Volume 39 — Texas Criminal Reports

<p>No statement necessary.</p>

Tried below before Hon. F. E. Adams, 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. Ho statement of facts in the record.

<p>Appeal from the District Court of Tarrant. Tried below before Hon. W. D. Harris.</p> <p>Appeal from a conviction for burglary; penalty, two years imprisonment in the penitentiary.</p> <p>The indictment alleged the ownership of the burglarized house, and of the property stolen therefrom, to be in John P. Daggett. The house burglarized was a chicken house, and the property taken therefrom was four turkeys and eight fine bred langshan chickens. The chicken house was situated upon a ranch owned by Daggett, but was some seven or eight miles from his place of residence, and was entirely separate and distinct from his place of residence, the intervening lands being owned by other parties. Daggett had hired one Ed Jahn to take charge of his ranch and the personal property thereon, including the chickens and turkeys. He paid Jahn $18 per month, and Mrs. Jahn was to have one-half of the increase of the chickens and poultry. Jahn conducted the management of the ranch according to Daggett’s orders—Daggett frequently going out to the ranch at intervals of two or three weeks. The chicken-house was burglarized, and the chickens and turkeys stolen therefrom on night of the 15th or 16th of December. The two negro boys, Sim Daggett and Frank Daggett, this defendant, whose father had been a slave belonging to the Daggett family, were arrested a day or so after the burglary, and, after being warned by the officers, confessed that they had burglarized the house and stolen the chickens and turkeys, and had carried them some six miles that night and put them in the smokehouse belonging to a man by the name of Burns. After the officers had placed the parties in jail they went to the house of Burns and searched the smokehouse, but the chickens and turkeys were not there; but they found chicken and turkey feathers in the smokehouse, and also a path leading from the smokehouse into a thicket. In this thicket they found two boxes turned over, and in the boxes they found the chickens and turkeys. They took them to John P. Daggett, who identified them as his property and sent them back to his ranch.</p> <p>As to the possession of the property, the court instructed the jury as follows: “Possession of property, within the meaning of the law of theft, is constituted by the exercise of actual control, care, and management of the property. A person has actual control, care, and management of property when his will and his dictation and his direction and his instruction with reference to the same in the details of its supervision and use and care are executed, whether executed by himself personally or by some one in his employ and acting under his direction. If "a person be simply the owner of property, but the will and dictation and direction and instruction of some other person with reference to the same in the detail of the supervision and use and care given to and mode of the same are executed by such other person or some one else, then the actual control, care, and management is in such other person.”</p> <p>The court also instructed the jury: “It is your duty to reconcile the conflicts, if any, in the testimony, if you can: but if you can not, then you must decide which of the testimony is entitled to the greater credibility and weight, and in so determining you may consider the intelligence, interest, apparent bias or prejudice, if any, of witnesses as well as their manner of testifying.”</p>

<p>Appeal from the District Court of McLennan. Tried below before Hon. Samuel R. Scott.</p> <p>Appeal from a conviction for incest; penalty, four years’ imprisonment in the penitentiary.</p> <p>The indictment charged appellant with committing incest with Susie Maloney, his stepdaughter.</p> <p>Ho statement necessary.</p>

Tried below before Hon. J. H. Wood, County Judge. On January 29, 1898, complaint and information in regular form were, filed in the County Court of Grayson County, Texas, charging appellant with pursuing the occupation of a canvasser for the sale of lightning rods without paying the tax on said occupation under the provisions of article 112, Penal Code. The offense was alleged to have been committed January 27, 1898. A capias was issued and served the same day.

Tried below before Hon. J. S. Straughan. Appeal from a conviction for aggravated assault; penalty, a fine of $200 and four months imprisonment in the county jail. The case is sufficiently stated in the opinion.

Tried below before Hon. Samuel R. Scott. Appeal from a conviction of theft of one head of cattle; penalty, two years imprisonment in the penitentiary. The indictment charged appellant Avith the theft of one head of cattle, on the 10th of January, 1897, the property of one J. C. Bartlett. The statement of facts is quite voluminous, and it is unnecessary to state the case in detail.

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

<p>1. Forgery—Instrument on Its Face Not the Subject of Indictment.</p> <p>Where the alleged forged instrument, as set out in the indictment was as follows, viz.: “May 22, 1897, Mr. Brin, Pies let John Womble hame ine thing that he wornt—J. O. Thompson.” Held, the instrument on its face, without explanatory averments by way of innuendo, does not import such an obligation as is the subject of forgery, and the indictment was defective for want of such innuendo averments.</p> <p>2. Attempting to Pass a Forged Instrument—Reputation of Defendant-Insanity.</p> <p>On a trial for attempting to pass a forged instrument, it is not error for the court to refuse to permit evidence to prove the reputation of defendant as a fool. Insanity is not provable by reputation.</p>

<p>Appeal from the County Court of Parker. Tried below before Hon. I. H. Roach, County Judge.</p> <p>Appeal from a conviction for a violation of local option; penalty, a fine of $35 and twenty days imprisonment in the county jail.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>1. Recognizance on Appeal—Sufficiency.</p> <p>A recognizance on appeal is sufficient if it states the definition of the offense contained in the statute, though such recital of the offense might not be sufficient in an. indictment for said offense.</p> <p>2. Slander—Former Acquittal.</p> <p>A plea of former acquittal for slander of one Phebe D. is properly stricken out when pleaded to an indictment for the slander of one Martha Ann D. If the slander was uttered of and concerning the two parties at the same time, and before the same persons, they were nevertheless distinct slanders and consequently distinct cases.</p> <p>3. Slander—Evidence—Impression of Witness.</p> <p>On a trial for slander, where the meaning of the language used was manifest and could have but one significance, the statement by a witness of his impression of, and what he understood defendant to mean by the language, was not calculated to injure defendant.</p> <p>4. Same—Proof of Other Slanders—Intent.</p> <p>On a trial for slander, proof of other slanderous statements by defendant concerning the prosecutrix, on other occasions, is admissible for the purpose of showing defendant’s intent in uttering the slanderous words charged against him in the information.</p> <p>5. Evidence—Acts, Conduct, and Declarations of Third Parties.</p> <p>■ It is not competent to prove the acts, conduct, or declarations of third parties, who have not testified in the case, and are not shown to have acted on behalf of the-prosecution, in order to show their animus towards defendant.</p> <p>6. Same—Proof of Reputation of Another than Prosecutrix.</p> <p>On a trial for the slander of one A. M. D., where the slanderous words also involved the chastity of P. D., the defendant not being on trial for slandering the-latter, it was not error to refuse to permit him to prove that the reputation of P. D. for chastity, was bad.</p> <p>7. Same—Presumption of Chastity—Charge.</p> <p>On a trial for slander, it is not error to charge, in the language of the statute, that the law presumes the chastity of every woman.</p> <p>8. Same—Allegation and Proof.</p> <p>On a trial for slander, where it was alleged that the slander was uttered in presence of B., and divers others (not naming the others), Held no variance where'the-proof showed that it was uttered to B., and not in the presence of others—“the-others” not having been named in the indictment.</p> <p>9. Same—Charge.</p> <p>Where the indictment alleged that the slanderous words were uttered in the presence of B., and the charge- of court required the jury to find this fact, beyond a reasonable doubt, before they could convict defendant, this sufficiently excluded the-idea that they could convict if defendant made the alleged slanderous statements to others on a different occasion.</p> <p>10. Same—Reputation of Prosecutrix.</p> <p>On á trial for slander, where the court charged the jury, “The defendant may prove in justification, that the particular imputation which he made against the female, was true, and that her general reputation for chastity, at the time the imputation was made, if any, was bad, and if an inquiry into the reputation of the female establishes that such reputation was at the time bad, the defendant is entitled to an acquittal;” Held, sufficient, and that it was not necessary to give an additional requested instruction in regard to the reputation of the prosecutrix.</p> <p>11. Judgment—Amendment of.</p> <p>Courts have control over their judgments during the term, and may properly amend them on motion.</p>

<p>1. Indictment—Allegation as to Presentment of Counts.</p> <p>Where the first count of the indictment alleges, that it was presented in and to the District Court, it is not necessary to repeat the allegation of presentment in any subsequent count.</p> <p>2. Local Option Election—Collateral Attack Upon.</p> <p>On a prosecution for giving away intoxicating liquors on an election day at a voting box, defendant will not be permitted to urge the illegality of the election as matter of defense or justification where said election was a formal one, held by order of the Commissioners Court.</p> <p>3. Improper Argument—Bill of Exceptions.</p> <p>Objection to an improper allusion by the prosecuting attorney to the fact that defendant did not testify in his own behalf should be reserved by a bill of exceptions at the time.</p> <p>4. Same—Practice on Appeal.</p> <p>Where a bill of exceptions to improper argument was not presented to the court until after the trial, and in approving the bill the judge states that he could not say whether such remarks were made, as he did not hear them, Held, the bill should not have been approved, and the court on appeal will treat the whole matter as if presented without the approval of the court and for the first time on the motion for a new trial.</p>

On February 13, 1897, the Commissioners Court of Leon County ordered : That an election be held on the 11th day of March, 1897, within the hours prescribed by law, at Oakwoods, in'said subdivision (i. e. the subdivision described in the complaint and information, being a subdivision made solely for the purposes of the election), by the qualified voters of said above described subdivision, of which election Alvin-Moore is hereby appointed ‘manager,’ to determine whether or…

<p>The indictment charged the appellant with the murder of one Frank Ward, on or about the 9th day December, 1896, by shooting him with a pistol.</p> <p>The parties appear to have been friends, who, with one or two other parties, had brought their cotton in wagons from Madison County, where they lived, to Huntsville. The night before they reached Huntsville, deceased and defendant played cards at their camp. When they reached Huntsville, they put up at a cotton yard, and during the day they commenced playing cards again at King’s saloon, not far from the cotton yard. They drank quite heavily, and deceased, at least, if not both of them, was quite drunk. They got into an altercation at King’s saloon and he finally made them leave there. Some time after night it was finally agreed that they would go down to a little room or house at the cotton yard and play cards there. This house was just at the southwest corner of a broad platform some eighty feet long by sixty wide, which was used for the purpose of delivering cotton, and was called the “cotton wharf.” After the parties got into this room or house the deceased refused to let anyone else play in the game except the defendant and himself. After these two had played awhile they commenced to dispute about the count of the game, which was “seven-up,” and finally deceased picked up the money and put it in his pocket. Defendant claimed that $3.50 of the money was his, and demanded it. They had words about the money, Darter, the defendant, telling the deceased to put it down. . Finally all the parties except the deceased, Ward, got out of the house or room, and went on the cotton wharf or platform. When Ward came out of the house he had a lighted candle in his hand, which went out, and the parties were all in the dark. All the witnesses, both for the State and defendant, testified that the defendant and the deceased were engaged in the controversy about the $3.50 oh the wharf for about a half hour, long enough for one of the bystanders to go up town, hunt up an officer, and get him to come down there to stop the difficulty. Ward, it seems, was at first upon the ground, and commenced to climb up on the platform. Darter, defendant, hallooed to the others to catch him and not let him come up on it. Ward succeeded in getting upon the platform and started towards defendant, cursing him for a God-damned son of a bitch. Defendant would stop him by threatening that “if he advanced upon him with his knife, he would kill him.” All the time Darter was demanding his $3.50, and Ward was all the time attempting to get to Darter, promising to hand him the money, Darter all the time insisting that he should lay it down on a plank or give it to one of the boys, as he had promised. In a second or so after deceased had called defendant a “God-damned son of a bitch,” Darter fired upon him. The officer who was coming to stop the difficulty only saw the flash of the first pistol shot, and was in a few feet of the platform when the second shot was fired. Ward threw up his hands and said, “Don’t shoot any more!” and fell from the “wharf” to the ground. Defendant rushed to the side of the platform and fired one or more shots, and started to run. The officer called to him to halt several times, but he did not do so until the officer had fired at him three times, after which the officer arrested him and found his pistol on him. The physician who examined the dead body testified to two mortal wounds near the left nipple, which caused the death.</p> <p>With regard to the separation and misconduct of the jury, the facts are sufficiently stated in the opinion of the court, and no additional statement is necessary.</p>

<p>Appeal from the District Court of Johnson. Tried below before Hon. J. M. Hall.</p> <p>Appeal from a conviction for forgery by altering or raising a bank check; penalty, three years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

<p>From Parker County.</p> <p>This case is an original application to the Court of Criminal Appeals for a writ of habeas corpus, the relator having been refused such writ upon his applications presented to both his district and county judges.</p> <p>The following statement, which is correct, is taken from the brief of counsel for appellant:</p> <p>The record in this case shows that on the-day of-, 1894, a local option election was held in precinct No. 1, Parker County, Texas, which resulted in favor of prohibition. After the two years had expired from this first election, the requisite number of qualified voters within and for said precinct No. 1, presented another petition to the Commissioners Court of Parker County, Texas, praying that a local option election be ordered to be held within and for said precinct No. 1. Certain parties, for the purpose of preventing the majority vote of precinct No. 1 from exercising the option conferred upon it by the Constitution, shortly after the presentation of the petition for an election within and for precinct No. 1, got up and presented another petition for an election to be held in the whole county.</p> <p>The Commissioners Court acted on the petition presented from precinct No. 1, and ordered an election to be held within and for precinct No. 1; and also acted on the petition for an election for the whole county, and ordered an election for the whole county. The Commissioners Court directed in these orders that both of these elections—one in and for precinct No. 1, and the other for the whole county—should be held on the same day.</p> <p>After due notice, both of these elections were held in accordance with the order of the Commissioners Court, and in accordance with law, on the same day. On the eleventh day after the holding of both of these elections, the Commissioners Court met and declared the result of both of these elections. In accordance with this declaration, the majority vote in the county election was for prohibition by 18 votes, and the majority vote in precinct No. 1 was against prohibition by 135 votes; and the Commissioners Court rendered two orders in accordance with the above declaration. Afterwards the appellant was indicted for selling liquor within precinct No. 1, and was convicted.' Now, the only question involved in this case is, was local option in force in precinct No. 1, Parker County, Texas, after both of the above elections had been legally held, and was said conviction legal?</p>

Tried below before Hon. Emmett Patton, County Judge. Appeal from a conviction for a violation of the local option law; penaltjL a fine of $50 and twenty days imprisonment in the county jail.

<p>Burglary—“A House”—What Is.</p> <p>On a trial for burglary, where the evidence showed that the “house” alleged to have been burglarized was described as what is commonly known as a "header box,” usually used in connection with a grain harvester; it being a box 14 feet long, 6 feet wide, 4 feet high on one side, and 18 inches on the other; Held, the structure was not “a house” within the contemplation of the statute of burglary, although it had four sides and was covered over. It was a box and not “a house;” it was portable, had no fixedness of location, was not used or intended to be used in any way or for any purpose connected with a habitation, or other purposes for which houses are ordinarily used.</p>

<p>No further statement necessary.</p>

<p>Ho statement necessary.</p>

<p>Occupation Tax—Lightning Hods—Interstate Commerce.</p> <p>An occupation tax upon the sale of lightning rods manufactured in another State and sold upon orders taken by a traveling salesman in this State, is unconstitutional as being a tax upon interstate commerce.</p>

Tried below before Hon. J. C. Smith, County Judge. Appeal from a conviction for selling liquor without first having paid the occupation tax and obtaining a license; penalty, a fine of $450. The charging part of the first count in the indictment reads as follows, to wit: “That Alex.

The indictment charged appellant with the murder of Joe Brown, by shooting him with a gun, on or about the 21st day of May, 1897. On the trial of the case the killing was not denied, but in justification it was contended that defendant was insane on the subject of a mob seeking to kill him, and that he insanely believed that the deceased, Joe Brown, was constantly trying to organize a mob for that purpose.

Tried below before Hon. D. E. Barrett. Appeal from a conviction for passing a forged instrument; penalty, two years imprisonment in the penitentiary.

Tried below before Hon. W. J. Graham. Appeal from a conviction of seduction; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with seducing Lucy Gatlin on the 10th of June, 1896.

<p>Appeal from the County Court of Navarro. Tried below before Hon. J. F. Stout, County Judge.</p> <p>Appeal from a conviction for slander; penalty, a fine of $100.</p> <p>The charging part of the information was “that Mug Whitehead, on or about the 10th day of July, A. D. 1897, did, * * * in the presence and hearing of Burney Quinn and divers other persons, falsely, maliciously, and wantonly say of and concerning the said Miss S. A. Walker, that he, the said Mug Whitehead, saw Miss Alice Walker (meaning Miss S. A. Walker, a female) and Lorenzo Bounds (meaning Lorenzo Bounds, a male person) getting there (meaning that the said Miss S. A. Walker and the said Lorenzo Bounds were having carnal intercourse with each other); contrary,” etc.</p> <p>Defendant made a motion to quash the information because “the language or terms alleged, to wit, ‘getting there/ could not be contorted into a charge that the prosecutrix was unchaste; and the deduction that the prosecutrix and the said Bounds were having carnal intercourse was an unfair one and not borne out by said language; and the State could not show, by innuendo, a more extended and enlarged meaning of said words.” The motion was overruled.</p> <p>No further statement necessary.</p>

The relator, Jack Millsap, was convicted in March, 1897, in the County Court of Hunt County, his fine being assessed at $10, which with costs amounted to $101.55, and he was committed to jail in default of payment of fine and costs. On March 21, 1897, Jehu Lindley hired the relator, under the law relating to- county convicts, at the rate of $10 per month. He executed a convict bond, with John M. Lindley as surety.

The opinion sets out the charging part of the information. Defendant made a motion to quash the information for the following reasons, viz.: “1.

The indictment is set out in the opinion. A motion was made to quash upon the grounds, first, said indictment does not sufficiently allege or show that the instrument charged to have been passed was forged; second, it fails to appropriately and sufficiently charge that said instrument was a forged instrument, the allegation that it was such being merely a conclusion.

The indictment charged appellant with the theft, on or about the 24th day of February, 1897, of one head of cattle, the same being an estray, and the corporeal personal property of some one to the grand jurors unknown.

<p>Appeal from Gonzales County.</p> <p>Appeal from a judgment remanding relator to custody rendered on a habeas corpus hearing in chambers before Hon. W. W. Glass, County Judge.</p> <p>The opinion states the case.</p>

<p>Habeas Corpus—Relator Must Be in Custody Pending Appeal.</p> <p>Unless the record on appeal in a habeas corpus proceeding shows affirmatively that the relator is in custody in jail, the appeal will be dismissed.</p>

<p>1. Rape—Penetration—Circumstantial Evidence—Charge.</p> <p>On a trial for rape, where the proof as to penetration was of a positive nature, a charge to the jury that such fact could be proved by positive or circumstantial evidence, can not possibly injure defendant.</p> <p>2. Incompetent Testimony—Practice.</p> <p>Where incompetent testimony has been elicited without exceptions taken until after it was given, then the court, upon request, struck out and suppressed and instructed the jury to disregard the same, no reversible error is shown.</p> <p>3. Conduct of the Trial—Improper Action of Prosecuting Attorney.</p> <p>It is reprehensible conduct, though it may not constitute reversible error, for the prosecuting attorney to propound to a witness a question which he must know is illegal when he propounds it.</p> <p>4. Bape—Indictment—Allegation Negativing the Fact that the Female Is Wife of Defendant.</p> <p>It is only in cases where the alleged injured female is either so mentally diseased as to have no will to oppose the act of carnal knowledge, or that she is under the age of fifteen years, that it is necessary that the indictment should allege that she is not the wife of defendant. The allegation is not required, and does not apply in cases of rape by force, threats, or fraud on a woman of the age of consent.</p> <p>ON MOTION FOB BEHEABING.</p> <p>5. Proof of Venue—Practice on Appeal.</p> <p>Where the record on appeal shows that the case was tried prior to the time the law became operative which requires the court on appeal to presume that venue was proved at the trial in the lower court, the judgment will be reversed if the record fails to show that the venue was proved.</p>

Tried below before Hon. George W. Armstrong, County Judge. Appeal from a conviction for “letting for hire a wagon” without first obtaining a license therefor; penalty, a fine of $3. Ho statement necessary.

<p>1. Notice of Appeal—Entry Nunc pro Tunc After Appeal Perfected.</p> <p>After an appeal has been perfected by the filing of the record in the Court of Criminal Appeals, the trial court has no authority or jurisdiction to enter nunc pro-tune a notice of appeal.</p> <p>8. Jurisdiction of Trial Court Pending an Appeal.</p> <p>After a record has been filed in the Court of Criminal Appeals, the trial court has lost all jurisdiction to make entries or to perform any act in connection with the case except to substitute lost or destroyed papers.</p>

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

<p>Appeal from the County Court of Limestone. Tried below before Hon. A. J. Habpeb, County Judge.</p> <p>Appeal from a conviction for betting at a game of tenpins; penalty, a fine of $10.</p> <p>No statement necessary.</p>

Tried below before Hon. J. hT. Gallagher, County Judge. Appeal from a conviction for adultery; penalty, a fine of $100. The information charged Patience Stockman and George Solomon, the appellant, with “habitual carnal intercourse without living together, the said Patience Stockman being then and there lawfully married to another person than the said George Solomon, then living,” etc. There is no statement of facts in the record.

<p>1. Scire Facias on Forfeited Recognizance—Answer of Sureties—Practice.</p> <p>On a trial, after judgment nisi and scire facias to the sureties, where the original answer of the sureties consisted of a general demurrer and general denial, no error is shown in the refusal of the court to permit a withdrawal of said original answer where defendants desired to file a first amended original answer, which they termed “a plea in abatement,” it being made to appear that they were permitted to file said latter answer and that same was considered on the trial.</p> <p>2. Same—Plea in Abatement—Fees of District Attorney.</p> <p>On a scire facias proceeding, the proposition that a criminal case should abate because the district attorney could not claim a fee in two cases growing out of the same transaction, affords no ground for a plea in abatement.</p> <p>3. Recognizance—Offense—Sufficiency of Statement of.</p> <p>Where the recitals as to the offense in the recognizance were, “said M., accused of the offense of passing, as true, a forged instrument, in writing, knowing the same to be forged, -with intent to injure and defraud,” Held, sufficient statement of the offense charged.</p> <p>4. Same—Time and Place of Appearance—Sufficient Designation.</p> <p>Where a recognizance required the defendant to appear before “the District Court of W. County, at the courthouse of said county, in Gr., now in session,” etc.; Held, a sufficient designation of time and place.</p>

Tried below before Hon. R E. Brooks. Appeal from a judgment final for $500 on a forfeited recognizance. This is a companion case to Camp v. State, ante, p. 142. Mo statement necessary.

Tried below before Hon. W. 3VL White, County Judge. Appeal from a conviction for obstructing a public road; penalty, a fine of $1. The opinion states the case.

Tried below before Hon. Sam B. Scott. Appeal from a conviction for murder in the first degree; penalty, imprisonment for life in the penitentiary. The indictment charged appellant with the murder of B. H. Boyd on the 25th of April, 1897, by shooting him with a rifle. The case is sufficiently stated in the opinion.

<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 commit rape; penalty, two years imprisonment in the penitentiary.</p> <p>This is the third appeal taken in this case. See Clark v. State, 33 S. W. Rep., 224; Clark v. State, . 38 Texas Crim. Rep., 30.</p> <p>The opinion states the case as presented on this appeal.</p>

<p>The following narrative statement of the case, which is correct, is taken from the brief of counsel who represented the State on the trial below, viz:</p> <p>The facts developed on the trial of this case, briefly stated, are substantially as follows: Thomas P. Crane, the deceased, was a young man, about 23 or 24 years old, and about the last of August or the first of September, 1897, he, with his wife and three small children, moved upon the Pierce ranch, located in Johnson County, Texas, having accepted employment to gather a crop of cotton growing on said ranch, and to keep the ranch house, and board the other employes of the owner, C. A. Pierce. At that time, and before the killing, appellant John B. Shaw was the manager of said ranch for the owner, Pierce; and as such manager was in charge of the direction and management of same in Pierce’s absence. The only other employe about said ranch from the time of Crane’s employment thereon up to the killing was one A. R. Ginn, who was a general utility man about the place.</p> <p>On the 2d day of November, 1897, the deceased, Crane, went to the field, situate about a mile from the house, for the purpose of picking cotton. He was never afterwards seen alive. His body was discovered on the 5th day of November, 1897, on the side of a hill in what is known as the “Jungle pasture,” on said ranch, and at the inquest held on him three gunshot wounds, each of which was a fatal wound, was found on the body of the deceased, and in addition to these wounds the skull had been crushed in with some blunt instrument. On the day the body was discovered the appellant, John B. Shaw, was arrested, charged with the crime, together with a negro man by the name of Lee Wilson. These wounds were made with a 38-caliber ball, and balls of a larger caliber, supposed to be 44. The wounds on the head, from their size, shape, and general appearance, it may be presumed from the testimony, were made with the end of a rifle, the magazine and barrel thereof inflicting the wounds.</p> <p>From the testimony it clearly develops that within a short time after Crane went to the ranch the appellant, Shaw, became enamored of his (Crane's) wife. He had at different times stated to the witness Ginn that he intended to have Mrs. Crane, and on one occasion stated that he would secure Mrs. Crane if he had to kill Tom Crane and all of his damned relations. He had on one occasion, three or four weeks prior to the murder, made improper proposals to Mrs. Crane, and had gone to the extent of making an assault on her. He had stated to Mrs. Crane that it was his desire to provide her a better home than she was then enjoying, offering to care for her and her children in a handsome style. All of these insinuations, proposals, and this assault, had been by Mrs. Crane repelled. The deceased had been made aware of the assault on his wife. He and the appellant had quarreled about it a short time before the murder. After the disappearance of Crane on November 2d, and before the discovery of his body, the appellant renewed his attentions to Mrs. Crane, stating to her that her husband had run away and left her, and that he could and would care for her and the children. He had also stated to the witness Ewing that Mrs. Crane was “stuck on him,” and his actions displayed at this time showed that he was infatuated with Mrs. Crane.</p> <p>On Monday night before the murder of Crane on Tuesday a negro by the name of Lee Wilson came to the ranch and spent the night. Before going into the ranch house on that night he went with appellant Shaw to the lots, where they remained about half an hour. On Tuesday morning he was again seen with appellant Shaw in conversation about the house and in the yard. There has long been on this ranch a Winchester rifle, 44 caliber. Appellant was the owner of a Colt's sixshooter, 38 caliber. On the morning of the murder the only persons about the ranch were the deceased and his family, John B. Shaw, the negro Wilson, and the witness Ginn.</p> <p>Crane left for the field about 7 o’clock a. m., riding a colt a little more than two years old. Shaw left for the gin, about three miles distant, at about the same time, with a wagon, going for cotton seed. The negro Wilson left about half after 8 o'clock, going no one knows where, taking with him the Winchester rifle, and riding horseback. The witness Ginn left the ranch about 9 o’clock in a two-horse wagon, coining to the city of Cleburne, about eighteen miles distant from the ranch, bringing a load of meat with him to the home of the ranch owner, C. A. Pierce. This left, so far as the testimony shows, no one on the ranch but Crane, who was supposed to be at the field, his wife and little children, who were at the ranch house.</p> <p>Before leaving for the gin Shaw instructed the witness Ginn to leave the horses in the lot that he did not use; that on his return from the gin he wanted to salt the cattle. There was left in the lot only one horse— this a little black pony known as “Button.” Shaw returned from the gin at fifteen minutes to 10 o’clock. He inquired of Mrs. Crane the time. It was stated to him; and to the children in Mrs. Crane’s hearing he stated that he was going to salt the cattle. He returned to the house at thirty-five minutes- after 12 o’clock. Ho one saw the horse that he was riding except the negro Wilson.</p> <p>The deceased, Crane, was decoyed away from the field where he was at work, evidently about 11 o’clock a. m., probably a little earlier. This is demonstrated by reason of the fact that he had picked about sixty pounds of cotton. An average day’s picking by him, when the cotton was better than it was at the date of the murder, was 175 to 180 pounds.</p> <p>It here becomes important to describe the Pierce ranch. It is situated about eighteen miles-southwest from Cleburne, the county seat; contains five or six thousand acres of land under fence, and is located in the brakes of the Brazos Biver. The ranch is in a very rough country—hills, hollows, canyons, and ravines. The hills, being dignified in the record by being called mountains, are found on the ranch. It is composed of what is known as the “north and south pastures” and the “Jungle and Buck pastures.” The field is only composed of about 60 acres. We find the canyon heading near this field.</p> <p>It now becomes also important to describe the horses, which it will be found unmistakably figured in this tragedy. The little black horse left in the ranch lot by Ginn, and known as “Button,” was a trained cow-pony, 7 or 8 years of age, and made a very peculiar track. He was shod on his fore feet. On one of the feet the shoe was smooth; on the other foot the shoe had calks, referred to by some of the witnesses as “corks.” His hind feet were bare. Having been shod for some time, the hoofs of his fore feet had grown until they had extended out over the shoes. The horse ridden by the negro was known as “Arkansaw,” and was also a trained cowhorse. His feet were also peculiar. In his right fore foot there was a gap of about one and a half inches in diameter caused by a snag of the hoof from a barbed wire. In his hind feet the horse was pigeon-toed, and cut the dirt when traveling, throwing it out from his feet. The colt ridden by Crane was an ordinary colt, had no qualifications of a cowpony, or otherwise developed up to the time of the tragedy.</p> <p>After the body was discovered and a search was instituted for tracks, it was found that the little black horse known as “Button” and the colt ridden by Crane left the field going together, and traveled to the head of the hollow or canyon, until they arrived near a point where the “Arkansaw” horse had stood for some time. They were there joined by the “Arkansaw” horse. The three horses crossed the head of the hollow, and traveled together for some little distance, Avhen the tracks of the Crane colt go down into the bed of the canyon followed by the tracks of the “Arkansaw” horse, the tracks indicating that the horses Avere running. They come out again and are joined by the “Button” pony, and here you find the first evidence of a race for life that ended in a race to death. The three horses traveled on together, over a country that can scarcely be described. Over hills, ravines, canyons, and jungles, for nearly a mile, and to the scene where the body of Crane Avas found.</p> <p>How, from the record and from the testimony of all of the witnesses, it is made unmistakably and beyond the possibility of a doubt to appear that the men Avho rode the “Arkansaw” and the “Button” horses Avere the men avIio murdered Crane. From the spot Avhere the body Avas found, the “Arkansaw” horse and the Crane colt go together to a point distant about 200 yards in the jungle, where evidence is found shoAving that the Crane colt was tied and left standing for tAventy-four hours. This spot in the jungle pasture is about one and a half mile from the ranch house. On Tuesday night Mrs. Crane persuaded Shaw to go and make a search for her husband, or for the horse. He finally Avent; Avas gone about one-half an hour, and returned with the message that there was no tidings of either. Mrs. Crane sat up most of the night. Shaw stayed up as long as she did. The first thing in the morning Mrs. Crane once more prevailed on ShaAV to go and look for her husband’s horse. He Avent; was gone a short time, and returned with the message that it could not be found. Mrs. Crane then insisted that he go and get her a horse, in order that she might secure the assistance of one of the neighbors to assist her in the search for this horse and in search for the missing man, Crane. Instead of doing that, ShaAV again went in search for the horse. In a half hour he returned to the house with the colt ridden by Crane when last seen alive. The colt was gaunt, and shoAved the effects of standing without food or water. Shaw claimed to have found the colt grazing at a point AA'here there was no obstacle to keep the colt from returning to the ranch lots where it had been fed and watered during the residence of Crane at the Pierce ranch. In other A ords, he found in a half hour this colt, near the scene of the body—a place that it required three days for many neighbors.to discover after diligent and careful search—a search that ShaAV never at any time participated in, claiming that he had to haul cotton seed and had no horse to ride. Yet no cotton seed was hauled after the murder, and Shaw was on a horse riding to Cleburne every day that week. On Tuesday it develops that a man named Wylie, a resident of Johnson County, happened near the ranch about the noon hour, at thirty-five minutes after 12 o’clock, and dined with Shaw and Mrs. Crane. On Thursday and .Friday the officers of the county were joining in the search. Shaw had been talking to them for a day or two. He had tried-to persuade the sheriff on Friday morning that it was no use in his going to the ranch; that Crane had run off, and left his wife. The sheriff insisted on going. Shaw was at the ranch on Thursday night, and from the number of people that were gathering in to assist in the search, evidently believed that some discovery would be made. Instead of assisting, himself, we find him, on Friday making every effort to find Wylie. He sees him on Friday evening. He makes careful and painstaking examination of Wylie to ascertain whether or not, while on the ranch about Tuesday, he saw Crane about the field, or anyone else about there. In •other words, he understands that Wylie is the only one who it was possible may have discovered anyone in company with Crane, and is anxious to ascertain whether he did, evidently believing that if Wylie could not throw some light on his secret, that no one could.</p> <p>After leaving Wylie, he again starts to the ranch. When within two miles from there he meets some young men and makes inquiry, having first told that he learned of the discovery of the body; the inquiry being as to whether or not the officers are there, and are doing any tracking. He goes on, arrives at the ranch, where he is arrested.</p> <p>The body, then, has been removed to the ranch house. The officers take the back track of the horse that he rode to the ranch house. They find the track of this horse leading to a place within about 400 yards of where the body was found, and 400 or 500 3'ards off the road. Again, on the day the body was discovered, Shaw can go to the scene of the murder without inquiry, while it required others three days to learn the scene where the murder was committed. And on this Friday evening of his arrest he is found in possession of apples and children’s shoes,—with these little attentions, returning to the scene of his affections, with the evident purpose of continuing his suit for the hand of Mrs. Crane, and causing her to believe that he was her friend, and that her husband had most cruelly deserted her. This record, on the question of motive, as well as that of positively identifying the three horses by the tracks that lead to the scene of the murder, is doubtless more clear and positive than any record ever submitted in a case of this kind. The horses’ tracks are positively identified by twelve or fifteen witnesses, both for the State and for the defendant. About that there can be no possible controversy. That deceased was killed with a rifle gun and with a pistol there can be no controversy. That the pistol was a 38 caliber, and that Shaw owned a pistol of that kind, is also undisputed. That this little black “Button” horse was left in the lot for Shaw to ride; that he returned to the house about 10 o’clock and did ride the same horse away is also undisputed. The team that he drove to the gin was a pair of mules. That he was the man with the motive for the killing of Crane will appear in the record much stronger than in this narrative detail of the testimony.</p> <p>In addition to these circumstances, which are undisputed, we have the testimony of the negro Lee Wilson. His testimony corroborates every circumstance; corroborates every physical fact on the ground; corroborates every wound found on the body of the deceased; and, aside from these circumstances that had pointed unmistakably to the cruel, savage, and brutal manner of the taking off of Crane, his testimony discloses a crime that for brutality and savageness has never been disclosed by a record submitted to this court in this State.' It belongs to the atrocity and savagery of the Apache Indians, or some other fierce tribe of savages in the long ago.</p> <p>His testimony discloses the fact that this man Crane was lured from his field where he was at work, unarmed and unsuspecting, to near the head of the canyon, where the negro lay in wait, and that almost immediately after the appellant came up with the negro the deceased was made aware of the end that awaited him, and along this journey of more than a mile to the scene of his death begged piteously for his life, and made every effort to escape from his captors; but, being carried through the country that has been described, on an untrained colt, he had no show for his life, herded in as he was by the trained cow horses and the skilled riders and unerring marksmen, as Shaw and the negro were shown to be.</p> <p>These, as stated, are briefly the circumstances of the killing; are not overdrawn, and will more clearly appear from an inspection of the record than has been stated. It is not practicable to point out these different circumstances by reference to pages in the transcript, hence a narrative form has been adopted by the writer hereof. It may be added that every fact and every circumstance in this case is left undisputed, and from the record it will be disclosed that appellant’s counsel made no mistake, strong as the circumstances were, corroborated as they were by appellant’s principal and accomplice, Lee Wilson, when they were allowed to go unchallenged and unquestioned.</p> <p>Defendant Shaw made an application for a severance from his codefendant Lee Wilson, who was indicted separately for the same offense. The motion for severance is as follows:</p> <p>“How at this time comes John B. Shaw, defendant in the above entitled cause, and files his affidavit in writing, and states to the court that one Lee Wilson is indicted for the crime of murder by separate indictment in this court, and that the said defendant is indicted for the same murder by separate indictment filed in this court, and that the said offense is alleged to be the same transaction of both parties, and that the said defendant believes that the evidence of the said Lee Wilson is material to his defense, and that affiant verily believes there is not sufficient evidence against the said Lee Wilson to secure his conviction, whereupon he prays the court that the said Lee Wilson shall first be tried herein.</p> <p>“J. B. Shaw.</p> <p>“Subscribed and sworn to before me, this January 3, 1898.</p> <p>“R. B. Vickers,</p> <p>“Clerk District Court Johnson County, Texas.”</p> <p>This motion was overruled b)r the court and defendant saved a bill of exceptions.</p> <p>At the time said application and motion of appellant for a severance was presented to the court, the attorneys for his codefendant asked of the court leave and time to prepare a counter-affidavit and motion praying that the appellant be first placed on trial. The court was also assured of the fact by the State’s counsel that the codefendant, Lee Wilson, would be used as a witness by the State in said case, and that appellant would not be deprived of his testimony by reason of the overruling of said application. Said Lee Wilson was used as a witness on the trial of said case, and at a later day of the term of said court said Lee Wilson was placed on trial and convicted of murder in the first degree, sentenced, and no appeal taken from said sentence.</p> <p>After Iris application for severance was overruled, defendant made an application for continuance, which was also overruled. The principal matters connected with this application for continuance are sufficiently stated in the opinion below.</p> <p>Over the objections of defendant, the witness Mossy Pierce, daughter of C. A. Pierce, after she had stated that she lived with her father at Cleburne, Johnson County, Texas, about eighteen miles from her father’s ranch, and that she was acquainted with defendant Shaw, was permitted to testify, “that some weeks after the killing of Thomas P. Crane, while I was playing in the cotton seed house belonging to my father, I found a pair of boots buried in the cotton seed about two and a half feet deep.”</p> <p>Appellant also objected to the testimony of Mrs. C. A. Pierce, to the effect that her daughter Mossy had brought her the pair of boots mentioned in the testimony above.</p> <p>The objection to the testimony of these witnesses was that the same was immaterial and irrelevant and prejudicial to defendant, he not being in any manner connected with said boots. But the court overruled the objections upon the promise of counsel for the State that the State would, by other evidence, connect defendant with -said boots. This promise was not complied with by counsel for the State. During the trial, when the witnesses H. F. Long and Joe Osborne were each upon the stand testifying, and after each had testified to having followed the tracks of three horses in Pierce’s pasture going to and returning from the place where they saw the dead body of the deceased (Crane) lying, the prosecuting attorney asked them the question: “If they recognized the three horses then and there ?” and the court over objection of defendant allowed each witness, after he was asked the question, to leave the witness stand and go about ten feet to the south window of the courtroom, and after looking out of the window, to answer that he identified said three horses which were then hitched in a bunch at the south gate leading into the courthouse yard, which was not more than forty feet from said window. Defendant’s objection was that the actions of the witnesses were sensational and calculated to prejudice the minds of the jury.</p>

<p>1. Aggravated Assault by Means Inflicting Disgrace—Construction of Statute.</p> <p>One of the grounds of aggravated assault, as set forth in subdivision 6 of article . 601, Penal Code, is “where the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault and battery with a whip or cowhide.” Held, the naming of “whip” or “cowhide” was not intended to limit the character of the assault to those means, but any other means which inflicts disgrace is within the contemplation of the statute.</p> <p>2. Same—Aggravated Assault Upon a Female—Information.</p> <p>See opinion for an information held sufficient to charge an aggravated assault and battery upon a female inflicting disgrace by pulling up her dress and against her will fondling her person and inserting a finger into her vagina.</p> <p>3. Same—“Disgrace.”</p> <p>Disgrace means cause of shame or reproach, that which dishonors, a state of ignominy, dishonor, or shame;, and the gravamen of this character of offense, that is, the injury inflicted is “constraint,” “a sense of shame,”—expressly so made by statute.</p> <p>4. Same—Information—Allegation as to Gender of the Parties.</p> <p>An information under subdivision 6, article 601, for an aggravated assault and battery upon a female by a male person, which refers to the defendant by the pronoun “his,” and to the assaulted party by the pronoun “her,” with reference also to her vagina, sufficiently designates the gender of the respective parties. In this character of case it is not necessary to allege that the defendant was an adult male.</p>

<p>Appeal from the District Court of Comal. Tried below before Hon. H. Teichmuller.</p> <p>Appeal from a conviction for incest; penalty, seven years imprisonment in the penitentiary.</p> <p>The following statement of the case, which is substantially correct, is taken from the brief of counsel for appellant, viz:</p> <p>The appellant was, on the 25th day of January, 1898, indicted by the grand jury of Comal County, Texas, with what purported to be the crime of rape upon one Mattie Clark, said indictment containing three counts, the first being for rape of female under the age of 15 years; second, rape of a woman by force, threats, and fraud and without her consent ; and the third count being a charge of incest; all of said counts relating to one act, of date December 12, 1897. The case was called to trial seven days after the indictment was found, and the defendant not being ready for trial by reason of the absence of material witnesses, applied for a continuance of his cause to the next term of court, which application being overruled by the trial court, he was forced to trial which resulted in a conviction of incest, and his punishment assessed at confinement in the State penitentiary for a term of seven years. The facts deduced on the trial are in substance as follows:</p> <p>The prosecuting witness, Mattie Clark, testified that on the 12th of December, 1897, as alleged in the indictment, about half-past 12 o’clock at night, defendant used her as his wife against her consent; that he raped her; that her brother, aged 10 years, and two sisters, one younger and the other older, were in the house, and that her brother Harry was in the room, and there was one bed in the room, and that defendant threw her down on this bed and raped her. She was the only witness to testify to these facts, although Harry testified at the examining trial in December, 1897. She also testified that she was the daughter of defendant and was 14 years old. Joe Williams, a witness for the State, testified that she was the daughter of defendant, because defendant told him so some time before. Katie Clark, for the State, testified that she was a sister of Mattie, but did not know if defendant was her own father or not, but that her mother’s name was Mattie Wade, and that defendant lived with Mattie Wade when she died. The testimony was undisputed that defendant was married to another woman, Lizzie Clark, more than twenty-five years ago; that defendant was divorced from his said wife nine or ten years ago, and that he lived with Mattie Wade, the mother of prosecuting witness, some months before he got the divorce, and was living with her when she died, about eight years ago, but there was no testimony whatever to show that defendant lived with said Mattie Wade, mother of prosecuting witness, some months before he got the divorce, and was living with her when she died, about eight years ago, but there was no testimony whatever to show that defendant lived with said Mattie Wade, mother of the prosecuting witness, at time of inception-and birth of said witness, but on the contrary at that time lived with his lawful wife, who was not the mother of prosecutrix ; that the defendant took charge of her children after the death of Mattie Wade, their mother; that the two youngest children, to wit, Harry and Annie, were probably defendant’s. It was also undisputed that the mother of prosecutrix had lived with other men and had children by other men than the defendant, and was not married to any of them. Three witnesses besides defendant testified that defendant was living with his wife, Lizzie Clark, during the inception and birth of prosecutrix, and that other men, or another man, was living with the mother of prosecutrix during the inception and birth of said witness. The testimony of Susie Clark, who was in the house the night of the alleged crime, was that she heard nothing, and that defendant whipped prosecutrix on Sunday morning for running around at night.</p> <p>Defendant testified that he stayed with one Josephine Brown on the night of the alleged crime. Witness Ellen Burton testified that he did not stay there.</p> <p>Defendant was arrested on a charge of rape about noon on Monday following Saturday night, the time of the alleged crime, and put under $150 bond, which he gave and came out and went to work on the streets, and was rearrested next day on a charge of incest.</p> <p>The testimony of Mattie Clark, prosecutrix, is not corroborated, nor any proof whatever of penetration, or that defendant had carnal intercourse with her, other than is stated in her testimony.</p> <p>The State abandoned the first count in the indictment, which alleged the age of prosecuting witness to be under 15 years, as the proof and her appearance showed conclusively that she was over 15 years old, and the jury did not find him guilty of rape by force, threats, or fraud, but convicted him of incest.</p>

<p>1. Pursuing Occupation Without License—Bail Bond—Statement o£ Offense In.</p> <p>A bail bond given for the appearance of an accused to answer for an offense must state distinctly the name of the offense of which the accused is charged, and it must appear therefrom that he is accused of some offense against the laws of the State. Code Crim. Proc., art. 308. Held, where the bond recited the offense as “pursuing an occupation taxable by law without paying the tax or license,” the bond was fatally defective in not stating what occupation was pursued, and it not being determinable from the face of the bond whether or not the occupation pursued was one taxed by law.</p> <p>2. Practice on Appeal—Briefs—Fundamental Error.</p> <p>On appeal, if a fundamental error is apparent of record, the court will review the same though the case be one which has not been briefed in accordance with the rules.</p>

The prosecuting witness, J. B. Landrum, testified: “On the 33d of November, 1897, Spink Gaines and I went to the field of the defendant. I went there for the purpose of having a settlement with him about the rent of some land and an account he was due me.

Tried below before-Hon. W. G. Taliaferro. ' Appeal from a conviction for rape; penalty, fifty years imprisonment assessed against each appellant. The indictment charged appellants jointly with rape, committed on the 9th day of January, 1898, upon Martha Green, a female under the-age of 15 years. The record in this case shows that the parties in this case were negroes. That the prosecutrix, Martha Green, was between 12 and 13 years of age.

Tried below, in chambers, before Hon. J. S. Straughan. Appeal from a judgment on a habeas corpus hearing refusing bail to applicants and remanding them to custody, they having been charged with the murder of one John E. Adams, in Erath County, on the 18th of December, 1897. The following condensed but comprehensive statement of the leading facts adduced on the habeas corpus hearing is taken from the brief of respondent.

Tried below before Hon. J. C. Main, County Judge. Appeal from a conviction for swindling; penalty, a fine of $100 and twenty-four hours imprisonment in the county jail. Ho statement necessary.

Tried below before Hon. Irby Dunklin. Appeal from a conviction for theft of property over the value of $50; penalty, two years imprisonment in the penitentiary. The opinion states the ease.

<p>1. Disorderly House—What Constitutes.</p> <p>Under Penal Code, article 359, a disorderly house can be kept, although it is shown that but one prostitute inhabited the house, if it be further shewn that men resorted there for the purpose of prostitution, and that frequent acts of prostitution be. there committed, and that the house has the reputation of a disorderly house.</p> <p>2. Same—Proof by Reputation.</p> <p>On a trial for keeping a disorderly house, while proof of the reputation of the house is admissible, such proof of reputation alone is insufficient to establish the offense.</p> <p>3. Same—Evidence Insufficient.</p> <p>On a trial for keeping a disorderly house, the evidence was insufficient to support a conviction which only showed that a woman of bad reputation for chastity occupied the house where men frequented, but that the house was a quiet and apparently nice place, and no act of illicit intercourse, or circumstances tending to establish such act, and no disorder was shown to have occurred therein.</p>

<p>Appeal from the District Court of Frio, upon a change of venue from Atascosa County. Tried below before Hon. M. F. Lowe.</p> <p>Appeal from a conviction for murder in the second degree; penalty, thirty years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with the murder of T. M. Peeler, by shooting him with a pistol, in Atascosa County, on the 18th day of May, 1897.</p> <p>The record in this case is most voluminous, the statement of the facts in it covering seventy-seven printed pages of the transcript. A narrative of the important facts ma}’, however, be briefly summed up as follows: Both the parties lived in the country some four and six miles distant from the village of Campbellton, in Atascosa County, the defendant being the constable of his precinct. During a term of the District Court at Pleasanton, the county site, and some months prior to the homicide, the deceased was talking to some friends in a saloon, and incidentally mentioned defendant’s name in connection with some occurrence he was detailing. Defendant, who was sitting behind deceased, though his presence and proximity was unknown to the deceased, jumped up, and in a very angry manner rushed upon deceased, presenting a cocked pistol in his face with one hand while he struck him one or two blows with the other. Deceased told him he was unarmed. Defendant replied that he would not shoot an unarmed man, and it appears 'that he replaced his pistol in its scabbard. In the meantime deceased threw off his coat and vest and offered to fight him without weapons. At this they commenced fighting in the saloon, and the parties who were present all fled into the streets. The combatants fought out onto the gallery in front of the saloon, at which time defendant was beating deceased over the head with his sixshooter, and deceased was calling for protection from the officers of the county. He seems to have been badly beaten up in this rencounter, and was afterwards heard to make serious threats against the defendant. Some month or so afterwards deceased was arrested upon a complaint made by defendant, and perhaps some others, which complaint charged him (deceased) with the burning of the schoolhouse located upon or in the neighborhood of the lands belonging to the deceased. At this trial upon this accusation deceased was acquitted. After his acquittal he filed a complaint against the defendant for malicious prosecution; and this case was set down for trial before the justice of the peace at Campbellton for the afternoon of Hay 18th. Defendant, with several of his friends, reached Cambellton in the forenoon in a wagon and on horseback, having guns with them, defendant himself having a sixshooter buckled around him, which he had a right to carry, he being a constable. Deceased arrived on horseback about 2 o’clock, apd hitched his horse close by where defendant’s wagon had been stopped, and was seen by all the parties who were present in the village, and must have been seen more than once before the shooting by the defendant, as it appears that they on one or two occasions were in very close proximity to each other. Just before the shooting, the deceased and county attorney held an interview in an alley between two store buildings. The county attorney describes the clothing worn by the deceased, from which description it clearly appears that he could not have had a pistol upon his person, as anyone could have seen who had noticed him at all. Just as they had finished or were about to finish their conversation, the opening of the 'justice’s court was announced by a special constable, the courtroom being in one of the storehouses which abutted upon the alley and but a few feet from where the parties had held the conversation above referred to. Some of the witnesses locate the defendant in a position where he must have seen deceased and the county attorney in conversation. As soon as the opening of court was announced, deceased started down the alley to go round in front of the courtroom, and defendant at the same time also started to the courtroom; and just as deceased had gotten upon or was about to step upon the sidewalk in front of the court building, defendant, who had approached him within eight or ten feet, drew his pistol and fired upon him, the ball entering the hat band of deceased and almost in the center of his forehead. The State’s eyewitnesses testified, that at the time the shot was fired deceased's hat was pulled down over his face and his head inclined a little forward, and that he did not make the slightest hostile demonstration, even if he knew or had seen that the defendant was near to him. All the witnesses testify that not a word was spoken by either party before the shot. Deceased fell and died in a very few seconds afterwards. Defendant and some of his witnesses testified, that just before the defendant fired the deceased made a movement with his right hand towards his hip pocket, as though to draw a weapon. The justice of the peace, county attorney, sheriff, and other officers testified, that they thoroughly searched the body of deceased and did not find even a pocket knife upon his person. They also examined his saddle and saddle pockets, and found no weapon there. The defense was self-defense, predicated upon threats and apparent danger; and manslaughter, predicated upon insulting language uttered a month or so before concerning and insulting conduct towards the wife of defendant several years before the homicide, but which his wife had only communicated to him the night before the homicide.</p> <p>The matters pertaining to supposed errors to the admission and exclusion of evidence, and to the charge of the court, are sufficiently stated in the opinion of the court.</p>

Tried below before Hon. John 0. Rowlett, County Judge. Appeal from a conviction for willfully disturbing a congregation assembled for religious worship; penalty, a fine of $25. The opinion states the- case.

<p>Appeal from the County Court of Coryell. Tried below before Hon. T. C. Taylor, County Judge.</p> <p>Appeal from a conviction for injuring a certain room of a house; penalty, a fine of $1.</p> <p>The opinion sets out the indictment and the exceptions urged to the same. No statement necessary.</p>

<p>1. Playing Cards in a Public Place—Information.</p> <p>An information for unlawfully playing cards in a public place is wholly insufficient which describes the public place as “J. S. Mayfields, Sr.'s, pasture, about 310 yards from the International & Great Northern Railway depot,” and then giving as the boundaries of said pasture only the length of the east and west lines, and not giving the length of the northern and southern lines, nor the number of acres in the pasture. Under this description the whole of the pasture is alleged as a public place commonly resorted to for gaming purposes. The allegation should have been more definite; the particular point should have been designated.</p> <p>2. Same—“Public Place.”</p> <p>A secluded spot in the woods, or elsewhere, to become a public place in contemplation of the statute against gaming, must be a place used by sports and gamblers generally and indiscriminately for the purpose of gaming.</p> <p>3. Same—Evidence.</p> <p>Where the information charged the gaming to be in a public place, a pasture, evidence is insufficient to support the conviction which only shows the playing of two or three games in the vicinity, but not showing that they were played at the same place as charged; and the evidence is certainly insufficient where it fails to show that the place alleged had been used in two years prior to the presentment of the information, as a resort for gamblers and sports for purposes of gaming.</p>

Tried before Hon. L. B. Cobb. Appeal from a conviction for horse theft; penalty, three years imprisonment in the penitentiary. The opinion states the case.

<p>1. Lottery—What Constitutes.</p> <p>Where the device operated by defendant was a stand so constructed that a spindle would be turned on a pivot horizontally, and the circumference of the board was divided into spaces by nails driven into the edge, and between the nails different articles of value were placed, the value being marked upon the article, and the players, by investing so much, were entitled to whatever article was in the space at which the spindle stopped; Held, this was a lottery in contemplation of article 373, Penal Code.</p> <p>3. Same—Legislative Power to License.</p> <p>The Legislature has no power to license lotteries, the same being absolutely required to be prohibited by the Legislature by express provision of article 3, section 47, of the Constitution, and article 5049, Revised Statutes, in so far as it may, by taxing such occupations, operate to license them, is clearly unconstitutional and void.</p>

Tried below before Hon. J. A. Crews, County Judge. Appeal from a conviction for unlawfully carrying a pistol; penalty, a fine of $25. The opinion states the case.

Tried below before Hon. A. S. Walker, County Judge. Appeal from a conviction for libel; penalty, a fine of $200. A motion was made by the Assistant-Attorney General to strike the statement of facts from the record, because the same had not been approved by the trial judge, nor properly and legally filed in the lower court.

Tried below before Hon. M. Kennon. Appeal from a conviction for horse theft; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. Local Option—Hosting Notices of Election—Issue as to the Prima Eacie Case of State.</p> <p>On a trial for violating local option, when the State has made a prima facie case by showing the order, counting of votes, and declaring the result in favor of prohibition, this shifts the burden of proof on the defendant to show by evidence that the notices of the election were not posted; and the mere introduction of proofs on this line will not put in issue the prima facie case made by the State to raise such issue, but such proof must tend to show that such notices were not posted before the court would be required to submit such issue to the jury, and, in the absence of such proof by defendant, the court may assume that said notices were posted. Following Shields v. State, 38 Texas Criminal Reports, 252.</p> <p>2. Same—Submitting to Jury Issue as to Posting Notices.</p> <p>On a trial for violating local option, the clerk testified that he made out five typewritten notices for the election, which he handed to the sheriff or his deputy, both of whom denied receiving and posting said notices, or that he had ever any recollection of ever having seen said notices posted. A member of the prohibition campaign committee testified that he understood all the notices were posted; that he posted one in person at the postoffice in M., though he did not know how he received it; that he gave one of the notices to his son to post at W., but did not know whether he posted it or not, and he thought these copies of the notices were written in ink and were not typewritten,. A county commissioner thought he recollected that he saw one of the notices posted at W. Held, this proof was sufficient to raise an issue as to the prima facie case made by the State, and the question as to whether the notices for the election had been duly posted was a question which should have been submitted to the jury, and it was error for the court to assume in the charge that local option was legally in force in the county.</p> <p>3. Order for Election—Sacramental and Medicinal Liquors.</p> <p>It is not necessary that an order for a local option election should contain exceptions in favor of the sale of liquors for sacramental and medicinal purposes.</p> <p>4. Indictment—Allegation as to Kind and Quantity of Liquor Sold.</p> <p>It is not necessary that an indictment for a violation of local option should allege the kind and quantity of liquor sold.</p>

<p>1. Confession in Arrest—Character of Warning "by Officer.</p> <p>A confession or admission made by a party in arrest is not admissible in evidence where the warning given him by the officer was that any statement he might make could be used “for or against him.” The statute only authorizes the confessions which are made after the prisoner has been warned that his statements may be used against him.</p> <p>2. Same—Silence as a Confession.</p> <p>Where a party is in custody for a crime, his silence can not be used against him as a confession or admission of the truth of matters stated in his presence, whether he was warned or not warned. He being under arrest was not bound by and could not be charged with the statements of another party.</p> <p>3. Theft of Cattle—Evidence—Systematic Crime.</p> <p>On a trial for theft of cattle, testimony to the effect that cattle with burnt brands, upon them were found in the pasture of a codefendant could not be used as a circumstance against defendant, no connection on his part with said cattle being shown. In exceptional cases such evidence might be admissible to show that a system of theft was carried on between the parties.</p> <p>4. Same—Defendant Must Have Been Party to the Taking—Charge.</p> <p>To warrant a conviction for theft, the defendant must have been a party to the original taking. The fact that he is an accomplice or an accessory, or a receiver of the stolen property, will not justify his conviction for theft; and it was error for the court to fail or refuse to so charge the jury where the evidence showed that- the cattle were taken in one county, defendant being in that county at the time, by some unknown person and carried to another county, where they were found, and where-defendant had assisted in freshly branding them.</p> <p>5. Defendant’s Failure to Testify—Charge as to.</p> <p>On the trial of a criminal case., where the defendant has not testified as a witness in Ms own behalf, a charge of court which simply reiterates that provision of the statute which declares that his failure to testify shall not be taken as a circumstance against him, is proper as a protection to the defendant and for his benefit. Following Fulcher v. State, 28 Texas Criminal Appeals, 465.</p>

Tried below before Hon. W. B. Thompson, County Judge. Appeal from a conviction for willfully leaving open a gate to the inclosure of another without his consent; penalty, a fine of $10. The case is sufficiently stated in the opinion.

Tried below before Hon. J. 0. Main, 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 following is all the testimony in the case: “It is admitted by the defendant that local option was legally in force in the town of Hamilton at the date of the alleged offense. John Davis testified for the State as follows: My name is John Davis.

Tried below before Hon. Sam R Scott. Appeal from a conviction for burglary; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with burglary of the house of Prince Myams, with intent to commit theft. The property taken from the house was a watch. This watch appellant pawned several weeks afterwards to one Sam Gaines for a half dollar. Sam Gaines took it to the saloon of one Davidson, where he intended leaving it until Monday.

Tried below before Hon. Theo. Barnes, County Judge. Appeal from a conviction for playing at a game with cards in a public place; penalty, a fine of $10. The opinion states the case.

Tried below before Hon. James 0. Wilson. Appeal from a conviction for murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The indictment charged appellant with the murder of John Moro, in De Witt County, on the 29th day of May, 1894.

Tried below before Hon. J. G. Russell. Appeal from a conviction for theft from the person; penalty, four years imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

On the 12th day of March, 1898, appellant was indicted for the theft of $350 in money from one W. F. Rubottom. The indictment contained three counts. The first charged appellant with receiving the money from Z. Rubottom, a son of W. F. Rubottom, the said Z. Rubottom having stolen the same, and appellant received it, knowing it to have been stolen. The second count charged appellant with being a principal in the commission of the crime.

The -indictment charged appellant with the murder of Frank House, by shooting him with a pistol, in the county of Gonzales, on the 28th day of August, 1896. The case is sufficiently stated in the opinion.

Appellant was indicted for the murder of J. H. Foster by shooting him with a gun in Washington County, on the 9th day of October, 1897. The case is fully stated in the opinion.

<p>1. Forfeited Bail Bond—Variance as to Name of Principal.</p> <p>Where the Christian name of the principal in the bail bond was, “Noberto,” and in the judgments nisi and final entered upon forfeiture the name Is written “Norberto,” Held, no variance.</p> <p>2. Absence of Statement of Facts—Practice.</p> <p>If there is any evidence introduced upon the trial it should be brought up in the statement of facts. If no evidence at all was adduced, there should have been a certificate of that fact by the judge. The failure to incorporate a statement of the facts in the record can not be reached by a motion “to set aside the final judgment because the State failed to introduce any evidence to sustain the issues in its behalf,” etc., though the attorney swears to his motion.</p>

<p>Appeal from the District Court of La Salle. Tried below before Hon. A. L. McLean.</p> <p>Appeal from a conviction for libel; penalty, a fine of $100.</p> <p>Ho statement necessary.</p>

<p>1. Theft of Cattle—Evidence—Certificate of Marks and Brands Recorded Subsequent to the Theft—Charge.</p> <p>A certificate of registration of marks and brands, recorded subsequent to the alleged theft, is admissible in evidence, not for the purpose of proving ownership, but to be used as a circumstance in connection with other circumstances to prove the identity of the alleged stolen animal. Such certificate is no proof of title, and the court in such cases should guard the jury as to such evidence so as that they would not be liable to regard it as proof of ownership of the stolen animal.</p> <p>2. Same—Record of Marks and Brands—When to Be Made—Effect of Record.</p> <p>A recorded brand to be evidence of ownership must have been recorded anterior to the alleged theft, and even such a recorded brand is but prima facie proof of ownership, subject to be rebutted.</p> <p>3. Same—Only One Brand Can Be Recorded and Used—Use of More Than One—Effect of.</p> <p>Under our statutes, no person is allowed to use more than one brand, which shall be recorded. Rev. Stats., arts. 4922, 4923. And it is made a penal offense to use more than one brand. Penal Code, art. 932. He may, however, purchase the marks and brands of others, and the sale and transfer can be noted on the record of original marks and brands in his name. Rev. Stats., art. 4942. But where a party owns and uses more than one such recorded brand, the same can only be regarded as a flesh mark upon the animal so branded, and can be used, not as evidence of ownership, but simply as evidence to establish the identity of the animal.</p> <p>4. Improper Argument of Counsel—Practice.</p> <p>On a trial for theft, where defendant had not put his character in issue, and the prosecuting attorney commented upon the fact that two of his neighbors were on the grand jury which found the indictment, that they knew him and they brought in the bill, and the court refused to reprimand counsel and to instruct the jury to disregard such argument, though requested by defendant to so instruct them, Held, error.</p>

Tried below before Hon. George E. Miller. Appeal from a conviction for cattle theft; penalty, two years imprisonment in the penitentiary. This is a companion case to Guinn v. State, ante, page 257. The case is sufficiently stated in the opinion.

Tried below before Hon. M. Kennon. Appeal from a conviction for murder in the second degree; penalty, seven years imprisonment in the penitentiary. The important facts are fully stated in the opinion.

<p>1. Impeachment of a Witness—Irrelevant and Incompetent Evidence.</p> <p>Testimony which is not legitimate as original evidence certainly can not be used for the purpose of impeaching a witness. Irrelevant and improper evidence does not become admissible or proper because sought to be used for the purpose of impeachment.</p> <p>2. Adultery—Evidence.</p> <p>See the opinion for facts stated, which the court hold present a most remarkable case of adultery.</p>

<p>Appeal from the County Court of Crockett. Tried below before Hon. Charles E. Davidson, County Judge.</p> <p>Appeal from a conviction for unlawfully carrying a pistol; penalty, a fine of $25.</p>

<p>1. Bail Bond—One Surety.</p> <p>Under provisions of article 313, Code of Criminal Procedure, one surety upon a bail bond is sufficient, provided it is made to appear that he is worth double the amount of the sum for which he is bound, etc.</p> <p>8. Same—Testing Sufficiency of Surety.</p> <p>Article 315, Code of Criminal Procedure, provides the mode for testing the sufficiency of the surety and the affidavit which is to be taken by him. But the requiring of said affidavit from the surety is discretionary with the officer; and, if he is fully satisfied of the sufficiency of the surety, the oath is not necessary, and his failure to require proof of the pecuniary ability of the surety by affidavit or otherwise does not render the bond void.</p>

Tried below beore Hon. E. D. Gavin. Appeal from a conviction for murder in the first degree; penalty, death. The attendant circumstances upon the killing are concisely but clearly stated in the latter portion of the opinion below.

The indictment charged appellant with the murder of an unknown person, in Webb County, on or about the 11th day of April, 1897. A previous trial had resulted in a conviction, with punishment assessed at imprisonment in the penitentiary for life; but a new trial had been granted because the verdict did not find the degree of murder. On the trial from which this appeal is prosecuted defendant pleaded former jeopardy, based upon this prior verdict.

Tried below before Hon. John M. Furman. Appeal from a conviction for murder in the first degree; penalty, imprisonment for life in the penitentiary. The indictment charged appellant, Jim Wilson, alias G. H. Garner,, with the murder of J. L. Campbell, in Bell County, on the 4th of September, 1896, by shooting him with a gun.

■ Appeal from the District Court of Fort Bend. Tried below before Hon. T. S. Reese. Appeal from a conviction for murder in the first degree; penalty, death. The opinion states all the material facts of this most atrocious murder and rape, or attempted rape, of a 6 years old blind negro girl.

Tried below before Hom.J. N. Gallagher, County Judge. Appeal from a conviction for wounding a dumb animal; penalty, a fine of $10. No statement necessary.

' Tried below before Hon. W. M. Allison. Appeal from a conviction for murder in the first degree; penalty, death. The indictment charged appellant with the murder of his wife, Mrs. Johanna Barth, on the 9th of December, 1897, by shooting her with a gun.

Tried below before Hon. Ton C. Davis. Appeal from a conviction for theft of money; penalty, two years imprisonment in the reformatory. The charging part of the indictment is set out in the opinion. Defendant filed a motion to quash, which was overruled.

<p>There is no statement of facts in the record.</p>

This is the second appeal in this case. See Owens v. State, 35 Texas Criminal Reports, 345. The important facts and questions in the case can be easily gathered from the briefs of counsel and from the opinion below.

Tried below before Hon. T. S. Reese. Appeal from a conviction for assault with intent to murder; penalty, seven years imprisonment in the penitentiary.

<p>Appeal from the District Court of Callahan. Tried below before Hon. T. H. Conner.</p> <p>Appeal from a conviction for murder in the second degree; penalty, twenty years imprisonment in the penitentiary.</p> <p>This is a second appeal in this case. See Godwin v. State, 38 Texas Criminal Reports, 466. The facts can readily he gathered from the two opinions.</p>

Tried below before Hon. E. D. Gavin. Appeal from a conviction for robbery by the use of firearms; penalty, death.

Tried below before Hon. Ibby Dunkliw. Appeal from a conviction for murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. The indictment charged appellant with the murder of James Rogers, on the 25th day of July, 1896. All the essential facts are stated in the opinion.

Tried below before Hon, M. F. Lowe. Appeal from a conviction for assault with intent to rape a female under 15 years of age; penalty, seven years imprisonment in the penitentiary. The charging part of the indictment is set out in the opinion.

On the 15th day of April, 1897, the grand jury of Grayson County presented an indictment against defendant, charging him with the theft of seven cattle from Frank Sperry, on the 7th day of December, 1896. Defendant was first tried under said charge on the 17th of June, 1897, and the jury failed to agree, and on the 5th of July he was again tried and was then convicted. On the 12th of July, 1897, the conviction of theft of cattle, was set aside and a new trial granted.

<p>1. City Ordinance—“Curfew”—Personal Liberty.</p> <p>A city “curfew ordinance,” prohibiting persons under the age of 21 years from remaining or being found upon the streets of the city after 9 o’clock p. m., unless accompanied by his or her parent or guardian, or unless when actually executing an errand in search of the services of a physician, is not reasonable or necessary to protect the good order and morals of the community; is paternalistic and an invasion of the personal liberty of the citizen; is unauthorized by law, and is therefore void.</p> <p>2. Same—Municipal Ordinance.</p> <p>The courts are not inclined to inquire into the reasonability of a municipal ordinance passed under an express grant of power, but if passed under a more general power, the court will declare them void if unreasonable.</p>

Tried below before Hon. M. F. Lowe. Appeal from a conviction for burglary; penalty, two years imprisonment in. the penitentiary. The case is sufficiently stated in the opinion.

<p>1. Murder—Evidence—Animus of Defendant.</p> <p>On a trial for murder, where the evidence showed a previous difficulty between the parties as to the settlement of a debt, it was competent, as showing the animus of defendant, to prove that on the night before the shooting he had asked a third party if deceased did not have the reputation of getting after people with a knife, and upon witness’ relating an incident of that kind he stated, “If he ever comes at me with a knife, I will cut off his wind.” The testimony was also admissible in rebuttal of defendant’s testimony, that he went to deceased’s house with no hostile intention.</p> <p>2. Same—Postponement—Sickness of Leading' Counsel.</p> <p>On a trial for murder, where the issues were plain and simple, it was not error for the court to refuse a postponement because of the sickness of a member of the firm employed as counsel to defend the case; and because defendant, who was present, was also sick and not in condition to afford his counsel the benefit of his advise in the conduct of the case,—there being nothing complicated about the ease.</p> <p>3. Jury Law—Juror Who Was on Grand Jury that Found Indictment— Diligence.</p> <p>A juror who sat upon the grand jury which found the indictment in the case is not ipso facto disqualified, though that fact would constitute a good ground for his challenge. Code Crim. Proc., art. 673, subdiv. 7. Upon the examination of a juror upon his voir dire as to his qualifications, diligence upon the part of defendant requires that he should make the statutory inquiries as to grounds for challenge; and having failed to do so, he can not afterwards be heard to complain. He is not warranted in assuming that because the juror had stated he knew nothing of the evidence and had no bias or opinion, that therefore the juror could not have been upon the grand jury.</p>

. Appeal from the District Court of Montague. Tried below before Hon. D. E. Bakbett. Ajrpeal from a conviction for theft of mules; penalty, two years imprisonment in the penitentiary. Ho statement required.

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

J. T. Johnson, County Judge, remanding relator to custody upon a habeas corpus proceeding. Motion was made by the Assistant Attorney-General to dismiss the appeal because the transcript was not prepared in accordance with law.

Tried below before Hon. Walter Gillis. Appeal from a judgment final upon a forfeited bail bond for $6000. The case is sufficiently stated in the opinion, and no additional statement is required to illustrate any of the questions discussed.

Tried below before Hon. S. J. Chapman, County Judge. Appeal from a conviction for aggravated assault; penalty, a fine of $25. The opinion states the ease.

Tried below before Hon. J. T. Johnson, County Judge. Appeal from an order and judgment on a habeas corpus proceeding remanding appellant to custody for a violation of the law in pursuing the occupation of a peddler of buggies without having paid the occupation tax and obtained a license. Ho statement necessary.

<p>Appeal from the Gounty Court of Knox, Tried below before Hon. G. Hood, County Judge.</p> <p>Appeal from a conviction for unlawfully making and permitting a fence to remain standing around the land of another; penalty, a fine of $1.25.</p> <p>The indictment is set out in the opinion. The defendant attacked its sufficiency in his motion in arrest of judgment, which was overruled.</p>

<p>1. Perjury—Materiality.</p> <p>Testimony by the defendant as a witness on the examining trial of one IT., charged with theft of hogs of one B., to the effect that he saw IT. in possession of and driving said hogs in the county where the theft was alleged to have been Committed, was necessarily material, and perjury could be based thereon.</p> <p>2. Same—Evidence Sufficient.</p> <p>On a trial for perjury, based upon defendant’s testimony as a witness to the effect that he had seen one N. in possession of and driving fifteen or sixteen head of hogs belonging to one B., in G. County, evidence of several witnesses that N. did not have or drive sixteen head of B.’s hogs in G. County, but that he had taken up nine hogs of B.’s in W. County, where the hog law was in force, that were depredating on his crops, and that they were sold to pay the expenses of taking up and keeping them, is sufficient to sustain a conviction for perjury.</p> <p>3. Evidence Admitted—Bill of Exceptions.</p> <p>Error predicated upon the admission of evidence is not available on appeal where no bill of exceptions was reserved to its admission.</p> <p>4. Perjury—Becord Evidence—Charge Limiting and Bestricting.</p> <p>On a trial for perjury, where the record in the case in which the perjury was committed has been introduced in evidence, an instruction by the court to the jury, that said record “has been admitted in evidence for the sole purpose of showing the pendency of such prosecution, and is not to be considered by you as tending to prove the charge of perjury,” is correct.</p>

Tried below before Hon. John M. Furman. Appeal from a conviction for forgery; penalty, two years imprisonment in the penitentiary. No statement necessary.

Tried below before Hon. L. B. Hightower, Appeal from a conviction for murder in the second degree; penalty, ten years imprisonment in the penitentiary. The indictment charged appellant with the murder of Jack Lawson, on the 8th of July, 1897, by shooting him with a gun. There is no statement of facts in the record.

Tried below before Hon. W. H. Gill. Appeal from a conviction for assault with intent to murder; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with an assault with intent to murder Elizabeth Johnson, on the 1st day of October, 1895. Briefly stated, the evidence showed that the parties, appellant and Elizabeth Johnson, came to the house of John Johnson, father of Elizabeth, and claimed to be married.

Tried below before Hon. D. A. Paulus, County Judge. Appeal from a conviction -for pursuing the occupation of local insurance agent without procuring license; penalty, a fine of $5. Ho statement necessary.

Tried below before Hon. John G. Winter, Special Judge. Appeal from a conviction for rape; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with rape committed “on or about” the 1st of April, 1897, upon one Alice Bequardt, a female then and there under the age of 15 years, she not being the wife of appellant. The testimony shows substantially that the prosecutrix was born on the 10th of December, 1882.

<p>1. Constitutional Daw—Imprisonment for Debt—Costs.</p> <p>Article 1, section 18, of our Constitution, provides that “no person shall ever be imprisoned for debt.” Held, the words “imprisoned for debt” have never been understood or held to apply to criminal proceedings. Costs due the officers in a criminal proceeding for an offense are incident to the fine and a means of enforcing obedience to the laws; are a part and parcel of the judgment, and their payment can be legally enforced in the same manner as the fine itself; that is, by imprisonment or otherwise, as may be provided by statute.</p> <p>2. Same—Farden by Governor—Remission of Fines and Forfeitures— Costs.</p> <p>Under our Constitution, article 4, section 11, the Governor is empowered to grant pardons and remit fines and forfeitures, and the same power is also conferred by article 1016, Code of Criminal Procedure. But this authority to grant pardons and remit fines and forfeitures can go no further than the public may be interested; and a full pardon granted by him, although mentioning “fine and costs,” can not operate as a release from the payment of costs to officers which have been adjudged against the convicted party, because the right to such costs are individual rights which have become vested, and with which the Governor has no power to interfere.</p>

Tried below before Hon. E. D. McClellan. Appeal from a conviction for swindling; penalty, two years imprisonment in the penitentiary. The ease is sufficiently stated in the opinion.

<p>1. Extradition Warrant for Arrest of Fugitive.</p> <p>Where the extradition warrant issued by the Governor for the arrest of a fugitive from another State recited that it was based upon “a complaint,” and objection was made to the warrant that it was not based upon either an affidavit or an indictment, Held, “a complaint” is an “affidavit,” and the warrant was sufficient.</p> <p>3. Same—Presumptions—Burden of Proof.</p> <p>It is a presumption that a warrant for extradition is rightfully and not improperly issued, and the burden is on the relator to show that it was not legally issued.</p> <p>3. Same—Evidence.</p> <p>Where, on a habeas corpus proceeding for the release of a fugitive arrested under Em extradition warrant, it was made to appear that the requisition made upon the Governor and his warrant for extradition were both in proper form, it was harmless error, if error, for the State to introduce in evidence the certified copies of the requisition and papers pertaining thereto which tended to show a strict compliance with the law.</p>

Tried below before Hon. John R. Henderson. Appeal from a conviction for murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The indictment in this case charged appellant with the killing of A. II. Jones, on the 14th day of January, 1894, by shooting him with a pistol.

The indictment charged appellant with the murder of Walker Richardson, on the 3d day of April, 1897, by shooting him with a pistol. The important facts are sufficiently stated in the opinion.

Tried below, in vacation, before Hon. J. S. Straughan. Relator having been committed at an examining trial for the murder of one Austin King, on Monday, the 8th of August, 1898, sued out a writ of habeas corpus for bail, which writ was heard by Hon. J. S. Straughan in vacation, and bail refused; and from said judgment refusing bail, relator prosecutes this appeal. The appeal was dismissed because the transcript of the record was not properly certified by the trial judge.

Tried below before Hon. S. B. Barron, County Judge. Appeal from a conviction for violating the local option stock law;, penalty, a fine of $25. Ho statement necessary.

Tried below before Hon. Ed. B. Sinks. Appeal from a conviction for murder in the first degree; penalty, death. The indictment charged appellant with the murder of Clifton Swan, on the 23d of June, 1898, by shooting him with a pistol. Clifton Swan was the father of appellant. Independent of defendant’s confession as set out below, the testimony showed in substance that defendant was 19 years of age, and that he lived with his father and stepmother.

Tried below before Hon. J. 8. Straugi-ian. Appeal from a conviction for forgery; penalty, two and one-half years imprisonment in the penitentiary. The indictment is set out in the opinion. Fo further statement required.

<p>1. Evidence—Collateral and Contemporaneous Crimes.</p> <p>As a general rule evidence of collateral crimes is inadmissible. An exception to the rule is where such collateral contemporaneous offenses form part of the res gestae and serve to identify the offense or connect the defendant therewith. And collateral crimes, not contemporaneous, may in a proper case be admitted to show intent or where they show system.</p> <p>2. Same—System.</p> <p>Where the object is to show system, subsequent as well as prior offenses when tending to establish identity or intent can be put in evidence.</p> <p>3. Same.</p> <p>But simply because an offense has been committed by a defendant in the same manner as the offense charged may have been committed, does not constitute this separate offense a system. System is not established by the fact that two distinct crimes were committed in the same way.</p> <p>4. Same—Accomplice Testimony—Corroboration.</p> <p>An accomplice can not be corroborated by inadmissible evidence.</p>

<p>Habeas Corpus—Former Jeopardy.</p> <p>The writ of habeas corpus can not be resorted to for the purpose of discharging an applicant on a plea of former jeopardy.</p>

<p>Appeal from the District Court of Tarrant. Tried below before Hon. W. D. Harris.</p> <p>Appeal from a conviction for assault with intent to murder; penalty, two years imprisonment in the penitentiary.</p> <p>The indictment charged defendant with an assault to murder one A. T. Wooten.</p> <p>The evidence showed that the assault was made with a chair which weighed twenty-eight or thirty pounds—an oak chair with solid wooden bottom, wooden legs and back. The assault was committed in the courthouse while court was in session. Defendant had been tried. Wooten was a witness against him, and the jury had just returned a verdict against defendant, when he seized the chair and rushed with it in the direction of where Wooten and S. P. Clark, the sheriff, were standing. It seems he had made previous threats against both Wooten and Clark. As defendant raised the chair Clark ran at him, and as he reached for the chair defendant struck with it, striking Wooten on the head and arm. We quote as follows from the statement of facts: “Some of the witnesses said, on cross-examination, that they could not tell but what' defendant intended to strike Clark and not Wooten. And some of them on cross-examination stated that they could not say but what the falling of the chair towards Wooten was caused by the fact that Clark ran in front of and gathered hold of defendant when the chair was raised in the hands of defendant. Some also stated that they could not tell whether the defendant struck holding the chair in his hands, or threw the same at Wooten. Some of them also stated that they could not tell whether defendant threw the chair or whether it fell out of his hands towards Wooten on account of the struggle with Clark.”</p> <p>The threats and declarations made by defendant while in custody, against Wooten and Clark, are quoted in the opinion below, and proof of these threats and declarations was objected to by defendant upon the ground that at the time they were made defendant was in custody.</p> <p>Upon the issue of aggravated assault, the court instructed the jury: “Assault or battery becomes aggravated when committed with a deadly weapon under circumstances not amounting to an -attempt to murder or maim; and also becomes aggravated when committed in a court of justice. An assault or an assault and battery may be committed though the person actually injured thereby was not the person intended to be injured.” And again: “If you do not find the defendant guilty of an assault with intent to murder, but believe from the evidence that the defendant did, in Tarrant County, at or about thb time alleged in the indictment, make an assault upon A. T. Wooten, and jhat he committed the assault, if any, in a court of justice, it will'be your duty to find the defendant guilty of aggravated assault and assess his punishment,” etc.</p> <p>The defendant requested the court to instruct the jury, “that, unless you believe beyond a reasonable doubt that there was in the mind of the defendant at the time of the alleged assault the specific intent to kill A. T. Wooten, it will be your duty to acquit the defendant.” “If, from the evidence, you have a reasonable doubt as to whether or not defendant intended to hit S. P. Clark or A. T. Wooten, you will acquit him.”</p> <p>These instructions were refused by the court.</p>

By inadvertence of the pleader, the indictment described the property alleged to have been stolen as “on cattle,” instead of “one cattle.” Defendant made a motion in arrest of judgment, “because the indictment fails to charge any offense against the laws of the State of Texas, and fails to allege the theft of any specific property from any person.” This motion was overruled.

<p>1. Jury Law—Special Venire—Absent Jurors.</p> <p>On the call of the special venire two of the veniremen were absent. The defendant declined to ask attachments for them, and upon motion of the county attorney attachments were issued. The court ordered the impanelment of the jury to proceed without awaiting the appearance of said absentees, and defendant excepted. Before the panel selected was finally completed, both the absentees appeared and both were excused, being exempt by reason of overage. Held, no error is shown and no injury to defendant.</p> <p>8, Qualification of Juror—Opinion Formed—Bill of Exceptions.</p> <p>A bill of exceptions reserved to the qualification of a juror who on voir dire examination states that he has a formed opinion as to the guilt or innocence of the defendant, should state the answers of the juror, or the fact or information upon which the juror may have based the opinion, or the reasons why the court held him qualified.</p> <p>3. game—Qualification of Juror—Opinion Formed.</p> <p>On voir dire examination to disqualify a juror on account of an opinion formed as to the guilt or innocence of the defendant, such opinion must a fixed one—that is, established. If formed from mere idle rumors or newspaper accounts, or matters of that sort, and it is not established or fixed, the juror is not incompetent.</p> <p>4. game—Where Juror Has Been Peremptorily Challenged.</p> <p>Where it appeared that the jurors stated their formed opinion was not a fixed one and would not influence them in arriving at their verdict, and that they could give defendant a fair and impartial trial, and the court held them qualified, whereupon defendant excepted and peremptorily challenged said jurors, and said jurors did not sit upon the trial, and it is not shown that any other obnoxious juror was impaneled, Held, no error is made to appear.</p> <p>5. game—Rape—Conscientious gcruples Against Death Penalty—Practice.</p> <p>On a trial for rape, where a juror, on his voir dire examination stated that he had conscientious scruples against the infliction of the death penalty, “except in extreme cases of murder in the first degree,” but left it in doubt as to whether he had such scruples in a rape case, whereupon the court, on suggestion of the county attorney that he was disqualified, excused the juror, and defendant excepted; Held, the court did not err, it being impossible for the court to know that the juror was qualified, and it being the duty of the State to furnish only qualified jurors.</p> <p>6. Continuance—Bill of Exceptions—Practice on Appeal.</p> <p>Unless a bill of exceptions is reserved to the action of the court in refusing or overruling an application for continuance or postponement of a case, such matter will not be revised on appeal.</p> <p>7. Conduct of Trial—Applause of Argument by Audience.</p> <p>A mere statement in the motion for a new trial that the audience applauded the closing argument for the prosecution, not accompanied by a bill .of exceptions, nor in any way by affidavit or otherwise verified or shown to be true, can not be considered on appeal.</p> <p>8. Rape—Evidence Sufficient.</p> <p>See opinion for facts summarized which the court hold amply sufficient to support a judgment of conviction for rape with the penalty assessed at death.</p>

Tried below before Hon. F. Titeo. Barnes, County Judge. This was an action based upon a forfeited bail bond of one H. L. Williams as principal, and T. P. Smith and R. Morse as sureties.

Tried below before Hon. Tom C. Davis. Appeal from a conviction for murder in the first degree; penalty assessed at death. Appellant was indicted for the murder of Emmett Simpson, on the 6th day of August, 1897, by striking him on the head with a stick and club. The important facts adduced in evidence at the trial are concisely but clearly summed up in the opinion below.

Tried below before Hon. D. W. Crow, County Judge. Appeal from a judgment dismissing an appeal from the justice to the county court. . The opinion states the case.

The indictment charged the murder of Walter Holmes, by poison, on or about the 8th day of December, 1896.

Tried below before Hon. W. G. Taliaferro. Appeal from a conviction for murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The indictment charged appellant with the murder of L. C. Alexander, on the ,12th day of July, 1897. The case is sufficiently stated in the opinion.

<p>Appeal from the District Court of San Augustine. Tried below before Hon. Tom C. Davis.</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 Bill Sublet, on the 25th day of December, 1897.</p> <p>The opinion spates the case.</p>

D. E. Barrett. Appeal from a conviction for fraudulently disposing of mortgaged property; penalty, two years imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. D. E. Barrett. Appeal from a conviction of theft of one head of cattle, the property of one J. W. Bryant; penalty, two years imprisonment in the penitentiary. It is not necessary to state the facts proved on the trial.

From Palo Pinto. Original application to the Court of Criminal Appeals for a writ of habeas corpus. The Assistant Attorney-General moved to dismiss the application,“because the return of the sheriff of Palo Pinto County to the writ of habeas corpus shows that said Chestnutt is not in custody, but has executed a convict bond and is now at liberty.

<p>No statement necessary.</p>

Tried below before Hon. L. B. Cobb. Appeal from a conviction for burglary; penalty, two years imprisonment in the penitentiary. The indictment charged Walter Adams, Luther Cobb, and Oscar Terry jointly with burglary and, of theft from the storehouse of Hendrix & Hendrix on the night of the 9th of September, 1895.

<p>1. Contempt—Judgment For—Jurisdiction on Appeal.</p> <p>While there is no question but that courts have authority to punish, in proper cases, for contempt, the power to render the particular judgment rendered by lower courts for a contempt is a matter clearly within the authority and jurisdiction of the appellate court.</p> <p>2. Same—Witness—Refusal to Answer Questions Before Grand Jury— Practice.</p> <p>Where a witness before a grand jury refuses to answer a question asked him, upon notification of that fact the coiirt may compel him to answer if the question be a proper one, and may fine or commit him to jail until he is willing to testify (article 426, Code of Criminal Procedure), and upon his refusal the court makes .the adjudication as to whether he is in contempt or not.</p> <p>3. Same.</p> <p>Where a witness is brought into court for refusal to answer a question before the grand jury, and states that his refusal was because his answer to the question would tend to criminate him, it is the duty of the court to entertain and consider his objection, notwithstanding what may have occurred previously in the grand jury as to the witness’ refusal, and his statements made to said grand jury.</p> <p>4. Same.</p> <p>Where a witness before the grand jury refused to produce or to state what had become of a certain bill of sale to cattle he and others were charged with the theft of, and his objection was that his answers would tend to incriminate him, Held, he could not be required either to produce or state what had become of it, because, if the bill of sale was fraudulent or forged, it would be a material circumstance against him in the charge of theft; and in a charge of forgery it would also be very important.</p> <p>5. Same—Giving Evidence Against Himself.</p> <p>There is no difference whether a witness be testifying before a court or a grand jury, he is protected by the constitutional provision w-hich shields him against being compelled to give evidence against himself; and the same protection is applicable when it is sought to require him to surrender his private books or papers.</p> <p>6. Same—Void Judgment.</p> <p>A judgment is violative of our Bill of Bights, and is illegal and void, which holds a party guilty of contempt and consigns him to custody for refusing to produce a bill of sale, or to answer questions relating thereto, when the bill or his answers would tend to criminate him.</p>

<p>Appeal from the District Court of Hill. Tried below before Hon. J. M. Hall.</p> <p>Appeal from a conviction for murder in the first degree; penalty, imprisonment for life in the penitentiary.</p> <p>The important facts developed in the evidence are fully stated in the opinion of the court, and the questions assigned for error are also so fully set forth in the opinion as to need no further illustration.</p>

Appellant was charged by indictment with the murder of Ben Stone-cypher, on the 12th day of November, 1897, by striking him with a piece of iron. The important facts are sufficiently stated in the opinion.

Webb. Tried below before Hon. A. L. McLane. Appeal from a conviction for murder in the first degree; penalty, imprisonment for life in the penitentiary. Appellant was charged by the indictment, which in the first count charged him with the murder of Miguel Salazar, on the 17th day of April, 1898, by stabbing him with a knife.

Tried below before Hon. J. M. Talbot. Appeal from a conviction for murder in the first degree; penalty, imprisonment for life in the penitentiary. The opinion states the important facts in the case.

<p>1. Arson by Means of Explosives—Indictment.</p> <p>Penal Code, article 761, provides that “the explosion of a house by means of gunpowder or other explosive matter comes within the meaning of arson,” but it seems that to authorize a conviction under this article the indictment musí be drawn specifically with reference to its terms.</p> <p>2. Same—Charge—Requested Instructions.</p> <p>Where an indictment for arson simply charged a burning by setting fire to the house, and the evidence showed that by force of an explosion (presumably caused by dynamite) a hole was torn in the roof and splinters and pieces of the paper roofing were found lying on the carpet on the floor, which were on fire and were smothered out by the owner, who also saw the fire between the paper roofing and rafters; and the court in effect instructed the jury that if they believed the explosion was by design, and that a portion of the roofing of the house was by said explosion blown out, and that fire was thereby communicated to the house, such burning would constitute arson; Held, that it was error to refuse a requested instruction to the effect “that the explosion of a house by means of explosive matter does not come within the definition of arson, unless it results in setting the house on fire.” The error in the charge as given by the court was that the jury might feel authorized by it to find defendant guilty if certain portions of the house detached by the explosion were afterwards found to be on fire, though the fire was not communicated to the house itself.</p> <p>3. Arson.—Evidence Insufficient.</p> <p>See the opinion for evidence which the court holds insufficient to support a conviction under an indictment for arson.</p> <p>Appeal from the District Court of Clay. Tried below before Hon. George B. Miller.</p> <p>Appeal from a conviction for arson; penalty, live years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

<p>Mrs. Hettie Miller (designated in the statement of facts as Mrs. Chas. E. Miller) having been sworn as a witness for the State, defendant objected to her testifying as a witness against him, for the reason that she was the wife of Charley Miller, and that Charley Miller stood at the time charged by indictment in the District Court of Atascosa County with the theft of the same animal for the theft of which defendant was on trial, which was admitted by the district attorney. It was also at the time admitted by counsel for the defendant that the district attorney had agreed with the said Miller to dismiss said indictment against him, for the reason that there was not sufficient evidence against him to sustain said charge.</p> <p>Defendant’s objections were overruled, and said witness allowed to testify to facts damaging and prejudicial to defendant.</p> <p>Gonzales Lombres testified, in substance, that the defendant, Miguel Rios, his brother, Martiano Rios, and himself killed the alleged stolen animal, and that he intended pleading guilty in his case.</p>

Tried below before Hon. L. B. Hightower. Appeal from a conviction for the theft of two head of cattle; penalty, two years imprisonment in the penitentiary. The important facts of the ease are sufficiently summed up in the opinion.

Tried below before Hon. E. D. Cavin. Appeal from a conviction for assault with intent to murder; penalty, four years imprisonment in the penitentiary. The indictment charged appellant with an assault with intent to murder one H. A. Dellery, on the 8th day of April, 1898. The purported statement of facts as found in the record was not considered on this appeal because not filed in time, and no good excuse shown for the delay.

<p>1. Perjury—Indictment—Materiality.</p> <p>In an indictment for perjury by a witness in a case on trial, the pleader may either set out all the facts, thus making it appear that the alleged false testimony was material to the issue being tried, or he may set out the false testimony and merely allege that the same was material testimony on the issue then being tried.</p> <p>2. Same—Evidence.</p> <p>Where, in an indictment for perjury by a witness, the false testimony is set out accompanied with an allegation that it was material on the issue then being tried, it is necessary to prove so much of the pleadings and evidence at the former trial as will duly present the question and the materiality, since fact is involved with the law, and must generally be passed on by the jury under instructions from the court.</p> <p>3. Same.</p> <p>Perjury can not be predicated on the impeachment of a witness upon illegal testimony not material to the issue, although such testimony was admitted in the case without objection.</p> <p>4. Same—Materiality, How Submitted—Charge.</p> <p>Where the materiality of the testimony assigned for perjury depends upon a number of facts the court should, in a proper charge, submit these facts to the jury and instruct them that if they found the same to be true, that then the alleged false testimony was material.</p>

Tried below before Hon. B. D. Gavin. Appeal from a conviction for forgery; penalty, two years imprisonment in the penitentiary. Ho statement necessary.

Tried below before the Hon W. W. Walling, Special Judge. Appeal from a conviction of theft of one head of cattle; penalty, two years imprisonment in the penitentiary. There is no statement of facts in the record.