessed at two years’ imprisonment in the penitentiary. The charging part of the indictment will be found set out in the opinion.

This proceeding was an original application for a writ of habeas corpus, to be discharged from imprisonment in the house of correction and reformatory, in the County of Coryell.

<p>1. Bobbery Where Firearm or Deadly Weapon is Used—Capital Felony.</p> <p>Under provisions of Art. 856, Rev. Penal Code, the offense of robbery where a firearm or other deadly weapon is used or exhibited in the commission of the offense is a capital felony inasmuch as it may be punished with death.</p> <p>2. Same—Special Venire—Service of Copy of.</p> <p>Robbery committed by the use or exhibition of a firearm or other deadly weapon, being a capital felony, a party prosecuted therefor is entitled to a special venire and to one days’ service of a copy of such special venire prior to his trial, unless he has waived (if he can do so) his right to such special venire; and it is no answer or excuse that neither the State nor the defendant called.for such special venire or failed to have one summoned for the trial or that to summon one and serve defendant with a copy thereof would operate a continuance of the case.</p>

This appeal is from a conviction for murder in the second degree, the punishment being assessed at seven and a half (7-£) years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

<p>1. Indictment—Amendment of—Organization of Grand Jury.</p> <p>The statute, regulating the requisites of an indictment, does not make the date of the organization of the grand jury one of the essential elements of an indictment; and, it being wholly immaterial whether that fact appears upon the face of the indictment or not, it is not error, where it does not so appear, for the court to permit the indictment to be amended in that regard, and this even though such amendment be permitted after an announcement of ready for trial.</p> <p>2. Competency of a Child as a Witness—Tests as to.</p> <p>Where it was objected to the competency of a child 10 years of age as a witness, that he did not understand the obligation of an oath and the pains and penalties for perjury as prescribed by law, and it appears that he understood in part the obligation of an oath, but manifested a want of knowledge as to the punishment by the courts for perjury. Held: Under the facts stated, that the investigation was incomplete, and the inquiry should have been pressed further; and, if necessary, such information brought home to the witness as would have enabled it to be seen whether or not he had sufficient intelligence to understand the obligation of said oath.</p> <p>3. Evidence—Fruits of the Crime.</p> <p>On a trial for murder, it was admissible to prove the finding of a pistol belonging to defendant’s brother in a trunk, in a room where, the two brothers had slept on the morning of the day after the homicide.</p> <p>4. Same.</p> <p>The finding of a pistol belonging to defendant’s brother, if the same was found by means of information derived from'the brother after the conspiracy between the brothers as to the commission of the homicide was at an end, would be inadmissible evidence against the defendant.</p> <p>5. Same—Blood Stains.</p> <p>On a trial for murder, where the State had proved bloody spots on the shirt of, and blood above the eye, as incriminative facts against the defendant. Held: That it was error to refuse to permit defendant to prove that, on the night before the homicide, defendant had borrowed a handkerchief from the witness to wipe his (defendant’s) nose, which he (defendant) said was bleeding, and that defendant offered him (witness) the handkerchief back, but he (witness) told him to throw it away, as it was bloody.</p> <p>6. Murder—Evidence—Circumstantial Testimony — Motive on Part of Other Persons to Kill Deceased.</p> <p>On a trial for murder, where the evidence is circumstantial, it is competent and relevent to prove motive on the part of some other person, than the accused, to commit the crime. In a case depending wholly upon circumstantial testimony, if the evidence reasonably shows that some other person committed the offense, the ac- • cused should be acquitted; or, if the circumstances, which tend to show that some other person may have committed the crime, are sufficient to raise a reasonable doubt of defendant’s guilt, an acquittal should follow.</p> <p>7. Circumstantial Evidence.</p> <p>In a case wholly depending on circumstantial evidence, it is the duty of the jury to explore every reasonable hypothesis consistent with the innocence of the defendant before they would be authorized to convict.</p> <p>8. Same—Circumstantial Evidence—Test as to Sufficiency of.</p> <p>Circumstantial evidence must not only be sufficient to convict the defendant on trial, but, in testing its sufficiency, it must exclude the hypothesis that somebody else committed the offense, and every circumstance, however remote, that may tend to shed light upon the issue is admissible.</p> <p>9. Murder—Charge—Arrest by Officer—Alibi.</p> <p>On a trial for murder, where there was no evidence that deceased, who was an officer, was killed in an attempt to arrest defendant for unlawfully carrying a pistol, it is error for the court to submit a charge predicated upon such a theory; and where the defense was an alibi, said charge was specially obnoxious to the objection that it impinged upon the only defense and was of a character calculated to injure and impair the rights of defendant.</p>

This appeal is from a conviction for keeping and exhibiting a gaming-table and bank, the punishment being assessed at a fine of $25, and ten days’ imprisonment in the county jail. No statement necessary.

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 sufficiently states the case.

<p>Appeal from the County Court of Erath. Tried below before Hon. Thomas B. King, County Judge.</p> <p>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.</p>

<p>Appeal from the District Court of De Witt. Tried below before Hon. S. F. Grimes.</p> <p>This appeal is from a conviction for sodomy, the punishment being assessed at fifteen years’ imprisonment in the penitentiary.</p> <p>No statement necessary.</p>

This appeal is from a conviction for burglary, the punishment being assessed at five years’ imprisonment in the penitentiary. There is no statement of facts in the record.

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.

Tried below before Hon. James Q. Chenoweth, County Judge. This appeal is from a conviction for aggravated assault by an adult, male upon a female, the punishment being assessed at a fine of $500 and one years’ confinement in the county jail.

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

This appeal is from a conviction for murder in the second degree, the punishment being assessed at fifteen years’ imprisonment in the penitentiary. The parties to the homicide were young negro men. The following statement, taken from the brief of counsel for appellant, is substantially correcti- on Saturday night, Nov. 1st, 1895, Walter Miller, appellant, was at-his neighbor Duff’s house attending a dance.

<p>Carrying Weapons—“Brass Knuckles”—Judicial Knowledge—Charge.</p> <p>Where the information charged defendant with carrying “brass knuckles.” Held: The allegation does not limit the proof to knuckles made of “brass,” and this court judicially knows that brass knuckles may be composed of metal other than brass— such knuckles may be made of any metal or hard substance, and it was not error to-so instruct the jury.</p>

<p>1. Local Option—Order for Election.</p> <p>Where it appeared that the order, entered -on the minutes of the Commissioners’ Court for a local option election, showed interlineations made by the clerk, under directions of the County Judge, during the term and for the purpose of making the order complete, and that thereafter, before adjournment for the term, the minutes with the interlineations in said order were read to, and approved by the court. Held: The fact of the interlineation which was thus made to complete the order, did not invalidate the order.</p> <p>¡2. Amendments of Judgments or Orders of Court.</p> <p>A court has authority to correct or amend its judgments or orders at any time during the term at which they were made and entered.</p> <p>3. Local Option—Orders for the Election and Declaring the Result in Justice’s Precinct.</p> <p>When a local option election is ordered for, “Justice’s Precinct Ho. 1,” it is not necessary to set out the metes and bounds of the territory in said order; nor is it necessary to the validity of the order, declaring the result of the election in said precinct, that it should recite, that notices for the election were duly posted.</p> <p>4. Same—Order Declaring Result Prima Eacie Evidence.</p> <p>Art. 3233, Rev. Stat., provides: “That the order made declaring the result (of a local option election) shall be prima facie evidence that all the provisions of the law have been complied with in giving notices of, and in holding said election, and of the counting and return of the votes and declaring the result thereof.” Held: That it is not necessary, in said order, to state that proper notices for the election had been given.</p> <p>5. Same—Heed not Contain Statutory Exceptions.</p> <p>An order declaring the result of a local option election, will not become nugatory by failing to stipulate all the exception provisos in Art. 3228, Rev. Stat., prescribing the manner and terms under which intoxicants may be sold in a local option precinct.</p> <p>6. Local Option—What Constitutes a Sale—Executory Contract.</p> <p>On a trial for violation of local option, where it appeared that the beer was shipped from a local option district to a party outside said district, upon a contract in which it was expressly stipulated that it was to remain the property of the seller until its delivery to the purchaser at the place of delivery. Held: That the contract was an executory one, and not being an executed or complete sale until delivery at the place of destination, the transaction was not a sale in and violation of local option at the place of shipment.</p>

<p>■ Appeal from the District Court of Tarrant. Tried below before •Hon. S. P. Greene.</p> <p>' This appeal is from a conviction for perjury, the punishment assessed •being-five years’ imprisonment in the penitentiary.</p> <p>The indictment charged defendant with perjury, committed by him as a witness in a criminal case, viz: the case of The State v. Martin Mc-Grath, in the District Court of Tarrant County.</p> <p>No further statement necessary.</p>

This appeal is from a conviction for the misapplication and conversion of county funds by a County Judge; the punishment being assessed at two years’ imprisonment in the penitentiary. The indictment is set out in the opinion below.

This appeal is from a conviction for burglary, the punishment being assessed at two years’ imprisonment in the penitentiary. On the night of December 8th, 1894, it was charged that a store house in McKinney, Texas, belonging to M. Aron & Co., was burglarized, goods stolen therefrom, and that the house was set on fire, which was immediately afterwards extinguished by .parties who discovered it.

<p>1. Bail Bond—Scire Facias—Variance.</p> <p>Where the scire facias issued upon a judgment nisi, on a forfeited bail bond, recited that the bond was executed on the 23rd day of January, 1895, and the bond offered in evidence recited that it was “signed and dated on this — day of January, A. D. 1895, and that it was approved by the sheriff on the S3rd day of January, 1895. Held: No variance. In the absence of a showing to the contrary, the bond will be presumed to have been executed on the date of its approval by the officer taking it.</p> <p>2. Same—Description of Offense—“Brass Knuckles.”</p> <p>Where the hail bond recited the offense, as carrying on and about his person “brass knucks,” and the contention was, that the statutory word “knuckles” should have been used to characterize the offense. Held: That “knucks” and “knuckles” mean the same thing, and in stating an offense, words of the same import as the statutory words are sufficient.</p>

Tried below before Hon. Jno. M. Furman, County Judge. This appeal is from a conviction for theft óf $5 in money, the punishment being assessed at a fine of $100, and thirty days’ imprisonment in the county jail. The $5 was alleged to have been stolen from H. L. Ater. Ater was a saloon keeper. The appellant, Hurley, was a doctor.

<p>1. Improper Argument of Counsel.</p> <p>On a trial of two joint defendants for murder, a man and a woman, where a juror had stated that he was slightly acquainted with one of them, and the County Attorney, after asserting in the most positive manner, that defendants were guilty, said, to the said juror: “You are the only man on the jury who answered that you knew defendant A-; the country expects you to do your duty;” and also said to the jury: “They ask you to turn this man loose, and then, when you do that, if a new trial should be needed for the woman, they want the man cleared so that they .can get his testimony, at least that is my judgment;” and, upon exception being taken, the court reprimanded counsel and instructed the jury to wholly disregard his remarks. Held: No error in the action .of the court.</p> <p>3. Evidence—Hearsay.</p> <p>Statements by a third party to a witness, which are not made in the presence of the accused, are hearsay and inadmissible.</p> <p>3. Jury*Law—Corrupt Juror—Voir Dire Examination—New Trial.</p> <p>Where a juror stated on voir dire examination, that he had formed and also believed ,that he had expressed an opinion as to the guilt of defendants, but, that he would not be [influenced by such opinion; that, if selected, he would try the case alone upon the law.and the testimony; and defendants did not oiler to challenge •said juror. Held: It was clearly the duty of def endants[to question the juror directly in regard to the character of the opinion formed and especially as to the opinion expressed to probe the subject and sound the juror to the bottom in regard to it, and failing to do so, it is too late, after verdict, to attempt to take advantage of their own want of diligence and have the matter investigated upon their motion for a new trial. Disapproving, Hanks v. State, 21 Texas, 527, on this point.</p> <p>4. Murder in the Second Degree—Infanticide—Fact Case.</p> <p>See, facts stated in the opinion, upon which it is Held: That a verdict and judgment of murder in the second degree is amply supported, both as against the mother of the murdered infant, and the other defendant acting with her in the commission of the crime.</p> <p>[Rote.—A motion for rehearing, was overruled without a written, opinion, on May 19th, 1896.-—Reporter.]</p>

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. 1 A statement is not necessary.

Tried below before Hon. L. W. Goodrich. This appeal is from a conviction for robbery, the punishment being assessed at ten years’ imprisonment in the penitentiary. This is a companion case to Will Burries v. State, ante p. 13. Ho statement necessary.

<p>Counsel for appellant moved in arrest of judgment, “because the indictment does not allege that the killing was done with malice aforethought.” This was overruled.</p> <p>In view of the disposition made of the appeal, a statement of the case is unnecessary.</p>

This appeal is from a conviction for ■ unlawfully and wilfully permitting a business house (a saloon) to be kept open for traffic on Sunday, the punishment being assessed at a fine of $20. Defendant pleaded former acquittal in addition to his plea of not guilty. • Ho further statement necessary.

Tried below before Hon. O. D. Cannon, County Judge. This appeal is from a conviction for pursuing the occupation of selling intoxicating liquors without having obtained a license therefor—the punishment being assessed at a fine of §450.

Tried below before Hon. Charles F. Clint. This appeal is from a conviction for burglary, the punishment being assessed at four years’ imprisonment in the penitentiary. No statement necessary.

Tried below before Hon. J. S. Straughan. This appeal is from a conviction for rape, the punishment being assessed at death. The indictment charged the appellant, John Dove alias Albert Moore, with the rape of Mrs. Joe Meredith, in Palo Pinto County, on the 23rd day of August, 1895. Mrs. Joe Meredith testified to defendant’s assaulting and ravishing her at her home. That she was just recovering from an attack of measles, and was very weak; weighed only 110 pounds.

This was an appeal from a judgment of the County Court, dismissing án appeal from a Justice’s Court on account of the insufficiency in amount of the appeal bond.

This appeal is from a conviction for forgery in altering a note by adding thereto the names of the sureties of the same, the punishment being assessed at imprisonment for two years in the penitentiary. Defendant pleaded former acquittal and jeopardy, for uttering and passing the same forged instrument, for the forgery of which, by alteration, he was being prosecuted in this case.

<p>Appeal from the County Court of Hays. Tried below before Hon. Ed. R. Kone, County Judge.</p> <p>This appeal is from a conviction for taking up and using a horse without the consent of the owner thereof, the punishment being assessed at. a fine of $10.</p> <p>No statement necessary.</p>

<p>Burglary—Indictment—Omission of an Essential Word.</p> <p>In burglary, it is essential to allege that the house was occupied by someone, and words which are necessary to allege such occupancy are essential to the description of the offense. An indictment for burglary, which described the house as “occupied S.,” instead of “occupied by S.,” is fatally defective in omitting the essential word “by” between the words “occupied” and the name of the occupant.</p>

<p>1. Passing Forged Instrument—Indictment Where Instrument is Beyond the Jurisdiction of the Court—Secondary Evidence.</p> <p>In forgery, the general rule, requiring the production of the forged instrument, is met by the fact that the forged instrument is not within reach of the process of the-cornet; and where the indictment, for uttering a forged instrument, alleged that it was lost or destroyed, or in the possession, etc., of defendant, and not within reach of the process of the court. Held: This was sufficient notice to defendant to produce the instrument, and upon his failure to do so, it was sufficient to admit secondary evidence of its contents.</p> <p>2. Same—Proof of Possession by Defendant of Other Forged Instruments —Charge of Court.</p> <p>On a trial for passing a forged instrument, where evidence was introduced tending to show that defendant was in possession of another forged instrument. Held: An omission of the court in the charge to limit and restrict this evidence was not reversible error where the charge, when given, was not excepted to on that ground, and it is for the first time urged in this court, and it does not appear that the omission was calculated to injure the rights of the accused. (But, see below, contra paragraph 3, of this syllabus.—Reporter.)</p> <p>ON MOTION FOB REHEARING.</p> <p>3. Same—Evidence as to Defendant’s Possession of Other Forged Instruments—Charge Limiting and Restricting Same.</p> <p>. On a trial for passing a forged instrument, where testimony has been introduced showing that defendant had other alleged forged instruments in his possession, the failure of the court to limit and restrict the purposes for which such testimony could alone be considered by the jury is fundamental error, although the charge was not excepted to for such omission. Following, Burks v. State, 24 Tex. Crim. App., 326; and, Hennessy v. State, 23 Tex. Crim. App., 340.</p> <p>4. Evidence of Extraneous Crimes, to be Limited and Restricted by Charge, "When.</p> <p>It is only necessary for the court to charge upon and limit the evidence, showing other extraneous crimes, where there is danger of a conviction for the offense not charged, or of an unwarranted use of such testimony to the prejudice of the defendant in the case in which he is being tried.</p>

<p>Appeal from the District Court of Atascosa. Tried below before Hon. M. F. Lowe.</p> <p>This appeal is from a conviction for swindling, the punishment being assessed at two years’ imprisonment in the penitentiary.</p> <p>Ho statement of the case necessary.</p>

<p>1. Statement of Facts—Approval of By Judge—Diligence.</p> <p>Where a statement of facts had been agreed to by counsel on the day of, and. shortly after court adjourned, and defendant’s counsel signified that fact to, and informed the judge that the statement of facts was on the clerk’s table; and the judge answered, “All right,” but the statement was never presented to him for approval. Held: The diligence is not sufficient, and the statement will not be considered.</p> <p>2. Mew Trial to Obtain Testimony of an Acquitted Codefendant—Absenceof Statement of Facts.</p> <p>A motion for new trial to obtain the testimony of a codefendant, whose case was dismissed, after defendant’s conviction, cannot be considered in the absence of a statement of the facts showing the materiality of such testimony, and its probable-truth, and what effect it might probably have upon another trial.</p> <p>[Note.—A motion for rehearing was overruled without a written opinion. —Rep orter. ]</p>

This appeal is from a conviction for murder in the second degree, the punishment being assessed at twenty years’ imprisonment in the penitentiary.

<p>1. Horse Theft—Estray—Unknown Owner—Diligence by Grand Jury to Ascertain Owner—Charge.</p> <p>Where an indictment for horse theft, alleged the owner to be unknown, and the evidence showed that the animal had no known owner, and was recognized as an es-tray, the State was not required to prove that diligent inquiry was made by the grand jury to ascertain the owner; and that they failed to find such ownership; nor was there any necessity for the court to charge especially with reference to the subject.</p> <p>2. Same—Charge—Unknown Owner.</p> <p>On a trial for horse theft, where the charge of the court, in effect, instructed the jury that, in order to constitute theft of property of an unknown owner, the ownership of the horse must he unknown, and the defendant must know the fact that the ownership was unknown. Held: Erroneous, as defendant’s knowledge could cut no figure, and he could steal- a horse, although he might not know his owner was unknown. Still such charge could not prejudice defendant.</p> <p>3. Same—Estray.</p> <p>An estray horse has no known owner, and the same rules apply in cases of theft of such an animal, as when the owner is alleged to be unknown; and it is not necessary, in either event, to complicate the case with the estray laws, unless there is something in the testimony indicating that defendant may have taken up the horse as an estray.</p> <p>4. Same—Recent Possession and Reasonable Explanation.</p> <p>Where the charge of the court, on a trial for horse theft, in effect, instructed the jury, that if defendant was found in recent possession of the stolen horse, and gave an account of his possession; and the State showed its falsity, this circumstance would alone authorize the jury to convict. Held: Erroneous, and clearly on the weight of evidence.</p>

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

This appeal is from a conviction for murder in the first degree, the punishment being assessed at imprisonment for life in the penitentiary. The indictment charged the accused with the murder of James Rayburne alias Jim Ravin, by striking him with a stick and cutting him. with a knife on the 15th day of May, 1895. There is no statement of facts in the record.

<p>1. New Trial—Practice and Duty of Trial Court.</p> <p>Though the court cannot express any opinion as to the weight of evidence'nor sum up the testimony on the trial before the jury, as they are the exclusive judges of the . facts; yet, on a motion for new trial, it is the duty of the court to set the verdict aside when it is contrary to the law and the evidence.</p> <p>2. Rape—Proof of “Force.”</p> <p>Rape, under our law, means the carnal knowledge of a woman without her consent, obtained by force, and such force, as might reasonably be supposed, sufficient to overcome resistance; taking into consideration the relative, strength of the parties and other circumstances of the case. And the proof of this must be made to appear beyond any reasonable doubt.</p> <p>3. Same—Evidence Insufficient.</p> <p>See, facts, stated in the opinion, proved on a trial for rape, where the conviction rests alone upon the uncorroborated testimony of the prosecutrix, which are held wholly insufficient to support a judgment of conviction for rape.</p> <p>[No brief found with the record.—Reporter.]</p>

<p>A statement of the case, as made by the evidence, is unnecessary.</p>

Tried below before Hon. H. H. Wallace. This appeal is from a conviction for burglary, the punishment being assessed at two years’ imprisonment in the penitentiary. In view of the disposition, made by the opinion, of the case, a statement becomes unnecessary. .

<p>Swindling by Exchange of Property—Indictment—Sufficiency of.</p> <p>An indictment for swindling by exchange or disposition óf property, under Art. 944, Subdiv. 1, Penal Code, to be sufficient, must allege an actual sale and .delivery of the property by the defendant, and, not doing so, such an indictment is fatally defective.</p>

Appellant, by indictment found by the grand jury of Calhoun County, was charged with the murder of Louis Foster on the 2nd day of October, 1894. The indictment was returned into court in Calhoun County on the 13th day of November, 1894. On the 16th day of November, 1894, upon motion of the District Attorney, stating the statutory grounds, after hearing the evidence in support of the motion, the court changed the venue of the ease to Victoria County.

<p>This appeal is from a conviction for murder in the first degree, the punishment being assessed at a life term of imprisonment in the penitentiary.</p> <p>The material facts, attendant upon the killing, are shown by the testimony of the witness, W. D. Black, as follows: “I remember well the night that Mason Miller was shot and killed. It was, I think, September 23rd, 1893, and in Dallas County, Texas. On .that evening, I took supper with him at his brother’s, John Miller. Mason Miller, the deceased, was running a team at the time, and I had known him since February previous. He boarded and roomed at the home of his brother, •John. After supper, Mason Miller and I went to Mrs. Neachman’s, who Mason went to see about purchasing a wagon from her. • When we got to Mrs. Neachman’s house, I stopped on the outside, and he went inside; and after awhile we started on down to go to a Mr. Houseman, to see him on business about some wood, and Mr. Houseman’s house was right near Pabst brewery. In order to go from Mrs. Neachman’s to House man’s, we took a trail across a vacant lot. Miller was walking in front of me, four or five feet, and, while traveling in the trail, we heard some voices to our right, and discovered tliem to be four or five people, which we took to be negroes; they were going, seemingly, in the direction we had come, and were in a path or trail running parallel with ours, and ten or twelve feet apart, with weeds a head high, particularly between us. These weeds were of this height all along in the rear and in front of us, between the paths at a distance of an hundred feet either way. . I heard a negro man’s voice, and then I heard Miller mumble something, but couldn’t make out what either said. It was dark, and the thought struck me that they knew one another. The weeds were about shoulder high, enough for us to see the tops of their heads, and they ours. I didn’t know but what the man, who was talking with us knew Miller, and was friendly with him, but I soon found out better, because without the .least warning that he was coming through the weeds, or was approaching Miller at all, a negro man sprang into the path at the edge of the weeds by Miller, and threw his pistol right in Miller’s face, and said to him, ‘You move, you white livered son-of-a-bitch, and I will kill you;’ and, when the pistol was being held in Miller’s face that way, and after the remark made by the negro man, Miller said, ‘You have got me, ain’t you?’ The negro then fired, and Miller fell instantly. The negro then started off, and said, ‘That is my record.’ Miller was shot right in the middle of the forehead, and he died without a struggle. He had nothing in his hands, and made no attempt whatever to do anything towards the negro; or harm him. I was looking at them closely. I didn’t hear him coming through the weeds towards us. The first thing I heard or saw of him after hearing the voice in the parallel path was, he was right on to Miller, with the pistol in his face, as I have said. After he shot Miller, as I have described, he started off, saying, ‘This is my record.’ He went off rather deliberately in the direction of the brewery. Miller never moved either backward or forward, but was standing when he was killed on the place where he had stopped when he seemed to be replying to the voice in the parallel path. At the point where Miller was shot, I would say, that he had passed the man to whom he seemed to be replying to. I was within ten feet of Mason Miller in the path when he was shot; he fell on his back in the path; the face was badly powder burnt from the pistol. He was killed in Dallas County, Texas, and died from a pistol wound inflicted by a negro man. The negro had his gun in his hand when I first saw him facing Miller.” Cross-examination: “I had not been with Mason Miller all day. He didn’t have on a coat when he was killed. He had on a vest, and it was buttoned all the way down and close up under his neck. I saw a pistol taken from his inside vest pocket after he was killed. I never knew him until the February preceding his death. When I met him first, he told me that he had just gotten back from the penitentiary. The negro, whose voice I heard, seemed like he said, ‘This is Mr. Somebody,’ I didn’t get the name; then, the negro said something else, and Miller said something that I did not understand; but, I thought that they knew each other until the negro pulled the gun. There was another negro with the fellow who did the shooting—at least, he was over in the trail along with some women. I never saw any baby or child. I have been arrested several times. I was in jail once for counterfeiting; don’t know how many times I have been arrested; don’t know how many drinks I have taken. I have been arrested for an aggravated assault and carrying knucks, and for the disturbance of the peace. I have been convicted a time or two for fighting. I believe I heard Miller say, before he was shot, and when answering the voices in the other path, ‘What do you negroes want?’ I don’t know who spoke first. I never said anything; it was such a short time between the talk and the shooting. If there was any child along with that crowd, it was so small I didn’t see it.” Redirect examination: “The pistol that Miller had on him was in his inside vest pocket, and the vest was all buttoned up closely. I saw his hands plainly when the negro jumped into the path and pointed the pistol right down in his face. Miller had nothing in his hands, and didn’t attempt to use them. All he done and said was in reply to the language addressed to him, ‘You move, you white livered son-of-a-bitch, and I will kill you,’ was, ‘You have got me, ain’t you?’ Yes, I was arrested on the charge of counterfeiting, but they turned me loose immediately, as I was not the man they wanted. I have paid a fine or two, but nothing worse.”</p> <p>Cabell, the sheriff, Wood, Ramsey and W. H. Sanderson, testified, “That they were at deceased’s body promptly; that his vest was buttoned up, and that upon unbuttoning it they found an old pistol in the bottom of the inside pocket.”</p> <p>Frank Murray, for the defense, testified about going along the parallel path in company with Katie and Mattie Murray. “That defendant and the parties in the other path got into a conversation which he did not hear until he heard defendant say, ‘It’s a d—d lie, you wont do what you say you will do.’” He says: “I started back and I saw Sherman step backwards, and I saw the white man, who was shot, put his hand up to his breast, and, as he did so, Sherman shot him. I don’t know how Sherman, the defendant, was carrying the baby, but he was saying to her, ‘Have all the fun you want, but don’t start nothing.’ ” Cross-examination: “As soon as Sherman said, ‘It is a damned lie, you won’t do what you say you will do,’ he put the child down, and he started like he was going towards a man that was in the other path, and I saw that man, who was afterwards the deceased, throw his right hand up to his breast, and Sherman started back and fired and killed him. Sherman was off some ten or twelve feet from him when he shot, and I was about twenty-five feet from Sherman and ten or fifteen feet from the women.” The witness had previously stated, that the weeds between the two paths were as high as a head. He was then asked how was it he could see the deceased throw his right hand to his breast when the weeds were so high? He replied, after a moment’s thought, “Right along dar the weeds was kinder low like.” “I didn’t see the deceased move toward Sherman.” The witness was asked if he was not present that night, after the shooting, at the body, and also at the city hall, and heard Sheriff Cabell asking those present (witness among them) if they knew who it was that did the shooting, and made no reply. To this question, the witness answered, “No.” He was then asked, if it was not after that time after the' witness found out that Sheriff Cabell had learned from Katie Murray, wife of Randolph Murray, who it was that did the shooting, before he (witness) would tell who it was that did the shooting? To this question, witness answered, “No.” This witness, proceeding with his testimony, said: “When I saw Sherman was going to shoot, I tried to get to him and stop him, and I started towards Sherman and told him not to shoot, but before I got to him he shot.” Witness was then asked, if he didn’t have a talk with Sheriff Cabell after the sheriff had learned that the defendant was the man that did the shooting; and, that if, in the conversation, he did not tell Sheriff Cabell that, all he knew about it was, that they were going along the road and he heard voices, and he saw Sherman was about to shoot a man, and he tried to get to him to stop him, and told Sherman, tO' to stop and not shoot; but, he (witness) was too late. To this question, the witness answered, “Tes.” He was then asked, if he told Sheriff Cabell or any one else about the deceased putting his hand to his breast before he shot? and, to-this question witness answered: “I didn’t say I told him,” and remarked that he was saving that for the grand jury. He was then asked, you told all but that did you, and was saving that one fact for the grand jury? and he answered, “Tes.” He was then asked, why didn’t you tell that also? He answered, “I didn’t think I had to tell it all until I was before the grand jury. I thought when I told them as muchas I did, I would keep the rest until I got before the grand jury. I didn’t decline to tell the sheriff who it was that killed the man. I admit that I heard the sheriff asking who it was that killed Mason Miller?”</p> <p>The matters pertaining to defendant’s amended motion for new trial, and the affidavits as to the newly discovered evidence, are sufficiently stated in the opinion.</p>

<p>Habeas Corpus—Judgment—Cumulative Punishments.</p> <p>Where a defendant had been convicted in three cases of felony, and the penalties, were not made cumulative in the judgments proper in the last two cases, but were so made in the final judgment, and the sentence pronounced in the second one of the cases, and defendant having served out his sentence under the first of the three judgments, applied for a writ of habeas corpus to be relieved from custody under the last two, upon the ground that his penalties for the same had not been cumulated in the original judgments proper. Held: There is no occasion why the punishments, if cumulative, should go into the entry of the original formal judgment; and the law does not require that they should; but they are properly entered in the final judgments and sentences, and, being so entered, they are not void; and, not being void, defendant cannot avail himself of habeas corpus as a remedy for relief against such cumulative punishments.</p> <p>[No brief found with the record.—Reporter.]</p>

This appeal is from a conviction for murder in the second degree, the punishment being assessed at ten years’ imprisonment in the penitentiary. Defendant was indicted for the murder of R. San Miguel, by choking him with a sash, in Atascosa County, on the 20th day of December, 1886. The testimony shows that deceased started from his home, in a wagon drawn by two mules, for San Antonio, to sell a coop of chickens and turkeys which he had in the wagon.

This appeal is from a conviction for building and maintaining more than three miles, lineal measure, of pasture fence, running in the same direction, without agatewav in the same, the punishment being assessed at a fine of $25. The charging part of the information is set out in the opinion. No statement necessary.

The charging part of the information will be found in the opinion below. A motion was made to quash the information because: (1) It fails to charge that defendant unlawfully conducted a business of dealing in futures in cotton, grain, etc. (2) It fails to state the meaning of the word “futures.” (3) It fails to specify what species of futures defendant, as a dealer, conducted as a business or dealt in.

Tried below before Hon. D. A. McFall, County Judge. This appeal is from a conviction for dealing in futures, the punishment being assessed at a fine of $100 and thirty days’ imprisonment in the county jail. The charging part of the information is set out in the opinion.

This appeal is from a conviction for forgery of a teacher’s school voucher, the punishment being assessed at three years’ imprisonment in the penitentiary. Demurrers and exceptions to the indictment, with a motion to quash the same, were overruled in the court below. No statement necessary.

<p>1. Theft From the Person—What Constitutes—Allegation and Proof.</p> <p>Where an indictment alleged theft by privately taking from the person, and it'was ■shown that defendant put his hand into the pocket of the prosecutor and took his pocketbook containing money. Held: It was necessary for the State to prove that defendant privately and without the knowledge of prosecutor, slipped his hand into his pocket and secured the pocketbook in his hand. If prosecutor knew that defendant was attempting to privately slip his hand into his pocket before he secured the pocketbook, and he submitted without resistance, the allegations of the indictment would not be sustained.</p> <p>2. Same—Charge.</p> <p>On a trial for theft by privately stealing from the person, where the court charged -the jury, “If you believe from the evidence that W. (the prosecutor) knew when defendant put his hand in W.’s pocket, and took W.’s pocketbook into his (defendant’s) hand, then you will acquit him. If defendant had the pocketbook in his hand before W. knew it, the subsequent discovery of the fact by W. would make no difference, .and the defendant could, nevertheless, be guilty; but unless you should find, from the evidence, beyond a reasonable doubt, that defendant did have said pocketbook in his hand before W. knew it, you should acquit.” Held: The charge is not upon the weight of evidence, nor is it obnoxious to the objection, that it assumes, as a fact, that defendant put his hand into W. ’s pocket without W. ’s knowledge, and that W.’s discovery was subsequent to such act by defendant.</p>

<p>This appeal is from a conviction for seduction, the punishment assessed being two years’ imprisonment in the penitentiary.</p> <p>Annie Kemp, the prosecutrix, testified in substance; That she was-17 years of age; that she knew defendant all her life. He lived about a. mile and a half from her father’s house. He and she were engaged to be married in February, 1894. He generally, for the past two years, came to see her two or three times a week, and every Sunday. Defendant begged her to have sexual intercourse with him in June, 1894, and she refused. In July, 1894, while returning from church at Rockland Chappel home with defendant, and in going through the woods, defendant again begged her to let him have sexual intercourse with her. She refused. He said, if she would, he would marry her, but if she didn’t he- would not marry her. She at length yielded, under his promise to marry her. In August following, he had sexual intercourse with her twice, each time renewing his promise of marriage; and she relied upon his promises. She was asked: “Would you have yielded to the sexual embrace of the defendant, had it not been on account of the promise to marry you?” which question was objected to by defendant, because it was leading. She testified that the birth of her child was the result of the intercourse with defendant; and was permitted to state, over defendant’s objection, that defendant was the father of her child then in her arms. She stated, that defendant visited her just a day or so before he was married to Miss Bell Miller, and that when she heard of his marriage, she could not believe it.</p> <p>The father and mother of the prosecutrix testified to his constant visits to their house, and to the terms of familiarity with which defendant was there treated; his constant attentions to their daughter, and both testified to a conversation they once overheard, between the parties, which was equivalent to a statement by defendant that he was engaged to and intended marrying the prosecutrix.</p> <p>Quite a number of witnesses testified to the good character of the prosecutrix for chastity up to the birth of her child. An effort was made by defendant to impeach her virtue, and acts of imprudence tending to show want of chastity were testified to by two or more of defendant’s witnesses.</p> <p>A motion for new trial was made, partly based upon misconduct, or rather the reception of new evidence by the jury. This matter is fully elucidated in the opinion.</p>

Tried below before Hon. Thos. H. Spooner. This appeal is from a conviction for seduction, the punishment being assessed at two years’ imprisonment in the penitentiary. Held: that there is no higher evidence of the good character of a person, than that it was never discussed. That fact is the-very best evidence of good character.” Defendant saved a bill of exceptions to the action of the court, and especially to these remarks.

This appeal is from a conviction for murder in the second degree, the punishment assessed being five years’ imprisonment in the penitentiary. This is the second appeal taken in this case, and the leading features of the case will be found stated in the opinion on the former appeal of Phipps v. State, 34 Tex. Crim. Rep., 560. The facts pertaining to the ■errors assigned on this appeal are sufficiently stated in the opinion, and •a further elaboration is unnecessary.

Tried below before Hon. T. S. Reese. This appeal is from a conviction for murder in the first degree, the punishment being assessed at death. The indictment charged appellant, and George Williamson jointly, with the murder of E. C. Crocker, in Wharton County, on the 19th day of May, 1895, by shooting him with a gun. This appellant, Jim Williamson, was alone tried in this proceeding, with the result as above stated.

<p>I. Assault With Intent to Murder—Manslaughter—Insulting Conduct Towards a Female Relative—Charge. .</p> <p>On a trial for assault with intent to murder, where the defense was, insulting conduct towards a female relative; where the court, in effect, charged the jury, that such defense would not be available unless the female relative was herself insulted by such acts and conduct. Held: Error; that while the language of the statute is, that the insult must be towards the female relative, it does not mean that the female relative must herself be affronted by the conduct.</p> <p>2. Same—Aggravated Assault—Mistake of Fact.</p> <p>On a trial for assault with intent to murder, where it appeared that defendant came upon'the prosecutor and his, defendant’s, sister in a dark room'ahout 12 o’clock at night, and he fired upon and wounded the prosecutor. Held: He was entitled to a clear and emphatic charge to the effect, that, if, at the time, he reasonably believed the prosecutor and his sister were engaged in an act of illicit intercourse, or were about to engage in such act, and that his passion became aroused, on said account, to such an extent as that he was incapable of cool reflection, and he then shot the prosecutor, he would he guilty of an aggravated assault. The question of a mistake of fact, does not arise in such case.</p> <p>[No brief found with the record.—Reporter.-]</p>

Tried below before Hon. Tom C. Davis, Special Judge. This appeal is from a conviction for murder in the first degree, with the penalty assessed at death. The indictment charged defendent with the murder of Juarez Hernandez, in Angelina County, on the 24th of August, 1895, by stabbing and cutting him with a knife, dagger, etc. Deceased was a “tamale man,” in the town of Lufkin, and was killed on the night of the 24th of August.

<p>Appeal from the County Court of Tarrant. Tried below before Hon. George W. Armstrong, County Judge.</p> <p>This appeal is from a conviction for unlawfully carrying a pistol, the punishment being assessed at a fine of $25.</p> <p>Defendant pleaded former conviction for said offense, in the City Court of Fort Worth, which plea was overruled.</p> <p>No further statement necessary.</p>

<p>License Tax—Soliciting Orders for Photographs, Pictures, etc.—Interstate Commerce.</p> <p>Rev. Stat., Art. 5094, in so far as it imposes a license tax for soliciting orders for photographs, pictures, etc., for a corporation in another State, is a tax upon interstatecommerce, and is unconstitutional.</p> <p>[No brief found with the record.—Reporter.]</p>

Tried below before Hon. E. D. McClellan. This appeal is from a conviction for incest, the punishment being assessed at three years’ imprisonment in the penitentiary. The indictment charged appellant with carnal intercourse with Maggie Bryant, his step-daughter. Defendant married the mother of the girl in Marion County, the marriage license having been issued by the County Clerk of Bowie County. No further statement necessary. '

<p>Appeal from the District Court of Tarrant. Tried below before Hon. W. D. Harris.</p> <p>This appeal is from a conviction for incest, between a father and daughter, the punishment being assessed at ten years’ imprisonment in the penitentiary.</p> <p>No further statement than that found in the opinion is required.</p>

<p>Local Option—Sale—What is — Exchange or Barter—Construction of Statute.</p> <p>On a trial for violation of local option, where it appeared that defendant delivered intoxicating liquor to another party, in the local option precinct, for which such other party was to pay him in other liquor at some future time; and it was contended that this constituted an exchange or barter, and not a sale. Held: The transaction constituted a sale. Penal Code, Art. 402, prohibiting the “sale” of liquors in a local option district, uses the word sale in its broader sense, including barter and exchange, and not in the restricted technical sense of a sale for a money price. A sale is an agreement made between a person having power to dispose of the property in a thing, who is called the seller, and another person, who is called the buyer, with the joint intention expressed, as by law required, that the property in the thing shall, at such time and in such manner as is then specified, be transferred to the buyer, in consideration of value to be rendered by the buyer, and vice versa.</p>

The indictment is set out in the opinion, and, inasmuch as the appeal was determined upon the sufficiency of the indictment, no further statement of the case is necessary.

<p>This appeal is from a conviction for murder in the second degree, the punishment being assessed at five years’ imprisonment in the penitentiary.</p> <p>One Frank Williams, a negro, was killed in the city of Richmond, Fort Bend County, on the night of the 24th of September, 1895. Appellant, A. H. Mitchell, and one J. K. Neal, were separately indicted for his murder. When the case was called for trial, appellant made affidavit, under the statute, for a severance, to have Neal first tried, and a severance was granted by the court. Thereupon the District Attorney nolle prossed and dismissed the case against Neal, who turned State’s evidence and testified for the State on a trial of this case.</p> <p>The essential facts pertaining to the preliminary questions raised by the defendant as to his application for continuance, and the proceedings relating to the special venire and empaneling of the jury, are sufficiently illustrated in the opinions below, and need no further statement.</p> <p>The essential facts pertaining to the killing will also be found fully stated in the opinion, below, of Hurt, Presiding Judge, on the motion for a rehearing.</p> <p>As to the questions of the misconduct of the jury, and the receiving by them of new evidence from members of the jury—the facts are so fully stated in the opinions as to need no repetition or addition.</p>

This appeal is from a conviction for murder in the second degree, the punishment being assessed at imprisonment for twenty-five years in the penitentiary. Appellant, together with his brothers, Tom and Dan Cline, was jointly indicted for the murder of Spencer Cunningham, jn the County of Gonzales, on the 28th day of January, A. D. 1893. There was a severance, and Dan Cline was first tried and convicted; and his case, on appeal, will be found, as Cline v. State, 33 Tex. Crim.

Tried below before Hon. S. F. Grimes. This appeal is from a conviction for rape, the punishment being assessed at fifty years’ imprisonment in the penitentiary. The prosecutrix, Dollie Daniels, was an orphan, whose mother had, by will, given her to the defendant, and the Probate Court, of Bell County, had appointed him her guardian. She was about 12 years old when she went to live with defendant and his wife.

<p>1. Evidence Before Argument is Closed—Recalling Witness.</p> <p>On a trial for perjury, after the evidence was closed, defendant demurred to the sufficiency of the same for the reason that the State had not proved the authority of the officer before whom the alleged false affidavit was made. Held: That it was not error to permit the witness to be recalled to testify that he was a notary public.</p> <p>2. Original Papers Sent Up With Transcript Not Certified—Practice on Appeal.</p> <p>Original papers sent up with the transcript on appeal, will not be taken cognizance of when they are not properly certified to by the clerk of the trial court.</p> <p>3. Perjury—Evidence—Discrepancy in Bond.</p> <p>On a trial for perjury assigned on a motion for new trial which was sworn to by defendant in a case pending against a convict on a convict bond. Held: That a discrepancy in the bond offered in evidence as to the number of the case is no defense, nor is it a valid objection to the bond as evidence, it not being shown that there was any but the one case against the convict in which the bond had been filed.</p> <p>4. New Trial—Newly Discovered Evidence.</p> <p>A motion for new trial for newly discovered evidence was properly overruled where it appeared that the proposed witness had been subpoenaed in the case, but was not put upon the stand to testify.</p>

<p>1. Aggravated Assault Upon an Officer—Indictment.</p> <p>An indictment, for an assault upon an officer, is fatally defective if it fails to allege. that the officer was known as an officer by the accused, or that the officer de- , dared to the accused that he was an officer. See allegations in the indictment held to be meaningless.</p> <p>3. Execution of Attachment for a Witness by an Officer—Searching Premises.</p> <p>Quaere as to how far an officer may go in entering and searching a house for a witness under a writ of attachment in view of the constitutional guaranty against unlawful searches?</p> <p>[No brief found with the record.—Reporter.]</p>

<p>1. Assault With Intent to Commit Rape Upon a Child—What Constitutes.</p> <p>.On a trial for assault with intent to commit rape, the offense is established where it appears that defendant, who was an adult male intending to have carnal intercourse with a female of tender years, went so far as to attempt to force an entry with his male organ into her female organ, whether with or without her consent. Where the entry is not actually effected, but there is an endeavor to penetrate by the use of force, this is sufficient to constitute the act an assault with intent to rape.</p> <p>2. Same—Circumstantial Testimony—Charge.</p> <p>On a trial for assault with intent to rape, where the evidence established irritation and soreness of the parts of the child, and the further fact that a venereal disease had been communicated to her. Held: Sufficient to show at least an effort to penetrate her privates with a male organ and are of a character to place defendant in such close proximity and juxtaposition to the main fact as to render a charge on circumstantial evidence unnecessary.</p> <p>3. Same—Evidence as to Defendant’s Having a Venereal Disease.</p> <p>On a trial for assault with intent to rape, where it appeared that the prosecutrix, a child of tender years, was affected with a venereal disease, it was not error for the court to refuse to exclude the testimony of physicians to the fact that defendant was afflicted with gonorrhea a few days before the alleged offense.</p>

<p>Appeal from the County Court of Waller. Tried below before Hon. A. G. Lipscomb, County Judge.</p> <p>Relator was convicted of an aggravated assault and battery, in the Criminal District Court of Harris County. He appealed to this court and the judgment was affirmed. Branch v. State, 35 Tex. Crim. Rep., 304. He applied for and obtained a writ of habeas corpus from the County Judge of Waller County. On the hearing of the writ, he was remanded to the custody of the sheriff of Harris County. From that j udgment he prosecutes this appeal .by recognizance.</p> <p>The Assistant Attorney-General moved to dismiss this appeal, because it appears that relator is not actually restrained of his liberty pending the appeal, and because an appeal in such case cannot be prosecuted on an appearance or appeal bond, or recognizance.</p>

Tried below before Hon. D. E. Barrett. Appeal from a conviction for forgery; penalty, two years’ imprisonment in the penitentiary. A motion for new trial and in arrest of judgment on account of the fatal variance between the purport and tenor clauses of the indictment was overruled in the trial court.

Tried below before Hon. E. S. Chambers, Special Judge. Appeal from a conviction for burglary; penalty, three years’ imprisonment in the penitentiary. On the night of the 20th of December, 1895, the storehouse of J. T. Brown, of Clarksville, was kept open for the transaction of business until about 11 o’clock p. m., when it was closed up and securely fastened by the clerk.

Tried below before Hon. Felix J. McCord. Appeal from a conviction for rape; penalty, live years’ imprisonment in the penitentiary. The record indicates, that the parties to the transaction were negroes. Dave Carr, the appellant, was a grown man and a first cousin of Alice Can-, the prosecutrix, whose age was between ten and eleven years, according to the testimony of the physician who delivered the mother at the time of her birth.

John J. King. Appeal from a conviction for violation of local option; penalty, a fine of $25 and twenty days’ imprisonment in the county jail. The Assistant Attorney-General moved to dismiss the appeal because the recognizance recites no offense.

<p>1. Local Option—Fact Case—Evidence Insufficient.</p> <p>See evidence, on a trial for a violation of local option. Held: Insufficient to support the conviction, because it failed to show that, “Preston’s Tolu,” the beverage sold, was an intoxicant.</p> <p>2. Same.</p> <p>On a trial for violation of local option, where the issue was, as to whether “Preston’s Tolu,” was an intoxicant, evidence that S. & T. prepared and sold a “Tolu” that was intoxicating, was inadmissible, it not being shown that the two “Tolu’s” contained the same ingredients.</p>

<p>1. Theft of Money—Fact Case—Evidence Insufficient.</p> <p>See, the evidence stated on a trial for theft of money, which is held wholly insufficient to sustain the verdict and judgment of conviction.</p> <p>2. Circumstantial Evidence.</p> <p>In order to sustain a conviction on circumstantial evidence, the proof must establish guilt to a moral certainty, and beyond a reasonable doubt, and must exclude every reasonable hypothesis consistent with the innocence of the accused.</p> <p>[No brief found with the record.—Reporter.]</p>

<p>Dogging Stock Where Fence is Insufficient—Allegation of Ownership of Premises—Married Woman.</p> <p>An information is invalid against a married woman, under Art. 799, Penal Code, for dogging stock in premises where the fence is insufficient, which alleges the ownership of the premises to be in such married woman, unless it further alleges the property to be her separate property. And such an information is not sustained, where it is shown not only that the husband and wife were living together, but that the enclosed premises were in fact the separate property of the husband. The indictment should have alleged ownership of the premises in the husband.</p> <p>[No brief found with the record.—Reporter.]</p>

<p>T. Enticing Minor From Parent—Evidence Insufficient.</p> <p>See, facts stated, which are held wholly insufficient to support a conviction for knowingly enticing and decoying a minor from the custody of the parent,</p> <p>2. Same.</p> <p>In order to constitute the offense of enticing, etc., a minor from the custody of a parent, etc., under provisions of Art. 625a, Penal Code, it is necessary that the minor he knowingly decoyed or enticed from his parent. _ The hare fact that a party hires a minor with knowledge that such minor has a parent living, is not sufficient to constitute the offense.</p>

Tried below before Hon. Rufus Hardy. Appeal from a conviction for assault with intent to murder; penalty, two years in the penitentiary. One Lee Thompson, charged with theft, and This appellant, Ras Hardy, charged with murder, were prisoners in the jail of Navarro County, and occupied the same cell. The jailor, McAfee, had taken defendant out for a bath.

<p>Appeal from the District Court of Franklin. Tried below before Hon. John L. Sheppard.</p> <p>Appeal from a conviction for adultery; penalty, a fine of $100.</p> <p>The Assistant Attorney-General moved to dismiss the appeal, because the recognizance was not conditioned as required by law. The recognizance is set forth in the opinion.</p> <p>No statement of the case necessary.</p>

Tried below before Hon. Rufus Hardy. Appeal from a conviction for murder in the second degree; penalty, twenty years’ imprisonment in the penitentiary. The indictment charged the defendant with the murder of one J. A. Beardoff, in Navarro County, on the 19th day of February, A. D. 1896, by shooting him with a gun. The parties were brothers-in-law, the deceased having married defendant’s sister.

<p>1. Defendant as Witness—Impeachment by Showing Misdemeanors.</p> <p>The credibility of a defendant as a witness, cannot be impeached by showing on his cross-examination, that he has been guilty or stands charged with misdemeanors; which do not impute moral turpitude.</p> <p>2. Same—Cases Imputing Moral Turpitude.</p> <p>The courts will permit an investigation as to other cases imputing moral turpitude of a defendant witness, only for the purpose of affecting the credit of such witness. They cannot be permitted for the purpose of laying a predicate to impeach, by showing contradictory statements; and where the State is permitted to ask a defendant, on cross-examination, if he is under indictment for other crimes or misdemeanors his answer is conclusive; and, if he answers that he does not know, it is. error to permit, the introduction in evidence of the indictments charging him with such other crimes.</p> <p>3 Witness Who is Excluded Because Not Under “The Rule.”</p> <p>On a trial for murder, where a witness has been excluded from testifying because-he had not been placed under the rule. Held- It was not error for the District Attorney, in answer to an inquiry from the court, to state, that he expected to prove by said witness that one of defendant’s witnesses was not at the scene of the homicide as he had stated</p> <p>4. Murder—Charge—Not Necessary to Define Manslaughter and Justifiable Homicide When.</p> <p>On a trial for murder, where there is no evidence calling for instructions upon manslaughter nor justifiable homicide, it is not necessary, in a charge on murder in the second degree, to define manslaughter and justifiable homicide.</p> <p>5. Same—Charge—Negligent and Excusable Homicide.</p> <p>See, opinion for facts stated on a trial for murder, upon which, the charge of the-court (copied in the opinion) upon negligent homicide of the second degree is—Held; By a majority of the court, to be sufficient; but, Held, by Henderson, Judge, insufficient, because predicated alone upon the theory of an accidental killing while displaying a pistol near a private house | Penal Code, Art. 334], when it should also have presented the theory of an accidental killing by one unlawfully carrying a pistol [Penal Code, Art. 338], A majority of the court also hold, that the testimony did not raise the issue of excusable homicide.</p>

<p>The indictment charged appellant with the murder of one John Baker, in Dallas County, on the 21st of December, 1894.</p> <p>The following concise statement of the case is taken from the brief of counsel for appellant, and is substantially correct:</p> <p>The defendant, William Williford, was about thirty years of age, and while he did not pursue farming as a vocation, he lived most of the time on his mother’s farm, near Garland, in Dallas County. His mother was a widow, and was raising three or four grandchildren; among them was a girl, Annie Hughes, fourteen years of age. John Baker lived in the vicinity. His brother, Jim Baker, had married a daughter of Mrs. Williford’s, but Mrs. Baker was dead. Mrs. Williford had hired John Baker to work on her farm for the year 1895, and he had moved to her house and was staying there until the time of his service should begin. It seems that William Williford was opposed to his mother hiring John Baker, the State claims, because he disliked the Bakers, and wanted to control his mother’s j>remises. - The defendant claims that Baker would talk disrespectfully of young ladies with whom he associated, and moreover that said John Baker was making love to Annie Hughes with no good intent, she being a mere child. There is proof going to show that defendant said he would kill Baker if his mother hired him. Annie Hughes told her uncle Will, the defendant, that she and John Baker were going to marry but she was not in earnest, and she told defendant so. On the morning of the day of the homicide the parties were in the town of Rowlett, a few miles from their home. It seems that Williford, the defendant, had asked deceased to loan defendant his horse, and Baker being angry about something he had heard, told the defendant not to ask him for any more favors. He furthermore threatened to whip the defendant if the defendant intermeddled any more in his (Baker’s) business. The deceased had his open knife in his hand during this quarrel, and during the quarrel put it in his pocket, but again during the quarrel got out his knife the second time and opened it. Defendant claims that he said to deceased in the quarrel: “I want no words with you here. When I get before my mother I will repeat what I have said.” The parties separated without violence, and there is no proof that they met again until that afternoon when they had got to Mrs. Williford’s, when the homicide occurred. Upon their arrival at Mrs. Williford’s house, the deceased was seated on the steps of the front porch facing east. This position is immediately in front of the hall door, entering from the porch. Defendant and his brother Henry and his mother were in the rear part of the house. Henry having missed his dinner, he and his mother went in the dining room. Miss Annie Hughes was in the kitchen. These parties had just separated on the kitchen porch, from which Annie Hughes saw through the hall that Baker was seated on the front steps. The witnesses' were not anticipating any trouble. Defendant passed into the hall from the rear or kitchen porch, and says he intended turning into the north room to play on an organ as was his custom. He says that, seeing Baker he said to him, “I am ready to go before my mother and settle our little difficulty.” That the deceased j umped up and ran his hand in his pocket and advanced on defendant. Defendant says he backed away into the hall and told Baker to “stand back,” but Baker kept advancing on him, that he then drew his pistol and shot the deceased. No witness except the defendant saw the shooting. They heard no part of the trouble except Annie Hughes, who says she heard defendant about the time of the shot, tell the deceased to “stand back.” The deceased was shot in the forehead, and fell forward, face down. The parties from the kitchen, and dining room rushed in, and saw the deceased lying in this position, and the defendant, pistol in hand, standing several feet back in the hall. He stated that the defendant was advancing on him with a knife when he shot him. A knife was found in the pocket of deceased, but none was seen in his hand or on the floor. The defendant remained around the yard a short time, then went away, but returned home that night about 11p.m. and surrendered to the Justice of the Peace and constable who were there.</p> <p>During the trial defendant reserved eight bills of exception to the rulings of the court in the admission of evidence. (See appellant’s brief for these exceptions.) The matters illustrative of these bills are sufficiently stated in the opinion.</p>

Tried below before Hon. Eugene Archer. Appeal from a conviction for manslaughter; penalty, two years’ imprisonment in the penitentiary. The indictment charged appellant with the murder of J. J. Glover, in Medina County, on the 26th of June, 1894, by shooting him with a gnn. The deceased, Glover, was the son-in-law of the defendant, J. A. Wright.

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

Tried below before Hon. John A. Ballowe, County Judge. Appeal from a conviction for aggravated assault and battery; penalty, a fine of $25. The assault was made by defendant upon his wife, and the evidence shows that he struck her a blow in the face with his hand.

<p>Motion for New Trial—Juror—Householder.</p> <p>The fact that a juror, who was not a householder, had qualified himself, upon his voir dire examination, in that regard, will not be sufficient ground for a new. .trial unless it is shown that the service of such disqualified juror was calculated to injure, and did probably injure the defendant’s rights.</p>

Tried bcloAV before Hon. T. S. Reese. Appeal from a conviction for burglary; penalty, two years’ imprisonment in the penitentiary. George Williams testified in substance, that appellant and witness broke into and entered Hauser’s store together, on the night of February 8th, 1896. That appellant and witness went up to the supper at the lodge hall together at about 9:30 p. m. o’clock, and when supper broke up they went to the passenger depot, and afterwards broke in the store.

<p>1. Burglary—Indictment—-“Then and There.”</p> <p>Where an indictment for burglary, instead of using the phrase “then and there,” with reference to the allegation of the intent to commit theft, charged the breaking and coupled it with the charge of the intent by the conjunction “and.” Held: Sufficient to extend the allegation of time.and place to the succeeding averments, though ordinarily where the evidence' consists of a series of connected acts it is necessary, instead of repeating the time and place originally alleged, to use the phrase “then and there.”</p> <p>2. Same—Accomplice Testimony—Charge.</p> <p>On a trial for burglary, where a witness testified that, at defendant’s request, he introduced defendant to another party, to whom defendant said, he desired to sell some cigars, and, at that time, defendant had not stolen any cigars, and it was not shown that said witness had any connection whatever with the subsequent burglary or the cigars. Held: That a charge on accomplice testimony, in connection with the evidence of said witness, was not required.</p> <p>[No brief found with the record.—Reporter.]</p>

About August 31st, 1894, W. C. Richardson, George Dameron and appellant lived in the same neighborhood. About 10 o’clock in the morning of this particular day W. 0. Richardson was at appellant’s house for a short time alone with appellant’s wife. After this, on the same day, between 11 and 12 o’clock, George Dameron went to appellant’s house and finding the appellant and wife in tears, was told by both, that W. C. Richardson had ravished the wife that morning.

Defendant’s motion to quash the complaint was overruled, and the complaint was permitted to be amended. The evidence shows that appellant was a clerk for one Fair, a pawn broker. That one Jackson, a negro, came into the store, during Fair’s absence, and left a watch there, appellant having paid him $1.

<p>Carrying Pistol—Appeal—Jurisdiction on.</p> <p>When the record on appeal from a conviction for carrying a pistol, fails to show that defendant is in jail, or that he entered into a recognizance for the appeal, the jurisdiction of this court does not attach and the appeal will be dismissed.</p>

Appellant was charged by the indictment with the theft of five head of cattle, the property of one S. P. Crawford. After his conviction, he obtained an order of court allowing the statement of facts to be prepared and filed within ten days after the adjournment of the court for the term.

<p>Scire Facias Bail Bond—Offer to Bribe Judicial Officer.</p> <p>A bail bond taken for the appearance of a party to answer a charge of offering, to bribe a judicial officer, under provisions of Penal Code, Art. 125, to be sufficient must state, that the bribe was offered with one or the other intents named in the statute. It is not eo nomine an offense to “offer to bribe a judicial officer,” and a bail bond so describing the charge recites no offense against the laws of the State, and no legal forfeiture could be taken upon such bond.</p>

<p>1. Assault With Intent to Murder—Defense of Another—Manslaughter.</p> <p>On a trial for assault with intent to murder, where it appeared that defendant and one E., the injured party, were engaged in a conversation when one D came up with a large stick and struck E. from behind, felling him to the ground; and, E. drew his pistol, and in attempting to use it, it was discharged twice; D., in the meantime, continuing to shower blows upon him with the stick; and the pistol finally fell on the ground. About the time E.’s pistol was discharged the second time, defendant shot at E., while he was lying on the ground, and fired upon him two or more shots It also appeared that defendant knew all the facts connected with D.’s assault upon E. Held: There was no aggravated assault in the case, and, if death had resulted, the offense would have been murder and could not have been manslaughter, because there was no provocation by E., creating an adequate cause—his act, in drawing his pistol to defend himself against the attack of D., being one justified by law.</p> <p>2. Same.</p> <p>There is no authority which would mitigate to manslaughter a homicide when committed upon a person who was committing no crime, if the party slaying him was aware of all the facts.</p> <p>3. Same—Specific Intent—Aggravated Assault—Charge.</p> <p>On a trial for assault with intent to murder, where defendant testified, that he did hot intend to kill deceased, but, all the witnesses, and the physical facts contradict him as to his intention, and his own statements are in conflict. Held: It was not error for the court to refuse to give in charge to the jury a special requested instruction, to the effect, that, “If they believed from the testimony, that defendant shot at E. without the specific intent to kill him, they will acquit him of the offense of assault with intent to murder, and proceed to inquire whether he is guilty of an aggravated assault.”</p> <p>Davidson, Judge, dissenting to this last proposition, Holds: That the special instruction should have been given; because, there was testimony to the effect that defendant did not intend to kill E., viz: the testimony of defendant himself, who had the right to testify, and did testify, as to his intent. That s'uch testimony being legitimately in the case, it was the duty of the court to submit the issue raised by it whether the court believed such testimony true or false.</p> <p>[Note.—Defendant’s motion for a rehearing, filed after the above opinions were delivered, was overruled without a written opinion.—Reporter.]</p>

<p>1. Motion for New Trial—Bill of Exceptions to Overruling of.</p> <p>Where a motion for a new trial has been overruled by the court. Held: That there is no necessity of reserving a bill of exceptions to such ruling.</p> <p>2. Plea of Guilty—Insufficiency of Evidence as to.</p> <p>Where a plea of guilty is entered by defendant, it is Held: That he cannot urge the insufficiency of the evidence to such plea.</p> <p>3. Sentence—Entry of Upon Minutes—Correction of Minutes.</p> <p>Where, at the request of defendant, made in open court, sentence is pronounced at once, and before the expiration of the two days after conviction, as provided by statute, but the clerk, in entering the sentence upon the minutes of the court, failed to state that, “said sentence had been pronounced at the request of defendant,” and the District Attorney moved the court to correct the record so as to show this fact, to which appellant objected, and said objections were overruled by the court and the minutes permitted to be corrected. Held: No error.</p>

<p>Appeal from the District Court of Montague. Tried below before Hon. D. E. Barrett.</p> <p>Appeal from a conviction for forgery; penalty, two years’ imprisonment in the penitentiary.</p> <p>No statement necessary.</p>

Tried below before Hon. V. B. Hudson, County Judge. Appeal from a conviction for pursuing the occupation of a traveling medical specialist, without having paid the occupation tax; penalty, a fine of $75, No statement necessary.

<p>1. Aggravated Assault—Step-father Upon Step-daughter—Evidence Sufficient.</p> <p>See, opinion, for facts stated, which, by a majority of the court, are held amply sufficient to sustain a conviction for aggravated assault by a step-father upon a stepdaughter 13 years of age; the violence consisting in his slapping her in the face and causing her month to bleed. Henderson, Judge, dissenting.</p> <p>2. Same—Immoderate Punishment.</p> <p>See, opinion, for facts stated, upon which a majority of the court Hold; Conceding defendant’s right to chastise his step-daughter, his chastisement was clearly and unquestionably more severe than the law would permit. Henderson, Judge, dissenting.</p> <p>3. Same—Excessive Verdict.</p> <p>See, opinion, for facts stated, on the trial of a step-father for an aggravated assault upon his 13-year-old step-daughter, upon which a majority of the court Hold; That a verdict assessing the punishment at a fine of $500 and fifteen months’ imprisonment in the county jail is not excessive. Henderson, Judge, dissenting.</p> <p>4. New Trial—Drunkenness of Defendant at the Trial.</p> <p>On a motion for new trial upon the ground that appellant’s condition on the trial, from drunkenness, was such as that he should not have been forced to trial, and Which motion was sustained only by the affidavits of his wife aid step-daughter. Held: It was remarkable that the affidavit of no bystander was obtained, and there having been no motion to postpone the case on that account, and the fact not having been called to the attention of the court when the case was put upon trial, the matter could not be insisted upon for the first time on motion for new trial. Henderson, Judge, dissenting.</p>

Tried below before Hon. Thomas H. Spooner. Appeal from a conviction for murder in the second degree; penalty, five years’ imprisonment in the penitentiary. The opinion contains a very concise, but sufficiently full statement of the salient features of the case.

Tried below before Hon. J. C. Hunt, County Judge. Appeal from a conviction for keeping and exhibiting a gaming bank, etc.; penalty, a fine of $30 and fifteen days’ imprisonment in the county jail. The opinion sufficiently states all the matters pertaining to the case as presented by the appeal.

From the County of Bell. Original application for habeas corpus to be relieved from custody under a judgment of the City Court of Temple, imposing a fine of $25 for selling beer in a theater.

<p>The indictment assigned the perjury upon statements contained in an affidavit made by the defendant in support of a motion for a rehearing of a case which had been tried by an examining court.</p> <p>Defendant’s counsel made a motion to quash the indictment, for the reason that the indictment shows upon its face that the court, in which the affidavit was filed, was without jurisdiction of the case in which the rehearing was applied for, and had no power or authority to reopen said cause. This motion to quash was overruled.</p> <p>Ho further statement necessary.</p>

Defendant filed a special plea, setting up the disqualification of the Hon. R. B. Whitton,-to sit upon the hearing of said case, because the said County Judge was a brother of the alleged injury party, W. E. Whitton, who was the owner of the hog charged to have been killed. The County Attorney filed a demurrer to this special plea; presumably this demurrer was sustained and the special plea stricken out. Ho further statement necessary.

<p>1. Murder—Evidence—Acts and Declarations of a Co-Conspirator—Res Gestee.</p> <p>On a trial for murder, where it appeared, that directly after the shooting the son of defendant rushed up to where deceased was lying, and said: “You are going to die and go to hell,1’ which act and declaration the State, over objection of defendant, was permitted to prove. Held: If the act and declaration was that of a co-conspirator, immediately after the fatal shot was fired, it was admissible in evidence as part of the res gestee; if there was no conspiracy between the parties, it was inadmissible and injurious.</p> <p>2. Same—Charge as to.</p> <p>Where, upon a trial for murder, there is testimony tending to establish a conspiracy between two parties to commit the murder, and the acts and declarations of the co-conspirator are permitted in evidence as part of the res gestee, the court should instruct the jury to find whether or not a conspiracy existed; and, if they found such to be the case, then they might regard the testimony as part of the res gestee, otherwise, they should disregard it altogether.</p> <p>3. Accomplice Testimony—Duty of the Court to Charge in Regard. Thereto.</p> <p>On a trial for a felony, if there is testimony tending to show that any witness, upon whom the State relied for a conviction, was an accomplice, it is the duty of the court to give in charge to the jury the rule governing accomplice testimony, and this, whether the court was requested to do so or not, or whether the charge given was excepted to for failure to do so.</p>

The indictment charged appellant with the murder of Estavan Rios, in Colorado County, on the 24th day of June, 1896, by shooting him with a gun. The salient features of the case are sufficiently stated in the opinion.

<p>1. Swindling—Exchange of Land for Horses—Evidence—Deed to Third Party.</p> <p>Where an indictment for swindling alleged that the swindle consisted in the exchange hy defendant of one hundred acres of land to one R., for thirty-four head of horses. Held: That a deed executed by defendant to one C., for said land, was admissible in evidence, in connection with parol proof, that the trade and exchange was really made with R., but that the deed was executed by defendant to C., at R.’s suggestion, as security for a loan from C. to R. A bill of sale to the defendant for the horses in question, was also admissible as evidence in connection with like proof, although it was signed and executed by both C. and R., it being shown that the horses, at the time of the exchange, were under a mortgage lien from R. to C., for money loaned by C. to R.</p> <p>2. Same.</p> <p>Where an indictment for swindling, by exchange of land for horses, among other matters, alleged: that forty-five acres of the land in cultivation was rented at S3 per acre, but this allegation was not negatived or traversed; testimony as to the rent of said land was not admissible.</p> <p>3. Same—Evidence Insufficient.</p> <p>See facts, stated in the opinion, which are Held: To be insufficient to sustain a judgment of .conviction for swindling, because too indefinite and uncertain as to the value of the property and the amount necessary to constitute the swindle, under the allegations of the indictment.</p> <p>4. Same—Written Instrument—Indictment.</p> <p>Where part of the fraudulent pretenses in the swindle consisted in the executing of a deed by the accused to one C.—the deed should have been set out in the indictment.</p> <p>[No brief found with the record.—Reporter.]</p>

<p>1. Murder—Indictment—Counts—General Verdict.</p> <p>Where an indictment for murder contained three courts, one charging defendant as principal, one charging him as an accomplice to one H., and the third charging him as an accomplice to some person to the grand jurors unknown. Held: That a general verdict of guilty, without, stating the count upon which it was based, is sufficient, and will be applied to either one of the counts which was sustained by the proof.</p> <p>3. Accomplice to Murder—Conspiracy to Commit Bobbery—Besponsibility of a Conspirator For Acts of Others.</p> <p>Under an indictment charging defendant as an accomplice to a murder, the proof must show that some person, with whom he had conspired, committed the murder. If those, with whom he had conspired, employed others to commit the crime which resulted in the murder, he is responsible to the same extent as if he had made the agreement with them himself. Having set in motion that which resulted in the death of deceased, he is an accomplice to any person, whether instigated by himself directly, or instigated by those with whom he had conspired.</p> <p>3. Same—Positive Proof—Circumstantial Evidence—Charge.</p> <p>On a trial for murder, where the evidence showed a conspiracy to rob an express car on a railroad, the confession of one of the parties employed to commit the robbery, to the effect, that he was present when deceased was killed by the parties attempting the robbery, if true, is positive proof that deceased was killed by one of the ■conspirators to the robbery. And where the proof showed that four men were engaged in the attempted robbery, and defendant, as a witness, states positively that ■one S., with whom he had conspired, was present when deceased was shot. Held: The case is not one of circumstantial evidence, and the court was not required to ■charge the law of circumstantial testimony.</p> <p>•4. Bill of Exceptions—Opinion Evidence as to Handwriting.</p> <p>A bill of exceptions to the admission of the opinion of a witness, as to the handwriting of defendant, in a certain letter, to be sufficient, should show that no evidence was adduced either of the witness’ competency as an expert, or that he was familiar with defendant’s handwriting, or had ever seen him write, and should moreover show that the contents of said letter went, in evidence, to the jury.</p> <p>5. Murder in the Attempt at the Perpetration of Bobbery—Evidence Sufficient.</p> <p>See, opinion for facts stated, which are Held: Sufficient to establish, that, the murder was committed in the attempt at the perpetration of robbery.</p> <p>[Note.—Appellant’s motion for rehearing filed after the above opinion was handed down, was overuled without a written opinion—Reporter.]</p>

Tried below before Hon. Chas. F. Clint. Appeal from conviction for burglary; penalty, three years’ imprisonment in the penitentiary. The indictment contained two counts, one for burglary of the house of Elizabeth Jackson, with intent to commit theft; and one for burglary and theft from said house, setting out the articles stolen. Defendant was convicted upon the first count.

<p>In the agreed statement of facts, among other things, it is agreed, “that the testimony shows conclusively, that defendant shot with a gun and killed Bob Thomas, at the time and place that the indictment alleges; the said defendant killed Robert Thomas, and the alleged killing was on implied malice.”</p>

The indictment was found on the 29th of June, 1895. The charging part of the indictment is set out in the opinion. Defendant’s motion to quash was overruled. A motion in arrest of judgment was made upon the ground, that the indictment did not allege, that a prostitute, lewd woman or woman with bad reputation for chastity, was allowed to, or did display herself in said theatre and dance house, in a lewd, lascivious or indecent manner.

This is the second appeal taken in this case. The judgment of conviction on the former appeal was reversed for admission of illegal testimony and error of omission in the charge of the court. That case will be found reported as Bailey v. State, 30 S. W. Rep, 669. The following are substantially the facts, as proved on the second trial, from which this appeal is taken: Mrs. Adaline Hardin, mother of the prosecutrix, testified: Addie Hardin died July 13th, 1894.

Tried below before Hon. E. D. Cavin,. Appeal from a conviction for forgery; penalty, two years’ imprisonment in the penitentiary. The alleged forged instrument was as follows: “$129. Houston, Texas, May 23rd, 1896. “Seven days after date, I promise to pay to the order of William Darbyshire one hundred and twenty-nine -J-g- dollars, at -, value received. “[Signed] L. E. Miller. “[Endorsed] William Darbyshire.” L. E..

Tried below before Hon. Charles F. Clint. Appeal from a conviction for seduction; penalty, four years’ imprisonment in the penitentiary. The indictment charged the defendant with the seduction of Annie Rainwater, an unmarried female under the- age of 25 years, in Dallas County, on the 1st day of February, 1896. The prosecutrix testified that she was 18 years Of age. That she was engaged to marry defendant in June, 1895.

Tried below before' Hon. W. W. Walling, Special Judge. Appeal from a conviction for theft of two head of cattle; penalty, three'years’ imprisonment in the penitentiary. The indictment charged appellant with the theft of the cattle about the 22nd of May, 1887, and alleged the ownership) in one J. M. White. Appellant forfeited his appearance bond in 1887, and went to Mexico, and resided there until July, 1896, when he was extradited.

The indictment charged appellant with the murder of Dr. Joseph J. Wray, by shooting him with a pistol, in Dallas County, on the 21st day of October, 1895. The case is stated in the opinion.

Tried below before Hon. W. R. McGill. Appeal from a conviction for cattle theft; penalty, two years’ imprisonment in the penitentiary. A concise statement of the facts will be found in the opinion.

<p>1. Acceptance of a Bribe by a Judicial Officer—Indictment.</p> <p>An indictment, against a county commissioner for accepting a bribe, on a date named, to vote for one S., as public weigher, which alleged that the appointment of such public weigher, “was thereafter to be brought before the Commissioners’ Court of said county,” is sufficient without stating the specific time or date when the official act was to be performed by the Commissioners’ Court.</p> <p>2. Same.</p> <p>Where it devolved upon the Commissioners’ Court to remove a person then holding the office of public weigher, before a new public weigher could or would be appointed by them, it was not essential to allege in the indictment that the Commissioners’ Court intended to remove such incumbent.</p> <p>3. Same.</p> <p>A general allegation in the indictment, that the bribe was accepted, “with the understanding that the influence, judgment, acts, opinion and vote of the said B.., in said court would be given and rendered in favor of said S., in securing the appointment,” etc., is sufficient without stating more specifically how the commissioner was to act and vote in the matter.</p> <p>4. Same—Offense Complete When.</p> <p>On a charge of accepting a bribe, as county commissioner, to vote for a certain party for public weigher, in the stead of an incumbent who had first to be removed, the offense was complete when the bribe was accepted and received with the understanding that the removal would take place and the appointment would be made, audit was immaterial whether the removal was ever made or the matter of appointment ever came up.</p> <p>5. Same—Accomplice Testimony—Charge.</p> <p>The party offering or paying a bribe is an accomplice in the crime to the acceptor or receiver and with reference to his testimony as a State’s witness in such a case, the court should charge that he was an accomplice, and instruct upon the law of accomplice testimony.</p> <p>6. Same—Allegation and Proof.</p> <p>Where an indictment for accepting a bribe alleged, that the defendant, as county commissioner, accepted the bribe for the purpose of influencing his vote and action in the Commissioners’ Court in favor of one S., as public weigher. Held: The allegation is not sustained by proof that defendant accepted and received the bribe to induce him to influence one M., who was a county commissioner, to vote for said S.</p> <p>[No brief found with the record.—Reporter.]</p>

<p>1. Assault with Intent to Murder—Aggravated Assault—Deadly Weapon— Charge.</p> <p>On a trial for assault with intent to murder, where the evidence showed, that the assault was made with a breast yoke, which inflicted but slight injury, and a rock, possibly a deadly weapon, with which defendant might or could have slain the injured party, but which he only used to strike one blow, then threw it down and left. Held: That the court should have submitted, in the charge, the issue of aggravated assault, and erred in refusing a special requested instruction upon that issue.</p> <p>2. Same—Specific Intent.</p> <p>In assault with intent to murder, the specific intent to kill should be established as a fact beyond all question; and the question is to be decided by the jury.</p>

<p>Appeal from the County Court of Lamar. Tried below before Hon. J. C. Hunt, County Judge.</p> <p>Appeal from a conviction for exhibiting a gaming table and bank for gaming; penalty, a fine of $50 and ten days’ imprisonment in the county jail.</p> <p>This is a companion case to Kelly v. State, ante p. 480.</p>

Tried below before Hon. J. C. Hunt, County Judge. Appeal from a conviction for keeping and exhibiting a gaming table and bank for gaming; penalty, a fine of §25 and ten days’ imprisonment in the county jail. Ho statement necessary.

<p>1. Exhibiting a Gaining Table and Bank—“Craps.”</p> <p>Where the information charged the keeping and exhibiting a gaming table and bank, and the evidence showed that the game was “craps,” in which, the exhibitor played the game as against the many, received the bets and paid the losses out of the bank fund, which he kept before him on the table, he being the banker. Held: A banking game.</p> <p>2. Same—Charge—Requested Instructions.</p> <p>On a trial for exhibiting a gaming table and bank, where the court charged the jury, “that, unless they found from the evidence that the defendant kept, or exhibited a gaming table or bank at any specific time, they would acquit,” and further that, “evidence tending to show several exhibits of said table for the purpose of gaming is not sufficient to convict the defendant of a single act of exhibiting, unless there is evidence of a single act of exhibiting sufficient in itself to convict”—is sufficient, and rendered unnecessary a special requested instruction to the effect, that the jury could not convict of any offense under the information, except, one committed on the 6th of July, 1895 (the date alleged), and not then unless they believed beyond a reasonable doubt that he kept and exhibited a banking game on that day.</p> <p>3. Same—Alibi.</p> <p>Where the State’s proof was, that the gaming bank was exhibited in Paris, on the 6th day of July, 1895; proof, by defendant, that on that day he was at Dallas, not stating where Dallas was situated,nor its distance from Paris, does not establish a complete alibi, as defendant may have been at both places during part of the same day (6th of July).</p>

<p>1. Receiving Stolen Property—Proof.</p> <p>Under an indictment alleging that the stolen property was received from a certain-person, the proof must sustain the allegation as to that particular person. Proof that the property was so received from some other person would not sustain the indictment.</p> <p>2. Same—Evidence Sufficient.</p> <p>See, facts stated in the opinion, Held: To be amply sufficient to support a conviction for receiving stolen property knowing it to have been stolen, as charged in the indictment.</p> <p>3. Accomplice Testimony—Charge Upon Not Necessary When.</p> <p>A charge of court upon the law of accomplice testimony, is not required in cases where the accomplice witness does not testify to any fact connecting the defendant with the transaction, nor to any fact which assisted the State in making out the case.</p> <p>ON MOTION I-'OR REHEARING.</p> <p>4. Receiving in One County Property Stolen in Another—Venue of Prosecution.</p> <p>By Art. 337, Code Crim. Proc., it is provided, that the offense of “receiving and concealing stolen property,” may be prosecuted in the county where the theft was committed, or in any other county through, or into which, the property may have been carried by the person stealing the same; or in any county where the same may have been received or concealed by the offender. Held: That one who receives a stolen horse in one county, with knowledge of the theft of such horse, and which horse had been carried into another county, may be prosecuted in the latter county, though he did not receive the horse in such county.</p> <p>5. Same—Jurisdiction. .</p> <p>Where property is received, and the receiver knowing it to have been stolen, in one county, and it is carried by the receiver into another county, either county would have jurisdiction of the offense. Property can be concealed by carrying it off.</p> <p>6. Contemporaneous Thefts—Charge Limiting and Restricting.</p> <p>The court is only required, in the charge, to limit and restrict evidence of contemporaneous thefts where the character of the property thus taken is such that the jury might convict, for such contemporaneous crime.</p>

<p>1. Perjury Before the Grand Jury—Indictment—Assignments in Disjunctive—Motion in Arrest.</p> <p>Where an indictment for perjury, by a witness before the grand jury, alleged, that it became necessary and material to know whether the witness (appellant), “had seen any person bet or wager at a gaming table or bank, kept or exhibited for the purpose of gaming,” and it was further alleged that defendant swore that he had not seen any person bet or wager at a gaming table or bank, kept or exhibited for gaming; and, it was urged against the sufficiency of the indictment, that this allegation and the assignments of perjury, were in the alternative. Held: That the rule, that, in charging an act in an indictment, the charge must not be in the alternative, does not apply to the setting out of a statement assigned for perjury. The indictment should set forth what the witness swore substantially, as he testified, and, if the statement assigned be material and was wilfully and knowingly made, it is perjury, whether it be in the conjunctive or disjunctive form. But, see post contra, paragraph i, of this syllabus.</p> <p>2. Same—General Verdict—Where Some Assignments are Good and Some Bad.</p> <p>Where an indictment for perjury contains both good and bad counts, and no motion to quash the bad counts has been made, and no objection made to the evidence when introduced, tending to support such counts—a general verdict will be sustained.</p> <p>3. Same.</p> <p>A general verdict on good and bad counts is not reversible on motion in arrest of judgment if sustained by the good counts.</p> <p>ON MOTION FOR REHEARING-.</p> <p>4. ' Perjury Indictment—Alternative dr Disjunctive Allegations.</p> <p>■ Where the assignment for perjury was based upon the testimony of defendant before the grand jury, to the .effect, that he had not seen L, exhibit or .keep.a table .or bank for the purpose of gaming, and it was assigned and traversed as follows: “Whereas, 'in truth and "in fact, the said F. (appellant) had seen the said L. keep and exhibit a gaming table or bank, for the purpose of gaming..” Held: The assignment w.as defective, because it was in .the alternative and uncertain; that is, it alleged that defendant saw L. keep and exhibit a gaming table or bank, and gaming table and gáming'banks are not the same, but' different"things. ' ‘ ‘</p> <p>5. Same—Monte—Banking Game and Game Played With Cards.</p> <p>Where an assignment for perjury was based upon the fact as to whether F. (defendant) had seen any person bet or wager at a game played with cards, called “monte,” and the traverse was as follows: “Whereas, in truth and in fact, the said F. (defendant) had seen persons bet or wager at a game played with cards, called ‘monte,’ ” etc., and it wás insisted that there was no such game played with cards as monte; that monte was a banking game, and not known as a game “played with cards.” Held: That monte, though a banking game, is a game played with cards, and this assignment, for perjury was good.</p> <p>6. Good and Bad Counts in the Same Indictment—General Verdict.</p> <p>Where an indictment contains both good and bad counts, and no motion is made to quash the bad, and no objections have been made to evidence introduced under such bad counts, a- general verdict of guilty,- if supported by the testimony, will be applied to any one of the good counts.</p> <p>[No brief found with the record.—Reporter.]</p> <p>If appellant is wrong in his contention that the indictment is wholly bad, and right in his contention that it is bad as to one or more of its assignments, then he submits that it was material error for the court to direct his conviction if the jury believed that the bad assignments were sustained by the evidence. The charge of the court should have been con-' fined to the case as made by the indictment in so far as it charged an offense, and in plain and intelligible words. If one or more of the assignments were bad and one or more good, the bad assignments would be rejected as surplusage (Henderson v. State, 2 Tex. Crim. App., 88), and the indictment sustained for the good assignment or assignments. The assignment or assignments rejected would not be the case, or a part of it, made by the pleadings, and to authorize a conviction on such assignment or assignments would be to authorize a conviction for a false statement not 'assigned as perjury. Will. Ann., Code Crim. Proc., Sec. 2336, p. 192; Jefferson v. State, 29 S. W. Rep., 1090; 1 Bishop’s Crim. Proc., 2nd Ed., Sec. 977; Boren v. State, 23 Tex. Crim. App., 29; Donaho v. State, 14 Tex. Crim. App., 644.</p>

Appellant was indicted in the District Court of Rains County for the murder of Martha Skipwith, on the 20th day of September, 1895, by shooting her with a gun. The venue was changed to the county of Hopkins by the District Judge of his own motion, because of such prejudice against defendant that he could not obtain a fair and impartial trial in the county of Rains. , W. M. Lamb was sheriff of Rains County at the time Martha. Skip-with was killed, and had been for some years.

Tried below before Hon. S. P. Greene. Appeal from a conviction for burglary; penalty, two years’ imprisonment in the penitentiary. The indictment charged appellant with the burglary of the house of one W. S. Davis. The house burglarized was a buggy house, and a set of single harness was taken.

Tried below before Hon. J. S. Straughan. Appeal from a conviction for forgery; penalty, two years’ imprisonment in the penitentiary. Ho statement necessary.

The following are the facts agreed upon: (1) “On the 3rd day of November, 1896, a general election, for national, State, district, county and precinct officers, was being held and conducted in accordance with law, in the County of Smith, State of Texas.

The indictment charged appellant with the murder of Willis Davis, on the 14th day of April, 1896, by hanging him by the neck with a rope and shooting him with a gun. On the fourteenth day thereafter, viz: on the 28th of April, 1896, appellant was convicted for the murder with penalty as above stated.

Tried below before Hon. W. J. Graham. Appeal from a conviction for hog theft; penalty, two years’ imprisonment in the penitentiary. The indictment charged appellant, Wine Carrico, and Carl Carrico, and Frank Hail jointly with the theft of six hogs, the property of Albert Soloman. They were jointly tried in this proceeding, and Wine and Carl Carrico were each convicted, with the punishment assessed at two years in the penitentiary; and Frank Hail was acquitted.

Tried below before Hon. M. Dies, County Judge. Appeal from a conviction for unlawfully and wilfully maiming and wounding a mare within the enclosure of defendant, surrounded with an insufficient fence; penalty, a fine of §10. The appeal was dismissed on motion of the Assistant Attorney-General for defect in the recognizance. This defect was afterwards supplied and cured by certiorari, and the judgment of dismissal set aside and rehearing granted.

<p>1. Discharge of Jury on Account of Sickness—Practice.</p> <p>Where the court is called upon to exercise its authority under Art. 737, Code Crim. Proc., to discharge a jury on account of sickness of one of the jurors, or other circumstance occurring to prevent their being kept together, it is absolutely necessary to judicially ascertain the fact of sickness, etc., before the jury could be legally discharged. There must be a judicial finding upon"an investigation of the facts in open court, and in the presence of the accused.</p> <p>2. Same—Discharge of Juror for Sickness—Defendant Must be Present.</p> <p>If any fact is to be established requiring or necessitating the discharge of the jury before the verdict, as the sickness of one of the panel, the defendant must be present. It is beyond the legal authority of the trial court to determine the sickness of a juror, as a cause for the discharge of the jury, in the absence of the accused.</p> <p>3. Former Jeopardy—Discharge of Jury.</p> <p>After all the evidence in the case had been submitted to the jury, about 13 o’clock at night the sheriff reported to the judge, at his private apartments, that the wife of one of the jurors was taken suddenly sick and not expected to live; whereupon, the judge instructed the sheriff to discharge the juror, which was done, and he went home; all of which was without the knowledge or consent of defendant or his counsel. The next morning, when apprised of the action of the court, they refused to proceed in the trial with eleven jurors; whereupon the court, over the protest of defendant, discharged the jury and continued the case to the next term, defendant properly excepting to this action at that time. At the next term, defendant pleaded these facts as former jeopardy, and the plea was overruled. Held: Error, and that the defendant had been placed in former jeopardy, and was entitled to his discharge.</p>

Appellant, Frank Martin, and Jim Martin were jointly indicted for the murder of Nancy Jane Crocker, by shooting her with a gun, in Wharton County, on the 19th day of May, 1895. Upon his arraignment, the defendant, Frank Martin, who was alone upon trial, a severance having been had, pleaded guilty to the charge in the indictment.