Volume 4 — Texas Court of Appeals Reports

<p>Appeal from, the Comity Court of Montague. Tried below before the Hon. B. E. Green, County Judge.</p>

<p>Appeal from the County Court of Lamar. Tried below before the Hon. S. C. Bryson, County Judge.</p> <p>The offense was assault and battery, and the fine $1.</p>

<p>1. Practice. —The proper time to except to the charge of the court is at the trial, and before the jury retire, so that the court may have an opportunity of correcting errors or supplying omissions in its charge.</p> <p>2. Evidence. — Surrounding circumstances constituting parts of the res gestœ are competent evidence. The relation which they bear to the principal fact furnishes the test of their admissibility.</p> <p>3. Same —Declarations as Verbal Acts. — See a state of case in which it was error to exclude proof of declarations made by the accused respecting • his purpose in removing property alleged to have been stolen.</p> <p>4. New Trial. —When joint defendants sever, if one be convicted and subsequently the other be acquitted, material testimony of the latter is cause for a new trial of the former.</p> <p>6. Theft—Charge of the Court.—In a trial for theft, the jury should be instructed to acquit, unless they find from the evidence that the property belonged to the alleged owner.</p>

<p>Appeal from the County Court of Ellis. Tried below before the Hon. J. D. Templeton, County Judge.</p> <p>The opinion sufficiently states the case.</p>

<p>1. Charge upon Seasonable Doubt.—Upon the subject of reasonable-doubt, a charge couched in the language of the Code is all that is required, even in felony cases, and all that is advisable in any case. Attempts to elucidate that language are often mischievous and never necessary.</p> <p>2. Same. — In a misdemeanor case the court charged the jury to acquit the-accused if they had a reasonable doubt of his guilt, “ deduced from the testimony.” Held, in view o£ the character of the case and of the evidence,, that notwithstanding the interpolation, the charge is not error to the prejudice of the appellant.</p> <p>3. Verdicts are to have a reasonable intendment and to receive a reasonable construction, and are not to be avoided unless from necessity originating-in doubt as to their import, immateriality of the issue found, or tendency to work injustice.</p> <p>4. Same. — The verdict in a misdemeanor case assessed a “find” against the accused of $100. Held, that the context shows that the word was intended-for “fine,” and it is susceptible of no other construction.</p>

<p>Appeal from the District Court of Dallas. Tried below before the Hon. Z. Hunt.</p> <p>Chin Chang, for the State, testified that, one Sunday night in April, 1877, the defendant, who had been working at a hotel along with witness, asked him if he did not want to go and see some girls. Witness said yes, and they went off together. After going a great distance, witness asked defendant how much further they would have to go. Defendant said not far, and they went on until they came to the house of Annie Shaw, a negro woman. Witness, defendant, and the woman sat down and talked together for a few minutes, and then defendant left. The woman immediately closed and locked the door, and put out the light, and she and witness went to bed. . In a minute or two she got up, and witness immediately heard a silver dime drop on the floor. He had such a piece of money in his vest pocket, besides $85 in United States gold coin, and $15 in United States currency. Witness had put his clothes on a chair, and when the woman got up and he heard the dime drop, he jumped up and seized her. She jerked loose from him and ran out of the back door, taking with her all of the money which witness' had in his vest.</p> <p>Dock Adams, who was jointly indicted with Annie Shaw and the appellant, testified for the State that, while he was coming down Elm Street in Dallas, the night the Chinaman lost his money, Annie Shaw called him and asked him to take charge of a handkerchief which she handed to him, and in which he found one five and three ten-dollar gold pieces, and a one-dollar currency bill. After witness left Annie Shaw he met Wells, the defendant, who told him that he and Annie Shaw had robbed the Chinaman, Chin Chang, and that he got the Chinaman’s money at Annie Shaw’s house.</p> <p>Laura Woods, for the State, testified that, two nights before the Chinaman’s money was stolen, the defendant told her that Chin Chang had $100 which he always carried in his inner vest pocket, and he wanted witness to help him 1 ‘ go through the Chinaman, Chin Chang.” He proposed to bring the Chinaman to witness’ house, where she could get the money from him, and that she and defendant would divide it. On the next night the defendant brought Chin Chang to the house where witness was living, and witness told defendant she was afraid to try to get the money. He tried to persuade her, but she again refused, and he then said he would get some one else to do it, and he and the Chinaman left. On the next night the defendant told witness that he and Annie Shaw had robbed the Chinaman, and divided the money in the back room of Annie Shaw’s house.</p> <p>James Arnold, for the State, testified that he was a policeman, and that Chin Chang complained to him the night he was robbed, and he went in search of defendant, and found him in bed, about eleven or twelve o’clock. Defendant and witness looked for Annie Shaw, but did not find her, and they separated. An hour or so afterwards witness found Chin Chang, Annie Shaw, and defendant together on the street. Witness arrested Annie Shaw and the defendant, and on searching him found a ten-dollar gold piece and a five-dollar United States currency note between his hand and his glove.</p> <p>Two witnesses were introduced by the defense, but their testimony is not material.</p> <p>The jury found the accused guilty, and awarded him ten years in the penitentiary.</p>

<p>1. Theft. — The common-law rule that, to constitute theft of an article attached to the realty, there must be a severance prior to the asportation, does not obtain in this state. Under our law the act of severance converts the article into a chattel, and, no matter how instantaneous its removal may be, the taking is theft if done without the consent of the owner and with a larcenous intent.</p> <p>2. Same.—The removal of rails from a fence, without the owner’s consent, and with a larcenous intent, is theft.</p> <p>3. Jurisdiction.—Accused was tried for theft, in the District Court, on an indictment which alleged the property to be worth more than $20; but the jury found him guilty of theft of property worth less than $20, and, therefore, assessed his penalty as for a misdemeanor. He moved in arrest of judgment, on the ground that, the verdict being for a misdemeanor, the District Court had no jurisdiction.. But held, that the jurisdiction is determined by the indictment, and that being for a felony, the District Court had jurisdiction, and the motion in arrest was properly overruled.</p>

<p>1. Judgment.—In a misdemeanor case a jury was waived and the cause submitted to the court on pleas of former conviction and not guilty. The court adjudged the defendant guilty, without expressly finding against the plea of former conviction; and the judgment, on appeal, is sustained. But if the trial had been by a jury, an express finding on the plea of former conviction would have been necessary.</p> <p>2. Former Conviction. — To maintain a plea of former conviction, the accused must, in his plea and by his evidence, identify the charge on trial with the offense previously adjudicated.</p>

<p>Information.—A misdemeanor maybe prosecuted by information, though punishable by imprisonment in the county jail.</p>

Tried below before the Hon. J. Q. Chenowith. The judgment was rendered and the appeal taken on March 18, 1876—just a month before the Constitution of 1876 took effect.

<p>Appeal from the Comity Court of Parker. Tried below before the Hon. B. L. Richey, County Judge.</p> <p>The case is stated in the opinion of the court.</p>

Tried below before the Hon. A. J. Wilkinson, County Judge. The offense charged was the exhibition of a bank for gaming. The defendant’s motion for a new trial, as well as his assignment of errors, raised the question decided in this case.

<p>Appeal from the County Court of Grayson. Tried below before the Hon. A. J. Wilkinson, County Judge.</p> <p>The opinion discloses the facts.</p>

Tried below before the Hon. N. M. Burford. The appellant and one Wesley Pollard were jointly in-dieted for the murder of Joseph Shoemaker, in Dallas County, on the night of July 1, 1876. At the October term, 1876, of the District Court, a severance was had, and the appellant was placed on his trial, convicted of murder in the first degree, and adjudged to suffer death.

Tried below before the Hon. J. A. Carroll. As the opinion sets out the only matter discussed, and as-the case stands for trial again, a recital of the evidence is. omitted.

Tried below before the Hon. S. C. Bryson, County Judge. The charge was aggravated assault and battery. The jury found the appellant guilty, and assessed against him a fine of $100.

<p>Appeal from the District Court of Collin. Tried below before the Hon. R. R. Gaines.</p> <p>The opinion states the case.</p>

Tried below before the Hon. B. L. Richey, County Judge. For the facts of this case, reference may be had to the case of Fox v. The State, 3 Texas Ct. App. 329.

<p>1. Waiver—Privilege of Counsel. — In general, a person may do by attorney whatever he may personally do in his own right, and this general rule is applicable to attorneys appointed by court to represent a defendant in a criminal cause; but in no criminal case can the attorney absolutely bind the client by an act which is both prejudicial to the client’s rights and in contravention of the general principles of law.</p> <p>2. Same — Case stated. —Without the knowledge of a defendant charged with felony, attorneys appointed to defend him waived a copy of the indictment against him, and soon afterwards, with consent of the court, abandoned the case, on the ground that they were so prejudiced against the defendant that they could not justly defend him. Another attorney being appointed, he demanded a copy of the indictment, which, because of the waiver by the first attorneys, the court refused to order. Held, that the waiver was not binding on the defendant, and it was error to force him to trial without conceding the demand for a copy of the indictment.</p> <p>3. Sebvice of Copy of the Indictment.—In every criminal case, if demanded, and in a felony case without demanding it, the defendant is entitled to service of a copy of the indictment against him, unless he has expressly waived the right to it. If the record is silent on the subject, the presumption is that the law was complied with in this respect.</p>

<p>Appeal from the County Court of Dallas. Tried below before the Hon. R. H. West, County Judge.</p> <p>The substance of the charge in the information against the appellant was that she kept “ a house on the highway in the city of Dallas, in the said county of Dallas and state of Texas, as and for a common resort for evil-disposed, disorderly, and drunken persons; and said house was then and there, and at divers other times, with the consent and by the permission of the said Martha Johnson, resorted to by persons who, by loud talking, profane swearing, obscene language, rudely and recklessly displaying and discharging fire-arms, and in divers ways, and by divers other means, did greatly annoy, inconvenience, hurt, and trouble all the inhabitants on said public street and highway and in said neighborhood, and all the good citizens of said state passing and repassing, riding, walking, dwelling, and reposing on and in said public, street and highway; wherefore, the county attorney charges that said Martha Johnson, in manner and form as aforesaid, did keep, permit, and establish, in said neighborhood and on said street and highway, a common nuisance, contrary,” etc.</p>

<p>Appeal from the County Court of Lamar. Tried below before the Hon. S. C. Bryson, County Judge.</p> <p>The case is stated in the opinion.</p>

<p>Indictment. — In an indictment, the name of the month was so written as to be read either “February" or “Tebruary." Held, that a motion to quash on this account was correctly overruled, inasmuch as the associated letters show the correct reading, and as no standard of penmanship has been prescribed for indictments.</p>

<p>Constitutional Law—County Judges’ Fees.—Though the Constitution provides that “no judge shall sit in any cause wherein he may be inter ested,” the fact that a county judge’s compensation in a misdemeanor case is a fee to be paid by the defendant, if convicted, does not disqualify the judge from trying such a case. The Constitution itself provides that the compensation of county judges shall be “such fees and perquisites as may be prescribed by law.”</p>

<p>Appeal from the Criminal Court of Paris, Lamar County. Tried below before the Hon. J. Q. Chenowith.</p>

Tried below before the Hon. R. H. West, County Judge. The charge was the theft of five soda-water bottles, worth 12 cents each.

Tried below before the Hon. G. H. Noonan. A former trial of this case is reported at page 291 of the 2d volume of these Reports. The facts of the homicide are detailed in the same volume, at page 93, in the report of the case of Boyett, who was indicted jointly with the present appellant. At his former trial the appellant was convicted of murder in the first degree, and adjudged to suffer death.

Tried below before the Hon. L. C. Alexander. A former appeal of this case was dismissed at the Tyler term, 1877, because the notice of appeal was not “ entered of record.” See 3 Texas Ct. App. 321.

<p>Appeal from the County Court of Lamar. Tried below before the Hon. S. C. Bryson, County Judge.</p> <p>The evidence is detailed in the opinion of this court.</p>

<p>Appeal from the County Court of Fannin. Tried below before the Hon. W. A. Evans, County Judge.</p>

Tried below before the Hon. G. H. Noonan. In volume 1 of the Texas Court of Appeals Reports, at page 307, may be found the report of this case on the former appeal. The opinion then rendered sets out the facts, and also article 359 of the Penal Code, which provides that if stolen property be voluntarily returned within a reasonable time, and before prosecution commenced, the punishment shall be by fine, not exceeding $1,000.

<p>Appeal from the County Court of Dallas. Tried below before the Hon. R. H. West, County Judge.</p> <p>The charge was keeping a disorderly house.</p>

<p>Defaulting Witness.—Before entering a fine against a witness for not obeying a subpoena, the materiality of his testimony must he shown to the court, either by the statement of the State’s attorney or by the oath of the defendant or some other credible person. It is error to enter such a judgment on the unsworn statement of a defendant’s attorney.</p>

<p>Error from the County Court of Atascosa. Tried below before the Hon. W. H. Smith, County Judge.</p> <p>The opinion states the case.</p>

<p>1. Theft—Indictment. — The word “property” being a term of more extensive signification than the words “ corporeal personal property,” and comprehending the latter and all other descriptions of property, an indictment for theft may, in the allegation of ownership, use the general word “property,” instead of the phrase “corporeal personal property.”</p> <p>2. Same.—National bank-notes are “property,” and United States treasury-notes are both “property” and “money,” within the provisions of the Code defining theft.</p> <p>3. Continuance. — A first continuance is a matter of right when the requirements of the statute have been complied with.</p>

Tried below before the Hon. J. W. Smith, County Judge. The information was filed June 13, 1877, and charged that the appellant “ did, on the first day of August, 1876, then and there live in a state of cohabitation and adulterous intercourse with,” etc. The sufficiency of this allegation is one of the leading features of the case, being questioned because not charged with a continuando clause. The only plea filed was that of not guilty.

<p>1. Theft—Indictment.—Whenever the value of a stolen article affects the penalty for the offense, it must be alleged in the indictment and be established by the proof.</p> <p>2. Same. — An indictment for the theft of several articles may allege an aggregate value to the whole; but if the value affects the penalty, it is better pleading to allege the value of each article, and thus provide against a possible failure to prove the theft of some of them.</p>

Tried below before the Hon. E. B. Turner. The appellant was indicted for the murder of Reuben Bald-ridge, convicted of manslaughter, and awarded five years in the penitentiary. The evidence makes a case of mutual conflict, provoked by the accused, but without homicidal intent. The parties were negroes.

Tried below before the Hon. E. B. Turner. The appellant was a surety on the bail-bond of one Silas Berry, who was indicted for theft.

<p>1. Disorderly House. — The provisions of the Penal Code relating to disorderly houses are designed for the punishment of the keepers of such establishments, and not for the punishment of every prostitute who may occupy a room therein, without being the proprietress of the apartment.</p> <p>2. Same.—Three women were jointly indicted for keeping a disorderly house. The proof showed that one of them was the keeper, and that the other two were prostitutes occupying rooms and plying their vocation therein. All being convicted, the keeper and one of the occupants appeal; and the judgment as against the keeper is affirmed, hut is reversed as to the-occupant.</p>

<p>1. Bail—Surrender of Principal by Sureties. — The laws of this state provide but two modes in which bail can effect a surrender of their principal— one mode being by surrendering him into the custody of the sheriff of the county where he is prosecuted, and the other by making affidavit of a desire to surrender him, and thereby obtaining an order for his arrest.</p> <p>2. Sake.—A strict compliance with one or the other of the modes above indicated is necessary to a valid surrender. The sheriff of the proper county is the only functionary authorized to receive it.</p>

<p>Constitutional Law— Occupation Tax on Liquor-sellers. — This court concurs in the ruling of the Supreme Court in Higgins v. Rinker, 47 Texas, 393, sustaining the constitutionality of the occupation tax imposed on retailers of liquor by the act of June, 1873.</p>

Tried below before the Hon. J. D. Templeton, County Judge. The evidence shows that the appellant, though a married man, was often seen at the house of Jennie Foreman, near Ennis, in the county of Ellis, and that she was reputed to be a prostitute and the keeper of a house of prostitution. Two witnesses saw him there on different occasions, at such hours and under such circumstances as satisfied the jury of the illicit relation subsisting between them.

Tried below before the Hon. E. B. Turner. Appellant was found guilty of aggravated assault, and a fine of $450 assessed against him.

Tried below before the Hon. L. W. Moore. Fartheree and another witness for the State testified very positively that, about dark on the evening of January 6, 1877, as they and two neighbors were on their road home, they were overtaken by the appellant and some companions, and that the appellant drew out a pistol and fired it at Fartheree, and then snapped it at him twice. No motive or provocation for the assault is shown by the evidence.

<p>Appeal from the County Court of Caldwell. Tried below before the Hon. E. H. Rogan, County Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from the District Court of Caldwell. Tried below before the Hon. L. W. Moore.</p> <p>The indictment was for theft.</p>

Tried below before the Hon. W. A. Blackburn. The indictment was for theft of a mare, and the accused, being found guilty, was allotted five years in the penitentiary.

<p>Appeal from the County Court of Llano. Tried below before the Hon. C. W. Nelson, County Judge.</p> <p>The opinion states the case. The parties to the fracas were women.</p>

<p>Appeal from the County Court of Jack. Tried below before the Hon. I. Stoddard, County Judge.</p>

<p>1. Minutes of Court. —The record of every criminal case should show the issue joined between the State and the accused. If the accused, when called on to plead, stands mute, the plea of not guilty must be entered for him upon the minutes of the court.</p> <p>2. Oath to the Jury.—The judgment entry recites that the jury were “sworn according to law to try the issue joined between the parties.” Held, that this recital shows that a different oath than that prescribed by law was administered to the jury.</p> <p>3. Clerks are admonished either to recite the jury oath correctly, or else to merely state that the jury were “duly sworn,” or “sworn according to law.” The latter plan is commended to them as the better one.</p>

<p>Appeal from the County Court of Shackelford. Tried below before the Hon. J. H. Ledbetter, County Judge.</p>

<p>Appeal from the County Court of Travis. Tried below before the Hon. J. W. Smith, County Judge.</p>

<p>1. Appeal or Writ op Error does not lie from judgments rendered for contempts of court — as, for instance, for a fine adjudged against a defaulting juror.</p> <p>2. Scire Eacias in such cases is a criminal proceeding, and should correctly state the court in which the judgment nisi was rendered. A judgment in such a proceeding rendered by a county court at its civil term is coram non judice and void, hut is not revisable on appeal or writ of error.</p>

<p>Appeal from the District Court of Brazoria. Tried below before the Hon. W. H. Burkhart.</p> <p>The opinion discloses the case.</p>

<p>Appeals from the District Court of Lampasas. Tried below before the Hon. W. A. Blackburn.</p> <p>Two cases against the same party were disposed of by the opinion.</p>

<p>Carrying Arms near an Election-poll. — On his trial for this offense the accused proved that he had been deputed by a justice of the peace to execute a warrant of arrest, and claimed that, being thereby constituted a peace officer, he was authorized to carry arms, etc. But his proof showed that the warrant of arrest, and his appointment to execute it, antedated the time of the election by some five months. Held, that, after such a lapse of time, the emergency which empowered the justice so to depute the accused must be deemed to have ceased, and with it the authority and immunities of a peace officer.</p>

Tried below before the Hon. T. M. Paschal. The indictment charged the theft of a gelding and three mules, the property of Francisco Barrera.

Tried below before the Hon. A. J. Hood. The judgment appealed from was rendered before the Constitution of 1876 took effect. The opinion discloses the case.

<p>Appeal from the County Court of Comanche. Tried below before the Hon. C. E. Williamson, County Judge.</p> <p>The opinion sufficiently states the case.</p>

Tried below before the Hon. W. A. Blackburn. The indictment charged theft of a cow. The jury found the accused guilty, and assessed his punishment at three years in the penitentiary. The opinion discloses such features of the case as are material.

Tried below before the Hon. J. A. Carroll. In this record we have another edition of the history of the assassination of William England, his wife, and two of her children, in the county of Montague, on the night of August 26, 1876.

Tried below before the Hon. H. C. Pedigo. The statement of facts in this case is voluminous, but the opinion of this court gives a clear summary of the material evidence, and discloses the rulings of the court below upon which error is assigned. Phil Philander, who was in company with Scott Baldwin and Dick Reeves, the deceased, when the murder was committed, testified positively to his recognition of the appellant and Henderson Paul as the persons who perpetrated it.

<p>Appeal from the District Court of Hays. Tried below before the Hon. L. W. Moore.</p> <p>The opinion states the case.</p>

Tried below before the Hon. L. W. Moore. A former appeal in this case is reported in volume 3 of the Texas Court of Appeals Reports, page 525. Being reversed and remanded on that appeal, it came to a second trial in March, 1878, when the appellant was again found guilty of murder in the second degree. His punishment was assessed at five years in the penitentiary, instead of eight years as on his former conviction.

<p>1. Complaints in Justices’ Courts must charge some offense against the laws of the state.</p> <p>2. Malicious Mischief. —Article 713 of the Penal Code (Pasc. Dig., art. 2344) makes it an offense to willfully kill, maim, etc., certain animals, with intent to injure the owner, and authorizes a fine of not less than three nor more than ten times the amount of the injury done the owner. Held, that a complaint, information, or indictment based on this article is fatally' defective if, in charging the offense, it fails to use the statutory word “ willfully.” Seld, further, that the amount of the injury done the owner must he distinctly alleged, and an averment of the value of the animal will not suffice.</p> <p>3. Jurisdiction of Justices of the Peace.—A justice of the peace has no jurisdiction of a criminal offense punishable by a fine of more than $200. Hence, in a prosecution based on said article 713, if the injury done the . owner exceeded one-third of that amount, the offense was not within a justice’s jurisdiction.</p> <p>4. Appellate Jurisdiction op County Courts.—No jurisdiction can be vested in a County Court by an appeal from, a judgment rendered by a justice of the peace in a case beyond his jurisdiction.</p>

<p>1. Charge of the Court. — Though not essential that the statutory definition of an offense be literally given in the charge to the jury, yet, when that is not done, the charge must define or explain the elements or ingredients of the offense.</p> <p>2. Theft.—Evidence of the ownership alleged in the indictment, and of the venue of the offense, is necessary to sustain a charge of theft; and if the property stolen be an ordinary chattel, proof of its value is indispensable.</p>

Tried below before the Hon. S. B. Raby, County Judge. The information charged the theft of an overcoat worth $3. Finding the appellant guilty, the jury assessed his punishment at a fine of $10, and ten days’ imprisonment in the county jail. The opinion of this court recapitulates all the material evidence.

<p>Appeal from the District Court of Harrison. Tried below before the Hon. A. J. Booty.</p> <p>The opinion states the case.</p>

<p>1. Road Law. —No one but the overseer of a public road is authorized by law to receive payment of the money commutation in lieu of work. Evidence therefore, that defendant tendered payment to the person detailed by the overseer to summon the road-hands was properly excluded, because such a tender was no defense.</p> <p>2. New Trial. — An application for a new trial on account of newly-discovered evidence must satisfy the court that knowledge of the new evidence has been acquired since the former trial, and that the delay in discovering it is not attributable to want of due diligence.</p> <p>3. Practice in this Court. — When there is no statement of facts, this court presumes that the State proved every allegation well pleaded.</p>

<p>Appeal from the District Court of Dallas. Tried below before the Hon. Z. Hunt.</p> <p>The opinion states the case.</p>

Tried below before the Hon. D. M. Prendergast. The indictment charged the theft of some half a dozen articles of merchandise, worth $25 in all.

Tried below before the Hon. L. C. Alexander. It appears by the record that the brother of the appellant was examined at the trial.

Tried below before the Hon. A. J. Booty. The material evidence is detailed in the opinion of this court. The appellant and the deceased were negro striplings.

Tried below before the Hon. E. B. Turner. The indictment charged that the appellant 66 did steal, take, and carry away from the possession of C. S. West one certain gray gelding [pony], of the value of fifty dollars, the property of Robert G. West, without the consent of said C. S. West, or of said Robert G. West,” etc. Under the marginal date of November 9, 1877, the transcript sets out the usual preliminary matters in a judgment entry, including the verdict and its…

<p>1. Practice in this Court. — Objections primarily raised in this court to the competency of evidence will not be considered. They must be first raised in the court below.</p> <p>2. Minutes of Court.—Note recitals in a judgment entry which, though dislocated, are held sufficient, when construed together, to show that the jury were sworn, and that they returned the verdict.</p>

<p>Appeal from the District Court of Robertson. Tried below before the Hon. W. D. Wood.</p>

Tried below before the Hon. W. A. Blackburn. This is a case of wife-murder, without a circumstance of provocation or palliation disclosed in the record. The evidence is condensed in the concluding sentences of the opinion of the court. The appellant was a soldier of the United States forces stationed at Fort McKavett, in Menard County, on the Indian frontier.

Tried below before the Hon. D. M. Prendergast. The character of this case is clearly indicated, and the substance of the evidence is disclosed, in the opinion of the court. It may be added, however, that two of the State’s witnesses, Hamilton and Blackwell, testified positively that Brown, the appellant, fired the shot by which Emma Dailey was killed.

Tried below before the Hon. L. W. Moore. A very full disclosure of the material evidence in this case will be found in the opinion of this court, which, in its recital, follows the language of the statement of facts. All the parties implicated in the murder were freedmen, as also was John Black, the deceased ; and the record shows the terrible issue which imposture and superstition can engender out of ignorance.

<p>Plea — Transcript.—Even in a misdemeanor case, a judgment of conviction will be set aside, on appeal, when the transcript fails to show that the plea of not guilty was either pleaded by, or entered for, the accused.</p>

Tried below before the Hon. S. B. Raby, County Judge. Section 22 of article 5 of the Constitution, referred to in the opinion, empowers the Legislature, “ by local or general law, to increase, diminish, or change the civil and criminal jurisdiction of County Courts; and in cases of any such change of jurisdiction, the Legislature shall also conform the jurisdiction of the other courts to such change.”

<p>Self-Defense.—If, in the justifiable defense of himself against apparent danger of death or serious bodily injury, a party unintentionally or accidentally injure a by-stander, the exigency excuses the act, and he is guilty of no offense.</p>

<p>1. Constitutional Law. — The power of taxation is inherent in every sovereignty, and in this state has been intrusted by the people to the legislative department of the government, with only such limitations as are expressly prescribed in the Constitution; and this power extends to the enactment of all laws deemed necessary or proper to enforce the collection of the taxes levied, subject only to the constitutional inhibition of cruel and unusual punishments.</p> <p>2. Same — Occupation Taxes. — The Constitution of this state empowers the Legislature to impose a tax upon all persons following any occupation, trade, or profession other than agricultural or mechanical pursuits; and by virtue of this power it is competent for the Legislature to make it a penal.offense for any person subject to such tax to pursue Ms occupation without first paying the tax imposed.</p> <p>3. Same—Practicing Lawyers.—A license of court to practice law is the grant of a naked privilege, which the state may revoke, or on which it may impose conditions. It is not a contract, nor does it vest rights beyond legislative control, nor confer immunity from such occupation tax as may be imposed upon practitioners of law.</p> <p>4. Same. — The occupation tax imposed upon persons practicing law in this state, and the enforcement of its payment by penal proceedings, are enactments clearly within the scope of the powers conferred upon the Legislature as well by the Constitution of 1869 as by the present one.</p>

<p>Constitutional Law—Occupation Taxes. — The case of Languille v. The State, ante, p. 312, referred to and its rulings approved in regard to the legislative power to impose occupation taxes, and to make it a penal offense to pursue a taxed occupation without first paying the tax imposed therefor— as, for instance, the retailing of liquors. •</p>

<p>Appeal from the District Court of Limestone. Tried below before the Hon. D. M. Prendergast.</p> <p>The offense charged was an aggravated assault and battery, committed in 1874, and the trial below was had in March, 1876, before the present state Constitution went into operation.</p>

Tried below before the Hon. W. A. Blackburn. The indictment charged the theft of a pistol worth $25, belonging to S. Wallick. The evidence for the State proved that Wallick had the custody of the pistol for one Roberts, the owner of it. Finding the accused guilty, the jury awarded him four years in the penitentiary.

<p>Appeal from the District Court of Limestone. Tried below before the Hon. D. M. Prendergast.</p>

Tried below before the Hon. D. M. Prendergast. The first count of the indictment charged that the accused, on October 1, 1877, did steal, take, and carry away a certain gelding, branded “P” on the left shoulder, the property of some person to the grand jurors unknown, and not the property of the accused. The second count called the animal a “ horse,” but alleged the same time and description as in the first count.

<p>1. New Trial. — The fact that in. a trial for felony the charge of the court was delivered to the jury without being filed, is not cause for a new trial.</p> <p>2. Amendment—Filing Papers Nunc Pro Tunc.—A District Court has authority, at a term subsequent to the trial of a felony case, but before sentence passed or appeal taken, to cause its clerk to put his file-mark, nunc pro tune, upon the charge given to the jury at the trial; and it is immaterial that such order is made by the successor in office of the judge before whom the trial was had.</p> <p>3. Case Stated.—A defendant found guilty of theft escaped before sentence, but was afterwards arrested; and on being brought for sentence before the court at a subsequent term, held by a different judge, he claimed and was allowed to move for a new trial, on the ground that the charge of the court was delivered to the jury without being previously filed, as required by the Code. On the hearing of the motion the court caused its clerk to indorse the charge filed as of the date of the trial, and then overruled the motion. Held, that, as the charge was sufficiently identified as the one given to the jury, the action of the court was within the scope of its authority, and the new trial was properly refused.</p>

<p>1. Indictment — Certainty.— An indictment is sufficiently certain if it charges the offense in plain and intelligible words, and with such certainty as will enable the accused to plead the judgment rendered upon it in bar of another prosecution for the same offense.</p> <p>2. Same—Assault with Intent to Commit Rape.—An indictment for this offense need not allege that the accused is a male, or that the assaulted female is a person in being.</p> <p>3. Same. —Indictment, alleging time and place, charged that the accused, “in and upon the body of E. G., then and there being a woman, did make an assault, and her, the said E. G-., then and there did beat, wound, and ill-treat, with the intent then and there her, the said E. G., against her will and without her consent, then and there feloniously to rape and carnally know,” etc. Held, sufficient in substance to charge an assault with intent to commit rape.</p>

Tried below before the Hon. T. Paschal. The case is fully and clearly stated in the opinion. The portion of the charge held to be erroneous is substantially outlined in the fourth head-note. The jury found the appellant guilty of assault with intent to murder, as charged in the indictment, and assessed his punishment at two years in the penitentiary.

Tried below before the Hon. J. R. Fleming. Though yet a young man, the appellant, John Wesley Hardin, has succeeded in achieving a remarkable and widespread reputation for sanguinary deeds.

<p>Appeal from the District Court of Limestone. Tried below before the Hon. D. M. Prendergast.</p> <p>The indictment and conviction were for theft.</p>

Tried below before the Hon. G. Cook. The indictment charged the appellant with the murder of Joseph W. Brown, by shooting him with a pistol, on May 25, 1877. There was no controversy as to the main fact — that about eight o’clock, p. m., of May 25, 1877, in the supper-room of the Kennedy House, in the city of Houston, Dr. Joseph W.Brown came to his death by means of a pistol-shot fired by W. L. Grissom, the appellant.

<p>1. Embezzlement. — The only safe guide in determining what constitutes the-crime of embezzlement, and what persons are amenable to the charge, is-to be found in our own Code and statutes, and in the adjudications thereupon. Decisions of other states are to be consulted with great caution, in view of the very diverse character of their enactments on this subject.</p> <p>2. Same.—Under the law of this state, the offenses of theft and embezzlement are entirely separate and distinct. The case of Riley v. The State, 32 Texas, 763, which treats embezzlement as a species or degree of theft is hereby overruled.</p> <p>3. Same. — Our Penal Code defines embezzlement under two separate heads, the first being the embezzlement or misapplication of public money, and . the second the embezzlement of property -by private persons. The provisions of the Code, under this latter head, have been materially amended and extended by the act of May 25, 1876, and made applicable to attorneys who fraudulently misapply or convert the money or property of their clients.</p> <p>4. Same—Indictment. — To constitute embezzlement under the Code as amended, it is necessary (1) that the accused occupy some one of the several fiduciary relations specified; (2) that the money or property belonged to his principal; and (3) that it came to the possession of the accused by virtue of his fiduciary relation to his principal. An indictment for this offense must sufficiently charge each of those constituents.</p> <p>6. Same — Case Stated.—Indictment for embezzlement charged that the accused was the agent of a certain incorporated express company, and that, as such, he received §10,000, to be transported to a consignee at St. Louis; but further alleged that the money belonged to a certain-bank, and neither stated that the express company had any property in the money, nor that any fiduciary relation existed between the bank and the accused. Held, that the indictment is fatally defective in substance, necessitating the reversal of the conviction and the dismissal of the case.</p>

<p>1. Assault with Intent to Murder.—In trials for this offense it is necessary that the charge to the jury shall define or explain the term “malice” as the essential ingredient of murder.</p> <p>2. Same—Evidence.—Note in the opinion a recapitulation of evidence held insufficient to sustain a conviction for assault with intent to murder.</p>

Tried below before the Hon. H. C. Pleasants. The appellant was tried for the murder of John Welder, alleged to have been committed on May 14, 1877. On that date the deceased, in company with John Maton, traveling on horseback, passed through the town of Refugio, on their way to the town of St. Mary’s. About eleven miles from Refugio they were assassinated. Welder had been shot twice in the head, and Maton’s body exhibited five or six different wounds.

Tried below before the Hon. J. A. Carroll. The indictment charged that the appellant, “in the county of Clay and state of Texas, on the 21st of October, 1877, with force and arms, did unlawfully marry and take to wife one M. J. Morris, a female of the age of sixteen years, the said H. H. May being then and there an adult male person, the said H. H. May having then and there a former living, lawful wife, to whom he had been previously lawfully married, to-wit, one Adaline…

Habeas corpus, on appeal from a judgment in chambers, rendered by the Hon. A. Blacker, judge of the Twentieth Judicial District. The facts are disclosed in the opinion.

Tried below before the Hon. E. Lewis. The indictment was for theft of a mare. The accused introduced Ike Jackson and Wesley Peebles to prove that he bought the mare from a Mexican. In rebuttal, the State introduced King to prove that Jackson and Peebles gave a different account of the transaction at the examining trial of the accused.

<p>Appeal from the Criminal District Court of Harris. Tried below before the Hon. G. Cook.</p> <p>The case is sufficiently disclosed in the opinion.</p>

<p>Appeal from the County Court of Coryell. Tried below before the Hon. S. B. Raby, county judge.</p> <p>The opinion and the head-note disclose the material facts.</p>

<p>1. Venue. — See the opinion for evidence held sufficient to prove the venue in a trial for theft of a gelding.</p> <p>2.' Evidence of Identification. —In a trial for theft of a gelding, a State’s witness could not recognize the prisoner as the man he had seen in possession of the animal, but stated that, as a witness in a previous trial, he had identified the person then accused as the man. The attorney for the State testified that the prisoner at the bar was the same person identified by the witness on the previous trial. Held, competent evidence, and sufficient to support the conviction.</p>

<p>Error from the District Court of Comanche. Tried below before the Hon. J. R. Fleming.</p>

Tried below before the Hon. L. C. Alexander. On October 1, 1876, the body of James McCann, a freedman, was found under a tree just above the corporation limits of the city of Waco, in the county of McLennan. In the opinion of the physician consulted by the jury of inquest, life had not been extinct more than twenty-four hours. Part of a rope was around the neck of the corpse, and another part of it hanging to a limb of the tree under which it was lying.

Tried below before the Hon. W. D. Wood. The appellant and Horace Eaton, the deceased, were freedmen. On the morning of March 20, 1870, a quarrel arose between them, and resulted in the former shooting the latter twice with a pistol, and killing him instantly.

Tried below before the Hon. G. J. Clark. In the forenoon of August 1, 1877, Alfred H. Bledsoe was found dead in a public road leading from the village of Charleston, in Delta County. He had been to the village, and had traveled from it on horseback, about half a mile, to the place where his body lay. A bullet had entered the left breast, and inflicted instant death. Several persons heard the shot which doubtless sped the bullet, but no witness saw the deed.

<p>Appeal from the District Court of Kinney. Tried below before the Hon. T. M. Paschal.</p> <p>Mrs. Terrell conducted a boarding-house in the town of Brackett, Kinney County, and from it supplied meals to Joe Van Wie and his family, domiciled at some distance, and comprising Van Wie and Mrs. Van Wie, and two other ladies.</p> <p>On the morning of May 4, 1878, the appellant, who was not an employee of Mrs. Terrell, volunteered his services to carry the coffee-pot, and did so for a distance of some sixty yards, following one Johnson, a servant, who had the rest of the breakfast for Van Wie and his family. Johnson testified that on their way the appellant called to him to stop and take the coffee-pot, and, on witness’ stopping, the appellant came up with it, but, before handing it to the witness, raised the lid for some purpose, and appellant noticed grease floating on the coffee. Witness took it and the rest of the breakfast to Van Wie’s, and put it on the table.</p> <p>Van Wie and the ladies proved the condition in which they found their coffee, having detected it by taste and appearance before they imbibed enough of it to do any harm. One of them had had some experience with croton oil, and, having tested the coffee by taste and smell, was confident that the grease floating on it was that oil. Mrs. Terrell’s attention was immediately called to it, and she forthwith submitted the vessel and its contents to Dr. Patrick, a resident druggist and physician, who pronounced the grease to be croton oil, and who testified that there was enough of it in the pot to have killed or seriously injured three or four persons.</p> <p>Van Wie set out to trace up the matter, and the appellant at first denied to him that he had had anything to do with the coffee-pot, but said he had carried the tea-pot a part of the way. When confronted with Johnson, however, he did not deny carrying the coffee-pot.</p> <p>Mrs. Terrell and her staff were very positive that the coffee was all right when confided to Davis, the appellant, who, it seems, was an occasional resorter to the kitchen, but had never before tendered his assistance. What the motive or object was is not distinctly in proof, as no animosity to Van Wie or his family, on the part of the accused, or of any of those who handled the coffee, was known. Van Wie, however, on his cross-examination, testified that he believed the accused “ had been put up to it by other parties.”</p> <p>The opinion of this court sets forth the charging part of the indictment, and such other matters as it treats of.</p>

Tried below before the Hon. L. C. Alexander. A brief, but very clear and comprehensive, statement of the material facts will be found in the opinion of the court.

<p>Appeal from the District Court of DeWitt. Tried below before the Hon. D. D. Claiborne.</p> <p>The opinion states the case.</p>

Tried below before the Hon. L. C. Alexander. This is the second appeal from capital convictions of the accused for the murder of J. S. Pledger, which was committed on July 14, 1875. The first conviction was reversed by this court at its Austin term, 1877, on questions of practice. See 2 Texas Ct. App. 246. The evidence makes a clear case of the unmitigated assassination of an old man, but the record fails to disclose the motive or the object of the crime.

<p>Appeal, from the District Court of Gonzales. Tried below before the Hon. E. Lewis.</p> <p>All necessary facts appear in the opinion.</p>

Tried below before the Hon. E. B. Turner. The indictment impleaded Jeff Ake, William Ake, William Bybee, and the appellant, Silas Berry, and charged them jointly with the theft of a certain gelding belonging to W. C. McDougle, on May 30, 1876. McDougle proved the fact and time of the theft as alleged in the indictment, and that the animal was returned to him by L. F. Hurt, about a month after it was stolen.

Tried below before the Hon. E. B. Turner. The evidence in this case was, in substance, the same as that detailed in the next preceding case of Berry v. The State, with the addition of the attempt at an alibi, which is sufficiently noticed in the opinion.

Tried below before the Hon. E. Lewis. The indictment charged Joe Samora, Green Samora, and Isaac Bremingham with the theft of a certain gelding, the property of W. P. Dixon, which, according to the evidence, was stolen from the accustomed range- of Dixon’s stock, in Lavaca County, about August 9, 1874. The two latter were tried jointly, and, being found guilty, were allotted five years each in the penitentiary. The opinion discloses such matters of fact as it deals with.

<p>Theft—Evidence. —In a trial for theft the accused proposed, hut was not allowed, to prove that, since the finding of the indictment, the owner of the property bad said that accused had his consent to the taking of it, and that the owner had since died. Held, that such proof was correctly excluded, being but hearsay.</p>

<p>Appeal from the District Court of Uvalde. Tried below before the Hon. T. M. Paschal.</p> <p>The opinion sets out the charging part of the indictment, and such other matters as are discussed by this court.</p>

<p>1. Indictment fob an assault with intent to murder, by shooting, charged that the assault was made “feloniously, unlawfully, willfully, and with malice aforethought,” and repeated this verbiage in alleging the shooting, but did not reiterate it in charging the specific intent, “then and there to kill and murder him,” etc. Held, that the felonious and malicious intent is sufficiently alleged.</p> <p>2. Charge of the Covet. —In a trial for assault with intent to murder, the jury were charged that “in all criminal cases the defendant is presumed to be innocent, and unless the jury are satisfied from the evidence of the guilt of the defendant, beyond a reasonable doubt, they should acquit.” Held, that the language of this instruction does not limit its applicability to 'the minor degrees of offense comprised in the indictment.</p> <p>3. Verdict. — The judgment entry recites that thereupon “cornea jury of twelve good and lawful men, consisting of J. B. and eleven others,” etc., but subsequently states that “said grand jury returned into open court the following verdict,” etc. Held, that the word grand is obviously a clerical error, and does not vitiate the verdict.</p>

Tried below before the Hon. T. M. Paschal. The indictment charged that on March 12, 1878, the appellant “ did fraudulently and feloniously embezzle, misapply, and convert to his, the said W. Keeller’s, own use, the sum of forty dollars, the property of W. C. Bradley, without the consent' of the said owner, the said W. C. Bradley; which said sum of forty dollars, so embezzled, misapplied, and converted. to his, the said W. Keeller’s own use, as aforesaid, had been then and…

Tried below before the Hon. L. W. Moore, This capital conviction is one of the results of the midnight assassination of John Black, a negro, by eight of his negro neighbors, instigated by revenge and guided by superstition and imposture. The facts have been fully' disclosed in the opinion rendered by this court in the case of Jackson v. The State, ante, p. 292.

Tried below before the Hon. L. W. Moore. The indictment charged that, on December 19, 1877, the appellant did assault one John Miller, and, with force and arms, take from his person and possession $245 in silver coin and current money of the United States, specifically described. Miller was a peddler, who traveled on foot, leading a horse, with his pack of merchandise, in which he also carried his money.

Tried below before the Hon. E. B. Turner. The indictment charged that the appellant, Christopher Krautz, did, in the county of Washington, on May 10, 1875, of his malice aforethought, kill and murder one Peter Zander with a weeding-hoe. The accused and the deceased were renters, from C. B. Francis, of different parcels of the same field. Prior to the affray, which resulted in the death of Zander, they had been good friends.

Tried below before the Hon. J. R. Fleming. The case is amply and clearly stated in the opinion. The homicide having been committed while the Constitution of 1869 was in force, the jury saw fit to exercise the power it conferred on them, to substitute the penitentiary for life in lieu of the death penalty.

<p>Railways — Constitutional Law. — The act of 1866, which, under penalties upon conductors, requires that a stoppage of five minutes at every way-station be made by every train of passenger-cars, is constitutional. See the opinion in extenso upon the scope of the police power of the Legislature in this and similar respects.</p>

Tried below before the Hon. J. It. Fleming. The indictment charged the appellants, Ed. Marshall and Albert Williams, with the theft of “ two certain cattle,” worth $10 each, belonging to J. M. Denton.

Tried below before the Hon. M. H. Bonner. Morris, the appellant, was one of the sureties of William Sharp, who was indicted for knowingly passing a forged writ of error bond on the distinct clerk of Van Zandt County. The opinion fully discloses the case. The next case will be found to furnish another illustration of the rules laid down in this one.

Tried below before the Hon. M. H. Bonner. In this case the judgment below was against the appellant and others, as sureties for William Sharp on his recognizance to answer an indictment for forgery of a writ of error bond.

<p>1. Return of Indictment. — The objection that the indictment was not returned into open court, as required by law, comes too late when primarily raised after trial and conviction.</p> <p>2. Effect of Appeal.—Pending an appeal in a criminal case, there is no power in the court a quo to make any order or take any action in the case; all proceedings in that court, in the case appealed, are suspended and arrested until it receives the judgment of this court.</p> <p>3. Same—File-marks.—In such a state of case, therefore, an order of the court a quo, made at a term subsequent to the appeal, and directing its clerk to indorse his file-mark nunc pro tune on the charge to the jury, is coram non judice, void, and futile.</p> <p>4. File-mark.—Unless the transcript of a felony case shows that the charge given to the jury was filed, this court will set aside the conviction and remand the case.</p> <p>5. Certiorari awarded by this court to procure a perfect record is process directed to the clerk of the court a quo, and not to that court; and the clerk must embody in the new transcript nothing" which was omitted, but “all the proceedings had in the case.”</p>

<p>1. Evidence. — The defense proposed to prove that, since the alleged commission of the assault, the prosecuting witness had threatened to poison the accused. The prosecuting witness, when on the stand, had not been interrogated on the matter. Held, that the evidence was properly excluded. A predicate for it should have been laid in the cross-examination of the prosecuting witness.</p> <p>2. Practice in this Court. — Without a statement of facts, this court presumes that the state proved every material averment at issue. If, however, the record shows that all competent evidence constituting the defense was erroneously excluded, whereby the accused suffered prejudice, such a presumption might not obtain.</p>

Tried below before the Hon. J. F. Witherspoon. The information charged theft of 400 brick, alleged to be worth $4. Finding a verdict of guilty, the jury assessed the penalty at one year’s imprisonment in the county jail and a fine of $150.

Tried below -before the Hon. B. L. Richey. The last head-note recites the material allegations of the information. The opinion shows the objection taken to it, and all other matters of any significance.

<p>Misnomer and Idem Sonans. — “Abie” and “Avie” are neither the same name nor idem, sonans. Hence, when an indictment charged an assault on. Miss “Abie” B., and the proof was that her true name was Oviezine B., but that her given name was sometimes called Ovie and sometimes Avie; the variance between the allegation and the proof was material, and the conviction cannot be sustained.</p>

<p>Appeal from the District Court of Comal. Tried below before the Hon. G. H. Noonan.</p> <p>The State’s witness, Sophia Washington, testified as follows :</p> <p>‘ ‘ I am acquainted with the defendant, Henry Curry ; he is here present in court [pointing him out]. Oil Monday, the 6th day of May, 1878, my mother went to Mrs. Landa’s house to wash. Defendant, who is my stepfather ordered my younger sisters to go and get some weeds. I went myself, not thinking it would make any difference. When I came back, defendant was mad at me, and threatened to whip me. Shortly after, I went out in the yard and cut some weeds. Defendant then sent the younger children off on an errand up town, and, when there was nobody present, in or around the house, but defendant and myself, he called me into the house to look his head. When I came in, defendant was lying on the bed; he had nothing on but his shirt, drawers, and socks. When I went to the bed where defendant was lying, to look his head, he put Ms hand under my dress and grabbed my leg above the knee, and said to me, ‘ Give me some.’ I hallooed, and asked him to let me loose, but he grabbed me with his other hand on my arm, and tried to pull me on the bed. He was sitting on the bed at the time. I kept crying and trying to get away from him, and he finally let me loose. I then left the house and did not come back until night, when my mother came home. I watched for her at the corner of the street, and went home with her, at the same time telling her what had happened. This took place in New Braunfels, Comal County, Texas. The defendant tried to screw me ; it was all done without my consent. The house where all this happened was about 200 yards from any other house. I did halloo as loud as I could. He did not pull me on the bed. I did not see his private parts. He is much stronger than myself.”</p> <p>The testimony of this witness was the entire evidence in the case. The indictment was for assault with intent to commit rape, and the jury returned a verdict of guilty, and assessed the punishment at four years’ confinement in the penitentiary. A new trial being refused, an appeal was taken, and the transcript made returnable to Tyler, at the* instance of the accused.</p>

<p>Bail-bond designated the accusation against the defendant as “ carrying a pistol.” Held, that the hand is insufficient to support a judgment, inasmuch • as “ carrying a pistol ” is not an offense against the laws of this state. Had the hand described the offense as “ the unlawful bearing of arms,” or as “ the unlawful carrying of a pistol,” it might be deemed sufficient, under the rules expounded in Morris v. The State, ante, p. 554.</p>

<p>Appeal from the District Court of Upshur. Tried below before the Hon. M. H. Bonner.</p> <p>All material facts are disclosed in the opinion,</p>

<p>Appeal from the County Court of Wood. Tried below before the Hon. W. J. Jones.</p> <p>The injured animal was a mule, and the State’s witnesses testified that “ his hamstring had been entinto,” apparently with an ax, crippling him. Finding the appellant guilty., the jury assessed against him a fine of $75.</p>

Tried below before the Hon. G. W. Smith. The charge was for aggravated assault; the conviction for simple assault and battery, assessing against the defendants a fine of $20 each.

Tried below before the Hon. L. W. Moore. The opinion sets out such of the evidence as is relevant to the rulings. The proof of the taking and of the felonious intent was unusually direct and conclusive.

<p>Appeal from the County Court of Gregg. Tried below before the Hon. J. F. Witherspoon.</p>

<p>1. Indictment. — Though better that an indictment for rape, or for assault with intent to commit rape, should expressly aver that the injured party is a woman or female, yet the omission of such an averment will not vitiate, if that allegation appears from all that is stated in the indictment.</p> <p>2. Same — Case Stated. —Indictment for assault with intent to commit rape designated the party injured by the feminine name Theresa, and also by the pronoun “her; ” but nowhere expressly alleged the sex of such party. Defendant moved in arrest of judgment for want of such an allegation. Meld, that the motion was correctly overruled.</p>

<p>Appeal from the District Court of Hays. Tried below before the Hon. L. W. Moore.</p>

Tried below before the Hon. S. C. Bryson. The “ child ” in this case was a youth of fourteen years of age, weighing 125 pounds, or more. If several of the witnesses are to be believed, he deserved all he got, for shameful talk about a female schoolmate. However, the jury mulct the appellant in a fine of $200, and the court below refused a new trial.

Tried below before the Hon. Z. Hunt. E. H. Gruber, the first witness for the State, testified that he was president of the State Savings Bank of Dallas. On August 18, 1876, he was sitting in the bank, when two men entered it. The first he noticed of them was seeing one of them sitting on the counter, with his feet on the inside, as if in the act of getting over on the inside. The man was disguised, and'had an unnatural look about him.

<p>1. Recognizance. — “Assault to murder” is, in a recognizance, a sufficient designation of the offense of assault with intent to murder.</p> <p>2. Final Judgment — Writ of error lies only to a final judgment; and, in an action against joint defendants, such a judgment makes a final disposition of the case as to every defendant against whom the suit is pending when the judgment is rendered. It is error, therefore, in such a case, to ignore an unserved defendant and render judgment final against those served with process.</p> <p>3. Same—Case Stated.—Scire facias on judgment nisi against six cognizors was served on all but one, and, without discontinuance or abatement of the suit as to him, judgment final by default was rendered against the five served. Held, error.</p> <p>4. County Courts.—It being settled that scire facias proceedings on forfeited recognizances and bail-bonds are criminal cases, the County Courts have no power, at their civil terms, to adjudicate in such cases.</p> <p>5. Same—Practice.—This court takes cognizance of the terms of the County Courts provided for by the statute; but if a County Court has, in accordance with the statute, changed the time of holding its criminal terms, and the change affects the validity of a judgment appealed to this court, the transcript should show the change so made.</p>

<p>1. New Trial. — The defendant is entitled to be present in court when his motion for a new trial or in arrest of judgment is heard and determined; but when a disregard of this right is relied upon as error, the record must, in some authentic manner, affirmatively show the fact that he was absent when such action was taken in his case, and that the attention of the court was called to that fact. Note the distinctions taken between this case and Gibson v. The State, 3 Texas Ct. App. 438.</p> <p>2. Marks and Brands—Variance.—When the other circumstances of description correspond, if the witnesses differ as to how the characters alleged by the indictment as the brand are found on the animal, this will not he a material variance between the allegata and the probata, if they agree as to the locality and general conformation of the disputed characters.</p> <p>3. Same — Case Stated. —Indictment described a stolen animal by age, sex, ownership, and ear-marks, and also by certain characters, as the brands on the shoulder, loin, and hip. The configuration of one of the brands given by the witnesses differed somewhat from that delineated in the indictment, but they coincided with the indictment as'to the locality of the brand, and there was no conflict as to the other descriptive averments. Held, that, in this state of case, the discrepancy as to the brand was not a material variance, and the rule requiring descriptive allegations, though superfluous, to he proved as made has been substantially complied with.</p>

<p>1. Indictment—Evidence. — Though descriptive averments be unnecessarily minute, they must he proved as made.</p> <p>2. Same—Variance.—Information charged theft of a pair of “ buckskin gloves.” By the evidence the gloves were described as sheepskin gloves. Held, a fatal variance between the allegation and the proof.</p>

Tried below before the Hon. T. J. Lowe. The matters of record underlying the rulings are explicitly disclosed in the opinion. The information charged the appellant with the theft of 50 cents’ worth of corn. The jury assessed him a fine of $50, and seven days’ imprisonment in the county jail.

Tried below before the Hon. G. H. Noonan. The opinion of this court gives a concise, but clear, outline of the proceedings in the court below in this peculiar case, and indicates all facts relevant to the rulings here. From witnesses examined below, the fact was elicited that the trial and conviction of James Beardall, in 1859, was for the murder of one Louis Yare.

Tried below before the Hon. J. R. Fleming. An ample statement of the case will be found in the opinion. In their verdict of guilty, the jury assessed the punishment at two years in the penitentiary.

Tried below before the Hon. E. B. Turner. On November 2, 1877, an indictment by the grand jury of Travis County, Texas, was presented to, and filed in, the District Court of said county, against J. R. Ham, alias J. W. Hall.