Volume 37 — Texas Criminal Reports

Tried below before Hon. George W. Armstrong, County Judge. Appeal from a conviction for swindling; penalty, a fine of $25, and two days’ imprisonment in the county jail.

Tried below before Hon. Thomas B. King, County Judge. Appeal from a conviction for violation of local option; penalty, a fine of $30 and twenty days’ imprisonment in the county jail. There is no valid statement of facts in the case. The matters presented by the hills of exception are sufficiently stated in the opinion.

<p>Appeal from the District Court of Lee. Tried below before Hon. Ed. R. Sinks.</p> <p>Appeal from a conviction for assault with intent to murder; penalty, two years’ imprisonment in the penitentiary.</p> <p>The opinion fully states the material facts in the case.</p> <p>The following are the special instructions requested by the appellant: (1) “The party, Singleton, was without authority to arrest the defendant, Mundine, and if you believe from the evidence that Yanderworth, the alleged injured party, procured the said Singleton to so arrest the defendant, and was present and encouraged said arrest, and that the said Singleton, in so arresting the defendant in a rude and rough manner, and in the presence and hearing of others roughly used him, tore his clothes from his person and against his will, detained him in his custody, and refusing to permit to him his liberty, threatened to strike him with a heavy iron instrument, and that thereby the mind of said defendant became agitated and excited to such a degree that it was rendered incapable of cool reflection, and that while in such excited condition he assaulted the said Yanderworth by shooting at him with a gun, and that such assault was not justified by the law of self-defense, and if you further believe that, at the time the original design to make the assault was conceived, the mind of the defendant was excited, in the manner and by the causes above stated, then you are instructed that the defendant, would be guilty of an aggravated assault.”</p> <p>2. “Although you should believe that the defendant went to the saloon of Fritz Yanderworth for the purpose of raising a difficulty, but not a serious conflict of any kind, but for the purpose of cursing or abusing said Yanderworth, and that his acts, while they may have occasioned the difficulty, were not acted or done with the purpose or design of provoking any serious conflict with said Yanderworth, and although you should believe that the said Yanderworth might have believed, in good faith, that it was the design of Mundine to assault him with a gun, and so believing fired upon him, and that thereupon the said Mundine fired upon Vanderworth with the intention to kill him, in that event you are charged that, should you so believe, you will find the defendant guilty of an aggravated assault.”</p> <p>3. “If you believe from the evidence that the defendant, J. C. Mun-dine, was arrested unlawfully by one Singleton; that the said J. C. Mundine had committed no offense; that said arrest was instigated by Fritz Vanderworth, who procured the same, and was present, assisting and abetting the said Singleton therein; that the said Singleton had no warrant for said arrest; that said Mundine was committing no offense, and had committed none; that said Singleton roughly seized the said Mundine, dragged him from the back room of the saloon into the front room, tore his clothes from his person, drew an iron stick on him, and unlawfully detained him in custody against his will, and that said Vanderworth was present, participating in such illegal detention, and that thereby the mind of the defendant became violently excited and agitated, and to such an extent that it was incapable of cool reflection; and that while it was in such violently agitated condition the defendant conceived a design to assault the said Vanderworth, and before his mind had had sufficient time to become cool and capable of cool reflection, and while, in fact, he was in such stage of mental excitement, produced by the causes aforesaid, he did commit an assault upon the said Vanderworth with a deadly weapon; and if you should believe, beyond a reasonable doubt, that he did not act in self-defense, then in that event you will find the defendant guilty of an aggravated assault and battery, and assess his punishment at a fine of not less than twenty-five dollars nor more than one thousand dollars, or by confinement in the county jail for not less than one month nor more than two years, or by both such fine and imprisonment.”</p> <p>4. “Although you should believe from the evidence that the defendant, J. C. Mundine, did seriously threaten to take the life of Fritz Vanderworth, yet if you should further believe that Fritz Vanderworth fired upon the defendant first, and that at the time defendant was doing no act or making no attempt or demonstration to carry out such threat, then you are instructed that said Vanderworth had no right to assault or fire upon defendant, and he, the said Mundine, had the right to fire on Vanderworth in his own self-defense, and if you so believe, you will acquit.” “That even though Vanderworth had not fired upon the defendant, yet if it reasonably appeared to the defendant, viewed from his standpoint, that he was about to fire or was doing any act indicating an immediate purpose to fire, that then, in that event, the said Mundine had a right to fire upon Vanderworth, even though the latter had not actually fired upon him, the said Mundine.” “The defendant violated no law in carrying a shotgun into the saloon of Fritz Vanderworth, and unless you find, beyond a reasonable doubt, that he went to Vanderworth’s saloon with the specific intent to raise a deadly conflict, the said Vanderworth, the said prosecuting witness, had no right to open fire on the defendant, and if he did so, the defendant had the perfect right of self-defense. In passing upon the acts of the defendant, the jury must place themselves in the position of the defendant, and view the facts, so far as possible, as they appeared to him at the time of the alleged assault, and thus viewing the evidence, give every reasonable doubt to the defendant upon every material fact.”</p> <p>5. “The defendant violated no law in carrying a shotgun into the saloon of Fritz Vanderworth, and unless you find beyond a reasonable doubt that he went to Vanderworth’s saloon with the specific intent to raise a deadly conflict, said Vanderworth had no right to open fire on defendant, and if he did so, defendant had the perfect right of self-defense. In passing upon the acts of the defendant the jury must put themselves in the position of the defendant and view the facts as nearly as possible as they appeared to him at the time of the alleged assault, and thus viewing the evidence, give every reasonable doubt to the defendant.”</p> <p>6. “If you believe from the evidence that the defendant went into the saloon of the prosecuting witness, Vanderworth, and called for a drink, and while waiting to be served he was fired upon by Vanderworth with a pistol, he had the immediate right of self-defense, and if, under such circumstances, he fired upon Vanderworth he would not be guilty of any offense, and you will acquit him, and in this connection you are charged that no former words of insult offered by defendant to Vanderworth, if he offered any, would justify Vanderworth in making the assault upon him.”</p> <p>7. “If you believe from the evidence that the defendant received the shotgun, with which the assault is alleged to have been committed, from his father, with.the intent to go into the country to carry a message, and that before he left the town of Lexington he went to Vanderworth’s saloon, with intent to get a drink, and that while he was in the saloon, and making no attempt to assault the prosecuting witness, said Vanderworth'fired upon him, then and in that event you will acquit the defendant.”</p> <p>8. “Under the facts shown in this case, the arrest of the defendant by the said Singleton, town marshal of Lexington, was unauthorized, and the defendant had the right, not only to protest against such arrest, but also to resist the same by any means in his power necessary to effect his release.”</p> <p>All of said above special requested instructions of defendant were refused by the court, and exceptions were duly reserved to the refusal.</p> <p>The charge of the court as given, was excepted to, as to the portions relating to manslaughter and in failing to submit the issue of aggravated assault.</p>

Robert Moseley as principal, and I. W. Huber, and S. G. Carter as sureties, executed their bail bond in the sum of $200, bearing date April, 2nd, 1894, and approved May 2nd, 1894, and conditioned for the appearance of the said Moseley before the District Court of Roberts County, to answer the charge, by' indictment, of having stolen two gallons of whiskey. At the April, 1895, term of said court, a forfeiture was taken upon said bond.

<p>1. Order for Change of Venue—Presumptions as to.</p> <p>Where the term of the court commenced by law on the 9th of December, and' was authorized to continue in session until the business was disposed of; it will be presumed that an order for a change of venue in a case of murder, which was made on the 8th day of January following the convening of the court, was made while the court was in session. The transcript, for the change of venue, need not include the caption showing the term of court at which the order for change of venue was. made. ’</p> <p>2. Bills of Exception—Approval of by Judge on a Separate Piece of Paper.</p> <p>Where there are several different bills of exception, which were approved by the-judge on a separate piece of paper, in which he alluded to the bills seriatim, and makes explanations to a number of them. Held: The approval was sufficient, there being no rule of law or decision requiring bills of exception and the approval of the judge to be written on the same sheet of paper.</p> <p>3. Witness—Examination of—Leading Questions Where Witness is Unfriendly.</p> <p>Where a witness, after being put upon the stand by the State, appears to be unwilling and tmfriendly to the prosecution, it is in the discretion of the court to allow leading questions to be put to him.</p> <p>4. Same.</p> <p>Where a witness for the State shows, that he is unfriendly and unwilling to testify about a matter about which he had testified on the examining trial, he may be treated as an adverse witness; and, his testimony given at the examining trial may be shown to him to refresh his memory, and he may be asked if he made the statement therein contained.</p> <p>5. Cross-Examination—Evidence Explanatory of Evidence in Chief.</p> <p>Wherethe defendant, in cross-examination of the State’s witnesses, brings out part of the testimony in connection with record evidence of a former trial, the State may, on re-examination of the witnesses, bring out the remainder of the testimony to explain that which had been introduced by the defendant.</p> <p>6. Impeachment of a Defendant as a Witness—Other Offenses not Felonies—Harmless Error.</p> <p>The credit of a defendant, as a witness in his own behalf, cannot be impeached by evidence that he had committed other offenses, not felonies, and which dó not involve moral turpitude. But, see facts stated, which made the introduction of such evidence harmless error, inasmuch as it could not have injured or impaired the rights of defendant in view of the other testimony in the case.</p> <p>7. Manslaughter—Insult to Female Relative.</p> <p>On a trial for murder, where it appeared, that there was a wordy and violent altercation between the parties, during which deceased called defendant a “G—d d—n mother f-ng son-of-a-bitch,” Held: The epithet was merely an insult to defendant himself, and not in the nature of a slander or insult towards a female relation, and did not reduce the killing from murder to manslaughter. Following, Graham v. State, 38 S. W. Rep., 537.</p> <p>8. Murder—Abandonment of Difficulty by Deceased—Provoking and Renewal by Defendant—Manslaughter.</p> <p>On a trial for murder, where it appeared, that, after a violent wordy altercation, deceased was leaving the place; had gone out of the room and started down a stairway, when defendant, armed with a pistol, followed him and taunted him with his cowardice, and called him a son-of-a-bitch, whereupon deceased returned up the steps and advanced towards defendant, when defendant shot and killed him. Held: Such facts, showing an abandonment by deceased, a renewal by defendant with provocation, and evidently a purpose of killing deceased if he resisted, or on his acceptance of the challenge to fight, to engage him in deadly conflict, in which the life of one or both might be sacrificed—there was no manslaughter in the case.</p> <p>[Note.—Defendant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>Appeal from the County Court of Grayson. Tried below before Hon. J. H. Wood, County Judge.</p> <p>The opinion states the case.</p>

Tried below before Hon. H. Teichmuller. Appeal from a conviction for rape upon a female under the age of fifteen years; penalty, thirty years’ imprisonment in the penitentiary. The indictment is set out in the opinion. Defendant made a motion in arrest of judgment upon the ground, that the indictment was fatally defective in not negativing the fact, that the injured female was the wife of defendant. This motion was overruled. No statement necessary.

Tried helow before Hon. Don A. Bliss. Appeal from a conviction for rape of a female under the age of fifteen years; penalty, five years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

<p>Appeal from the District Court of Falls. Tried below before Hon. Sam R. Scott.</p> <p>Appeal from a conviction for theft of one head of cattle; penalty, two years’ imprisonment in the penitentiary.</p> <p>The case and questions discussed are readily understood from the opinion, without the necessity of further statement.</p>

Tried below before Hon. W. D. Harris. Appeal from a conviction for robbery by threatening to do an illegal act, etc.; penalty, two years’ imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. T. F. Nash, County Judge. Appeal from a conviction for malicious mischief, in wilfully injuring a buggy; penalty, a fine of §1.' The charging parts of the indictment are set out in the opinion. Defendant’s motion in arrest of judgment called in question the validity of the indictment, “in that it failed to allege the value of the property injured.”

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

<p>1. Rape—Common-Law Marriage.</p> <p>On a trial for rape of a female under the age of fifteen years, where the evidence showed, that the female was a child under eleven years of age; and, the defense was, that a common-law marriage existed between the parties. Held: Such a defense was not maintainable, our statute expressly inhibiting the marriage of females under fourteen years of age, and a girl under eleven years of age could not marry in any form, with or without license.</p> <p>2. Same—Charge—Burden of Proof.</p> <p>On a trial for rape, where the fact that the prosecutrix was not defendant’s wife was established beyond any sort of doubt, and defendant himself admitted that they were not married, the court properly refused to instruct the jury that the burden of proof rests upon the State to prove, beyond a reasonable doubt, that the prosecutrix was not married to defendant.</p> <p>3. Verdict—Date of..</p> <p>It is not necessary that a verdict should be dated at all, but when incorrectly dated, the court, unquestionably, has the right to correct it.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

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

<p>1. Conspiracy—Proof of.</p> <p>A conspiracy to commit crime, cannot be established by the acts and declarations of a co-conspirator, it must be done by evidence aliunde.</p> <p>2. Same—Accomplice Testimony.</p> <p>A co-conspirator is an accomplice, and his testimony is insufficient to support a conviction unless corroborated.</p> <p>3. Same—Acts and Declarations of a Co-Conspirator.</p> <p>Acts and declarations of a co-conspirator after the consummation of the conspiracy are inadmissible as evidence against another conspirator on-trial.</p> <p>4. Accomplices—Corroboration.</p> <p>One accomplice cannot coroborate another.</p>

<p>Appeal from the District Court of Erath. Tried below before Hon. J. S. Stbatjghan.</p> <p>Appeal from a conviction for murder in the second degree; penalty, ten years’ imprisonment in the penitentiary.</p> <p>Appellant was charged, by the indictment, with the murder of Wm. Kay, in Erath County, on the 15th day of December, 1895, by stabbing and cutting him with a knife.</p> <p>The killing occurred on Sunday evening, about or just after dark. Deceased Kay was a saloon keeper, and his partner in the business was Jaké Wilson, a brother of defendant. It -appears, that several years before defendant had sold out this saloon to these parties, after he had been running it several years himself. Defendant, it seems, had never been satisfied with the sale he had made to them, and he had frequently said they had robbed him. Defendant had an only child, a minor, who, it seems, was an intimate friend of deceased; spent most of his time at the saloon and slept there at night with deceased. Defendant had tried to break up this association and he and the son had had many fusses about it. On the Sunday evening of the killing, defendant found his son somewhere in the neighborhood of the saloon, and, upon his refusal to-go home quietly, took him by the collar, and was taking him along by force. The boy was smoking a cigarette, and, in striking the cigarette from his hand, defendant loosened his hold upon his collar, and the boy ran and the father pursued him. A crowd of men and boys were laughing and jeering at the father, which added greatly to his rage. The boy, after dodging his father for some time, finally got into the meat market, and, though it is not stated, presumably he secured the door so his father-could not get in. Defendant commenced walking up and down the street in front of the meat market, in a terrible rage, cursing and abusing the parties who were keeping his son about the saloon, ruining him and dragging him down to hell; and he was seen to pull out his knife, open it and put it open into his pocket. While he was thus engaged, the deceased, who had just returned from a buggy ride and gone into his saloon by the back door, emerged from the front door, and walked to the door of the meat market, and placing his foot upon the door-sill, seemed to watch the movements of the defendant. Defendant repeated what he had been saying, to the effect, that the parties had robbed him and were now keeping his boy at the saloon and ruining him. When deceased said, that was a lie. Defendant asked him what he had said, and deceased replied, “that was a g—d d—d lie!” Defendant replied, he was another and the parties immediately rushed at each other: deceased being the younger and more powerful man. Deceased struck defendant with his fist, and defendant at the same time struck him. They fell— deceased on top. In a short time, deceased sprang up, held to a post with one hand and stamped defendant in the face with his heels, until the lookers-on pulled him off. Deceased was stabbed in the heart and in one or two other places, and died in a few moments. Defendant was' picked up and carried off in an insensible condition, and was badly bruised up.</p> <p>It will be seen from the opinion, that the judgment of the court below is reversed on account of illegal testimony permitted to be introduced to impeach the witness Penninger. This matter is so fully shown in the opinion as to need no additional statement.</p>

Tried below before Hon. James Q. Chenoweth, County Judge. Appeal from a conviction for violation of the local option law; penalty, a fine of $25 and twenty days’ imprisonment in the county jail. The opinion states the case.

Tried below before Hon. J. C. Smith, County Judge. Appeal from a conviction for a violation of local option; penalty, a fine of $25, and twenty days’ imprisonment in the county jail. ■ The opinion states the case.

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

Tried below before Hon. W. H. Ragsdale, County Judge. Appeal from a conviction for a violation of local option; penalty, a fine of $25, and twenty days’ imprisonment in the county jail. The opinion states the case.

Tried below before Hon. Thomas F. Nash, County Judge. Appeal from a conviction for selling liquor to minor; penalty, a fine of .825. The opinion states the case.

Tried below before Hon. J. H. Wood, County Judge. Appeal from a conviction for violation of local option; penalty, a fine of §25, and twenty days’ imprisonment in the county jail. No statement necessary.

The charging part of the information is as follows: “That M. Willis, on or about the 1st day of January, A. D. 1896, and before the filing of this complaint, in the County of Hunt and State of Texas, did then and there sell to J. F. Blackwell intoxicating liquor, to-wit: whiskey, and at said time the sale of intoxicating liquor had been previously prohibited under the laws of said State in said county, which laws were at said time in full force and effect, and said sale was…

Tried below before Hon. W. H. Ragsdale, County Judge.' Appeal from a conviction for a violation of local option; penalty, a fine of $25 and twenty days’ imprisonment in the county jail. The opinion states the case.

Tried below before Hon. E. D. McLellan. Appeal from a conviction for receiving a stolen horse; penalty, five years’ imprisonment in the penitentiary. The evidence tended strongly to show a conspiracy between appellant and one Linn to steal the horse in the Chickasaw Nation. Linn brought the horse from the Chickasaw Nation to defendant’s home in Fannin County, Texas, where the horse was seen hidden out. Linn was working as a hired hand for defendant and owned no horse.

<p>No statement necessary.</p>

Mrs. Sofia Golin, wife of appellant, was murdered, at her home in the city of Houston, on the 31st day of May, 1895. She and appellant were married in 1891, by Justice Schwander. At the time of the marriage, she was a widow and owned property in Harris County valued at fifteen or twenty thousand dollars—appellant was poor, owned no property.

Tried below before Hon. S. P. Greene. Appeal from a conviction for swindling; penalty, ten years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

The facts of the case will be fully .understood from the testimony of defendant, which is given in full, as follows, viz: Lula Carlisle, defendant, testified:- “My name is .Lula Carlisle. I am 16 years of age. I was 16 years old September 1, 1896. I know Jim Cot-ton and Martha Cotton. They live at Azle, Texas. I gave birth to a male child there on June 18, 1896. The child has no name. This child lived until Tuesday, June 30,. 1896, when it died.

Tried below before Hon. J. E. Dillard. Appeal from a conviction for assault with intent to murder; penalty, two years’ imprisonment in the penitentiary. The opinion, on motion for rehearing, states the case.

<p>1. Selling Liquor to a Minor—Evidence of Other Sales.</p> <p>On a prosecution for selling liquor to a minor, evidence that defendant had sold liquor to other minors, at other times, is inadmissible.</p> <p>2. Same—Where the Sale is by an Employe.</p> <p>On a prosecution for selling liquor to a minor, where the evidence shows, that the sale was by an employe of the defendant, to warrant a conviction, it must be further established, that defendant consented to the sale; that he authorized the sale, or that he knew of the sale and ratified it by taking the money, or something of that sort.</p>

Tried below before Hon. M. L. Shelton, County Judge. Appeal from a conviction for theft of two cords of wood; penalty, a fine of §25. No statement necessary.

The indictment is set out in the opinion below. Defendant made a motion in arrest of judgment, one ground of which was, that, “the indictment failed to charge any offense known to the laws of the State of Texas, in that it does not appear, from the letter set out in the indictment, that it threatened to charge the said Frank Hagle, Sr., with any criminal offense, nor does the indictment allege by innuendo or otherwise, that said defendant charged, or intended to charge the…

Appellant was charged by complaint in the Mayor’s Court of the city of Whitesboro, Grayson County, Texas, with the offense of unlawfully and wilfully obstructing an alley in said city of Whitesboro.

Tried below before Hon. Nestor Morrow, County Judge. Appeal from a conviction, for unlawfully carrying a pistol on and about the person; penalty, a fine of $25. The Assistant Attorney-General moved to dismiss the appeal because the recognizance stated no offense.

<p>No statement necessary.</p>

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

Tried below before Hon. Charles P. Clint. Appeal from a conviction for burglary; penalty, three years’ imprisonment in the penitentiary. There is no statement of facts nor bill of exceptions in the record. The question is as to the action of the court below in striking out defendant’s “plea of jeopardy.”

Tried below before Hon. G. W. DAkast, County Judge. Appeal from a conviction for illegally giving a prescription to be used in obtaining liquor in a local option precinct; penalty, a fine of $25 and twenty days’ confinement in the county jail. The Assistant Attorney-General moved to dismiss the appeal, because the recognizance was fatally defective.

Tried below before Hon. George W. Riddle, County Judge. This appeal is from a conviction for violation of local option, appellants having been jointly indicted and jointly tried; penalty, a fine of $25 and twenty days’ imprisonment in the county jail against each of the defendants.

<p>1. Local Option—Evidence—Facts to be Established to Make Out a Prima Facie Case.</p> <p>On a trial for a violation of local option, the State, to make a prima facie case, must prove: (1) The order for the local option election. (3) The order declaring the result and prohibiting the sale of intoxicating liquors within the prescribed limits. (3) That proper notices of the order, declaring the result, etc., have been published as required by Revised Statutes, Art. 3391. (4) A sale by defendant within the precinct, town or city, or subdivision, as the case may be. Defendant’s admission of the existence of local option would supersede the necessity of making the proof above named except the sale'.</p> <p>S. Same—What Orders Are Prima Facie Evidence of Others.</p> <p>On a trial for violation of local option, the order of the Commissioner’s Court for the election, is presumptive prima facie evidence that all the provisions of law necessary to give the order validity and clothe the court with jurisdiction to make it, have been fully complied with. It is prima facie evidence that a petition was presented to the court as required by law, and the burden to show it was not is on defendant. And the order of the court declaring the result of the election and prohibiting the sale of intoxicating liquors is prima facie evidence that all the provisions of the law, with regard to giving notice of the holding of the election, counting the votes and declaring the result, have been complied with.</p> <p>3. Same—Plea of Former Acquittal.</p> <p>On a trial for a violation of local option, a plea of former acquittal is not sustained if the proof fails to show, that the transaction is the same, that is, that it is the same sale of intoxicating liquor as the one for which defendant had been acquitted; and, the burden is on the defendant to prove his plea. The plea is not sustained where everything shown by the evidence in support of it, may be true, and still the transactions be totally different.</p> <p>4. Same.</p> <p>Where there is no evidence tending to show that the two transactions are the same, the.court should instruct the jury to disregard it altogether.</p> <p>5. Special-Instructions. ■-</p> <p>It is not error to refuse to give special requested instructions, where the charge of the court embraces proper instructions upon the .matter embraced.in such special instructions.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter].</p>

<p>Appeal from the County Court of Young. Tried below before Hon. N. J. Timhohs, County Judge.</p> <p>Appeal from a conviction for violation of local option; penalty, a fine of $40 and twenty days’ imprisonment in tbe county jail.</p> <p>The opinion states the case.</p>

<p>1. Assault With. Intent to Murder—Evidence.</p> <p>On a trial for assault with intent to murder, it was not error to allow the State to-prove by a witness, on cross-examination, that he had stated before the grand jury, that, on the day of the difficulty, and directly thereafter, he saw blood on defendant’s face and hands, to which the witness answered, he did not recollect; and there being no attempt to contradict him in this respect, it was not error for the court to refuse to allow defendant’s counsel to examine the grand jury book.</p> <p>2. Same—Evidence of Prosecutor’s Good Reputation for Peace.</p> <p>On a trial for assault with intent to murder, where defendant had proved, that previous to the difficulty the prosecutor had made threats against him; and also proved, that in the difficulty the prosecutor, before defendant struck him, made a hip-pocket movement, as if to draw a pistol. Held: That the State was properly permitted to prove that the prosecutor had a good reputation for peace in the neighborhood in which he lived, in order to show that there was not the same reasonable ground for apprehension as if the party assaulted bore the reputation of a dangerous man. Following, Horbach v. State, 43 Texas, 242.</p> <p>3. Same- -Charge—Provoking Difficulty—Self-Defense.</p> <p>On a trial for assault with intent to murder, where the court, in connection with self-defense as predicated upon the State’s theory, instructed the jury, “That if defendant sought the meeting with W.,for the purpose of provoking a' difficulty, with intent to take his life or do him serious bodily injury, the defendant would not be permitted to justify on the ground of self-defense, etc., but if he have no such intention in seeking the meeting with saidW., his right of self-defense would be perfect.” Held: From the State’s standpoint, there could possibly be no injury to defendant, because there was no self-defense in the case; and especially so, where the court, upon defendant’s theory instructed the jury to the effect, that if the assault was in fact made by defendant, but he, in good faith abandoned the conflict, and was subsequently attacked by W., and in order to protect himself, struck W., and knocked him down, he would be justified and should be acquitted; and further, that, “If at the time defendant assaulted W., W. made such demonstrations as to produce in defendant’s mind a reasonable expectation or fear of death, or of serious bodily injury, and defendant struck W. in order to protect himself, the defendant would not be guilty.” These charges could not have misled the jury and produced confusion in their minds.</p>

<p>No statement necessary.</p>

Tried below before Hon. S. A. Denny, County Judge. Appeal from a conviction for playing cards in a public house; penalty a fine of $10. The opinion states the case.

<p>Appeal from the District Court of Cooke. Tried below before Hon. D. E. Barrett.</p> <p>Appeal from a conviction for theft of three head of cattle; penalty, two years’ imprisonment in the penitentiary.</p> <p>No statement of facts in the record.</p>

The indictment was a joint one against John Williams and Jim Gordon for the robbery of Mrs. H. Bleick. The charging part of said indictment being, “with force and arms then and there in and upon Mrs..

<p>. Appeal from the District Court of Grayson. Tried below before Hon. Don A. Bliss.</p> <p>Appeal from a conviction for assault with intent to murder; penalty, two years’ imprisonment in the penitentiary.</p> <p>The opinion states the material facts in the case.</p>

<p>The opinion states the material facts attendant upon the killing.</p>

Tried below before Hon. E. E. Adams, County Judge. Appeal from a conviction for violating local option; penalty, a fine of §20, and twenty days’ imprisonment in the county jail.

Tried below before Hon. J. H. Wood, County Judge. Appeal from a conviction for violation of local option; penalty, a fine of §25, and twenty days’ imprisonment in the county jail. The opinion states the case.

<p>Appeal from the County Court of Lamar. Tried below before Hon. John W. Rountree, County Judge.</p> <p>Appeal from a conviction for slander; penalty, a fine of $1000, and twelve months’ imprisonment in the county jail.'</p> <p>The slander, as alleged in the information, consisted in a statement made by the defendant, in the presence of J. R. Scott and divers other persons, that he the said Manning ‘ ‘had had repeated sexual intercourse. with the said Any Wilson for about three years; and, that she, the said Any Wilson had had the clap three times, and that he had caught the clap from her three times. And, that she, the said Arry Wilson, had the clap when she was married, and that other men were keeping her,” etc.</p> <p>In so far as the proof of the above allegations in the information is concerned, the defendant himself testified, at the trial, and in his testimony stated that he had stated the matters as alleged to Scott. Defendant was a practicing physician, and he and Mrs. Wilson had been engaged to be married before she married Wilson. Their engagement had been broken off a short time before she married Wilson, and just after her marriage he made the statements, alleged to be slanderous, about her. In his testimony, he reasserted the fact of the truth of the statements which he had made to Scott concerning Mrs. Wilson—that is, that he had had repeated intercourse with her; that she had had gonorrhea three times and had given it to him three times. And that she had been kept by several other men, whose names he mentioned.</p> <p>On the trial Mrs. Wilson herself testified. She stated, that she had been engaged to defendant, but denied that she had ever had sexual intercourse with him, or any other man before her marriage; that she had never had gonorrhea. She was asked, if she did not write a number of letters to defendant, and some letters were handed her which she denied that she had ever written, and denounced them as forgeries. She admitted that she had written some letters to defendant. She was asked, if, in one of these letters, she did not express great pain, “that he had ceased to love her,” or words to that effect? And, if, in one of those letters, she did not request him to send her pictures to her? And, if she did not say, in substance, that she had sent his pictui-e to Trenton, N. J. ? To all of which questions the State objected on the ground, that the witness had the right to examine' the letters before answering the question; which objection was sustained by the court, and the answers excluded. The defendant when testifying in his own behalf, was handed a letter, which, after examining, he said Mrs. Wilson had written to him; and that it was in her handwriting; and, he offered this letter in evidence for the purpose of contradicting and impeaching Mrs. Wilson’s testimony, and for the further purpose of showing; that his statements to Scott were not made wantonly or maliciously, which letter is numbered 7, and is as follows:</p> <p>“Geove, Texas, Lamar County, Febry. 18-93.</p> <p> “Dr. W. JV. Manning: </p> <p>“Dear Old Sweet-heart: I received your letter this eve and I was so surprised to hear from you. I came down home this eve and I went into the parlor, and when I saw the place where we had spent so many happy hours together, I sat down and cried. And, while I was crying, Mama came in and asked me what was the matter? and I put my arms around her neck, and said: Mama, the man who I love better than life has turned away from me and learned to love another. And Mama said, it was nothing but what she expected for what Aunt Alice told her Sunday. Mama said, if you loved another better than you did me, for me not to grieve after you. But, Oh! darling, sweetest one on Earth, you ai-e too dear and too near for me not to grieve. It has often been said, that absenee is the grave of love; but, sweet one, it will never be that way with me, for Oh! darling, when old age shall come, you will be as bright in my memory as you are today, for I expect for my future life to be a perfect blank—for my whole future life depended upon you. Dear, you wrote as if you thought I had mistreated you. I would like to know in what manner I miss-treated you. I paid all the attention to-you I had a chance to. As for new masher, I have none and never expect to. Of course I asked you to come to the party and was glad to see you come, and would be glad to see you come if it was forty times a day. Dr., you told me, before I went to Grove, you was not coming to see me while I was there. When I gave him the privilege to call Sunday. If I would have known you wanted to come he could not have come, for you know whenever you wanted to come, I turned others off for you; and, if you would have told me Sunday, when you was up there, that you wanted to come, I would have made him stand back for you. What more could I have done? Dear boy, why do you call me false hearted, when you know I have been so true and faithful. ‘May God’s richest blessings rain from Heaven like dewdrops, and light upon your pathway of happiness through life.’ I may wish for you—forgotten, and no one to love me. “Arby Ludrick.”</p> <p>“P. S. Dr., I sent that photo of you'I have to Trenton, H. J., to have some small ones taken to wear in my watch. Dr., I would give the world to see you this night. Oh! it would kill me to think you will never allow me to call you mine any more.”</p> <p>The introduction in evidence of this letter was objected to by the State, and the objection sustained by the court and it was excluded.</p> <p>On the question of the identity of the letters, which were introduced in evidence, and as to whether some of them were forgeries or not, as claimed by Mrs. Wilson, the defendant put one Braden upon the stand, to prove up by him a genuine letter he had received from Mrs. Wilson, as a standard for comparison of handwriting. The witness, Braden, testified: that he had never seen Mrs. Wilson write, but that he had received several letters from her and had talked with her afterwards about the contents of said letters. He was here handed a letter, which-he said he had received through the mail from Mrs. Wilson in answer to one he had written to her. That it came through the postoffice, addressed to him, and that he afterwards saw her, and talked to her about the matters contained in it. And she spoke to him about having written a letter to him. He was then asked, if he knew Mrs. Wilson’s handwriting, from correspondence, and if he knew who wrote the letters? The State objected, because he had not qualified himself as an expert; had never seen Mrs.. Wilson write, and that the letter was irrelevant. The court sustained the objections and refused to permit the witness to answer the question. Defendant’s counsel then offered the letter itself in evidence as a standard of comparison. The State objected, that it had not been proved that Mrs. Wilson wrote it. The court sustained the objection, and excluded the letter as evidence.</p> <p>While defendant was on the stand as a witness, the State asked him, “If he did not say to J. R. Scott, shortly after Mrs. Wilson was married, that, if she had kept her mouth shut, he would never have told it.” Defendant answered, “I have no recollection of saying any such thing.” Counsel for the State insisted that he answer the question, and, after defendant had given the same answer several times, the court remarked, in the presence and hearing of the jury, that the natural inference, from the answer of the witness was, that he refuses to answer the question. To which remark of the court, defendant also excepted.</p> <p>The charge of the court was excepted to in several of its paragraphs. The principal ground of exception being directed to that portion of the charge of the court which is copied in the opinion and which is held to be erroneous.</p>

<p>1. Impeachment of Witness, as to His Antecedents, on Cross-Examination—His Right to Explain on Cross-Examination.</p> <p>Where, on cross-examination of a witness for the defendant, the State, for the purpose of discrediting his testimony, has elicited from him the fact, that there were three indictments then pending against him for cattle theft; and, on his re-examination, defendant proposed, in explanation of this matter, to prove that he, witness, had purchased, and was a bona fide purchaser of each of the three animals he was charged with stealing by said indictments; which proof, on objection by the State, the court refused to permit him to make. Held: Error.</p> <p>2. Same.</p> <p>Where it is attempted, on cross-examination, to discredit the testimony of a witness by proving his antecedents in connection with criminal acts charged against him. Held: On his re-examination the witness should be permitted to show such explanatory circumstances, in connection with the matter inquired about, as would go to remove the implication of untruthfulness, and serve to reinstate his credit. The accusation, with the explanation made by the witness, should both be before the jury when passing upon his credit, especially where the testimony of such witness is important and material in support of the theory of the defendant in the case.</p> <p>3. Murder—Drunkenness—Charge.</p> <p>Drunkenness, produced by the recent use of intoxicating liquors, is no defense to murder in the second degree. And, where the court, in its charge, in one breath tells the jury, that temporary insanity superinduced by the recent use of intoxicating liquor was no defense, except to reduce the punishment, or to reduce the -degree from murder in the first to murder in the second degree, and, in the next breath, tells them it is a complete defense, the charge is antagonistic and confusing. But, Held: Defendant is in no condition to complain, as he was convicted of murder in the second degree.</p>

<p>1. Trial—Postponement to Enable Counsel to Look Into the Case.</p> <p>Upon the call of the case for trial on the 7th of October, after defendant had announced ready for trial, one P., an attorney, verbally asked the court to postpone the case in order that he might have time to look into it; which request was refused by the court. It appearing that attorneys appointed by the court, with defendant’s consent, had waived service of the copy of the indictment and consented, on the 6th of October, to go to trial on the 7th; and that they had consulted with appellant and had process issued for his witnesses, who were in attendance and testified: Held: No reversible error in the court’s refusal to postpone the trial.</p> <p>2. Rearguing Motion for New Trial After Sentence.</p> <p>It is not necessary to formally set aside the sentence, where it has been theretofore pronounced, before reconsidering the motion for a new trial; and the sentence, having never been set aside remains in full force and effect if the new trial be not granted upon its reconsideration.</p> <p>3. New Trial—Newly-Discovered Evidence.</p> <p>The action of the court, in refusing a new trial for newly-discovered evidence, cannot he passed upon, on appeal, in the absence of a statement of facts; the rule being, that a new trial will not be granted for newly-discovered evidence which would not probably result in a different verdict.</p> <p>4. Evidence—Rulings as to—Bills of Exception.</p> <p>Bills of exception must be reserved to the ruling of the court in admitting or rejecting evidence, to entitle such rulings to revision on appeal.</p> <p>5. Absence of Statement of Eacts—Verdict.</p> <p>Tn the absence of a statement of facts, the Appellate Court cannot determine whether the verdict is, or is not, supported by the evidence.</p>

<p>1. Continuance.</p> <p>An application for continuance must make manifest the materiality of the proposed absent testimony.</p> <p>2. Theft From the Person—Charge of the Court—Harmless Error.</p> <p>On a trial for theft from the person, where the indictment charged, that the offense was committed by taking the property so suddenly as not to allow time to make resistance before it was carried away; and the court charged the jury both as to the offense as alleged in the indictment, and also as to the offense when committed without the knowledge of the prosecutor; but, said last portion of the charge was not excepted to. Held: The evidence being amply sufficient to support the allegation in the indictment, the error in the charge was not of a character calculated to prejudice the rights of defendant, and would not constitute ground for reversal— the charge not having been excepted to.</p> <p>3. Same—“Principals”—Charge.</p> <p>On a trial for theft from the person, the definition of “Principals,” in the charge, if incorrect, could not have injured the defendant where there was no question that defendant was present and aided and abetted in the theft with guilty knowledge thereof; and where the court, in applying the law to the facts, instructed the jury, that, if they “found the offense was committed by one B., hut, that defendant was present, and knowing the unlawful intent of the said B., aided him by acts or encouraged him by words, in the commission of said offense, if any, to find defendant guilty,” etc.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter].</p>

<p>1. Continuance.</p> <p>An application for continuance, though perfect as to diligence, to be sufficient otherwise, must show the absent testimony to be material; it must not be couched in general terms, but must state'the facts, and the facts themselves, as stated, must appear to be material: and the testimony sought must not be such as could only be available to impeach a witness who is to testify in the case.</p> <p>2. Second Trial at Same Term—Trial Jurors—Practice.</p> <p>It was entirely competent for the court to retry the case at the same term, and, even within two days after the former trial; and if the jury for the week had been discharged, it was competent for the court to have other jurors summoned.</p> <p>3. Evidence—Lost Note—Notice to Produce.</p> <p>Where a note and mortgage were court papers in the custody of the District Clerk, and on motion of defendant’s counsel, S. and A., they were turned over to them for inspection and had never been returned; and the District Attorney testified, that he got S. and A. together and endeavored to procure the papers from them, and they stated, they did not know where they were and that they were lost; and A., who had had possession of the papers, was notified by the District Attorney to produce them. Held: The loss of, and notice to produce, the papers was sufficiently established to admit secondary evidence of their contents.</p> <p>4. Impeachment of Witness After Evidence was Closed and the State’s Witnesses had Gone Home.</p> <p>Where the evidence in the case was closed and the State’s witnesses had been discharged and gone home, it was not error for the court to refuse to permit defendant to impeach one of said witnesses for truth and veracity.</p> <p>5. Improper Argument of Counsel.</p> <p>Where the remarks of counsel, which are complained of, are not embraced in a bill of exceptions, they are not the subject of revision.</p> <p>6. Perjury by Witness in Civil Suit—Indictment—Allegation as to Issue Joined in the Civil Suit.</p> <p>On a trial for perjury, committed by a witness in a civil suit, where it was objected that the indictment was defective in not alleging the character of the issue • joined between the parties in said civil suit. Held: The allegation, as to the issue being in accordance with approved forms, was sufficient; and the allegation, that, “then and there it became a material question whether the said note, sued upon, was executed and signed by the said G., etc.,” would authorize proof of the character of issue joined, and proof also to show the materiality of the question upon which the assignment for perjury was predicated.</p> <p>7. Same—Proof of Materiality of Matter Assigned as Perjury.</p> <p>On a trial for perjury, assigned upon the testimony of defendant as a witness in a civil suit, upon a note, in the Justice’s Court, and he was charged with having falsely sworn that he did not execute said note, and it was contended that, in order to make said assignment material, the proof must show, that defendant had first filed a plea of non est factum, as required by law, before he could legally testify as to the non-execution of said note. Held: It will be presumed that a proper plea was interposed as a predicate for his testimony, especially where, as in this case, no objection was made in the court below to this testimony upon the ground that no plea of non est factum had been filed in the Justice’s Court. But see, contra post paragraphs 9 and 10.</p> <p>ON MOTION FOR REHEARING.</p> <p>8. Perjury—Materiality—Proof.</p> <p>On a trial for perjury, the allegations of materiality must be proved. It is not enough that the testimony (where testimony as a witness in a case is the matter assigned) was actually admitted; yet, it suffices that the indictment sets out the facts whence the materiality judicially appears. Where it does not, the course is to prove all, or so much of the pleadings and evidence brought forward at the former trial as will duly present the question, whereupon the court will decide, as matter of law, whether what the defendant is shown to have testified to was material.</p> <p>9. Same—Issue Joined.</p> <p>Where the perjury is assigned upon the testimony in a civil ease, in the absence of an issue joined in the trial court that would render the testimony material, there could be no predicate upon which to base an accusation for perjury.</p> <p>10. Same—Plea of Hon Est Factum.</p> <p>On a trial for perjury assigned upon the testimony of defendant as a witness in a civil suit upon a note, in which he falsely swore, that he had not signed said note; but, he had filed no plea of non est factum in said case as required by law. Held: That his testimony, that he had not signed said note, is not material to any issue in the case, and therefore, could not form the basis for an assignment of perjury. An issue as to the non-execution of a note sued on can only be raised by a plea, denying the execution of the note, verified by affidavit.</p>

Tried below before Hon. J. C. Smith, County Judge. Appeal from a conviction for simple assault; penalty, a fine of $5. The opinions sufficiently state the case.

Tried below before Hon. W. A. Blackburn. Appeal from a conviction for murder in the first degree; penalty, a life term in the penitentiary. Appellant was indicted in the District Court of Milam, for the murder of one W. A. Binkley, by shooting him with a pistol, on the 14th day of January, 1894. The venue was changed upon application of defendant from the County of Milam to the County of Bell.

<p>The indictment charged appellant with an assault with intent to rape his daughter, Willie Callison. It contained two counts; the first alleging the assault to have been committed upon the person of a female under the age of 12 years; the second count alleging the age of the female as under 15 years. The date of the offense, as alleged in both counts, was the 1st day of July, 1895, and the indictment was filed on the 16th day of October, 1896.</p> <p>The following is the testimony in the case: Willie Callison said: “I live with my sister, Mrs. Beeman.” “Do you live in Parker County?” “I don’t know.” “How long have you lived in Texas?” “I don’t know.” “Is T. D. Callison your father?” “Yes sir.” “How old are you?” “I am 13 years old. Dwas 13 on the 28th of last April.” “Do you recollect being before the last grand jury?” “Yes sir.” “Did you make certain statements before the grand jury?” “Yes sir.” “Did your father ever do anything to you?” “Ho sir.” “Don’t you recollect signing a statement last spring when the officers went to your father’s house?” “I recollect signing a writing then.” “Didn’t you state to me, a few minutes ago, in my room, that your father did something to you in the cotton seed pen?” “Yes sir.” “Did your father pull up your dress?” “Ho sir.” “Did you pull up your dress?” “Yes sir. I don’t know why I pulled up my dress.” “Did your father unbutton his pants?” “Yes sir.” “Did he get on top of you?” “Yes sir.” “Were you on your back while he was on you?” “Yes.” “How long was he on you?” “I don’t know.” “Were you ever with your father out in the sprout patch on his farm?” “Yes sir.” “What were you doing out there?” “We were cutting sprouts.” “Did he tell you to lie down?” “No sir.” “Did you pull up your dress?” “Yes sir.” “Did your father pull down his pants?” “Yes sir.” “Did he get on top of you?” “Yes sir. I laid down on the ground and pulled up my clothes, and the defendant pulled down his pants and got on top of me while I was on my back, and he had his pants down.” “When was this, Willie?” “I don’t know, but think .it was last year. It was before we planted cotton.” “Did it happen at the cotton seed pen first?” “I don’t know which was first.” “Was it in the summer or spring?” “I don’t know when it was.” “Was it a summer month or a winter month?” “I don’t know.” The defendant objected to each and all of said questions, because they were leading. His objection being overruled, defendant excepted.</p> <p>Cross-examination: “Did your father ever hurt you?” “No sir.” “Did he ever try to hurt you?” “No sir.” “Did he ever try to do anything to you?” “No sir.” “Was what you told the officers true, or was it a story?” “It was a story.” “Did not somebody tell you that you would be put in jail if you did not tell at the trial the same thing you told the officers?” “Yes sir.” “Who told you that you would be put in jail?” “My sister, Mamie.”</p> <p>Redirect: “Did this occur at the sprout patch, before the land was planted?” “I don’t know, but think it was.” “Was there cotton or cotton seed in the pen?” “I don’t know.” “Were you picking cotton.” “No sir.” “What were you doing at the pen?” “I don’t know.” “Did your father ever try to get on you or try to do anything to you at any other time or place except the cotton seed pen and the sprout patch?” “No sir.”</p> <p>Mamie Callison said: “Willie Callison, who has just left the stand, Is my sister. She was 13 years old on the 28th day of last April. I saw my father trying to do something to Willie last spring. It was at our house, in Parker County. They were lying down in the middle of the floor in the main room of the house. Willie’s . clothes were pulled up and my father’s pants were pulled down. He was lying on top of her. When they saw me they got up; one went out one way and the other went in the opposite direction. It was this year I saw them. Yes, I am as certain that it was this year as I am that I saw them. This was the only time I ever saw such a thing. I was hoeing cotton on that day, and had come to the house to get a drink of water. My brother Tom was hoeing cotton that day with me. I am certain it was .this last spring or summer. My brother Tom was convicted of incest with me at the April term of the District Court. I have not seen him since the first of last April, the day of his arrest; he is the father of my baby, -which was born on the 30th day of last April. I am 15 years of age, Tom is 16.”</p> <p>E. hi. McCracken, witness for the State, said: “I am sheriff of Parker County. I went to the house of the defendant, May 13th, 1896, the day after he was put in jail. I was present when Willie Callison made a statement. Preston Martin, the Assistant County Attorney, and myself, were present. There were no threats made by me or Martin to make the same. The statement made by Willie Callison was in answer to questions asked by Preston Martin. Willie Callison, recalled by the appellant, said that her father had never gotton on top of her in the house where they lived; that Mamie had never come upon them when he was on top of her. She denied in(toto the whole of Mamie’s testimony.”</p> <p>Mrs. Annie Callison, witness for defendant, said: “I live in the same yard with the defendant; have lived there about two years. I have never heard of any complaint by Willie Callison. Defendant was always kind to his children. Mamie Callison did not work out in the cotton patch before the birth of her child, which was on the 30th day of April, 1896.”</p> <p>Mrs. Beeman, witness for defendant, said: “I am 36 years old and a sister to Willie Callison. I was with her frequently last spring; and lived about half a mile from my father’s house. During my entire life I have never heard of any attempt of my father to mistreat Willie Callison in any way. She has never made complaint to me or to any one in my presence of any improper conduct or any ill-treatment on part of defendant. Mamie Callison did not work out in the farm for four or five weeks before the birth of her baby or four or five weeks after.”</p>

<p>1. Forgery—Allegations and Proof—Variance.</p> <p>Where an indictment for forgery alleged, in the purport clause, that the forged instrument purported to be the act of L. V. T., and, as set out in the tenor clause, it . was the act of L. V. T., and the instrument offered in evidence corresponded with the allegations and was signed L. V. T. But, the State introduced as a witness, one L. B. T., who testified, that he knew no L. V. T. in that community. Held: This did not constitute a variance.</p> <p>3. Same—Fictitious Person.</p> <p>Even if it he conceded that a difference in the middle initial of a name could constitute a variance, it would not aid defendant, because if L. V. T. was a fictitious person, the forgery of the name of a fictitious person would constitute the offense charged. Following, Johnson v. State, 35 Tex. Crim. Rep., 371.</p>

Tried below before Hon. Thomas F. Nash. Appeal from a conviction for violation of local option; penalty, a fine of $100 and two months’ imprisonment in the county jail. No statement necessary.

<p>1. Local Option—Order for Election—Description of Territory.</p> <p>Where the order for a local option election embodied within it the metes and bounds of the territory in which the election was to be and was held, the same is in no manner invalidated by calling the territory “School District No. 7,” and appointing the “regular presiding officer of said School District No. 7” to hold the election; and it was immaterial whether “School District No. 7” had existence as a subdivision or not where the petition, order for election, and order declaring the result set out the identical metes and bounds in which the local option is shown to exist.</p> <p>2. Same—Notices of Election.</p> <p>On a trial for violation of local option, it is for the defense to show, if such was the fact, that notices for the election were not ordered.</p> <p>3. Same—Officer Holding the Election.</p> <p>The Commissioners’ Court has authority to name any person to' hold the election.</p>

Tried below before Hon. J. C. Smith, County Judge. Appeal from a conviction for violation of local option; penalty, afine of $25, and twenty days’ imprisonment in the county jail. No statement necessary.

<p>No statement necessary.</p>

Tried below before Hon. Charles F. Clint. Appeal from a conviction for cattle theft; penalty, two years’ imprisonment in the penitentiary. The opinion states the case.

<p>No statement necessary.</p>

The indictment charged appellant with the murder of Jeff Varner, in the County of Motley, on the 10th day of May, 1891, by shooting him with a Winchester rifle. The venue of the case was changed to Baylor County. No further statement necessary.

The indictment was filed in open court in t-he District Court on the 4th day of April, 1896.

<p>Appeal from the Criminal District Court of Harris. Tried below before Hon. E. D. Cavin.</p> <p>Appeal from a conviction, for assault with intent to rape; penalty, six years’ imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

Tried below before Hon. James R. Tolbut, County Judge. This prosecution was instituted by complaint in a Justice’s Court, which charged appellant with fighting together with one A. J. Card in a public place. He was convicted in the Justice’s Court of an affray, and fined one cent. He appealed to the County Court. In the County Court, his appeal was on motion dismissed. From that judgment he attempts to prosecute this appeal.

<p>Primary Election—Illegal Voting at—Information—Sufficiency of.</p> <p>One of the necessary ingredients of the offense of illegally voting at a primary election, as denounced in Penal Code, Art. 192a, is that the party illegally voting at a primary election, “Is not qualified to vote in the election pi’ecinct where he offers to vote, at the next State, county or municipal election;” and this, being the essential element of the offense, must he alleged in the indictment or information; and not being so alleged, the information or indictment is fatally defective.</p>

The indictment charged appellant with the burglary of the house of Aloys Altmann. The house was a blacksmith shop and a number of tools were taken therefrom, and, among other things, two screw-plates valued at $25. Louis Shields testified, that he bought these screw-plates from defendant for $25, and that he put them in his house under the bed; and, in about three weeks thereafter defendant came and entered his house and took them without his knowledge or consent.

The indictment was for adultery “with Ben Tucker, a man, the said Ben Tucker then and there being lawfully married to another person then living.” The proof failed to show that'Ben was or ever had been married, and, under a charge of the court, submitting the issue of fornication, appellant was found guilty of fornication. Upon the trial the State failed to prove, but the contrary was shown that Tucker was not a married man and had never been married.

<p>1. Renting a House to be Used for Gaming—Indictment—Allegation of Venue of the Offense.</p> <p>Where an indictment alleges, that defendant, in the County of N., did rent a house and rooms to R. for gaming purposes. Held: The indictment was fatally defective in failing to allege the venue; that is, that the house rented was in N. County where the prosecution was instituted. If defendant made a rental contract as alleged in N. County, and the house was situated in another county, the venue of the prosecution would be in the county where the house was situated, and not in' the county where the contract was made.</p> <p>2. Same.</p> <p>An indictment for unlawfully renting a house to be used for gaming purposes, is wholly insufficient where it does not show on the face, that the alleged games were in violation of, and that it does not allege that the house is one in which, by statute, gaming is expressly inhibited; nor, where the games played were with dice or dominoes, that the house was not a private residence; nor, that the gaming bank or table was kept or exhibited for gaming purposes.</p>

Trial and conviction was had on an indictment presented against appellant on the 19th day of November, 1896, wherein it is charged that on or about the 3rd day of May, 1896, in McLennan County, Pete Wells, M. L. Mayes, alias Dock Mayes, find Loy McLennan were guilty of the theft of a buggy, two sets of harness and a pair of shafts, of the value of over $100, and charges appellant as an accessory after the fact, in that he did willfully conceal and give aid to the said Pete…

Tried below before Hon, J. E. Dillard. Appeal from a conviction for having possession of a forged instrument, knowing it to have been forged, with intent to pass it; penalty., two years’ imprisonment in the penitentiary. No statement necessary.

Tried below before Hon. J. A. Mathews, County Judge. Appeal from a conviction for violation of local option; penalty, a fine of §25 and 20 days’ imprisonment in the county jail. Defendant filed exceptions to the sufficiency of the indictment, and also filed a motion in arrest of judgment upon the same ground. These motions were overruled.

Tried below before Hon. Thomas B. King, County Judge. Appeal from a judgment remanding to custody on a habeas corpus hearing. The opinion states the case.

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

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

<p>Appeal from the Criminal District Court of Dallas. Tried below before Hon. Charles F. Clint.</p> <p>Appeal from a conviction for robbery; penalty, five years’ imprisonment in the penitentiary.</p> <p>The indictment contained two counts, one for theft from the person, and the other for robbery. Defendant moved to quash the indictment, the main ground of the motion being that the money alleged to have been taken was not sufficiently described. This motion was overruled.</p> <p>The essential facts in the case are: The proof in substance shows that W. H. Cox visited Dallas about the 15th of October, 1896. He had in his possession about $67 in money and purchased a few articles, spending several dollars therefor, and then proceeded to visit the Moss Rose Saloon, a shooting gallery, and several other places of entertainment on and near the courthouse square, at times making exhibition of his money. About eight or half past eight o’clock he boarded an electric car for Oak Cliff, where he intended to spend the night with a friend. Joe La Presto, Wyatt, Clark and appellant started on the same car for Oak Cliff. It is shown by the testimony for the State, as well as the testimony of the defendant while on the stand, that the question of robbing Cox of his money was discussed between the parties while ■en route to Oak Cliff. But appellant says he remonstrated against entering into such a conspiracy and stoutly protested that he had been raised right and never engaged in any business of the kind in his life. It will be observed that Cox asked to be put off at Tyler Station, that when the car stopped, notwithstanding appellant had full notice of the intention to rob him by Wyatt, La Presto and Clark, he also got off the car at the same place. All of the conspirators walked down the track away from the car a piece and engaged in a close conversation. Cox in a half-drunken condition got off the car and was handed his valise and Started to the bouse of his friend. The four conspirators divided into pairs. Clark and La Presto going together, and overtaking Cox knocked him down and the two together proceeded to relieve him of about $60 in money. Just about the time they were completing the offense, Wyatt and appellant came up and they all ran off together. This is made to appear by the testimony of the accomplice, La Presto, and in a measure corroborated by the witnesses, Horan and Chattin; but that all of the parties went on the car to Oak Cliff together and got off at Tyler Station is undisputed. Appellant and Wyatt came back on the car together, appellant wearing La Presto’s hat on his return, while it is made clear that he did not wear it to Oak Cliff, the exchange having been made during the time they were there. In less than one hour from the time they left the depot in Dallas, the robbery had been committed, appellant and Wyatt returning on the electric car, and La Presto and Clark boarding a Santa Fe train at the Oak Cliff station and returning to town that way.</p> <p>Joe La Presto, one of the accomplices to the robbery, turned State’s evidence, and a preliminary examination of this witness was had to ascertain whether he was competent and understood the nature and obligation of an oath. The court, after said examination, held him competent and permitted him to testify over defendant’s objection.</p> <p>Appellant offered to prove by -witness, Fred J. Shutt, for whom he had worked as a farm hand during the preceding winter and spring; that said Shutt had paid him $15 per month for said services. Appellant offered said testimony in order to show that he was an industrious man and to establish as far as possible in the minds of the jury, the fact that he was a man of fixed industrious character and self supporting by honest industry, and the trial court excluded all testimony tending to show that any consideration for services had been paid appellant or to show that he (appellant) was an industrious man and had a fixed character as such.</p> <p>The jury after they had considered of their verdict for twenty-four hours, and still had failed to agree, as to a verdict in this cause, addressed a written statement to the court as shown, to-wit: “This jury can never reach a verdict in this case, the whole thing hinges on the testimony of Horan and Chattin, and they cannot agree as to what their evidence was.”</p>

<p>1. Murder—Comparison of Handwriting—Expert Opinion Evidence.</p> <p>On a trial for murder, where a bank officer, as an expert in handwriting, was shown a genuine specimen of the handwriting of defendant for comparison with a note not signed, but claimed by the State to have been written by defendant; and the expert testified, that, as an expert, “I can not give an opinion as to whether they (the two writings) were written by the same person, and can only say, that there is considerable similarity in some of the letters in some of the words.” Held: Insufficient testimony upon which to admit said note in evidence. Before it was legally admissible, the proof, that defendant wrote it, should have been reasonably certain.</p> <p>2. Same—Charge on Circumstantial Testimony.</p> <p>On a trial for murder, where the defendant on trial was alone charged with the crime, and the court, in the charge on circumstantial evidence, instructed the jury that such testimony “must be of a conclusive nature, leading on a whole to a satisfactory conclusion and producing, in effect, a reasonable and moral certainty that the defendant, and no other person, committed the offense charged.” Held: The instruction that, “the defendant, and no other person, committed the offense charged,” was equivalent to instructing them that the facts and circumstances must be inconsistent and incompatible with the defendant’s innocence. This charge might not be correct in all cases. See, opinion in extenso on this question.</p>

Tried below before Hon., T. B. King, County Judge. Appeal from a conviction for adultery; penalty, a fine of §100. The indictment charged appellant with adultery with one Cordia Gilbert, a married woman. H. C. Gilbert, who was the husband of the woman, testified, that defendant was his second cousin and boarded with him and his wife.

<p>1. Witness—Cross-examination as to His Whereabouts.</p> <p>A witness for defendant may, on Ills cross-examination, be asked as to his whereabouts at t>>e time of the transaction, although not questioned concerning it on his examination in chief.</p> <p>2. Same—Murder—Statement by Prosecuting Attorney.</p> <p>On a trial for murder, the County Attorney, on cross-examination of a witness for defendant, asked him; “Is it not a fact that you stated to Mrs. H., while the shooting was going on, that it was defendant killing the deceased, H.; that you knew it wasgoing to come oif; that your mother sent you and your brother, T., away from home, so that you would not be there when it happened?” To which defendant objected because irrelevant and immaterial, whereupon the County Attorney stated, in the presence and hearing of the jury, that his purpose was to lay a predicate to impeach the witness and show a conspiracy to kill the deceased. And the witness, before the court could rule upon the point, answered the question in the negative; but defendant insisted that the statement made by the County Attorney was improper and calculated to prejudice defendant. Held: That while the question asked was not a proper one, no prejudice calculated to injure defendant is apparent from the statement made by the County Attorney.</p> <p>3. Bill of Exceptions to the Admission of Testimony</p> <p>A bill of exceptions reserved to the admission of testimony, to be sufficient, must show what the testimony i, -.3.</p> <p>4. Murder—Evidence—Acts and Conduct of Third Parties.</p> <p>On a trial for murder, it is not competent for the State to prove, that, on the morning after the killing, the mother-in-law, sister-in-law and wife of the deceased were together laughing and talking, apparently as if nothing had happened, there being no proof of a conspiracy between these witnesses and defendant to kill deceased; and, if there had been such conspiracy, it was at an end.</p> <p>5. Same.</p> <p>Nor was it competent for the State, for the purpose of showing that Mrs. F., the mother-in-law of both defendant and deceased, was interested in procuring testimony for defendant or fabricating the same, to elicit from a witness the fact, that, on the morning after the killing, Mrs. F. endeavored to make her remember the language, acts and conduct of deceased on a certain occasion towards the wife of defendant, and on the witness replying, that she did not hear deceased use the language; defendant’s wife said, “You will have to remember it,” or “You must re member it.” Nor was it competent to prove, by this same witness, that, during the trial then going on, she had seen defendant’s witnesses frequently talking together in private, in a low tone of voice.</p> <p>6. Same—Testimony of Wife ©f Deceased—Deceased’s Insurance Policy.</p> <p>On a trial for murder, where the wife of deceased was a witness for defendant, the State was permitted, over defendant’s objection, to prove by her on cross-examination, that her husband, the deceased, had a policy of insurance for her benefit on his life; and the State was also allowed, over defendant’s objections, to introduce said insurance policy in evidence. Held: There being no evidence of a conspiracy upon the part of the wife and the defendant to take the life of deceased, and no evidence tending to show that the wife was instrumental in instigating, promoting or causing the killing of her husband, the evidence was inadmissible and prejudicial to defendant’s rights. It was not legitimate evidence for the purpose of discrediting the wife as a witness.</p>

Tried below before Hon. Kenneth Foree, Judge of City Court. Appeal from a conviction for violating a city ordinance; penalty, a fine of $15. A motion was made to dismiss the appeal for want of jurisdiction. No statement necessary.

Tried below before Hon. S. Patton, County Judge. Appeal from a conviction for failing to cure, within twenty days, a flock of sheep which had been inspected and found afflicted with scab:, penalty, a fine of §50.

Appellant and one W. Walling were jointly indicted for the theft of the animal, which was alleged to be the property of J. Alderete. There was a severance granted, on the motion of defendant, Walling, and this appellant was alone placed upon trial. In brief, the facts were that: Alderte missed his gray horse about September 1, 1896. The horse was found in the possession of defendant in Bandera County on September 16, about 225 miles from the place where he was stolen.

Tried below .before Hon. T. H. Conner. Appeal from a conviction for burglary; penalty, eight years’ imprisonment in the penitentiary. The indictment charged appellant with burglary, by shooting and discharging firearms into a house at night, with intent, of his malice aforethought to kill and murder J. M. Groves, Emma Garrett, G. W. Garrett and Annie Nichols. It appears that appellant was in' love with Miss Emma Garrett, and had been engaged to her.

<p>Appeal from the District Court of Liberty. Tried below before Hon. L. B. Hightower.</p> <p>Appeal from a judgment remanding appellant to custody upon a hearing under a writ of habeas corpus. •</p> <p>The case is sufficiently stated in the opinion.</p>

<p>Appeal from the Criminal District Court of Dallas. Tried below before Hon. Chas. F. Clint.</p> <p>Appeal from a conviction for seduction; penalty, three years’ imprisonment in the penitentiary.</p> <p>The matters connected with the questions discussed in the opinion are so fully stated as to need no further illustration from the evidence.</p> <p>The bill of exceptions as to the evidence of the appearance of the child, was as follows: “Be it remembered, that upon said trial when the State’s witnesses, Mrs. L. A. Ford and Mrs. Ball, were upon the stand in the State’s case in chief (the defendant introduced no evidence), and the prosecutrix, Anna Hamlet, being recalled, it was proved by each of said witnesses when upon the stand, that the prosecutrix gave birth to a child in July, 1896, and- that said child had red hair, blue eyes and a blonde complexion. And the State furthermore proved by the witness, Mrs. Ball, and the prosecutrix, Anna Hamlet, that she, the said Anna Hamlet, was pregnant and gave birth to this child so above described. The evidence showing that this was a seven month’s child, and the only evidence as to the seduction and first act of carnal intercourse was, that it occurred in the last of September or first of October, 1895. The defendant, at the time said testimony was offered, objected to the same, for the reason that it did not prove a single element of the offense of seduction, and furthermore was illegally permitted to corroborate the prosecutrix as to the promise of marriage, the carnal intercourse and the crime of seduction; and furthermore, the color of the child’s eyes, hair and its completion were as that of the defendant and thus the jury were illegally to weigh these circumstances against the defendant who was present at his trial in duress as the law demands, though not used as a witness, the jury could look at the defendant in the prisoner’s dock, see for themselves; furthermore, it was a seven month’s child and the evidence that being it was ten months intervening the seduction and the birth of said child.”</p>

Tried below before Hon. Thomas B. King, County Judge. Appeal from a conviction for simple assault and battery; penalty, a fine of $5. No statement necessary.

Tried below before Hon. J. L. L. McCall, County Judge. Appeal from a violation of local option; penalty, a fine of $25, and twenty days’ imprisonment in the county jail. The opinion states the case.

Tried below before Hon. D. M. Hood, County Judge. Appeal from a conviction for unlawfully carrying a pistol; penalty, a fine of 825.

Tried below before Hon. W. H. Ragsdale, County Judge. Appeal from a conviction for unlawfully giving a prescription, as a physician, in violation of local option; penalty, a fine of $25 and twenty days’ imprisonment in the county jail. Ho statement necessary. Defendant made a motion in arrest of judgment because of the insufficiency of the information, which was overruled.

<p>1. Impeachment of Witness—Statements Before Grand Jury.</p> <p>Whenever necessary to a due administration of justice, a witness may be attacked by showing that he made statements before the grand jury different from those testified on the trial of the case.</p> <p>.2. Same—Construction of Statute.</p> <p>Code Crim. Proc., Art. 404, prescribing the oath of grand jurors, as part of the same makes the proceedings had before them secret unless the grand jurors are “required to disclose the same in the course of a judicial proceeding in which the truth or falsity of evidence given in the grand jury room in a criminal case shall be under investigation;” and Art. 213, Penal Code, punishes a witness for divulging proceedings in the grand jury room unless he is “required to testify to any of such matters before a judicial tribunal.” Held: A proper construction of the statutes limits the testimony permitted as to matters transpiring in the grand jury room to such cases only where the same matter is under investigation both in the grand jury room and the trial court.</p> <p>3. Same.</p> <p>A witness cannot be impeached by showing that he testified falsely in the grand jury room as to other matters not germane to the investigation before the trial court.</p> <p>4. New Trial—Newly Discovered Evidence.</p> <p>See, facts, on a trial for violating local option, stated in the opinion, upon which it is Held, that a new trial should have been granted for the newly discovered evi dence.</p>

<p>The charging part of the indictment is set out in the opinion. There was a motion in arrest of judgment based upon the insufficiency of the indictment, which motion was overruled.</p>

Tried below before Hon J. W. Kelley, County Judge. Appeal from a conviction for failing to work a public road; penalty, a fine of $1. No statement necessary.

<p>1. Insanity—Non-Expert Evidence.</p> <p>Anon-expert witness is permitted to give Ms opinion, as to the sanity of a person, predicated upon facts involving the acts, conduct, etc., of the person inquired about.</p> <p>2. Same—Predicate for Such. Opinion Evidence.</p> <p>To render opinion evidence of non-professional witnesses competent, as to the sanity of a party, it must appear: (1) That the witness had adequate means of observation; that is, he must have had the opportunity of forming an accurate judgment as to the existence of insanity, considered with reference to its supposed character or degree. (2) He must first state what he personally knows of the party’s sayings and doings indicating insanity. His testimony must show that such intimate and close relations existed between the alleged insane person and himself as fairly to lead to the conclusion that his opinion will be justified by his opportunities for observing the party. (3) He may state the facts, conduct, conversations and business transactions, give the look of the eye and the action of the man. (4) But, the opinion of a person not of the medical profession is not evidence, unless the facts upon which it is based have come under his own observation; and, unless, also, he states those facts to the jury.</p> <p>S. Same—Non-Professional Evidence—What Constitutes.</p> <p>Having stated the appearance, conduct, or conversation, or the other particular fact from which the state of the party’s mind may be inferred, the non-professional witnesses may state their inferences or opinions, as the result of those facts. After all, it is the facts the witness details, the conduct which he describes, which chiefly and principally constitutes the testimony to be relied on.</p> <p>4. Same—Expert Opinion Evidence—Predicate for Hypothetical Case.</p> <p>On a question of insanity, the hypothetical case stated to an expert witness, upon which he is authorized to give an opinion, must be of the whole case; that is, all the facts (and not a part of the facts) bearing upon that issue must be grouped and stated to the expert. He cannot be asked as to an hypothesis having no foundation in the evidence, or statements made to him out of court, or read by him in a newspaper. The rule is, that the expert opinion must be based upon the evidence taken at the then trial. Following, Webb v. State, 9 Tex. Crim. App., 490.</p> <p>5. Same—Reasonable Doubt—Quantum of Proof.</p> <p>As to proof of insanity, it is not necessary that it be established beyond a reason- . able doubt; it is sufficient if the evidence reasonably satisfies the jury of its existence at the time the act was committed; the jury ascertaining the condition of defendant’s mind, at the time of the killing, by a consideration of its condition before that time, and his acts and conduct before, at the time and after the same, in connection with all the other facts in the case.</p>

Tried below before Hon. H. H. Wallace. Appeal from a conviction for knowingly causing stock to go into the inclosed lands of another; penalty, a fine of 815. The indictment was brought under Art. 794, Penal Code. The case is sufficiently stated in the opinion.

<p>Appeal from the County Court of Ellis. Tried below before Hon. J. C. Smith, County Judge.</p> <p>Appeal from a conviction for playing cards on Sunday; penalty, a fine of $20.</p> <p>The case is sufficiently stated in the opinion.</p>

. Appeal from tbe County Court of Dallas. Tried below before Hon. T. F. Hash, County Judge. Appeal from a conviction for permitting gaming in a house under defendant’s control; penalty, a fine of $25. The Assistant Attorney-General moved to dismiss the appeal, because there was no legal recognizance in the record. This is the question involved in the appeal, and the facts pertaining to it are sufficiently stated in the opinion.

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

<p>1. Theft of Cattle—Joint Ownership—Want of Consent.</p> <p>On a trial for theft of a yearling alleged to be the property of one it. B. Wheatley, and the evidence showed that B. B. and his brother were joint special owners, it was not necessary to prove the want of consent of the brother. Code Crim. Proe., Art. 445.</p> <p>2. Same—Evidence—Acts and Declarations of Co-Conspirators—Charge.</p> <p>On a trial for theft of a yearling, acts and declarations of a co-conspirator, not in</p> <p>furtherance of the common design, but, declarations in the nature of confessions with attempts to conceal the fruits of the crime, made in the absence of the defendant, and after the conspiracy was ended, are inadmissible as evidence against the defendant;-and, being inadmissible, no instructions from the court could relieve the case from an error in admitting them.</p> <p>3. Same—Evidence of Other Thefts.</p> <p>On a trial for theft of yearling, evidence that two calves were stolen by some person living on defendant’s place, but it is not shown that they were taken at the same time that the animal in question was taken, is inadmissible, there being no other fact connecting the two transactions.</p> <p>4. Improper Evidence—Charge Limiting, etc.—Practice.</p> <p>The practice of admitting improper evidence, with the promise or expectation of subsequently directing the jury not to consider it, or of controlling it by the charge, is not to be encouraged.</p>

Tried below before Hon. T. S. Reese. Appeal from a conviction for murder in the second degree; penalty, a term of ninety-nine years’ imprisonment in the penitentiary.

The stolen animal was alleged to be the property of Tebe Hart. The trial was had at a term of the District Court, in Foard County, which was-begun on the 24th of June, 1895, and adjourned the 2nd of July, 1895, after a session of nine days. The judgment of conviction was rendered against defendant on the 27th of June, 1895.

<p>1. Recognizance on Appeal—Sufficiency of.</p> <p>While it is true that a recognizance must recite an offense against the laws of the State, yet, if it recites the offense set forth in the indictment it is sufficient.</p> <p>2. Local Option—Illegal Prescription by a Physician—Indictment.</p> <p>An indictment against a physician, for illegally giving a prescription in violation of local option, to be sufficient, must allege, by proper averments, that local option was in farce in the given territory, after an election had been held for its adoption in said territory. Poliowing, Stewart v. State, 35 Tex. Crim. Rep., 392.</p>

Tried below before Hon. J. S. Straughan. Appeal from a conviction for assault with intent to murder; penalty, three years’ imprisonment in the penitentiary. The opinion states the essential facts, and the charges of the court which were complained of are also set out in the opinion.

<p>1. Continuance—Diligence.</p> <p>Where an indictment was returned the 25th day of September, 1895, and process for the absent witness was only sued out on the 20th of January, 1898, and returned “not found,” on January 25th, the day of the trial. Held: There was an utter lack of diligence in suing out the process and the continuance was properly refused.</p> <p>2. Bill of Exceptions to Excluded Evidence.</p> <p>A bill of exceptions reserved to the exclusion of testimony is insufficient which fails to show the materiality of such testimony.</p> <p>3. Altering a Brand Upon Cattle—Charge.</p> <p>On a trial for altering the brand upon one head of cattle where the court had charged, “that before the jury could convict they must believe beyond a reasonable doubt that the defendant altered the brand upon said cattle with intent to defraud the owner,” it was not error to refuse a requested instruction to the effect, that defendant would not be guilty if he altered the brand with intent to prevent the thief from recovering said cattle.</p> <p>4. Same—Evidence—Unrecorded Brand—Charge Limiting, etc.</p> <p>On a trial for illegally altering a brand, where it appeared that the original brand which had been altered was an unrecorded brand. Held: Under the statute, Bev. Stat., Art. 4930, an unrecorded brand being expressly declared to be no evidence of ownership in every case where it is questionable whether the proof of ownership depends upon flesh marks or such unrecorded brand, it is error for the court, whether requested or not to fail to limit such evidence, that is, instruct the jury that the unrecorded brand can be used merely as a flesh mark and not as evidence of ownership.</p> <p>5. Same—Charge on Circumstantial Evidence.</p> <p>' On a trial for illegally altering a brand upon an animal where defendant admitted to changing the brand upon a certain lost animal, but the identity of the animal was dependant upon circumstantial testimony. Held: The court should have given a charge upon circumstantial evidence.</p>

<p>The opinion states the main facts in evidence, and a further statement of the case is unnecessary.</p>

Tried below before Hon. S. F. Grimes. Appeal from a conviction for receiving stolen cattle; penalty, two years’ imprisonment in the penitentiary. No statement necessary.

<p>Appeal from the District Court of Falls. Tried below before Hon. S. R. Scott.</p> <p>Appeal from a conviction for manslaughter; penalty, five years’ imprisonment in the penitentiary.</p> <p>Appellant was indicted for the murder of one Louis Reineke, by cutting and stabbing him with a knife, in Falls County, on the 14th of October, 1895. Appellant is a negro and the deceased was a German. The difficulty began between defendant and one Miesch, a German, and occurred in Radle’s saloon, in the village of Perry. Miesch and other German friends, deceased being one of them, were in the saloon, and about to take a drink of beer, when defendant came in with an open knife in his hand, according to the State’s testimony. Defendant testified in his own behalf, and his testimony is corroborated, in many particulars, by his witnesses; and, as to the immediate origin of the dificulty, there is' but little substantial difference between his testimony and that of the main State’s witnesses. To a proper understanding of defendant’s theory of the case, it is only necessary to give his version of the difficulty as found in his examination in chief, which is as follows: “I know M. Miesch, Louis Reineke, August Bier and Fritz Newman, and have lived about four years near the German settlement where all of these people live, all of whom are Germans. I have known Louis Reineke since 1893, and all of the others about the same length of time. I have worked for Mr. Miesch a great deal and have picked cotton for him. I was in Perry, at Radle’s saloon, on the day of the difficulty. As I walked into the saloon, some beer had been ordered, and I spoke to Mr. Miesch and asked him what about my beer; he said, he had no beer for me, to go into the negro saloon for it. . I told him no, that I had a right in there; he then put'his hand under my chin, and I pushed his hand off. He then hit me in the face and I hit at him. Three parties then grabbed up chairs, to-wit: Louis Reineke, Fritz Newman and M. Miesch. There was a great many in there at the time Miesch hit me with his fist, and the others began to hit me in the rear on the back. While looking around and backing some one knocked me to my knees. Miesch then hit me in the back with a chair; and, two or three others were hitting me, and I can’t say who they all were except those four named, all of whom jumped on me, after they had knocked me to my knees. Can’t say whether others had chairs. I had my knife in my hand wliile, talking with Mr. Hand, but not when I went up to Mr. Miesch, and did not pull out my knife until after I had been struck by Mr. Miesch and the others with the chairs. My knife was in my pocket until after I- had been struck by Mr. Miesch and the others with ■chairs. I then reached down and got my knife out of my pocket and opened it with my teeth. I think I cut Mr. Miesch on the hand; in the right hand I think. Reineke was the second man who came up to me; he was about the door when I cut him. I had backed to the door striking and hitting at them as they would advance and come on me; and I was about the door when I cut him. Just before Miesch grabbed the chair, he turned around and said something in German to Reineke and the other Germans; and Miesch then got a chair and made forme. Two or three struck me with chairs, and Reineke hit me on the arm with a chair. I got my knife and recollect when I cut Miesch. After the first lick, I heard Meisch say, he has got a knife, “let’s kill the son-of-a-bitch.” I dodged among them and tried to make my escape. I saw Mr. John Breeland there. I was hit in many places, among others across the forehead, and was bleeding; blood was running all down my face on to my clothing. Three persons had chairs and were assaulting me. Mr. Reineke, Newman and Miesch. All of them had chairs and came together at me. I had no time to get out. I had bought the knife which I used on that day, and had had it in my hand during the afternoon showing it; it was a medium sized knife. I know Henry Lowe Kelton, and saw him at Perry on that day, but did not know that he saw the trouble. I did not see Mat "Williams 'there, but did see Mr. John Breeland at the time of the row. I was friendly with all these parties, and never had had any trouble with any of them before. At the time I out Louis Reineke, he had a chair and was striking me with it.</p>

Tried below before Hón. W. S. Robson, County Judge. Appeal from a conviction for unlawfully betting at a gaming table and bank kept and exhibited for the purpose of gaming; penalty, a fine of 810. The court below overruled a motion to quash the indictment, because it did not conclude as prescribed by law.

The testimony of the prosecutor and of the defendant is reproduced as follows: Joe Powell testified: “I had a difficulty with defendant on the 27th of April last. Defendant’s children passed by my house and said something to one of my daughters, and my daughter made complaint to me. I told the defendant’s children that they had better behave themselves. They laughed at me and one of them patted her butt. I live just across the street from the defendant.

The indictment charged defendant with the murder of Antonia Salinas de Baldez on the 9th day of September, 1895, by striking her in. and upon the head with an ax. The opinion states the case.

Tried below before Hon. J_ M. Hall. Appeal from a conviction for assault with intent to murder; penalty* seven years’ imprisonment in the penitentiary. Appellant was indicted for the murder of one Cain McDonald, by-shooting him with a gun, on or about the 31st day of March, 1894. The parties to the homicide were negroes. Deceased lived near Peoria, a village in Hill Counnty. Defendant lived some twelve or more miles from him across the Brazos River, in Bosque County.

Tried below before Hon. W. M. Allison. Appeal from a conviction for bribery; penalty, two years’ imprisonment in the penitentiary. The indictment is set out in the opinion.

Tried below before Hon. Ed. J. Hamner. Appeal from a conviction for theft of one head of cattle; penalty, two-years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

Tried below before Hon. F. E. Hunter, County Judge. Appeal from a conviction for demanding and receiving, as an officer (a deputy sheriff), more fees than are allowed by law; penalty, a fine of $25. The opinion states the case.

Tried below before Hon. W. B. Hopkins, County Judge. Appeal from a conviction for unlawfully carrying a pistol; penalty, a fine of $50. No statement necessary.

<p>1. Bringing Stolen Property Into This State—Owner’s Want of Consent.</p> <p>On a trial for bringing stolen horses from Mexico into this State, want of consent of the owner is fully shown where it is clear from the record evidence of the owner in the statement of facts that the word “not” is omitted in the expression: “I did give my consent,” and where it is further made to appear that, immediately after the theft, the owner pursued the defendant to the Rio Grande river, and afterwards continued his search until the horses were recaptured in Texas; and that he had the parties arrested and prosecuted before the examining court in Texas.</p> <p>2. Same—Allegation and Proof as to Locality of the Theft.</p> <p>Where the indictment alleged, that the horses were stolen in the State of Coahuila, Mexico, the charge was fully sustained by proof that though the owner lived in Chihuahua, his ranch was in the State of Coahuila, and the horses were being herded near the ranch on a mountain at the time they were taken away.</p> <p>3. Circumstantial Evidence—Charge.</p> <p>On a trial for theft of horses in Mexico, which were afterwards brought into Texas, where it appeared that the owner and two others were on foot herding the animals when defendant and a confederate, whom they well knew, made a dash at, and ran off the horses. Held: This was direct and positive evidence of the taking and the court did not err in failing to charge on circumstantial evidence.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion..—Reporter.]</p>

Tried below before Hon. Robert B. Green. Appeal from a conviction for assault with intent to murder; penalty, two years’ imprisonment in the penitentiary. The indictment charged appellant with assault to murder one J. J. Wallace. Appellant and Wallace had been partners in mining operations in California. They came on burros, across the country, and camped in the neighborhood of San Antonio.

Tried below before Hon. C. N. Buckler. Appeal from a conviction for murder in the second degree; penalty, five years’ imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. A. T. McKinney, Special Judge. Appeal from a conviction for assault with intent to murder; penalty, seven years’ imprisonment in the penitentiary. Appellant was indicted for assault with intent to murder one Prank Smither, on the 3rd day of April, 1896. Smither was a white man, defendant a negro.

Prom Palo Pinto County. Original application to the Court of Criminal Appeals for a writ of habeas corpus in a matter growing out of local option. No statement necessary.

<p>Jurisdiction—Two District Courts in the County—Transfer of Cases.</p> <p>JBy the Act of 1895, pp. 181-182, the legislature authorized the judges of the Thirty-seventh and Forty-fifth Judicial Districts to transfer cases from one court to the other, and where this has been done without a copy of the orders of transfer, this does not affect or invalidate the jurisdiction of the court to which the case has been transferred; and, if the jurisdiction be attacked upon this ground, it is a sufficient. answer, that the proper orders were entered in the court a quo, and a copy of said orders could then be filed, even in answer to a motion in arrest of judgment.</p>

Tried below before Hon. T. S. Reese. Appeal from a conviction for murder in the first degree; penalty, a life term in the penitentiary. This is a companion case to the eases of Jim Williamson v. State, 36 Tex. Crim. Rep., 225; and Frank Martin v. State, 36 Tex. Crim. Rep., 632. The facts will be found fully stated in those cases, and in the opinion below.

<p>1. Evidence to Refresh Memory—Bill of Exceptions.</p> <p>On a trial for murder, where it was objected that witnesses were permitted, in order to refresh their memories to read their testimony given at the examining trial of other parties to the same offense, the bill of exceptions, to be available, should have shown that the witnesses themselves did not request to refresh their memories from such testimony; and should set out the questions and answers, that is, the testimony itself that was then elicited.</p> <p>2. Evidence—Hearsay.</p> <p>Where a witness knows nothing of the matter inquired about of his own knowledge, and his testimony upon the point would be merely hearsay, it is not error to exclude his testimony.</p> <p>3. Examination of Witness—Bill of Exceptions.</p> <p>Where on the examination of a State’s witness who, apparently was unfriendly to the State, the jury having been retired, the judge admonished the witness, and, among other things, said to him, “You will be handled for perjury, if you do not tell the truth in this case.” Held: The bill of exceptions is fatally defective in failing to show, that any testimony at all was elicited from the witness by the action of the court, nor in what manner defendant was prejudiced by such action.</p> <p>4. Leading Questions—Bill of Exceptions.</p> <p>It is largely a matter in the discretion of the court, as to whether a party shall be permitted to ask his own witness leading questions. If the witness is an unwilling or reluctant witness, the privilege of propounding leading questions is not improper.</p> <p>5. Murder—Indictment—Allegation that the Means Used were Unknown.</p> <p>If the instrument, by which a homicide is committed, be not known, it is sufficient if the indictment aver that fact by an allegation that “the said defendant did then and there, with malice aforethought, kill B., by some means to the grand jurors unknown.”</p> <p>6. Same—Diligence by Grand Jury to Ascertain the Means. '</p> <p>On a trial tor murder, where the evidence adduced is vague and uncertain as to the means used in its perpetration, it is unnecessary for the State to show the diligence used by the grand jury to ascertain what means, instruments or weapons were used.</p> <p>7. Principals—Accomplices and Accessories—Charge.</p> <p>Where, on a trial for murder, the evidence indicates that, if guilty at all, defendant was a principal, it was not error for the court to refuse to charge upon the law of accomplice or accessory to the murder.</p> <p>8. Statements and Confessions of Accused—Charge, as to, Limiting and Restricting.</p> <p>On a trial for murder, statements and confessions by the defendant are admissible as original evidence, and the court is not required, in the charge, to limit and restrict the purposes of the same, and it would be error to restrict it to impeachment purposes, when the defendant has not been a witness in the case and testified as to the matter.</p>

Tried below before Hon. Rueus Hardv. Appeal from a conviction for assault with intent to murder; penalty, two years’ imprisonment in the penitentiary. This is a companion case to the case of Ras Hardy v. State, 36 Tex. Crim. Rep., 400, and is the case referred to in the opinion in that case. The opinion states the case.

Tried below before Hon. Ruetjs Hardy. Appeal from a conviction for burglary; penalty, two years’ imprisonment in the penitentiary. Appellant was charged by the indictment with burglarizing the store of one J. M. Kouba. The store house was set fire to and burned on the night of 22nd of February, about 3 o’clock a. m. Goods, which were identified by Kouba, were found in the house occupied by defendant’s sister.

<p>1. New Trial—Newly-Discovered Testimony.</p> <p>A new trial will not be granted for newly-discovered testimony which was hearsay and not original evidence; nor will it be granted for evidence which would be only cumulative.</p> <p>2. Evidence Conflicting—Practice on Appeal.</p> <p>Where the evidence pro and con is evenly balanced and directly conflicting, the '■court, on appeal, will not disturb the verdict and judgment.</p> <p>[Note.—A motion for rehearing filed by appellant June 18th, 1896, was overruled without a written opinion—Reporter.]</p>

<p>Jury—Recalling "Witness as to His Testimony.</p> <p>After a jury has retired to consider of their verdict in the case, and at their instance a witness is recalled, he can only be so recalled for the purpose of restating the testimony already given by him, and it is error to interrogate him with reference to any other fact.</p>

<p>Appeal from the County Court of Hamilton. Tried below before Hon. J. C. Main, County Judge.</p> <p>Appeal from a conviction for aggravated assault; penalty, a fine of $25.</p>

Tried below before Hon. J. C. Main, County Judge. Appeal from a conviction for the theft of a plow stock, valued at 82; penalty, a fine of 8100 and twenty days’ imprisonment in the county jail. The opinion states the case.

<p>Appeal from the County Court of McLennan. Tried below before Hon. W. H. Jenkins, County Judge.</p> <p>Appeal from a conviction for threatening to take the life of another; penalty, a fine of $100.</p> <p>There is no statement of facts in the record. The matters pertaining to defendant’s bills of exception are fully stated in the opinion.</p>

The opinion states the facts. The charge given by the court, as to what constituted the establishing or dedication of a public road, was as follows: “You are further charged that the orders of a Commissioners’ Court establishing a road as a public road do not constitute the only-method by which such road may be shown to be the public road; the public character of the road may be established by proof of long-continued use of it as such, and by an order of the commissioners…

The indictment charged Mack Jones, Abe Briscoe, appellant, and-Martha DeCosta with the murder of one William Payne, on the 24tb of January, 1896, by cutting him with a knife or striking with some-instrument to the grand jurors unknown. Upon motion of defendants-a severance was had, and appellant, Abe Briscoe, alone placed on trialj Mack Jones having been previously tried and acquitted.

The indictment charged appellant with the mnrder of Joseph Allsup, ■on the 25th day of February, 1893, by shooting him with a pistol. The deceased was a youth about seventeen years of age, and the killing took place about one-half or three-quarters of a mile from the house of appellant. At the time of the difficulty, Joe Allsup was accompanied by his brother, Robert, a lad of some fourteen years of age, and Trotter, this appellant, was accompanied by one John Creswell.

<p>1. Murder—Insanity—Continuance.</p> <p>Oil a trial for murder, ail application for continuance, for witnesses as to defendant’s insanity, which simply states that the witnesses would testify to, “acts, words and deeds” (what not being stated) leading to insanity, and which occurred before the killing,” are statements too general in character, and only conclusions at best. And, as to the absent medical experts, the facts, upon which they were expected to base their opinion, that defendant was bordering on insanity, should also have been stated.</p> <p>2. Same—Suggestion of Defendant’s Insanity at the Trial—Argument— Practice.</p> <p>On a trial for murder, it having been suggested that defendant was then insane, a jury was empaneled to try that issue; and, when the evidence was heard, the court ruled that counsel for defendant should open and close the argument. Held: Defendant had no possible ground to complain as to this matter.</p> <p>3. Same—Expert Opinion Evidence—Hypothetical Case—Practice.</p> <p>On a trial for murder, where the defense was insanity, and upon the hypothetical ease submitted by the prosecution to the medical experts, they stated that, in their opinion, defendant was not only not insane, but was feigning insanity; and counsel for defendant objected that, the hypothetical case as stated, was not full and complete. Held: If not full, it was the duty of counsel for defendant to submit a case made up of all the testimony.</p> <p>A. Same—Confessions and Admissions of Defendant While in Arrest.</p> <p>Where the sheriff testified, that, after defendant’s arrest for the murder, he, the sheriff, warned him that any statement he might make could be used against him, and not in his favor, whereupon defendant replied, “if that was the case he would not make any statement.” Held: The evidence was not calculated to mislead the jury or prejudice the defendant, the reply not being a confession or admission by defendant, but only a declination, on his part, to make any statement at all.</p>

Tried below before Hon. Charles F. Clint. Appeal from a conviction for rperjury; penalty, five years’ imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. Charles F. Clint. Appeal from a conviction for passing a forged instrument; penalty, two years’ imprisonment in the penitentiary.

<p>Appeal from the County Court of Wharton. Tried below before Hon. R. F. Bentley, County Judge.</p> <p>Appeal from a conviction for selling spirituous liquors in a place other than that designated in the license; penalty, a fine of §50.</p> <p>The charging part of the information is as follows: “That heretofore, to-wit: on the 18th day of July, 1895, a license was issued by the-Clerk of the County Court of Wharton County, Texas, to one H. G. Green, authorizing him, the said H. G. Green, to sell spirituous, vinous- or malt liquors, or medicated bitters, on Burleson street, in the town of Wharton, in Wharton County and State of Texas, and thereafter, to-wit: on the 9th day of September, 1895, the said license hereinbeforedescribed was transferred by said H. G. Green to J. A. Travis and J-Blumberg, and that thereafter the said J. A. Travis and J. Blumberg,. on or about the 21st day of September, 1895, in the County of Wharton and State of Texas, did then and there temporarily close their place-of business on Burleson street in the town of Wharton, and did then and there open their business in what is known as the Needham saloon building, situated near the depot of the New York, Texas and Mexican-Railway, in the town of Wharton, in Wharton County, Texas, and the-said J. A. Travis and J. Blumberg, on or about the 21st day of September, 1895, in the County of Wharton and the State of Texas, did then and there unlawfully sell spirituous, vinous and malt liquors, and medicated bitters, the same being a place other than that designated in the-license issued by the Clerk of the County Court of Wharton County, Texas, on the 18th day of July, 1895, to H. G. Green and transferred by said H. G. Green to said J. A. Travis and J. Blumberg on the 9th day of September, 1895; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of tha State.”</p> <p>A motion was made in arrest of judgment upon the ground that the; information charges no offense known to the law.</p>

Tried below before Hon. J. W. Patterson. Appeal from a conviction for false swearing; penalty, two years’ imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. T. S. Reese. Appeal from a conviction for theft of one head of cattle; penalty, two years’ imprisonment in the penitentiary. The opinion states the case.

<p>Appeal from the Criminal District Court of Harris. Tried below before Hon. E. D. Cavin.</p> <p>Appeal from a conviction for forgery; penalty, two years’ imprisonment in the penitentiary.</p> <p>The charging part of the indictment is set out in the opinion. Defendant filed a motion in arrest of judgment, based upon the insufficiency of the indictment, which was overruled in the court below.</p> <p>No further statement necessary.</p>

Tried below before Hon. E. W. Terhune. Appeal from a conviction for murder in the second degree; penalty, six years’ imprisonment in the penitentiary. Appellant was charged in the indictment with the murder of Jack Richey on the 16th day of March, 1895, by striking him on the head with a stick of wood. Deceased Richey was an old man, between seventy-five and eighty, but quite vigorous. He was a man hard to get along wdth, quarrelsome, and abusive.

<p>Jurisdiction of Court of Criminal Appeals.</p> <p>Under provisions of Article o, Section 5, Constitution, the Court of Criminal Appeals has no appellate jurisdiction save in criminal cases. A suit over money collected upon an execution issued upon a judgment final on a forfeited recognizance is not a criminal action in this State, and this court has no jurisdiction to entertain, an appeal in a ease involving such matters.</p>

<p>Appeal from the County Court of Archer. Tried below before Hon. S. A. Dehhy, County Judge.</p> <p>Appeal from a conviction for violating local option; penalty, a fine of $40, and thirty days’ imprisonment in the county jail.</p> <p>The opinion states the case.</p>

Tried below before Hon. Stephen P. West. Appeal from a conviction for murder in the first degree; penalty, death. Appellant was jointly indicted with one Hannah Merritt, for the murder of one Margaret Deon, his wife, on the 4th day of April, 1896, by cutting her with a knife and by striking her with an axe, hatchet and some blunt instrument to the grand jurors unknown. Appellant was alone placed upon trial—-with the result above stated.

<p>Notice of Appeal—Sufficiency of.</p> <p>A notice of appeal is sufficiently shown by the following recitals in the judgment overruling defendant’s motion for a new trial, to-wit: “Whereupon the defendant. C., in open court, gave notice of appeal herein to the Court of Criminal Appeals of the State of Texas, which said notice is now here entered of record.”</p>

Tried below before Hon. W. M. Allí sow. Appeal from a conviction for unlawfully carrying on and about his person a pistol; penalty, a fine of $25 and ten days’ imprisonment in •the county jail. No statement necessary.

Tried below before Hon. J. M. Hall. Appeal from a conviction for theft of one head of cattle; penalty, two years’ imprisonment in the penitentiary. The following statement taken from appellant’s brief, is substantially correct, viz: It was shown that O. R. Cole was the owner of a yearling, red in color, branded “C” on right hip, which in the spring of 1895, he placed in the pasture of S. B. Capps, with other cattle.

Tried below before Hon. J. A. Crews, County Judge. Appeal from a conviction for disturbance of the peace, by going near a private residence, and cursing and swearing in a manner calculated to disturb the inhabitants of said residence; penalty, a fine of $10. The opinion states the case.

Tried below before Hon. J. A. Crews, County Judge. Appeal from a conviction for theft of five bundles of oats, of the value of 25 cents; penalty, afine of $1, and twelve hours’ imprisonment in the county jail. The opinion states the case.

From Harris County. Original application to the Court of Criminal Appeals for a writ of habeas corpus for relief against a fine for contempt in disobeying an order of court to turn over property to a receiver.

The indictment is set out in the opinion. A motion was made in arrest of judgment, upon the ground that said indictment failed to charge any offense. This motion was overruled by the court below. No further statement necessary.

Prom Falls County. Original application to the Court of Criminal Appeals for a habeas corpus against an order of the court below, made in vacation, committing applicant to jail for contempt in disobeying the orders of the court. The opinion states the case.

<p>Assault With. Intent to Rape a Female Under Fifteen Years of Age—Indictment.</p> <p>An indictment for assault with intent to rape a girl under 15 years of age, is fatally •defective if it fails to expressly negative the fact that the female was the wife of defendant.</p>

Tried below before Hon. P. E. Hunter, County Judge. Appeal from a conviction for libel; penalty, a fine of $100. The information is set out in the opinion. Defendant’s motion to quash was overruled.

Tried below before Hon. W. H. Jenkins, County Judge. Appeal from a conviction for a violation of local option; penalty, a fine of $25, and twenty days’ imprisonment in the county jail. The case is sufficiently stated in the opinion.

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

Tried below before Hon. E. D. Cavin. Appeal from a conviction for murder in the second degree; penalty,, seventeen years’ imprisonment in the penitentiary. No statement necessary.

<p>The indictment charged appellant with producing an abortion upon one Mollie Smith, on the 20th day of February, 189'7. It contained three counts, but the case was submitted to the jury only upon the first and third counts. The first count charged substantially that the accused administered to Millie Smith, a pregnant woman, with her consent, á drug and medicine calculated to produce abortion; and did procure the abortion by means of said drug and medicine. The third count charged appellant with making an assault upon Mollie Smith, a pregnant woman, and did unlawfully, etc., with her consent, thrust into her womb and private parts, a certain penstafE calculated to produce abortion, and did •then and thereby procure an abortion by the said Mollie Smith.</p> <p>Defendant moved to quash the first count, upon the ground, that, if defendant administered the drugs and medicines to Mollie Smith with her consent, then he would only be an accomplice, and could not be convicted under this count, it charging him as a principal. The motion to quash was overruled. Defendant then moved, after all the evidence had been introduced in the case, to have the State elect upon which count a conviction would be claimed. This motion was also overruled by the-court.</p> <p>The evidence showed, that defendant had been a school teacher and Mollie Smith his pupil: That she was twenty years of age. That she went with defendant to Henrietta, in Clay County, to attend a teachers’' examination, where she was an applicant for a second grade teacher’s; certificate, and that while there, at an hotel, defendant seduced her. That they continued to have intercourse until she became pregnant. In her testimony in regard to the use of the pen-staff upon her by the defendant, she testified, that the defendant used a metallic instrument' to-enlarge her vagina before he inserted the pen-staff. Defendant moved to strike out her testimony, because there was no allegation in the indictment, that a metallic instrument had been used in connection with the pen-staff. This motion was overruled.</p> <p>The further facts in the case will be found sufficiently stated in the opinion.</p>

Tried below before Hon. Charles Rogan, County Judge. Appeal from a conviction for a violation of local option; penalty, a fine of $25, and twenty days’ imprisonment in the county jail. The opinion states the case.

<p>Appeal from the County Court of Hunt. Tried below before Hon. W. H. Ragsdale, County Judge.</p> <p>Appeal from a conviction for violating local option; penalty, a fine of $25 and twenty days’ imprisonment in the county jail.</p> <p>The opinion states the case.</p>

<p>1. Abortion Upon a Female Who Afterwards Married Defendant—Wife as a Witness.</p> <p>On a trial for abortion upon an unmarried female who subsequently married the defendant, where the wife was, over objections of defendant, permitted to testify against him, Held: Under provision of Art. 775, Code Crim. Proc., she was incompetent to testify, notwithstanding she was not the wife of defendant at the time of the transaction; and the acts of .violence constituting the abortion were not acts of personal violence, if any, directed against defendant’s wife, because she was not his wife at the time.</p> <p>2. Abortion—Wife as a Witness Against the Husband.</p> <p>The wife is a competent witness against her husband only in cases of personal violence by the husband against her, and an abortion produced with her consent, by administering certain drugs to her, is not such personal violence in contemplation of the statute.</p> <p>3. Abortion—Prosecutrix Hot an Accomplice.</p> <p>In cases of abortion, the injured female is not an accomplice, and the law with regard to the corroboration of accomplice testimony is not applicable to her evidence.</p>

Tried below before Hon. S. R. Scott. Appeal from a conviction for murder in the first degree; penalty, imprisonment in the penitentiary for life. Appellant was indicted for the murder of John Childress, on the 21st day of June; 1896, by shooting him with a pistol. There is a statement of facts in the record, but not having been approved by the trial judge, it is not considered [by the court on this appeal.

Tried below before Hon. J. M. Hall. Appeal from a conviction for murder in the .second degree; penalty, twenty-five years’ imprisonment in the penitentiary. Appellant was indicted for the murder of A. J. Shirley, on the 20th. day of June, 1895, by shooting him with a pistol.

<p>New Trial—Separation and Misconduct of Jury.</p> <p>On a trial for robbery, where it appeared by uneontroverted affidavits, attached to the motion for new trial, that pending the trial and before the argument was concluded, the jury in the case went into the county jail, two of the members remaining in the jail office outside, and the other ten going into the inside and among the celia and talking to the prisoners and to the defendant, who was in jail, about defendant’s case anl the case of his codefendant. That the outside door was locked, and they were locked in when they were talking to the prisoners, and were entirely separated, by the jail walls and locked door, from their two fellows, who were outside of-the jail in the office. That this condition of affairs lasted about half an hour. Held; The separation of the jury was illegal, and their misconduct reprehensible and of such character as requires that the judgment of conviction be not permitted to stand—and a new trial should have been granted.</p> <p>[Note.—A motion by the Assistant Attorney-General in behalf of the State for a rehearing was overruled without a written opinion.— Reporter.]</p>

<p>1. "Witness—Cannot be Hequired to Answer Questions Incriminating Himself.</p> <p>Constitution, Bill of Bights, Sec. 10, provides, that a defendant shall not be compelled to give evidence against himself.</p> <p>2. Same—Dismissal of Prosecution.</p> <p>The prosecution may dismiss a case against a defendant, and, with a guaranty against any other or further prosecution for the same offense in the particular case then on trial may require his testimony.</p> <p>3. Privilege of "Witness as to Other Cases not on Trial.</p> <p>Where it appeared that the witness had been jointly indicted with others, and the prosecution had been dismissed in the particular case, but, other cases of a similar character were still pending against him, and he was placed upon the stand by the State and asked a certain question, which could have been answered “yes” or “no,” but which the witness declined to answer, because, he claimed, his answer would incriminate him. Held: The witness is protected from answering, if it appears from the nature of the evidence which he is called to give, that there is reasonable ground to apprehend that, should he answer, he would be exposed to‘a criminal prosecution; or, where his answer is such as that, on a legitimate cross-examination, he would be compelled to testify to matters which could be used against him as a confession in the other cases.</p> <p>4. Same—Cross-Examination.</p> <p>The witness is not to be compelled to answer any question, if the answer will tend to expose him to a criminal charge; but, if he state a particular fact, he will be bound, on his cross-examination, to state all the circumstances relating to that fact, although, in doing so, he may expose himself to a criminal charge.</p> <p>5. Same—Practice—Duty of the Court "Where There is a Doubt as to the Matter—Habeas Corpus.</p> <p>It may, at times, be difficult for the court to determine the question of privilege of the witness, but, in all such cases, the doubt should be solved in favor of the liberty of the citizen. It is the duty of the witness to object, if he desires to protect himself. It is then the duty of the court to rule upon the objections, and the rulings of the court will be tested on habeas corpus, where the witness is held in contempt for refusing to answer, not only by the question propounded to the witness, but by the surrounding facts taken in connection with the question; and, relator will be discharged, if, in considering the question asked and all the surrounding facts, it appear that his answer would tend to incriminate him.</p>

Tried below before Hon. Charles F. Clint. Appeal from a judgment and order, in a habeas corpus proceeding, fixing relator’s bond at $500, and remanding him to custody of the sheriff until the same was given. The case is stated in the opinion.

Tried below before Hon. F. C. Weinert, County Judge. Appeal from a conviction for aggravated assault; penalty, a fine of $25. The indictment charged appellant with inflicting serious bodily injury upon Allen Styles, by shooting him with a gun, a deadly weapon. Allen Styles was appellant’s brother. They had some trouble at Lu-ling, and appellant threatened to kill Allen, if he ever caught him and Charley Styles together.

Tried below before Hon. Don A. Bliss. Appeal from a conviction for aggravated assault; penalty, a fine of $25. The case is fully stated in the opinion.

A statement of the evidence is unnecessary in view of the fact that the appeal is disposed of upon the question of the separation of the jury, the facts pertaining to which are fully stated in the opinion.

Tried below before Hon. Ed. J. Hamner. Appeal from a conviction for horse theft; penalty, five years’ imprisonment in the penitentiary. The opinion states the material facts in the case.

Tried below before Hon. John O. Rowlett, County Judge. Appeal from a conviction for unlawfully carrying a pistol; penalty, a fine of $25. No statement of facts. A motion was made in arrest of judgment on the ground that the verdict was not responsive to the pleading in the case.

Tried below before Hon. J. C. Main, County Judge. Appeal from a conviction for unlawfully carrying a pistol; penalty, a fine of $25 dollars. The opinion states the ease.

Tried below before Hon. S. R. Scott. Appeal from a conviction for theft of a mule; penalty, five years’ imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

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

<p>Appeal from the District Court of Kaufman. Tried below before Hon. J. E. Dillaed.</p> <p>Appeal from a conviction for theft of horses; penalty, imprisonment of each defendant for five years in the penitentiary.</p> <p>This prosecution was for the theft of a horse, the property of one J. B. Ward. These same parties had been indicted jointly for the theft of a horse belonging to Jim Towsen, which had been taken at the same time as the Ward horse in question; and, upon trial for the theft of the Towsen horse, they had been acquitted. They pleaded this former acquittal, for the theft of the Towsen horse, in bar of this prosecution for the theft of the Ward horse, on the ground that the two alleged takings and thefts were but one and the same transaction. On motion of the prosecuting attorney, the court struck out this plea of former acquittal and defendants were denied the right to introduce evidence in support thereof. Defendants also made an application for continuance which was overruled, and an exception saved by a bill. This matter is sufficiently elucidated in the opinion.</p> <p>The horse in question and the horse of Towsen, had been ridden by the owner*, at night, to a church near the village of Kemp, twelve miles south of Kaufman city. They were stolen that night. They were recovered by an officer. John Canady saw defendants get on the horses and ride off. The officers recovered the horses in the pasture of the widow Turner, near Able Springs, more than twelve miles north of Kaufman city; and defendants were arrested while in the act of feeding the horses, which were staked in the pasture. Henderson, a deputy sheriff, testified, that after defendants had been in jail at Kaufman, the larger one, G. W. Wright, was brought down to his house, at night, by a constable. That after he had warned the said G. W. Wright, he, Wright, told him that they got the horses at Kemp and thought they would go up towards the nation and pick cotton. The witness says: “He never did state they stole the horses. After he had told me all this, I brought him on from my house, and I met his brother near the jail in charge of Mr. Crane, and then we stopped and the young man kept on talking and repeating the same thing in the presence of his brother. I did not warn his brother.”</p> <p>The defendants proved by their witnesses that they were in the village of Kemp on the night the horses were taken; that they had been drinking—some of the witnesses say they were drunk. That they were with a party of young men, that the party wanted more liquor; that defendants proposed to go for it if they had anything to ride. That some strange boys in- the crowd told them, if they would go after the whiskey to Kaufman and divide with them, they would find horses to ride after it, and, the parties then went down in the direction of the church. ' Will Canady testified: “That he met the boys, and they said they were going to Kaufman for more whiskey, and he gave them an order on Patterson for two quarts, and waited at Kemp, but they never tcame back.”</p> <p>The charge of the court as to the confession of one of the defendants, is copied in full in the opinion. The court charged, in effect, that intoxication, from the recent use of ardent spirits, could not be considered unless it amounted to that degree of drunkenness as would produce temporary insanity, in which event the temporary insanity could he considered in mitigation of th# penalty.</p> <p>Defendants refused special instruction was as follows: “You are instructed, however, that in all offenses in which a specific intent, such as a fraudulent taking of property with the intent of permanently appropriating it to the use and benefit of the person taking, you may consider the condition of the mind as influenced by the recent use of intoxicating liquor, in connection with all the other facts in proof, in reaching the conclusion as to whether the necessary elements of guilt existed, as defined in the main charge herein, at the time of the taking.”</p>

<p>1. Offer to Bribe an Officer—Allegation and Proof.</p> <p>Under an indictment brought upon the provisions of Penal Code, Art. 138, for offering to bribe, “a deputy constable,” “a peace officer and guard of defendant.” Held: The evidence does not support the allegation, where it shows that a constable had arrested the defendant and placed him in charge of a private citizen, until he could execute a bond, and that accused offered such private citizen, while so in his custody, 850 to let him run.</p> <p>2. Same—Peace Officer—Constable—Guard—De Pacto Officer.</p> <p>Under the facts above stated, the party to whom the bribe was offered was not a peace officer under provisions of Article 43, Code Crim. Proc. He was not a sheriff, deputy sheriff, marshal, constable, or policeman of any incorporated town or city. He was not a private person appointed to execute criminal process under provisions of Article 266, Code Crim. Proc., and the criminal process had been previously executed by the constable. He was not a guard, because not appointed in conformity with law. Rev. Stat., Art. 4898. He was not a de facto constable, because such deputy could not be appointed in a city or town containing a less population than 8000. He was simply a private citizen placed in charge of a prisoner, without any known authority of law, and defendant violated no law in offering to bribe him to let him escape.</p>

Tried below before Hon. A. C. Drummond, County Judge. Appeal from a conviction for permitting his house to be kept and used as a disorderly house; penalty, a fine of 8200.

<p>Writ of error from a judgment final for $1500 on a forfeited bail bond.</p> <p>■ The opinion states the case.</p>

Tried below before Hon. W. A. Blackburn*. Appeal from a conviction for slander; penalty, a fine of $100. Thejindictment charged defendant with slandering Mrs. Anna Lucas. Anna Lucas, the prosecutrix, was defendant’s step-daughter.

Tried below before Hon. E. C. Harrell, County Judge. Appeal from a conviction for assault; penalty, a fine of §25. The opinion states the case.

Tried below before Hon. J. M. Hall. Appeal from a conviction for receiving a stolen horse, knowing it to have been stolen; penalty, five years’ imprisonment in the penitentiary. No statement of facts in the record. The charge of the court, which is complained of for error, is set out in the opinion.

<p>1. Theft of a Horse by False Pretext—Evidence.</p> <p>When the indictment charges theft of a horse by means of a false pretext or representation it is essential, in order to sustain the charge, to prove with reasonable certainty, that defendant obtained possession by means of some false pretext, device, representation, etc., or with intent at the time to deprive the owner of the value of the property, and, that he did, subsequently, appropriate the same to his own use and benefit. Simply to prove that he appropriated or converted the property after acquiring possession with the consent of the owner, is not sufficient to establish either the fact of the falsity of the pretense or"representation nor the fact that he intended the conversion at the time he received the possession.</p> <p>2. Same.</p> <p>If accused obtained possession of the animal without resorting to false pretenses or representations, or without the intention, at the time, to convert the same to his own use or benefit, the fact, that he afterwards conceived such intention and did convert it, is not sufficient.</p> <p>3. Conversion by Bailee—Evidence.</p> <p>Where a defendant is charged with conversion of property as a bailee, it does not matter whether he intended the conversion at the time he acquired the property or not; it does not matter whether he resorted to false pretenses or representations or not, it is only necessary to prove that he acquired the property as a bailee and after-wards converted it.</p> <p>4. Same—-Venue of the Offense.</p> <p>On a trial for horse theft, where the evidence showed, that the possession of the horse was acquired from the owner in B. County, and, afterwards, sold by defendant in D. County. Held: The venue of the prosecution, charging him with conversion as a bailee, would be in D. County, and not in B. County, because the offense of conversion was consummated in D. County, and he could not be thus prosecuted and convicted in B. County.</p> <p>5. Confession or Admission —Defendant Not in Arrest When.</p> <p>The mere fact that defendant believed that one of the crowd that was present was an officer when he made admissions, in a conversation between himself and the alleged owner of the animal, did not constitute an arrest, and his statements and admissions were legitimate evidence against him.</p>

<p>Appeal from the District Court of Nacogdoches. Tried below before Hon. Tom C. Davis.</p> <p>Appeal from a conviction for manslaughter; penalty, four years’ imprisonment in the penitentiary.</p> <p>Appellant was indicted for the murder of one Mitch Yarborrough, on the 10th of October, 1896, by shooting him with a pistol.</p> <p>Defendant in person pleaded guilty to manslaughter.</p> <p>No further statement necessary.</p>

<p>Appeal from the County Court of Calhoun. Tried below before Hon. M. S- Mahon, County Judge.</p> <p>Appeal from a conviction for catching fish, terrapin, etc., on breeding grounds with sein or net during breeding season; penalty, a fine of $25.</p> <p>The information is set out in the opinion. Defendant’s motion to quash was overruled.</p> <p>No further statement necessary.</p>

Tried below before Hon. B. F. Rose, County Judge. Appeal from a conviction for unlawfully taking up and using an es-tray, without complying with the law regulating estrays; penalty, a fine of $1. The opinion contains a concise statement of the material facts in the case.

From McLennan County. An original application to the Court of Criminal Appeals, for a writ of habeas corpus to he relieved from a judgment imposing a fine for contempt. The case is stated in the opinion.

The prosecution was by information, based uj>on a complaint which described the church as the “St. Paul Methodist Church,” but the building was described in the information, as the “St. Paul Church.” A motion was made by defendant to quash the information for variance, which the court overruled. Defendant pleaded former conviction, and the court, without submitting the plea to the j ury, of its own motion struck the same out.

<p>Appeal from the County Court of McLennan. Tried below before Hon. W. H. Jenkins, County Judge.</p> <p>Appeal from a conviction for violating local option; penalty, a fine of §25 and twenty day’s imprisonment in the county jail.</p> <p>The case, as discussed in the opinion, needs no further statement to illustrate any of the questions decided.</p>