Volume 38 — Texas Criminal Reports

Tried below before Hon. Charles- Bogan, 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 defense was that defendant was steward of a social club, and that as such he was not liable under the law.

<p>1. Jury Law—Testing Qualifications of Jurors—Local Option.</p> <p>On a trial for violation of local option, where on examining them as to their qualifications the jurors have answered emphatically that they had not formed a conclusion in regard to the guilt or innocence of the defendant in the case on trial, it was, immaterial and irrelevant to question them as to their prejudice against unlawful beer clubs run in a local option precinct. Where the juror states emphatically that he has formed no conclusion, from hearsay or otherwise, as to the guilt or innocence of defendant in the case in hand, the statute appears to cut off any further investigation.</p> <p>2. Local Option—Evidence—Internal Revenue License.</p> <p>On a trial for violation of local option, where the State, without objection, had introduced secondary evidence that defendant had procured a United States internal revenue license to sell liquor by retail, and the prosecuting attorney stated that defendant had been served with notice to produce the license and offered to produce the notice in evidence; Held, not to be a comment by counsel upon the failure of defendant to testify, and much less would the introduction of the notice to produce such license be a failure of defendant to testify.</p> <p>3. Same.</p> <p>On a trial for violating local option, where the defense was that defendant was the steward and agent of a club in the sale of the beer, it was immaterial that he had refused to sell beer to a party not a member of the club; such testimony was self-serving, and did not in any manner tend to disprove the sale of beers to others, or the case for which he was on trial.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

Appellant pleaded to the jurisdiction of the County Court, because the case had not been legally transferred from the District to the County Court. No further statement necessary.

<p>1. Conspiracy to Commit Arson—Continuance.</p> <p>On a trial for conspiracy to commit arson, the object and purpose of the arson being to get the insurance money for which the personal goods and property stored in the house was insured, and defendant made application for a continuance for the testimony of his wife, who was sick and unable to attend as a witness, to prove that she stored the goods in the house, took an inventory of the same, knew their costs and value, and that they were worth $2500, and that they were insured for only $1000; Held, the evidence was material and the continuance should have been granted, since defendant was not conversant with the articles and their value, and had no list nor inventory of the same. And, whether he could have proven the same facts or not by himself, he had the right to have his wife present and to make this proof by her.</p> <p>2. Conspiracy—Venue of the Prosecution—Jurisdiction—Evidence.</p> <p>Under provision of Code of Criminal Procedure, article 242, “the offense of conspiracy may be prosecuted in the county where the conspiracy was entered into, or in the county where the same was agreed to be executed.” Held, where a conspiracy to commit arson in M. County was entered into in D. County, the venue of the prosecution and the jurisdiction were properly alleged in M. County; and it was also proper to allege that the conspiracy was in M. County. And, under such allegations, proof was admissible as to what transpired in connection with the formation and plans for its execution entered into in D. County.</p> <p>3. Same—Acts and Declarations of a Co-Conspirator.</p> <p>The .acts and declarations of a co-conspirator, in the absence of defendant and after the final consummation of the conspiracy, are purely hearsay and inadmissible against defendant.</p> <p>4. Same—Evidence—Letter of Co-Conspirator Addressed to Defendant.</p> <p>On a trial for conspiracy to commit arson, a letter apparently written and signed by a co-conspirator after the consummation of the conspiracy, and addressed to defendant, but which had never been delivered to or received by defendant, was wholly inadmissible as evidence against him.</p>

<p>1. Construction, and Interpretation of Laws—Rules as to.</p> <p>It is a familiar rule of construction, applicable alike to constitutions and statutes,, that all laws are to be construed with reference to the existing evils to be remedied. The intention and object sought to be accomplished exercise a potent influence in determining the meaning of not only the principal but also the minor provisions of a-statute. Such interpretation must be given as will carry out the substantial intention of its enactment, viewed in the light of the surrounding circumstances under which, it was adopted.</p> <p>2. Local Option—Constitutional Law.</p> <p>The Constitution, art. 16, see. 20, required the Legislature to pass laws authorizing the people, “by a majority vote, to determine, from time to time, whether the sale of intoxicating liquor shall be prohibited within the prescribed limits.” The Legislature, by the Revised Statutes, art. 3381, authorized the submission of the matter to a vote of the people, without restriction or limitation, in accordance with the Constitution. Art. 3385, making exceptions as to sacramental and medicinal liquors, is in the nature of a proviso, and is not in conflict with, or violation of, the constitutional provision above quoted.</p> <p>3. Same—Exceptions—Sacramental and Medicinal Liquors.</p> <p>In adopting our constitutional and local option laws, the object was to circumscribe the liquor traffic, not to interfere with religious usages equally protected by the Constitution, nor with the use of liquors for medicinal purposes; and it was in keeping with the spirit of the Constitution to authorize communities to abolish the sale of intoxicants for all purposes except those deemed essential to the health and moral well being of society. And such law is not void because the Legislature has seen fit to engraft upon it, when adopted by the communities, the exceptions enumerated in article .3385.</p> <p>4. Same—Notices of Election—Burden of Proof.</p> <p>On a contention that notices for a local option election had not been duly and legally posted, the burden of proof is on the defendant, and it is not material that one of the notices was torn down before it had remained posted for the time required by law.</p> <p>5. Same—Election—Justice Precinct Which Embraces a City.</p> <p>Where a local option election is for an entire justice precinct, and the same embraces a city, and there was but one voting place for the entire precinct, at which voters of both city and country voted, the election was in conformity with Revised Statutes, art. 1705, and was not void because there was no separate election or voting place in the city.</p> <p>ON MOTION FOB BEHEABINO.</p> <p>6. Same—Proof of Venue.</p> <p>On a trial for a violation of local option in Justice Precinct No. 1, 0. County, where the record shows that the trial occurred in C. City, and that C. City was in Justice Precinct No. 1 of C. County, Held, the venue of the offense was sufficiently established.</p> <p>7. Same—Order Declaring Result—Quasi Judgment—Burden of Proof.</p> <p>The order of the Commissioners Court declaring the result, and validating a local option election, is in the nature of a quasi judgment; and, where a collateral attack is made upon it, it will be presumed that it was rightfully and properly entered; and the burden of proof to show its invalidity is upon the attacking party.</p>

<p>1. Appearance Bond—Impossible Date.</p> <p>An appearance bond executed on the 22d of November, 1893, requiring the obligor to appear at a term of the court to be held on the fourth Monday in April, 1893, states an impossible date, as the time named was already past several months before the bond was executed, and it is therefore a nullity.</p> <p>2. Same—Designation of Time In.</p> <p>An appearance bond which requires the obligor to appear at the next term of said court, at the courthouse in' B., does not sufficiently designate the time and term of court at which he is to appear.</p>

Tried below before Hon. Charles E. Davidson, County Judge. Appeal from a conviction for receiving, as county attorney, higher fees than allowed by law; penalty, a fine of $25. The Assistant Attorney-General moved to dismiss the appeal because the recognizance was fatally defective.

Defendant pleaded to the jurisdiction of the County Court, because the record of the transfer of the case from the District to the County Court failed to set out the appointment and qualification of the special judge who had ordered the transfer. At the trial, H. W. Baylor testified that he, as stakeholder, held the money bet upon the election for and at the instance of defendant and Hugh J ones, the other party to the bet.

<p>Appeal from the District Court of Kaufman. Tried below before Hon. J. E. Dillard.</p> <p>Appeal from a conviction for assault with intent to rape; penalty, two years imprisonment in the penitentiary. This is a companion case to Farmer v. State, 35 Texas Crim. Rep., 270.</p> <p>Mrs.'Jennie Laroe was the alleged injured party. The testimony of this prosecutrix, summarized, is to the effect that she was awakened from a sleep into which she had fallen by loud voices, cursing and hallooing, between 8 and 9 o’clock on the morning alleged in the indictment. Passing into the front room of her house she saw a two-mule wagon turn into the lane leading to her house. That wagon contained four persons. She saw no other wagons so far as disclosed by this record. From the front room she went to the horse lot to water her horses. When she had chased one of the horses around the_ lot twice and caught and was bridling him, two men she had not previously seen approached her. One of these men seized her by the throat. That man she subsequently identified as Farmer, jointly indicted with appellant. At the same time the other man, whom she positively identified as appellant, seized the bridle on her horse, and said, “we will help you gear up.” The witness testified that she had never seen either of the men before. According to this witness, Farmer, while appellant was holding her horse, retained his clutch upon her throat and placed his hand on her person, and said, resisting her efforts to repulse him, “damn you, I will get it directly.” After she had released herself from the grasp of Farmer, appellant said to Farmer, “you go away, and I will be on after awhile.” The parties left and witness left, with her throat and neck badly scratched. She did not see the men get out of the wagon, nor get in again, nor did she see the wagon start.</p> <p>The following plat of the locus in quo, prepared by W. H. Barnes, a surveyor, and identified as correct, was introduced in evidence by the defendant and used by the witnesses on the trial:</p> <p> </p> <p>Distances.—From point in front of house 'to the house is 90 varas; from house to horse lot is 100 varas. From corner of Laroe lane up north of house or northeast of house down to middle of lane is 340 varas. From point in front of house down to turn of lane near Deed’s is 580 varas. From point in front of house to horse lot is 190 varas. From point in front of house in center of lane up to big gate is 200 varas. From middle of Laroe lane up to corner of same nearest Laroe house is 340 varas. From big gate to ravine in Canton road is 650 varas.</p> <p>It was shown by the State that there were three wagons belonging to Dowdle and Pollards coming out at the gate about 200 yards east of the Laroe premises while defendant’s wagon was coming up the Canton and Kaufman road about 150 yards southeast from said three wagons. That the Laroe lane from the gate to Deed’s corner on the Kaufman and Canton road is 780 varas. From the point in lane in front of Laroe house to 'the house is 90 varas. That the parties were at the house sometime making an assault. That defendants’ wagon passed the three wagons at or before reaching Deed’s corner, which is 580 varas from the point in lane in front of house down Laroe lane towards Kaufman. That in order for defendants to be the guilty parties they must have traveled the 150 yards they were behind the three wagons at gate aforesaid, gone up the Laroe lane in front of house 200 yards, stopped their wagons, gone to the horse lot of prosecutrix on an open prairie 190 yards from the road, gone back to the wagon 190 yards, and then to catch up with the Pollard and Dowdle wagons from the point in front of the house in lane. Proof showed that the Pollard and Dowdle wagons went in good fast walk down said lane, and that they trotted down a slant a part of the way and did not stop anywhere in the lane.</p> <p>Roy and Lizzie Singleton were picking cotton in a field about the middle of Laroe lane, and saw the Pollard and Dowdle wagons, and saw defendants’ wagon. Defendants’ wagon drove in a slow trot down the lane and passed the hindmost of the Pollard and Dowdle wagons a little west of the middle of the lane.</p> <p>The court refused to permit the defendant to prove by several witnesses, introduced by him for that purpose, the following facts, viz: That about ten days before the trial of this case, the said witnesses last named went upon the ground of the alleged assault with wagons and mule teams, and by three successive drives, fairly made by proper and disinterested persons, under the same manner and conditions that the evidence showed defendants’ and the Pollard and Dowdle wagons were, and put to an actual test whether it was possible, by giving the State the benefit of all doubtful points, for defendants to have assaulted Jessie Laroe, as she testified, at the barn lot, and to have overtaken the Pollard and Dowdle wagons at the same point in the lane where all the State’s witnesses say defendants’ wagon did overtake them, and thereby show that it was by far impossible, and so. far impossible as to demonstrate, in the light of all the evidence, that the defendants could not possibly be the guilty persons.</p>

Tried before Hon. S. Patton, County Judge. ¡.'^Appeal from a conviction for a violation of quarantine established by the Live Stock Sanitary Commission; penalty, a fine of $100. / Omitting formal averments the information charged, “That heretofore, to wit: On or about the 21st day of April, 1896, in the said county of Fisher and State of Texas, one Thomas Coggin did then and there unlawfully violate, disregard, and evade the rules, regulations, orders, and directions of the…

Tried below before Hon. D. A. Pahlhs, County Judge. Appeal from a judgment in a habeas corpus proceeding for the custody -of children. Antone Fritsch, as guardian of two minor children, applied for a writ ■of habeas corpus, alleging that the children were restrained of their liberty and kept from their guardian by Dave Telschek. The writ was granted, and at the hearing upon the same the custody of the children was awarded to the applicant, Antone Fritsch.

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

<p>1. Principals in Grime—What Constitutes.</p> <p>In order to constitute a person a principal in crime, where he was not personally present at the place of its commission, it is essential that he must, at the time the act is being done, be then doing some act in furtherance of the common design.</p> <p>2. Arson—Accomplice.</p> <p>On a trial for arson, upon a count in the indictment which charged defendant as a principal, where it appeared from the evidence that defendant had simply agreed with the principal offender to the commission of the crime, but was not present at the time of its commission, nor then keeping watch nor procuring aid or means to assist in its execution, nor engaged in securing the safety or concealment of the offender; and the principal offender was not an innocent agent of defendant in the commission of the act. Held, these facts constituted defendant, under our statutes, an accomplice and not a principal. Penal Code, arts. 74, 78, 79.</p> <p>3. Principal and Accomplice—Allegation and Proof.</p> <p>A party indicted as a principal can not be convicted upon evidence showing him to be an accomplice, and vice versa.</p> <p>4. Same—Evidence—Undelivered Letter of a Co-Conspirator.'</p> <p>On a trial for arson, a letter written after the arson, by a co-conspirator to the defendant, and inclosed in an envelope addressed to a third party, but which was never delivered to or received by defendant, and the contents of which were unknown to defendant until after his arrest, was clearly inadmissible as evidence against him.</p> <p>5. Same—Evidence—Acts and Declarations of Defendant.</p> <p>On a trial for arson, for the burning of the ginhouse of O. & S., a partnership doing business in said house, where it appeared that defendant was agent in purchasing cotton for the firm of W. & Co., to be ginned at said gin, the statements of defendant to W. & Co., as to the business, were admissible in evidence; and were also the statements of O. & S., after the fire, for the benefit of W. & Co., which statements had been delivered by them to defendant and by him delivered to W. & Co.</p> <p>6. Same—Books and Original Entries as Evidence.</p> <p>On a trial for the burning of the ginhouse of C. & S., where it .appeared that defendant, as the agent of W. & Co., had purchased a large quantity of cotton to be ginned at said gin, Held, the books of C. & S., showing the original entries, were admissible in evidence against defendant as tending to show a conspiracy on the part of C. & S. and defendant to defraud W. & Co.</p> <p>7. Same—Evidence—Undelivered and Returned Letters.</p> <p>The fact that certain named parties did not live in a certain community, can not be proved by testimony to the effect that letters, which had been written to them, ■addressed to the postoffice in their neighborhood, were undelivered and had been returned to the writers thereof.</p> <p>8. Evidence that Parties Named Are Eictitious Persons.</p> <p>Persons living in a community, and well acquainted with the inhabitants, can testify that certain named persons did not live in said community, such evidence being admissible as tending to show that they were fictitious persons.</p>

<p>1. Charge of Court.</p> <p>A defendant in a criminal ease is entitled to a charge upon the law applicable to the different phases of the case as made by the testimony; and, whether the court credits the testimony of witnesses or not, the issue presented by their testimony must be submitted to the jury by appropriate instructions.</p> <p>2. Theft of Cattle—Brands as Evidence—Charge.</p> <p>On a trial for theft of one head of cattle, where one of the main inculpatory facts was that the animal had been branded in defendant's brand, and witnesses for defendant testified that the calf was sucking a cow of defendant’s; that they branded the animal in defendant’s brand when it was a calf, and when defendant was not present; Held, the court should have instructed the jury, in effect, that if the animal was the calf of defendant’s cow, he could not be convicted. That if he was not a party to the original taking, he could not be convicted. That if he was not present or so connected with the branding as to constitute him a principal, he could not be convicted. That if he believed the animal to be his when he sold it, he could not be convicted; and a failure to so instruct the jury is reversible error.</p> <p>3. Same.</p> <p>On a trial for theft of cattle, it is competent to introduce the record of the marks and brands of the alleged owner of the cow, the mother of the calf alleged to have been stolen, though the calf was in a different brand; but such evidence would not establish ownership in the calf itself; and in such ease, the court should have instructed the jury that the records of the marks and brands was admitted only for the purpose of proving ownership in the cow which bore the brand.</p>

Tried before Hon. L. B. Camp, Special Judge. Appeal from a conviction for an attempt to produce an abortion; penalty, a fine of $200. The means used to produce the abortion, as shown by the testimony of Florence Johnson, the prosecutrix, were ergot and turpentine. They failed to produce the abortion, and the contention of defendant was, that that the expert evidence failed to show that such means were calculated to produce abortion.

<p>Ho statement-necessary.</p> <p>[No briefs for either party have come to the hands of the Reporter.]</p>

Tried below before Hon. S. F. G-bimes. Appeal from a conviction for murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The indictment charged defendant with the murder of Juan Rodreguez, on the 13th of June, 1895, by shooting him with a pistol and gun, and by cutting and stabbing him with a knife.

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

This is the second appeal in this case, and the material facts are shown in the opinion upon the first appeal. See Wheeler v. State, 34 Texas Crim. Rep., 350.

<p>local Option—Social Glut)—Sale by or to a Member.</p> <p>In a local option precinct the sale of intoxicants is prohibited, except for sacramental and medicinal purposes. A sale of such intoxicants by the agent of an incorporated club to one of the members of the club is a violation of local option; and ■such club is not authorized to transfer intoxicants in a local option precinct by sale. Following ICrnavek v. State, ante, p. 44.</p>

<p>1. Swindling—Indictment.</p> <p>An indictment for swindling, which alleged that the fraudulent representations were made to one C., and that he was the owner of the money obtained, and that he was the owner of Jones County Bank, sufficiently alleges that the party swindled was an individual; and it was unnecessary to allege that the bank was a corporation, a joint stock company, or a copartnership. Nasets v. State, 32 S. W. Rep., 698, distinguished.</p> <p>2. Same—Allegation of Exchange of Property.</p> <p>Where, in connection with the allegation of the false pretenses, it was alleged in the indictment that defendant “did then and there induce the said C. to exchange his said three hundred dollars in money for a draft,” etc.; Held, this was a distinct allegation of an exchange of property, and was sufficient.</p> <p>3. Swindling by Means of a Worthless Draft—Amount Received by De-</p> <p>fendant—Charge.</p> <p>The indictment charged, that appellant received $300 upon a worthless or fraudulent draft for that amount upon a foreign bank. The proof was, that defendant represented that he had $300 in the foreign bank; the prosecutor agreed to collect the same. Defendant drew the draft for $300, but the prosecutor only gave him $25 in money and entered up $275 to his credit, giving him a certificate of deposit for that amount; and in a day or so thereafter paid a check drawn by defendant for $12.50, the total amount received by defendant being $37.50. Held, the proof was of a character to demand of the trial court a charge to the eSect that, if the $300 was not absolutely and unconditionally transferred from defendant to the prosecutor, but the transaction was merely a collection and an advance by prosecutor of the money, less than $50, to defendant, that then the defendant could only be convicted of a misdemeanor.</p> <p>4. Same—Evidence—Checks Drawn by Defendant.</p> <p>On a trial for swindling by means of a worthless draft, upon which defendant had procured the entry of a credit in his behalf for $275, drafts drawn by him upon said money were admissible as evidence to show that he exercised ownership, control, and dominion over the said $275.</p>

<p>Appeal from the District Court of Webb. Tried before Hon. A. L. McLean.</p> <p>Appeal from a conviction for fraudulently receiving eight bushels of corn, worth $4; penalty, nine months imprisonment in the county jail.</p> <p>Ho statement necessary.</p>

<p>Appeal from the District Court of Burnet.' Tried below before Hon. Johst M. Furmaú.</p> <p>Appeal from a conviction for theft of forty head of cattle; penalty, four years imprisonment in the penitentiary.</p> <p>The material facts in the case can he readily gathered from the opinion.</p> <p>The matters pertaining to defendant’s application for continuance are elaborately stated in the opinion.</p> <p>The charge of the trial court upon circumstantial evidence was as follows: "In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt. All the facts (that is, the necessary facts to the conclusion) must be consistent with each other, and with the main fact sought to be proved; and the circumstances, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused, and no other person, committed the offense charged. But in such cases it is not sufficient that the circumstances coincide with, account for, and therefore render probable the guilt of the defendant. They must exclude to a moral certainty every other hypothesis.”</p> <p>The case was one entirely of circumstantial evidence.</p> <p>The matters connected with the additional instructions given, in response to questions asked by the jury, are fully set out in the opinion, and need no further statement.</p>

Tried below before Hon. Charles F. Clint. Appeal from a conviction for murder in the second degree; penalty, twenty years imprisonment in the penitentiary. This is the third time this case has been before the court on appeal. • The two former appeals will be found in Ex Parte Jones, 31 Texas Crim. Bep., 422, and Jones v. The State, 33 Texas Crim. Bep., 492.

Tried below before Hon. George E. Miller. Appeal from a conviction of theft of ten head of cattle; penalty, two years imprisonment in the penitentiary. The statement of facts is very voluminous, and the evidence is entirely circumstantial. It could serve no real or useful purpose to make a resume of the testimony. Suffice it to state, that it is shown that the stolen cattle were shipped to Saunders & Co., commission merchants, at New Orleans.

<p>The indictment is set out in the opinion. Ho other statement necessary.</p>

The opinion contains a concise but very clear statement of all the material facts in the case, and no additional statement is required as to any of the questions discussed.

<p>Cpunty Convicts—Hirer’s Bond.</p> <p>The bond given by the hirer of a county convict, to be valid, must be approved by the county judge. And where a bond had been signed by the hirer and surety, but was never returned to nor approved by the county judge, the fact that the convict worked for the hirer a sufficient length of time to pay off his fine and costs, and though he believed he was at the time working out his fine and costs, would not entitle him to be discharged from arrest under a capias pro fine issued upon the judgment for the fine and costs.</p>

<p>Defendant was tried in the County Court of McLennan County on March 20, 1897, and convicted on a charge of unlawfully carrying on or about his person a pistol, and his fine assessed at $25 and costs, amounting to the further sum of $53.85. On the same day the County Judge of McLennan County, Texas, ordered the defendant to the county farm to work, out his fine and costs. On March 24, 1897, the grand jury of said county indicted the relator for the offense, of robbery, and on the same-day a warrant was issued for his arrest, and the sheriff of said county on said day removed relator to the county jail, where he still remains.</p> <p>On April 23d he was acquitted of the charge of robbery, and was still held on the old fine, the officers refusing to allow him time for lying in jail. May 5, 1897, relator still being in jail, the authorities having failed to send him back to the farm, applied to the District Court for a writ of' habeas corpus, which was granted, and upon trial relator was remanded to the custody of the sheriff. The case was tried on an agreed statement, of facts.</p>

Tried below before Hon. W. H. Gill. Appeal from a conviction for assault with intent to murder; penalty, two- years imprisonment in the penitentiary. Held: on the 3d of September, 1895. That several white men had gone into the ginhouse (presumably to get something to drink), and defendant, who was a negro, came in.

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

The indictment contained two counts; the first alleging the rape of one Belle Beauchamp, a female under the age of 15 years; and the second, a rape of Belle Beauchamp by force, threats, and fraud, and without her consent.

<p>1. Habeas Corpus for Bail in Capital Case—Burden of Proof.</p> <p>On an application, by habeas corpus, for bail in a capital case, the burden of proof to establish the fact that the proof is not evident, is not upon relator.</p> <p>2. Constitutional Provision—Construction of.</p> <p>By section 11, Bill of Bights of the Constitution, it is declared, that “all prisoners shall be bailable by sufficient sureties, unless for capital offenses where the proof is evident.” Held, the general rule is in favor of bail; the exception is stated and is in favor of the State, and the party relying upon the exception must prove it.</p> <p>3. Same—Where Indictment Has Been Found.</p> <p>Through great caution, section 11, Bill of Rights, also declares that “this provision shall not be so construed as to prevent bail, after indictment found, upon the examination of the evidence in such manner as may be prescribed by law.” The Legislature has never prescribed how the examination shall be conducted, but in reason, under the constitutional provision, the indictment itself does not establish' the guilt of defendant of a capital felony, much less the fact that the proof is evident of such fact, and it devolves upon the State, first, to introduce its evidence to establish that fact before relator is required to introduce his testimony. Overruling on this point Ex Parte Smith, 23 Texas Crim. App., 100.</p> <p>4. Same.</p> <p>The rule of procedure above stated is not to be aSected by Code of Criminal Procedure, article 199, which guarantees to a relator, in such cases, the right to open and conclude the argument on the trial.</p>

<p>[Note.—This case should properly have appeared in Volume 35 of the Texas Criminal Reports, but only came recently to the hands of the Reporter.]</p> <p>1. Cattle Theft—Ownership—Brands—Title by Limitation—Charge.</p> <p>On a trial for theft of cattle, where the alleged owner, as superintendent of the K. L. & C. Co., had the actual care, control and management of the cattle belonging to said company, which were branded LBN; and said superintendent had had possession of and claimed the cow, which was branded in said brand, for more than two years as belonging to said company; Held, the court correctly and properly charged the jury as follows, viz: “Should a person or company take into his or their possession live stock not his or their own, such as cattle, and hold the same peaceably and adversely in their actual control and possession uninterruptedly for a period of two years or more, claiming the same as his or their own, such possession and claim for a period of two years vests absolute title to the cow, and her increase, in such possession.”</p> <p>2. Same—Proof of Want of Consent of the Owner—Circumstantial Evidence of.</p> <p>On a trial for cattle theft, where it appeared that the alleged owner had died since the indictment was found, Held, competent for the State to prove that the said owner was a witness before the grand jury in the matter and thus prove by. circumstantial evidence his want of consent.</p> <p>[Hote.—Appellant’s motion for rehearing, filed June 15, 1897, was overruled without a written opinion.—Reporter.]</p>

On the 6th day of July, 1895, the grand jury in the District Court of Hunt County presented an indictment against appellant, in which it was charged that on or about the 2d day of July, 1895, he did, in Hnnt County, Texas, kill and murder Charley Green, by shooting him with a pistol.

Tried before Hon. E. D. Gavin. Appeal from a conviction for robbery; penalty, fifteen years imprisonment in the penitentiary. The indictment charged appellant and one Joe Burger and one August Otto jointly with committing a robbery, by exhibition of firearms, on the 15th of December, 1895, upon one Joe Levy, and taking from said Levy $18 in money.

Tried below before Hon. John F. Watts, County Judge. Appeal from a conviction for betting upon the result of a public election; penalty, a fine of $25. The opinion states the case.

Defendant and the deceased were brothers-in-law, defendant having married deceased’s sister. The parties had been at enmity for some time prior to the killing; deceased claiming that defendant had maltreated his sister, and in consequence of which he had time and again persuaded her to leave her husband. It is also in evidence that deceased had killed a brother of defendant.

<p>1. Theft of a Horse—Contract of Borrowing.</p> <p>A conviction for horse theft under a general indictment for theft, is not supported by proof that the horse was acquired by defendant under a contract for borrowing, where it fails further to show that at the time it was so acquired the defendant intended to convert it to his own use.</p> <p>2. Same—Conversion by Bailee.</p> <p>On a trial for theft of a horse, where the evidence showed only that the defendant borrowed the horse to work his crop, and some time thereafter took it out of the county, and sold it, Held, the conviction for theft could not be sustained. Defendant should have been prosecuted upon an indictment brought under article 877, Penal Code, charging him as a bailee with fraudulent conversion of the horse.</p>

■ Appeal from the District Court of Cooke. Tried below before Hon. D. E. Babbett. Appeal from a conviction of theft of two mules, the penalty assessed being five years imprisonment in the penitentiary. The charging part of the indictment is set out in full in the opinion. The sufficiency of the indictment was attacked in defendant’s motion in arrest of judgment.

The charging part of the indictment is as follows, viz: “That George Starks, on or about the 18th day of July, one thousand and eight hundred and ninety-four, and anterior to the presentment of this indictment, in the county of Collin, State of Texas, did then and there unlawfully, willfully, and by force break into the jail of the city of McKinney, to wit, the calaboose of said city, for the purpose of effecting the rescue and escape therefrom of Tom Finley, who was a…

Tried below before Hon. W. G. Taliaeebeo. Appeal from a conviction for assault to murder; penalty assessed, seven years imprisonment in the penitentiary.

<p>1. Evidence—Cross-examination of Witness as to Animus.</p> <p>On a trial for rape, defendant asked S., a State’s witness, if he (S.) had not attempted to get one H., the defendant’s landlord, to take the rented land from defendant, and let him (S.) rent it, and that the landlord had refused to do so? The witness S. answered, “No.” Defendant then proposed to impeach him by H., the landlord, and the court refused to permit him to do so. Defendant claims that he was entitled to the evidence in order to show S.’s animus towards him. Held, the fact that S. proposed to rent the land, unconnected with any other fact, would not show animus against defendant which would authorize his impeachment as to such matter.</p> <p>3. Same—Character of Defendant—Cross-examination as to.</p> <p>On a trial for rape, where defendant introduced a witness who testified in chief to his, defendant’s, good reputation in the neighborhood in which he lived for chastity and virtue, Held, competent for the State, on cross-examination, to ask the witness if he had ever heard of defendant’s “being too thick with Mattie P.,” a woman not involved in the case on trial.</p> <p>3. Same.</p> <p>While particular acts of bad conduct are not admissible to assail character on the direct examination, a witness deposing to general character may be cross-examined as to particular facts in order to test the soundness of his opinion and elicit the data on which it was founded.</p>

Tried below before Hon. Charles F. Clint, Appeal from a conviction for burglary, penalty assessed being two years imprisonment in the penitentiary.

Tried below before Hon. W. B. Thompson, 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 sufficiently states the points discussed, and they need no further illustration from the record.

<p>Ho statement required.</p>

Tried below before Hon. Charles F. Clint. Appeal from a conviction for robbery; penalty assessed at five years imprisonment in the penitentiary. This is a companion case to Coulter v. State, 37 Texas Criminal Reports, 284, where a general statement of the leading features of the case may he had.

Appellant was indicted for the murder of one Virgil Bisley by shooting him with a pistol in Clay County, on the 4th day of May, A. D. 1896. In view of the questions discussed and upon which the appeal is disposed of by the opinion, it is not necessary to give a general statement of the case as made by the statement of facts.

The following statement of the ease, taken from brief of appellant, is substantially correct: On the night of September 8, 1896, there was a dance in the country at the residence of W. M. Hobbs.

<p>Murder—Evidence—Declarations of Defendant—Relevancy.</p> <p>On a trial for murder, testimony that defendant had threatened to kill his own brother on the Saturday before the homicide, and, upon being remonstrated with, laughed and said, “Well, I will kill somebody before next Saturday night,” was wholly irrelevant and immaterial, as the evidence in no manner connected deceased with the threats: and so, evidence to the effect that some time prior to the killing the witness and defendant were riding home from church and defendant ran his hand in his bosom, where there was a pistol, and said, “I am going to kill my wife and her protector,” but named no one as the “protector,” was wholly irrelevant and inadmissible where from the other testimony in the case there' was no suggestion of any animosity between defendant and deceased, who were friendly up to the day of the homicide.</p>

<p>Appeal from the District Court of Cooke. Tried below before Hon. D. E. Barrett.</p> <p>Appeal from a conviction for robbery, penalty assessed being seven years imprisonment in the penitentiary.</p> <p>There is no statement of -facts in the record, and the only question is the action of the court in sustaining the State’s general demurrer to defendant’s special plea of former acquittal, striking the same from the record and refusing to submit it to the jury for their determination. The difference in the two cases, as made by the two indictments, is made plainly to appear by the opinion without the necessity of setting them out at length.</p>

Tried below before Hon. G. A. Brown. Appeal from a joint conviction for theft of cattle; the penalty assessed being two years imprisonment for each defendant in the penitentiary. In view of the disposition made of the case, in the opinion, it is unnecessary to make a general statement of the case as made by the evidence.

Tried below before Hon. B. F. Bose, County Judge. Appeal from an order and judgment remanding relator to custody on a habeas corpus proceeding to test the validity of a local option law.

<p>1. Appeal from Justices to County Court—Notice of Appeal.</p> <p>Article 974, Code Criminal Procedure, which requires that when a defendant appeals he shall give notice of appeal in open court, and the justice shall enter such notice upon his docket, is mandatory, and the entry of the notice upon the justice’s docket is a condition precedent to the right of appeal. The failure to enter the notice by the justice can not be supplied in the county court by parol evidence or the affidavit of the justice that notice of appeal had in fact been given.</p> <p>2. Same—Entry of Notice Nunc pro Tunc—Practice.</p> <p>It is too late and not competent for a defendant, who has prosecuted his appeal by filing the transcript from the justice to the county court, in the latter court to have the proceedings stopped to enable the justice to perfect his record by an entry, nunc pro tune, of the notice of appeal.</p>

<p>1. Hiring Out of a Convict—Construction of Statute.</p> <p>Article 3739, Revised Statutes, which provides, “that no convict, under this chapter, shall ever be required to work or be hired for more than one year,” has no application to a case where imprisonment is imposed as the punishment either in whole or in part. It applies only to pecuniary fines and- costs. Where imprisonment is part .of the punishment, articles 857, 858, Code of Criminal Procedure, regulate the manner of enforcing that portion of the judgment, while article 3729, Revised Statutes, provides for the labor of the convict during such imprisonment.</p> <p>2. Same—Where Punishment Is - Imprisonment and Pine.</p> <p>In misdemeanor cases, where the punishment is both imprisonment and fine, the * law contemplates that both punishments be enforced. The law seems to contemplate that the imprisonment shall be first enforced, and afterwards the pecuniary fine discharged in some of the ways provided by the Revised Statutes; both can not be enforced at the same time.</p> <p>3. Same.</p> <p>A party convicted of aggravated assault, whose punishment is assessed at imprisonment for twelve months in the county jail, and a fine of $500, and .who is hired .out to work on the public roads, is not entitled to be discharged because he has worked one year; but he is still liable for the fine of $500 and costs; and as to that fine he has his option of-remaining in custody until said fine and costs are paid, or until the expiration of twelve months longer, or he can pay the fine and costs and be discharged at once.</p>

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

<p>1. Misnomer in Indictment— Suggestion by Defendant of True Name— When to Be Made.</p> <p>The time for a defendant to suggest his true name and move the court and have the prosecution proceed against him in his true name, is when he is arraigned. If it is not then done, by express provision of article 548, Code of Criminal Procedure, the name by which he is indicted shall be taken as his true name, and he shall not thereafter be allowed to deny the same by way of defense. Such a suggestion comes too late after arraignment, and a plea of not guilty. Following Wilcox v. State, 31 Texas, 586.</p> <p>2. Continuance—Diligence.</p> <p>Where an application for continuance shows nothing with regard to the witnesses except that they were served with process in March, and that they were not present on the day of trial (28th day of June); Held, a total want of diligence is manifest. To manifest proper diligence, the bill of exceptions should have shown that the witnesses were present when the court met, or on the day set apart for taking up the criminal docket. The court, on appeal, will not assume such facts in aid of the bill of exceptions.</p> <p>3. Continuance—New Trial—Controverting Affidavit of Absent Witness.</p> <p>Where an application for continuance was for a witness who, it was alleged, would testify to facts which would have contradicted material testimony of an important State’s witness; Held, that it was legitimate and competent for the prosecution, when the matter came a second time before the court on the motion for new trial, to controvert the allegations by the affidavit of the proposed absent witness, showing that said witness, instead of contradicting, would corroborate the State’s witness in every material particular, and would' be a material witness against defendant.</p> <p>4. Same.</p> <p>A continuance should not be granted where the application states mere conclusions or is couched in such general terms that perjury could not be predicated upon said allegations if false. And, when considered on appeal, if it appears from the other evidence in the case that the proposed absent testimony is not probably true, or that it would not probably change the result of the trial, it will be held, that the motion for new trial, in so far as it involved the application, was properly overruled.</p> <p>5. Confessions or Admissions—Warning and Caution by Officer.</p> <p>When not more than an hour before defendant made the statement or admission introduced in evidence against him, it appeared that he had been warned and cautioned by the officer who still had him in charge when it was made, such statement was legal and competent evidence.</p> <p>6. Same—As to a Particular Fact Stated When Defendant Was in Arrest Upon a Different Offense.</p> <p>On a trial for murder, the question of defendant’s age at the time he committed the homicide being an important issue; Held, it was legitimate for the prosecution, to prove that when defendant was previously under arrest, charged with a different offense, and after he had been properly warned and cautioned by the officers having: him in arrest, he stated to said officers, among other things, what his age was; Held, although he was then in arrest in another ease and such statement was not in the1 nature of a confession or admission in this ease, it being nevertheless the statement of a fact, it was admissible in evidence.</p> <p>7. Confessions—Construction of Statute.</p> <p>Our statute, in regard to confessions (C. O. P., article 790), does not exclude as evidence in another case, such statements or declarations as are made .under the conditions prescribed in the statute, and-therefore, if a defendant under arrest, and at the time being duly warned, makes a statement, such statement may be used, in any case in which he is then under arrest, or in any other case if the statement involves a material fact and is otherwise admissible.</p> <p>8. Evidence as to Age.</p> <p>Upon the issue as to the age of the defendant, proposed testimony of witnesses that they were larger in size than defendant, and that they were not over 16 years of age, was no test or criterion as to defendant’s age, and was therefore properly rejected by the court.</p> <p>9. Murder—Means or Instrument—Charge.</p> <p>On a trial for murder, where the means or instrument used was a stick of wood, the issue as to whether the same was a deadly weapon or an instrument calculated to produce death from the manner in which it was used, was correctly and clearly presented in the charge, as follows, viz: “The instrument or means with which a homicide is committed are to be taken into consideration in judging of the intent of the party offending. If the instrument be one not likely to produce death, it is not be presumed that death was designed, unless from the manner in which it was used such intent evidently appears.”</p> <p>10. Murder in the First Degree—Evidence Sufficient.</p> <p>See facts stated which are held by the court amply sufficient to support a judgment for murder in the first degree with the penalty assessed at death.</p>

<p>1. Passing a Forged Instrument—Charge of Court.</p> <p>On a trial for knowingly passing a forged instrument, where the only defense was that defendant bought the alleged forged instrument from one D., and that he could neither read nor write, and the court, in its charge given, did not submit this issue, and moreover, refused defendant’s special instruction upon this issue, and defendant reserved his hill of exceptions; Held, where a defendant sets up and introduces proof of an affirmative defense to the accusation against him, it is the duty of the court to instruct the jury upon the matter thus set up whether requested or not.</p> <p>3. Charge of Court—Practice on Appeal.</p> <p>Article 723, Code Criminal Procedure, as lately amended, authorizes reversals on appeal for errors in the charge where they are excepted to on the trial, or on motion for a new trial.</p>

<p>1. Unlawfully Carrying a Pistol—Information—Surplusage.</p> <p>If an information, for unlawfully carrying a pistol into a ballroom, be defective for want of an allegation, “that people were then and there assembled,” etc., the allegation that it was carried into a ballroom may be rejected as surplusage, and the information be still good for unlawfully carrying the pistol.</p> <p>2. Same—Charge of Court—Uncertain Verdict.</p> <p>Where an information in one single count charges defectively a higher offense, which includes a lower offense which is sufficiently charged, the court, in its charge to the jury, should limit them to the consideration of the lesser offense only, and it is error to charge as to the greater which is defectively alleged, and such error is especially reversible where the verdict of the jury leaves, it uncertain as to which of the offenses defendant was found guilty.</p>

<p>Disturbance of Religious Worship—Indictment.</p> <p>An indictment for disturbance of religious worship is fatally defective which does not allege that the congregation disturbed “were conducting themselves in a lawful manner.” An allegation that they had “assembled for religious worship in a lawful manner,” does not meet the requirement of the statute. Article 193, Penal Code.</p>

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

<p>1. Fornication—Charge of Court.</p> <p>Where an information for fornication charged the offense as habitual carnal intercourse without the living together of the parties, it was necessary to prove the offense as alleged; and the court, in defining the offense, and in applying the law to the facts, should have included the element of “not living together” in the charge.</p> <p>2. Same—Accomplice Testimony—Requested Instruction.</p> <p>On a trial for fornication, where one of the parties testified on the trial, a charge that the defendant could not be convicted upon the unsupported evidence of the accomplice, was insufficient. The court should have instructed the jury that before they could convict defendant it must appear that the accomplice was corroborated by other testimony. And should also have defined to the jury the nature of the corroborative testimony required, and especially so, where the charge, as given, was excepted to and a special instruction properly presenting that issue was requested.</p>

Marzella Pierce testified to numerous acts of carnal intercourse with defendant before defendant was married, and that complaint had not been made against him until after he was married.

<p>1. Constitutional Law—Amendment of Statute by Reference to Title—Setting Out Sections Amended.</p> <p>Article 3, section 36, of the Constitution provides, that no law shall be amended by reference to its title, but the section amended shall be re-enacted and published at length. Where the title to the act was, “An Act to amend article 22, title 4, of the Revised Civil Statutes of Texas, 1895, so as to extend the terms of the District Court in Dort Bend, Wharton, Brazoria, and Waller counties;” Held, not violative of the Constitution. Article 22, Revised Statutes,'is not divided into sections, but in subdivisions, each subdivision providing the terms for the holding of the courts in one of the particular judicial districts of the State,, and each district is set out by its number; it evidently being the legislative intention to treat the subdivisions as sections, the same being sufficiently within the meaning' of the term “section” as used in the constitutional provision. Moreover, it can be gathered with certainty from •the title of the act in question that it was not intended to reenact the entire article 22, Revised Statutes, but only that portion of the same with reference to the twenty-third judicial district, because it singles out the particular counties named in the act which are embraced in the twenty-third judicial district alone.</p> <p>Z. Same—Construction, of Laws.</p> <p>The title of an act may be viewed in the light of the whole act to arrive at the legislative intention. And so contemporaneous legislation, upon the same subject, may be looked to.</p> <p>■3. Same—Where the Legislative Intent Is at All Doubtful.</p> <p>Where the language used in a legislative act, with reference to the judicial system, lis at all doubtful, such construction will be given to it as is consistent with the ■Constitution, and which, at the same time, upholds the judicial system rather than that which would destroy said system.</p>

<p>1. Assault with Intent to Murder—Accident—Charge.</p> <p>Where a husband was on trial for an assault to murder his wife, and he testified that the cutting was purely accidental on his part in pushing her away in order to reach her paramour, and the court instructed the jury that if he cut his wife accidentally in trying to kill her paramour they should acquit—there would be no violation of law; Held to properly submit the issue.</p> <p>2. Same—Aggravated Assault—Practice where No Exceptions Were Saved</p> <p>to the Charge.</p> <p>On a trial for assault to murder, where, even if the issue of aggravated assault Was suggested, no exception or motion for new trial was reserved to the charge of the court for failure to submit such issue, this court, under the acts of the Twenty-fifth Legislature, p. 17, amending article 723, Code Criminal Procedure, is prohibited from reversing for such error, even though the failure should constitute material error.</p>

<p>1. Murder—Corpus Delicti.</p> <p>On a trial for murder, where it appeared that deceased was a strong, healthy man; that he was stabbed in the left breast, immediately under the nipple, in the region of the heart, with .a knife proved to be a deadly weapon; that immediately upon receiving said wound he collapsed and fell as if he had received a fatal wound; that he spoke only once, and then only said, “She has cut me;” that he was carried to a house, where he died within fifteen minutes after the wound was inflicted; Held, amply sufficient to establish the fact that the wound was the immediate and proximate cause of the death, though the wound was never probed.</p> <p>2. Evidence—Motive of Deceased—Proof of Character of Defendant-Charge of Court.</p> <p>On the trial for the murder of a man by a woman, where the court, over objections of defendant, permitted the State to prove that defendant’s general reputation for chastity was bad in the community in which she lived; that she kept a house of prostitution, and that she had illegitimate children, and the court in the charge instructed the jury that this evidence was admitted solely for the purpose of enabling them to decide upon the motive of deceased in catching hold of defendant and must be limited to such purpose; Held, error; deceased’s motives were not the subject of inquiry. The general rule is, that the prosecution can not inaugurate an inquiry into the general character of a defendant, even upon a matter directly involved in the issue being tried, and defendant’s chastity was not involved; and had it been, evidence of particular' acts showing a want of chastity would in no event be admissible.</p> <p>3. Self-defense—Serious Bodily Injury.</p> <p>A party has a perfect right of self-defense under our statute, article 677, Code Criminal Procedure, against a violent attack threatening serious bodily injury.</p> <p>4. Defense of Personal Liberty.</p> <p>A party restrained of his or her liberty has the right to resist force by force, but unless the deceased was, at the time, doing some act which reasonably appeared to defendant to endanger her life or threaten her with serious bodily injury, she would have no right to kill him; and if the assault upon her was non-felonious, she would have no right to stab him- with a deadly weapon; and the court should have so instructed the jury in this case.</p>

<p>1. Theft—Owner’s Consent—Charge.</p> <p>On a trial for theft of money, where it was admitted by the prosecution that defendant obtained possession of the money by consent of the owner, an instruction in the charge of the court, that if defendant obtained the money without the consent of the owner they would convict, was erroneous.</p> <p>2. Same.</p> <p>A charge of the court is erroneous which authorizes' a conviction if the money was obtained by defendant through some “false pretext;” when there was no testimony in the case that suggested, in the remotest degree, that defendant resorted to any pretext, false or otherwise, to obtain possession of the money.</p> <p>3. Evidence—Best Evidence.</p> <p>Where the defendant introduced in evidence a certain petition filed by the prosecutor for the recovery of the money, it was not error to refuse to permit the prosecuting witness to testify in regard to the allegations in his petition. The petition was the best evidence of its contents, and defendant, by its introduction, had the benefit of all that it contained.</p>

<p>Appeal from the District Court of Red River. Tried below before Hon. V. W. Hale, Special Judge.</p> <p>Appeal from a conviction for perjury; penalty assessed at five years imprisonment in the penitentiary.</p> <p>The appellant was convicted in the District Court of Bed Biver County, Texas, upon an indictment charging him with having committed perjury as a witness on the trial of one King, in the County Court of said county, said King being charged by information with the offense of unlawfully carrying on and about his person a pistol. The matter assigned as perjury was that the appellant falsely swore that he did not see FTathan King have a pistol in his hand at Cannie Clements’, on the 20th of March, 1897, in Clarksville, Bed Biver County, Texas.</p> <p>On the trial the State introduced in evidence the complaint, information, the minutes of the County Court of Bed Biver County, and proof of the conviction of King in the case, wherein it was charged that appellant committed the perjury in this case. In the charge to the jury the court omitted to limit and restrict the jury as to the purpose of this testimony.</p>

The appeal from defendant’s first conviction on this transaction will be found in Thulemeyer v. State, 34 Texas Criminal Reports, 619. The present indictment was found after that case was reversed. The charging part of the indictment is set out in the opinion. Ho further statement required.

The indictment charged both forgery and passing a forged instrument, in separate counts. The alleged forged instrument is as follows, to wit: “$660.

<p>1. Libel—Recognizance on Appeal.</p> <p>Libel is, eo nomine, an offense which is defined by our statutes, and a recognizance on appeal which recites the offense as “libel,” without setting out the constituent elements of the offense, is sufficient.</p> <p>2. Indictment—Libel of a Class Where No Person Is Named.</p> <p>It is a violation of our statute to libel any sect, company, or class of men without naming any person in particular who may belong to said class, etc.</p> <p>3. Same.</p> <p>See opinion for the charging part of an indictment for libel, which the court holds is amply sufficient in its allegations, even without the innuendoes used, to impute to the street ear conductors of the city of G., acts disgraceful to them as members of society, and the natural consequence of which was to bring them into contempt among honorable persons.</p>

<p>Appeal from the Criminal District Court of Galveston. Tried below before Hon. E. D. Cavih.</p> <p>Appeal from a conviction for libel; penalty assessed, a fine of $100.</p> <p>This is a companion case to Jones v. State, ante, p. 364. The remarks of the district attorney, which were excepted to, will be found in the second paragraph of the syllabus, supra.</p>

<p>1. Continuance—Postponement.</p> <p>On a trial for hog theft, where defendant was arrested on the 18th of August, and notified that her case was set for trial on the 21st, it is no ground for either a continuance or postponement that defendant “was too poor to employ counsel, and that she had no witnesses summoned because she did not know what would avail her, owing to the nature of her defense;’.’, -especially where the absent witnesses lived within two or three miles of town and could have been summoned within a very short time if process -had issued.</p> <p>2. Misconduct of Jury—Receiving Other Testimony—New Trial.</p> <p>• On a trial for theft, where it was made to appear, on motion" for new trial, that after the jury had retired to consider of, and before they had agreed upon, their verdict, two of the jurors told their fellows that defendant was the biggest rogue they ever heard of; that she ought to be hung, and that they would be willing to hang her if the law would permit it; and one of the said jurors mentioned several instances of theft by defendant; Held, that inasmuch, for aught that appears, these statements might and perhaps did tend to influence the minds of the jury in determining the guilt or innocence of defendant, the judgment should be reversed.</p>

Tried below before Hon. W. J. Graham. Appeal from a judgment final on a forfeited recognizance. The case is sufficiently stated in the opinion.

One Til Bowie stood charged by indictment, in the District Court, the indictment containing two counts for the theft of hogs, and two counts for knowingly receiving and fraudulently concealing hogs. He entered into a recognizance for his appearance to answer the indictment. The recognizance was in the sum of $300, and was conditioned upon his appearance to answer to an indictment charging him with the offense of theft of hogs.

Tried below before Hon. G. A. Brown. Appeal from a conviction for murder in the first degree; penalty' assessed at imprisonment for.life in the penitentiary. Appellant was indicted as a=principal in the murder of Tom T. McGee, in the county of Hemphill, on the 33d of November, 1894.

<p>A motion to quash the indictment was overruled.</p> <p>No statement required.</p>

<p>1. Assault with Intent to Murder—Insanity—Cocaine and Morphine.</p> <p>Our statute relating to insanity produced by the recent use of intoxicating liquors does not prescribe a rule for insanity produced by cocaine or morphine. It a party is rendered insane by the voluntary recent use of cocaine and morphine to the extent that he did not understand the nature and quality of the act he was doing and was incapable of forming the intent, he could not be guilty of an assault with intent to murder.</p> <p>2. Same—Recent Use of Intoxicating Liquor and Other Causes.</p> <p>It is a correct legal principle, that where there is insanity, produced by other causes in conjunction with the recent use of intoxicating liquor, an act, done in such a state of mind can not be attributed solely to the recent use of intoxicating liquors.</p>

<p>Ho statement necessary.</p>

Tried below before Hon. Chables F. Clint. Appeal from a conviction for murder in the second degree; penalty, twenty-one years imprisonment in the penitentiary. This is the second time this case has been appealed. The facts on the former appeal will be found in Williford v. State, 36 Texas Criminal Reports, 414.

The indictment in this case charged appellant with the murder of Anna M. Burt, his wife, on the 24th day of July, 1896. There were also two other indictments charging him with the murder of his two little girl children, aged 4 and 2 years. The following statement of the case, which is substantially correct, is taken from appellant’s brief: On the night of the 24th day of July, 1896, the parties deceased disappeared between 9 o’clock and daylight.

Tried below before Hon. W. M. Allison. Appeal from a conviction for horse theft; penalty, two years imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

<p>Ho statement required.</p>

Tried below before Hon. T. S. Reese. Appeal from a conviction for murder in the first degree, with the penalty assessed at death. The indictment charged appellant and Jim Martin jointly with the murder of Nancy Jane Crocker, by shooting her with a gun on or about the 19th day of May, 1895. Appellant Frank Martin was tried alone. This is the second time this case has been appealed. See Martin v. State, 36 Texas Criminal Reports, 632.

<p>1. Murder—Motive—Threats Where No Person Was Named.</p> <p>It is always competent, as showing motive on the part of defendant, to prove threats made by him against deceased to take his life or do.him serious bodily harm, although he may not have mentioned the deceased by name, if it could be reasonably gathered that the deceased was meant or alluded to. But general threats by defendant not directed towards the person slain, or not of a character to embrace such person, are inadmissible.</p> <p>2. Same.</p> <p>On a trial for murder, where it appeared that the parties were friendly; that they entered into a game of cards, and that a sudden altercation ensued, evidently because deceased was winner in the game; Held, that general threats made by defendant on the previous day, that he would kill some d—d son of a b—h;” that “he felt like killing some one,” not directed towards any particular person, were inadmissible, and were calculated to affect injuriously the rights of defendant and prejudice him before the jury.</p> <p>3. Same—Provoking Difficulty—Charge.</p> <p>Appellant is in no condition to complain that the court charged upon provoking a difficulty where it was shown that he was the aggressor and brought on the difficulty, nor is it any matter of defense for him to show, under such circumstances, that deceased engaged voluntarily with him in a rencounter with deadly weapons.</p>

Tried below before Hon. H. F. Dunson, County Judge. The information charged appellant and several others jointly with unlawfully killing a wild deer, in Nacogdoches County, between the 20th day of January, 1894, and the 1st day of August, 1894. Defendant moved to quash the information because it charged no offense, inasmuch as Nacogdoches County was exempted by law from the operation of the game law which prohibited the killing of wild deer.

Appellant, J. F. Jones, was arrested by S. P. Clark, sheriff of Tarrant County, Texas, on the 7th day of October, 1897, on a capias issued out of the County Court of said county, based upon a complaint and information filed in said court on said date charging relator with the offense of pursuing the occupation of a peddler with two horses in said county after the 20th day of September, 1897, without having paid his occupation tax as such peddler.

Appeal, from the District Court of Fort Bend. Tried below before Hon. T. S. Reese. Appeal from a conviction of murder in the first degree, the penalty-being assessed at death. The indictment charged appellant with the murder of George Canady, by shooting him with a pistol, on the 3d day of May, 1897.

<p>Appeal from Lee County upon a hearing on habeas corpus in chambers, before Hon. Ed B. Sinks, wherein, relator was remanded to the custody of the sheriff, under a capias pro fine.</p>

The indictment is set out in the opinion, as is also a statement of the material facts proved. The charge of the court submitted only a rape by fraud. .

Tried below before Hon. E. A. Eigland, Special Judge. Appeal from a conviction for assault with intent to rape; penalty, five years imprisonment in the penitentiary. The charging part of the indictment reads as follows, viz: “Did then and there in and upon Mrs. Annie Lloyd, a woman, did make an assault with the intent then and there to commit the offense of rape upon the said Mrs. Annie Lloyd, by then and there, without the consent of the said Sirs.

<p>Ho statement required.</p>

The information charged, to wit, “500 head of cattle from the area of country south and east of said line over said quarantine line and into that area of country north and west of said line and into Foard County, Texas.” A second count charged, that on or about the 10th day of April, 1896, and subsequent to the 15th day of February, 1896, in the county of Foard,- the defendant “unlawfully and knowingly had in his possession 500 head of cattle, the same being domestic live…

Tried below before Hon. Leyi Walkeb, County Judge. Appeal from a conviction for unlawfully and willfully pulling down and injuring the fence of another; penalty, a’fine of $10. The sufficiency of the information was attacked by a motion in arrest ' of judgment, which was overruled. This motion is fully disclosed by the opinion, which also contains a sufficient statement of the case.

Tried below before Hon. Tom C. Davis. Appeal from a conviction for burglary; penalty, two years imprisonment in the penitentiary. The burglarized house was situated in East Hamilton, a village in Shelby County, and was used by R. R. Wiggins, the alleged owner, as a wareroom in which he stored corn meal, meat, flour, plow tools, etc. The house had been entered previously and meat and other things taken from it.

<p>The opinion sets out the essential allegations of the indictment as well as the grounds upon which the motion to quash the same was based.</p> <p>Ho further statement is necessary.</p>

Tried below before Hon. J. M. Talbot. Appeal from a conviction for murder in the second degree, penalty assessed being fifteen years imprisonment in the penitentiary. The indictment charged appellant with the murder of W. R. Balthrop,, in the county of Bowie, on the 31st day of July, 1897, by shooting him with a pistol. In view of the disposition made of this appeal a statement of the caséis unnecessary.

<p>Appeal from the County Court of Parker. Tried below before Hon. A. H. Ctjlwell, Special Judge.</p>

<p>No statement necessary.</p>

<p>1, Refused Instructions—Practice on Appeal.</p> <p>Where requested instructions are refused, and the action of the court in refusing them is brought forward in the motion for new trial, this will require a consideration of the matter on appeal.</p> <p>2. Theft by Servant or Employe—Possession and Ownership—Temporary</p> <p>Custody, etc.</p> <p>A servant or employe who is in temporary custody or control of the property of his employer, does not have such possession as in any sense to constitute him the owner or possessor as against the ownership or possession of his employer or master; the ownership and possession remains in the employer or master, and a fraudulent taking of the property by such employe or servant, without the consent of the master or employer, is theft. In the case stated, an indictment charging theft by a bailee could not be maintained.</p>

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

4. Because the issue contained in the indictment on which the court limited his charge was too indefinite and general to form the basis for perjury. In view of the disposition made of the case on this appeal, no general statement is required.

<p>Selling, etc., Liquor to Minor—Evidence Insufficient.</p> <p>Where the indictment alleged a sale and gift of liquors to one Bisland, a minor, and the evidence was that the sale was to one Branson, a minor, and that Bisland was handed and drank the liquor at Branson’s request; Held, this was neither a sale or gift to Bisland, as alleged, and the evidence was insufficient to support the conviction.</p>

<p>No statement necessary.</p>

Tried below before Hon. J. F. Stoitt, County Judge. Appeal from the dismissal of an appeal to the county court from a justice court. Appellant was convicted in the justice court for unlawfully killing a dog, the property of one J. M. Bankston, and was fined $10 by the justice. His appeal to the County Court was dismissed for the want of an' appeal bond.

Parity, the defendant, was a farmer who lived some ten or twelve miles out from the city of Paris, Texas, in the country. On the morning of the day of the occurrence which resulted in this prosecution, he wenfto Paris in his two-horse wagon to transact some business.

<p>Appeal from the District Court of Hunt. Tried below before Hon. Howard Templeton.</p> <p>Appeal from a conviction for assault with intent to murder; penalty, two years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with assault with intent to murder one W. T. Greathouse, on the 8th day of September, 1896.</p> <p>There does not appear to have been any bystanders or eyewitnesses to .the difficulty between the parties, both of whom testified at the trial. It ■seems that Greathouse, the prosecutor, had worked for the defendant, Stevens, and Stevens owed him $20 for his labor, and being unable to ■collect this amount, Greathouse had put it in the hands of a lawyer to ■collect. On the day of the difficulty the parties met in the public road, ■each riding in his wagon, and Greathouse asked defendant if his lawyer had asked him for the money on his account. Greathouse testified: ■“When I asked him that, he said I had not treated him right. I told him I could not help it; that he would not pay me, and I had to sue him. He said I was a liar, and reached in Ms wagon for Ms gun. When I saw the gun I picked up- a stick of stovewood and struck him my best; I did not pick up the stick until defendant got his gun, and when I hit he was raising his gun. As I hit him, I fell out of my wagon and started to run. Defendant jumped out of his wagon and started after me; he then kinder stopped and looked up and down the road, and said, Hod damn you, I will kill you/ and raised the gun. I started 'to run; defendant then shot at me. I fell as I was running, just as defendant shot at me. If I had not fallen he would have killed me</p> <p>The defendant Stevens testified substantially as did Greathouse as to what occurred up to the time he called Greathouse a liar. He testified, that when he called Greathouse a liar the latter struck him on the head with a piece of stovewood, which hurt him and caused his head to bleed. He testified: “I then picked up my gun, which was in my wagon, and jumped out of my wagon. Greathouse got out of his wagon. He had a hatchet in his hand and came towards me. I raised my gun, and he broke to run. After he started to run I shot. Just about the time I shot he fell down. He was running when I shot. I did not aim to kill him, and did not shoot to kill him. If I had killed him, it would have been an accident.”</p>

<p>1. Dying Declarations—Admissibility—Predicate—Disconnected Statement.</p> <p>Where it is shown that the declarant was conscious of approaching death, and had no hope of recovery, a sufficient predicate is established to admit his dying declarations as evidence. And the declarations are not rendered inadmissible from the fact that declarant was, at the time, partially under the influence of opiates, and had to be aroused from time to time to continue his statement—the statement being intelligent, continuous, and logical, and not made in answer to questions calculated to induce it.</p> <p>2. Same—Admission of Dying Declarations Hot Violative of the Constitution.</p> <p>The admission in evidence of dying declarations is not obnoxious to the constitutional provision, Bill of Bights, section 10, which guarantees to an accused the right to be confronted with the witnesses against him. Following Burrell v. State, 18 Texas, 718.</p> <p>3. Impeachment of a Witness by Contradictory Statements.</p> <p>A witness can only be impeached by proof of contradictory statements, when he has testified to some material fact about which it is proposed to contradict him. A witness can not be asked after he has testified to criminating facts, whether he has not previously said the defendant was not guilty; nor can he be impeached by proof as to how he narrated the circumstances of the occurrence to a third party, where the witness had testified as to no such facts, but, on the contrary, testified to facts showing that she was not present at the particular time spoken of, and could not, and did not, know personally the facts as it was proposed to prove she had previously narrated them.</p> <p>4. Dying Declarations—Questions Asked—Charge of Court.</p> <p>Where some controversy had arisen as to whether the dying declarations were freely and voluntarily made, and the court, after instructing the jury not to consider them if not made under the safeguards required by law, further instructed them: “It would be no legal objection to said declaration, that questions were asked him directing his mind to the subject or part of the subject upon which said declaration was made. Nor do such questions take from said declaration its voluntary character." Held to embody a correct rule of law and not to be upon the weight of evidence.</p> <p>5. Murder—Charge as to Provoking Difficulty by Defendant.</p> <p>On a trial for murder, where deceased’s dying declarations introduced in evidence stated that defendant had used opprobrious epithets towards him, and had stabbed him before he clinched with defendant, the .court properly charged the jury, that if defendant provoked the difficulty with apparent intention of killing or doing deceased serious bodily harm he would be guilty of murder although he might have done the act suddenly without deliberation, and in order to save his own life.</p> <p>6. Same—Self-defense.</p> <p>Where the parties had had a previous altercation in the dance room, and defendant went out into the corridor and laid in wait for some time; and as soon as deceased appeared denounced him in a violent manner, it is clear he intended and did premeditatedly provoke the difficulty, and it is absolutely immaterial whether the deceased struck the first blow so far as his rights are concerned.</p> <p>7. Same—Besort to All Other Means—Charge.</p> <p>On a trial for murder, where the evidence showed that if deceased made any attack at all upon defendant it was not with intent to murder, or inflict serious bodily injury upon him, the court properly charged that the jury should find, before he was authorized to slay deceased, that he resorted to all other means except retreating.</p> <p>8. Same—Conspiracy—Instructions.</p> <p>Where the evidence utterly fails to show a conspiracy, it is proper for the court to refuse special instructions embodying self-defense predicated upon the idea of a conspiracy between the deceased and others to attack defendant.</p> <p>9. Jury Law—Separation of Jury—Hew Trial.</p> <p>A short temporary separation of one or more jurors from their fellows will constitute no material error or ground for new trial, where it is shown that during the separation they were accompanied by or all the time in view of an officer, the body of the jury at the same time being also in charge of officers, and where there was no such separation as would in anywise prejudice the rights of appellant.</p> <p>[No brief found with the record.—Reporter.]</p> <p>The court should have granted defendant a new trial on account of the separation of the jury. Brown v. State, 38 Texas, 483; Porter v. State, 1 Texas Crim. App., 399; Early v. State, Id., 248; Grissom v. State, 4 Texas-Crim. App., 374; Wright v. State, 17 Texas Crim. App., 152; 18 Texas-Crim. App., 576; 22 Texas Crim. App., 570; English v. State, 28 Texas-Crim. App., 500; 13 S. W. Rep., 775. There can be numerous other authorities cited, both of. Texas and other States, to support this position..</p> <p>[Note.—Appellant’s motion and amended motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>1. Forgery—Indictment—Purport and Tenor—Variance.</p> <p>There is a fatal variance between the purport and tenor clauses of an indictment for forgery where the former alleges that the instrument purported to be the act of a corporation, and the instrument as set forth in the tenor clause showed it was signed by the president and secretary of the corporation as such officers. If a purport clause is inserted (which is not required) in an indictment for forgery, it must describe the instrument accurately.</p> <p>2. Same—Charge of Court.</p> <p>On a trial for forgery, a charge of court is erroneous and upon the weight of evidence, which instructed the jury that “when an instrument is shown to be a forgery under the rules of law, as herein stated, and shown to be in the possession of some one (other than the person whose act it purports to be), such possession, standing alone, is sufficient to warrant a conviction for the execution of the same.”</p>

This was an original application to the Court of Criminal Appeals for .a writ of habeas corpus. The opinion states the case.

The indictment charged appellant with the murder of one Ella Vandergriff, on the 18th day of February, 1897, by shooting her with a pistol. The following statement of the case is taken from appellant’s brief: The only evidence of appellant’s shooting was the testimony of Meyers and appellant himself.

Tried below before Hon. J. C. Smith, County Judge. Appeal from a conviction for a violation of the Sunday law; penalty, a fine of $20. The indictment charged appellant, an agent and employe of one H. 0. Rhodes, with both selling and keeping open a saloon for the purpose of traffic and sale of liquor on Sunday. Defendant’s motion to quash the indictment for duplicity was overruled. The opinion contains a sufficient statement of the case.

Tried below before Hon. Kenneth Foree, County Judge. Appeal from a conviction for disturbance of a congregation assembled for the transaction of business connected with a Sunday school; penalty, a fine of $25 against each appellant. The following affidavit was filed by appellant in regard to the statement of facts, viz: “William and Andy Bonner v. The State of Texas. In the Court of Criminal Appeals, January Term, 1898, at Dallas. To the Honorable Court.

<p>1. Statement of Facts—Ten Days for Filing—Diligence.</p> <p>Where the defendant procured an order for a filing of the statement of facts within ten days after adjournment, and court adjourned on the 11th of September, but defendant did not mail the statement to the judge, who was holding another term in another county eighty miles distant, until on the morning of the 21st of September, and the judge was sick and unable to correct or make out a new statement so that it could be returned and filed in time; Held, an utter want of diligence on the part of appellant is shown, and the statement will not be considered.</p> <p>2. Same.</p> <p>In order to authorize a consideration of a statement of facts, under an order allowing ten days after adjournment for its filing, the defendant must show the use of all diligence within his power to obtain and file said statement within the time.</p> <p>[Note.—Appellant’s motion for rehearing, filed February 16, 1898, was overruled without a written opinion.—Reporter.]</p>

Tried below before-Hon. James C. Wilson. Appeal from a conviction for forgery; penalty, two years imprisonment in the penitentiary. The charging part of the indictment is set out in the opinion, as also-the grounds of the motion in arrest of judgment attacking its sufficiency..

<p>Appeal from the County Court of Ellis. Tried below before Hon. J. C. Smith, County Judge.</p> <p>Appeal from a conviction of theft of property under the value of $50; penalty, a fine of $100 and one day’s imprisonment in the county jail.</p> <p>The indictment charged the theft of one wagon sheet of the value of $1, and one turkey of the value of 75 cents, the corporeal personal property of E. J. Dunaway. The theft was alleged to have been committed on the 13th of January, 1897. Defendant’s father was arrested in possession of the wagon sheet on the 10th of February, 1897. Ho explanation was made at that time by defendant or his father as to the possession of the wagon sheet. On the trial, several witnesses testified as to facts establishing an alibi; and defendant’s mother and sister testified that the father of defendant had purchased the wagon sheet on the 16th day of January from a man named Jerry Allen.</p>

Tried below before Hon. J. C. Smith, County Judge. Appeal from a conviction for simple assault; penalty, a fine of $25. The information charged appellant, as an adult male, with making an aggravated assault upon one Eunice House, a female, by cutting her with a knife. The evidence developing that defendant was not an adult male, that is, not 21 years of age, the court only submitted simple assault, and of that offense he was convicted.

Tried below before Hon. J. C. Smith, County Judge. Appeal from a conviction for aggravated assault by .a husband upon Ms wife; penalty, a fine of $35. Mrs. Minnie Dunagain testified: “I am the wife of the defendant. I was before the grand jury some time in last May. I made a statement before the grand jury.

<p>This was an application under a writ of habeas corpus for relief from confinement, under the following state of facts: Kate Matthews, a female under the age of 16 years, was indicted by the grand jury of McLennan County for having murdered one Maggie Williams, June 5, 1897. The indictment was a legal and valid one, was properly presented and returned into open court, the Fifty-fourth Judicial District Court of McLennan County. Upon this indictment, the 1st of December, 1897, she was arraigned for trial in said District Court, and pleaded not guilty; to which plea the jury answered by their verdict as follows: “We the jury find the defendant guilty of murder in the second degree. We find further that she is 14 years of age, and we assess her punishment at five years confinement in the State reformatory.” Upon which verdict the following judgment was rendered: _ “It is ordered by the court, that the defendant Kate Matthews, who has been adjudged to be guilty of murder in the second degree, and whose punishment has been assessed by the verdict of the jury at five years confinement in the State reformatory, be delivered by the sheriff of McLennan County, Texas, immediately, -to the superintendent of the penitentiaries of the State of Texas, or other person legally authorized to secure such convicts, and the said defendant shall be confined in said penitentiaries for the period of five years, in accordance with the provisions of law governing the penitentiaries of said State, and the defendant is remanded to jail until such time as said sheriff can obey the directions of this sentence.”</p>

Tried below before Hon. F. E. Adams, County Judge. Appeal from a conviction for a violation of local option; penalty, a fine of $100 and sixty days imprisonment in the county jail.

<p>1. Drunkenness—Opinion Evidence.</p> <p>Drunkenness may be proved by the opinion of witnesses.</p> <p>2. Same—Charge.</p> <p>On a trial for being drunk in a public place, the court is not required to give an instruction defining drunkenness.</p> <p>3. Motion to Retax Costs.</p> <p>On a motion to retax costs, where no notice of the motion had been served upon witnesses, the court properly refused to consider the motion as to items of costs to witnesses, and correctly considered only such matters involved in the motion as appeared of record.</p> <p>4. Costs—Witness Pees.</p> <p>To entitle a witness to recover his fees as part of the costs in the case, he must have been subpoenaed or attached in the case, and must prove up his attendance by an affidavit in writing. Code Crim. Proc., art. 1139. It is not sufficient that the clerk swore the witnesses verbally.</p> <p>5. Motion to Retas Costs—Practice.</p> <p>On a motion to retax costs, the court should hear evidence, and the evidence adduced on the motion should accompany the record on appeal, or be embodied in a ibill of exceptions to bring the matter intelligently before the appellate court.</p>

Tried below before Hon. W. C. Morrow, 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 information charged appellant with selling intoxicating liquors to one W. M. Hewett, in Justice Precinct Ho. 1, Hill County, after local option had been adopted and while it was in force in said precinct. Hewett swore that he bought three half-pints of apple brandy, and paid 75 cents for it.

Omitting formal portions, the charging part of the information is as follows, viz.: “On or about the 5th day of November, 1897, in the said county of Parker, and State of Texas, one Jan Byrd, late of said county and State, with force and arms did then and there unlawfully, with intent to injure the said John H. pewis, make, write, print, publish, sell, and circulate a malicious statement of and concerning the said John H. Lewis affecting the reputation of the said John H.…

<p>1. Carrying Pistol—Defendant as Witness—Cross-examination and Impeachment.</p> <p>On a trial for unlawfully carrying a pistol, where defendant becomes a witness in his own behalf, it is not competent for the State to ask him if it is not a fact that he has been charged, in a number of instances, with a like offense. The fact that .a man unlawfully carries a pistol can not affect to bar his credibility as a witness.</p> <p>2. Same—Traveler.</p> <p>On a prosecution for unlawfully carrying a pistol, where it apepared that defendant lived in M. County, thirty-five miles on a direct line to the point of destination, where he arrived at 1 o’clock, remained over night, and returned home next day, Held, he was evidently a traveler.</p> <p>3. Same—Suggestion to Legislature to Define the Statutory Word “Traveler.”</p> <p>In view of the fact that the decisions as to what constitutes a traveler are not harmonious, and the further fact that to give the word a liberal construction or definition would, in a great measure, tend to defeat the purpose of the law against carrying a pistol, it is suggested that the Legislature define what is meant by the word “traveler.”</p>

<p>This is the second appeal in this case. See Sims v. State, 36 Texas Criminal Reports, 154.</p> <p>The facts are repeated in the opinion.</p>

Tried below before Hon. T. P. Hash, County Judge. Appeal from a conviction for keeping a disorderly house; penalty, a fine of $200. The opinion states the case in so far as the question upon which the appeal was determined is concerned.

Tried below before Hon. D. G. Hill, County Judge. Appeal from a conviction for simple assault; penalty, a fine of $5. The information charged appellant with an aggravated assault upon one B. A. Johnston, with a stick, a deadly weapon, on the 30th of June, 1897. The prosecution abandoned the charge for an aggravated and only claimed a conviction for a simple assault.

<p>Appeal from the County Court of Kaufman. Tried below before' Hon. John" Vesey, County Judge.</p> <p>Appeal from a conviction for giving away spirituous liquors on the day of an election; penalty, a fine of $100.</p>

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