Volume 40 — Texas Criminal Reports

<p>1. Agreement to Turn State’s Evidence—Failure to Comply With the Agreement.</p> <p>A defendant in a prosecution for theft, entered into an agreement with the prosecuting attorney to turn State’s evidence against his codefendants upon condition that, before he went upon the witness stand in 'the district court the said attorney Would give him all the protection the law afforded. He testified before the grand jury and on the habeas corpus trial of the parties, but positively refused to testify in the district court when the cases were called for trial. Held, he was not exempt from prosecution, as he had violated his agreement.</p> <p>2. Bill of Exceptions—Signature and Approval of Judge—Practice on Appeal.</p> <p>A bill of exceptions will not be considered on appeal if the record fails to show the signature and approval of the same by the trial judge.</p> <p>3. Confession by a Convict.</p> <p>It is no objection to a confession that the party making it was in the penitentiary when he made it, provided he had been properly warned before he made it. Nor is such confession inadmissible because it was used by tñe grand jury to indict other parties.</p> <p>4. Witness—Pardoned or Unpardoned Convict.</p> <p>A pardoned or unpardoned convict can testify in his own behalf. Following Williams v. State, 28 Texas Criminal Appeals, 301.</p> <p>5. Confession—Charge as to.</p> <p>Where the charge of the court authorized the jury to disregard a confession if they thought proper to do so, and then consider the sufficiency of the circumstances in the case independent of the confession, the charge was favorable to defendant and he has no ground of complaint in the premises.</p> <p>6. Corpus Delicti—Confessions.</p> <p>It is well settled that the corpus delicti can not be predicated alone upon the confessions of a defendant, but it is equally as well settled that the confession can be used along with the other circumstances in the case to establish the corpus delicti.</p> <p>7. Confession—How Considered by Jury.</p> <p>It is a sound rule that a jury are not compelled to believe all of defendant’s confession. They may believe only a part and discard the remainder.</p> <p>8. Theft of Horse—Evidence Sufficient.</p> <p>See opinion for facts stated which the court hold amply sufficient to support a judgment of conviction for horse-theft.</p>

The indictment charged appellant with the murder of his wife, Susan Harris, on the 15th of June, 1898, by shooting her with a gun. The opinion summarizes the important facts.

The indictment charged appellant with the murder of Sam Shiver, on the 15th day of May, 1898, by shooting him with a gun. The opinion states the case.

<p>Appeal from the District Court of Van Zandt. Tried below before Hon. W. J. Graham, on exchange with Hon. J. G. Russell.</p> <p>Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary.</p> <p>Appellant was indicted for the murder of Will Swain, oh the 14th day of March, 1898, by shooting him with a pistol.</p> <p>Ike Lawler, the only eyewitness to the homicide, testified; “I know the defendant. I knew Will Swain; he is dead. Tom Gardner killed him. I was present and saw him killed. On the 14th day of March, 1898, I went by where defendant was working in a new ground, on the same farm that I live on, and says: ‘Tom, let’s go over and see the old man [meaning Mr. Gilland] run the first furrow in the new ground.’ He says, ‘I don’t care if I do.’ We went to where Mr. Gilland was plowing, and returned to where defendant had been working. I started off and defendant asked me what my hurry was. I told him I had to go to work. He then said: Ike, Will Swain or you one have told a damned lie about that money business.’ I told him I had no money to pay fines. He said there would be no fines to pay. I then told him I would go over and get Will Swain, and we would get together and settle the matter. Will Swain had told me that defendant’s father had a thousand dollars when he died; that he (Swain) had handled the money; that defendant and his brother, Jack Gardner, were buying corn on a credit, and that old lady Gardner, their mother, could furnish the money if she would do so. When I told the defendant I would go after Swain, he said, ‘All right; I will go down to the bridge in the field.’ We then walked on about two or three hundred yards to the bridge, and Tom stopped and said he would wait there, and I went on to where Will Swain .was plowing, about 300 yards from there. I told Will Swain that Tom Gardner had jumped me again about lying. He asked me where defendant was, and I told him he was down at the bridge in the field. He then said he would go with me and meet him and settle the matter as soon as his wife came back. We waited about ten minutes, until Mrs. Swain came in sight, and then Swain dropped his traces and we started to where defendant was. When we came up to where defendant was he was sitting down by a tree. Defendant said, ‘Have a seat, Will.’ Swain sat down-and said, ‘Tom, there is a damned lie out about that money, and if you all say that your mother hasn’t got a thousand dollars, you lie.’ Defendant said, ‘If you say that mother has got a thousand dollars you tell a damned lie.’ Defendant got up, and Swain struck him in the temple with his fist. Swain then caught the defendant by the throat and chugged him against a tree two or three times. The defendant had his right hand in his pants pocket. Swain said, ‘Don’t you hit me with those knucks,’ and at the same time drawing and opening his knife. I told them not to have that kind of a row; told defendant not to draw his knucks, and told Swain to put up his knife. He said, ‘All right,’ and put his knife in his pocket; and just as he was doing so, defendant told him again he was a liar; and he took his hand from his pocket and started to strike defendant again, when the pistol fired and Swain fell. Deceased had no knife in his hands when he struck. I did not see the pistol at all. I ran as soon as Swain fell, and got off some distance; looked back and saw defendant running after me. He followed me some seventy-five yards or more, and then turned and went toward his home. I did not see him any more till after he was put in jail. This occurred in Van Zandt County, State of Texas, on or about the 14th day of March, 1898.”</p> <p>Crossed: “I went by that afternoon to see defendant, because his brother Jack had told me he wanted me to talk to Tom about going to a faith doctor to have Tom’s eyes treated. Will Swain had told me that if defendant would ever agree to meet him, to let him know or come after him, and he would go and settle the matter with him. Will Swain, was a much better man physically than the defendant. I understand that the Gardners and Swains came to this county together from Limestone County, last winter.”</p> <p>A number of witnesses testified that defendant had a good reputation for peace and quietude where he had been living.</p>

Tried below before Hon. E. D. Cavin. Appeal from a conviction for murder in the first degree; penalty, death. The indictment charged appellant with the murder of Emelie Meyer, on the 18th day of July, 1898, by striking her with an ax and with a hatchet. Gotlieb Zorn testified: “I was at home near Cypress, in Harris County, Texas, on 18th of July, 1898. Gotlieb Meyer, brother of Henry Meyer, came over to my house. He was full of blood over the face.

<p>1. Occupation Tax—Municipal Ordinance—Levy of Where State Has Not Levied.</p> <p>Municipalities can not, by ordinance, levy an occupation tax upon the carrying on of ocmpations or pursuits where no occupation tax has been previously levied by the State on said occupation or pursuit. Article 8, section 1, of the Constitution provides that occupation taxes levied by cities shall not exceed one-half the taxes levied thereon by the State, and the tax must have been first imposed, for the benefit of the State on each occupation before it is subject to a city tax.</p> <p>3. Same.</p> <p>Our statutes were never intended to confer upon a municipal corporation the power to tax an occupation not taxed by the State.</p> <p>3. Same—City Ordinance Unconstitutional.</p> <p>A city ordinance imposing an occupation tax upon the use of vehicles, where such pursuit has not been taxed by the State, is unconstitutional and void.</p>

<p>1. Continuance.</p> <p>A continuance will not be granted except for witnesses who are shown to be material by facts set out in the application. And where proposed absent witnesses appeared and testified on the trial, the application for continuance as to them will be held to have been properly overruled.</p> <p>2. Assault With Intent to Murder—Improper Argument or Statement of Counsel—Withdrawal by Court.</p> <p>On a trial for assault to murder, an attorney for the prosecution in his argument stated as a fact an important matter not proved in evidence. Upon objection by defendant, the court promptly rebuked him and instructed the jury that the same was improper and was not to be considered by them, and also charged them to the same effect. Held, under such circumstances such unwarranted and improper statements will not constitute error unless injury is shown to have resulted.</p> <p>3. Withdrawal of Evidence by the Court—Practice.</p> <p>Where improper evidence has been introduced, usually the proper practice is to move to have it excluded, and the same will not be cause for reversal where this has been done, and the jury instructed to disregard it. But, notwithstanding this has béen done, if the evidence was of a character so prejudicial as to influence the defendant’s case, and thereby prevent a fair and impartial trial, it will constitute reversible error.</p> <p>4. Bill of Exceptions to Admitted Evidence.</p> <p>A bill of exceptions to admitted evidence, to be sufficient, must state the facts and also defendant’s objections to the introduction of said' testimony.</p> <p>5. Assault to Murder—Evidence—Contemporaneous Difficulties.</p> <p>On a trial for assault with intent to murder, evidence of a contemporaneous difficulty between third parties being part and parcel of the same transaction is admissible.</p> <p>6. Exception to Charge.</p> <p>An exception “generally to the charge of the court” will not be considered, because too general, and points out no assumed defect in the charge.</p> <p>7. Self-Defense—Omission to Charge.</p> <p>On a trial for assault with intent to murder, where the court proposed to submit the issue of self-defense, but did not do so because defendant requested that it should not be submitted, that he would stand upon his theory of his testimony which excluded him from participation at all in the difficulty; Held, if any wrong was done by the omission to charge self-defense, defendant was responsible for it, and can not complain either on motion for new trial or on appeal.</p> <p>8. Assault With Intent to Murder—Evidence.</p> <p>See facts summarized in the opinion for evidence sufficient to support a judgment of conviction for assault with intent to murder.</p>

Tried below before Hon. Irby Dunklin. Appeal from a conviction for theft of a mule; penalty, two years imprisonment in the penitentiary. The indictment contained two counts, the first charging the theft of a mule, the property of A. M. Dillin, the other the theft of a mule, the property of Frank Grogan; both thefts alleged to have been committed on December 7, 1897.

<p>1. Conversion by a Bailee—Venue of Offense.</p> <p>On a trial for conversion by a bailee for hire, where the evidence showed that the converted property, a hack and harness, was hired on the 30th of April in El Paso, for one day; - that ten days thereafter defendant was forty miles from the city, in the mountains; that he would have to travel 175 miles in El Paso County and it would take six or seven days to reach Midland County, where he claimed the property as his own and sold it on the 25th day of October following; Held, conversion can be proved by circumstantial as well as positive testimony, and the facts stated showing a conversion in El Paso County, jurisdiction of the offense was properly obtained and the prosecution instituted in that county.</p> <p>2. Same—Circumstantial Evidence—Conversion.</p> <p>Under the facts above stated, where the fraudulent conversion was not disputed, the court was not required to charge the law of circumstantial evidence.</p> <p>•3. Venue—Circumstantial Evidence—Reasonable Doubt.</p> <p>The law of circumstantial evidence does not apply to venue, nor is it necessary to prove venue beyond a reasonable doubt.</p>

Tried below before Hon. J. M. Smither. Appeal from a conviction for hog theft; penalty, for each appellant, two years imprisonment in the penitentiary. The evidence is sufficiently stated in summary to be found in the opinion below.

<p>1. Perjury—Assignments—Allegations.</p> <p>It is competent in an indictment for perjury to present as many assignments on material issues as the pleader sees fit, but the assignments must be distinct and each assignment alleged to be material and the same distinctly traversed.</p> <p>2. Same—Witness in Criminal Case.</p> <p>The proper course of pleading is to negative especially each part of defendant’s testimony which is alleged to be false.</p> <p>3. Same—Several Statements Assigned, in Solido—Charge.</p> <p>In an indictment for perjury, where several statements are combined in one assignment and all together in solido are alleged to be material, that they were sworn to by defendant and that this statement was false, etc., Held, that a failure to prove that defendant swore to all the statements as alleged is fatal to the conviction; and it is error for the court to fail to so instruct the jury.</p> <p>4. Same—Proof.</p> <p>It is necessary that every fact which goes to make up any particular assignment of perjury should be disproved.</p> <p>5. Same—Testimony Before Examining Court—Assignment, How Laid. Where an assignment for perjury is sought to be laid upon the testimony of a witness before an examining court, the assignment should conform to the testimony contained in the examining trial evidence and laid as therein stated.</p>

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

Tried below before Hon. Sam R. Scott. Appeal from a conviction for embezzlement; penalty, imprisonment in the penitentiary for two years.

Minnie Montgomery testified: That she knew defendant; that L. D. Montgomery was her brother; that she remembered about the time her brother had abase in the County Court, but did not know the date; that she remembered her brother’s case was dismissed; that she remembered her brother being a witness in a case in the County Court where John Humphries was defendant; that her brother left Waco this year (1898), but did not know whether it was last April or not; that “on the…

Tried below before Hon. C. N. Buckler. Appeal from a conviction for robbery; penalty, five years imprisonment in the penitentiary.

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

The indictment charged that appellant, in Atascosa County, on the 23d of January, 1894, did fraudulently utter, etc., a false and forged instrument purporting to be the act of W. P. Felps; that defendant knew that the instrument was false and forged, and that said instrument related to and affected the title to land in the State of Texas.

<p>Appeal from the County Court of Ellis. Tried below before Hon. J. E. Lancaster, County Judge.</p> <p>Appeal in a habeas corpus proceeding for the custody of a minor.</p>

This is the second appeal in this-case. See Logan v. State, 39 Texas Criminal Reports, 573, which is referred to for a summary of the important facts proved on both trials in the lower court. The matters discussed in the opinion on this appeal do not require additional elucidation.

<p>1. Forgery by Adding Names to a Promissory Note—Variance.</p> <p>On a trial ior forger)' in altering a promissory note by adding names as signers thereto, the production of the note with the names of the two original payors, whose names were not alleged to have been forged, was sufficient proof that the note was signed by them as alleged in the indictment; .and when taken in connection with the testimony of one of them that they had signed the note, certainly showed that there was no variance as to allegation and proof in this respect.</p> <p>2. Same—Variance.</p> <p>Where the only possible difference between the instrument set out in the indictment for forgery, and the instrument offered in evidence, was that the one set out in the indictment contained on the right hand margin, “No.--; due-;” Held, this was no part of the instrument and did not constitute a variance.</p> <p>3. Charge—Reasonable Doubt.</p> <p>On a trial for forgery in altering a note by the addition of two names as payors to it, where the court had already charged the jury that they must find the facts constituting the offense as charged beyond a reasonable doubt; that they could not find defendant guilty unless his guilt was established beyond a reasonable doubt, and that if they had a reasonable doubt of his guilt they would acquit him; Held, a further charge, that if they believed defendant did not sign the two names to the note they would acquit him; and they would also acquit if they believed the two parties signed their own names to the note, did not deprive defendant of the reasonable doubt, nor throw upon him the burden of proving his innocence.</p> <p>4. Forgery—Counts—Charge as to Penalty—General Verdict.</p> <p>Where an indictment for forgery contained two counts, one for forgery and the other for uttering the forged instrument, and the court submitted both counts in the charge, but in stating the punishment, stated it to be not less than two nor more than seven years, whereas the penalty for uttering is not less than two nor more than five years, and there was a general verdict for a penalty of two years, and the court applied the verdict to the count for forgery and rendered its judgment for forgery; Held, it can not be seen how the error in the charge as to the penalty for uttering could have affected defendant injuriously.</p> <p>5. Counts—General Verdict—Application—Practice.</p> <p>The court has authority to make the application of a general verdict to any count of the indictment, although such counts may embrace distinct offenses, if they are not repugnant to each other; and objection to such action, if erroneous, can no,t be raised for the first time on motions in arrest or for new trial. *</p>

<p>1. Staking Horse on Inclosed Land—Construction of Statute.</p> <p>Penal Code, article 794, making it an offense to stake a horse upon the inclosed land of another without the owner’s consent, was not intended only to protect cultivated lands, but includes pasture lands also.</p> <p>8. Same.</p> <p>Article 794, Penal Code, does not require that the locus in quo, to come within the meaning of “inclosed land,” should be inclosed with a lawful fence or be inclosed with a fence all round. A pasture on the gulf or on a stream, if it is fenced off on the other sides so as to hold cattle, is sufficient, notwithstanding cattle might get out by either swimming or fording the stream.</p> <p>3. Same—As to Ownership of the Land.</p> <p>The words, “inclosed land of another,” used in the statute, article 794, has reference to the possessory right, and not to the title to the land; and it is neither necessary to allege all the owners of the land in said inclosure, nor prove their want of consent.</p> <p>4. Same.</p> <p>The statute makes no exception, and a party who stakes his horse in the inclosed lands of another is not exempt from liability because of his purpose to hunt.</p>

Tried below before Hon. J. M. Hall. Appeal from a conviction for burglary; penalty, two years imprisonment in the penitentiary. No statement necessary.

<p>Motion for certiorari in Court of Criminal Appeals.</p> <p>No statement necessary.</p>

Tried below before Hon. I. L. Martin, Judge of the Thirty-eighth Judicial District, on exchange with Hon. Robert B. Green. Appeal from a conviction for forgery; penalty, two years imprisonment in the penitentiary. The indictment is set out in the opinion. A motion to quash the indictment was overruled in the trial court.

Motion was filed to retax the costs in the Court of Criminal Appeals, as follows: “Ho. 1556. Jas. S. Hogg et al. v. The State of Texas.—And now come the appellants and show to the court that the following costs have been taxed against them in said ease, $30 for the clerk and $30 for the Attorney-General, when there ought not' to have been but $10 taxed against them for the clerk and $10 for the Attorney-General.

Tried below before Hon. H. F. Dunson, County Judge. Appeal from a conviction for practicing dentistry without license; penalty, a fine of $25. The charging part of the information is set out- in the opinion.

Violation of city ordinance. Habeas corpus to be released from arrest for. Appeal from a judgment on a habeas corpus proceeding remanding relator to custody under arrest upon a complaint charging a violation of a city ordinance regulating the stoppage, etc., of hacks, etc.

Tried below before Hon. J. O. Woodward. Appeal from a conviction for theft of cattle; penalty, two years imprisonment in the penitentiary. The indictment contained two counts charging the theft of ninety head of cattle, on the 15th day of July, 1895. The first count alleged the ownership and possession in R. B. Pumphrey; the second count alleged the ownership and possession in J. M. Gatlin.

<p>1. Bill of Exceptions in Statement of Facts Filed After Term—Practice on Appeal.</p> <p>Where a bill of exceptions to evidence is only contained in the statement of facts filed after adjournment of the term, it will not be considered on appeal.</p> <p>2. Alibi—Charge.</p> <p>The court is not required to charge upon alibi where the evidence does not clearly present such issue; and the issue is not raised where the defendant’s evidence upon thq matter is consistent with the State’s theory of defendant’s presence at the time and place of the occurrence.</p> <p>3. Requested Instructions.</p> <p>It is not error to refuse requested instructions which are adequately presented in thel charge given.</p> <p>4. Same—Bill of Exceptions.</p> <p>A refusal to give an instruction relative to admitted testimony will not be considered where no bill of exception was reserved to its admission.</p> <p>5. Confession—Facts Ascertained by Means of.</p> <p>A confession is admissible in evidence, though defendant was not warned, where, in pursuance of said confession, the facts stated therein, not previously known, were found to be true as stated.</p> <p>6. Murder in the Second Degree—Charge.</p> <p>On a trial for murder, the court is not required to charge upon murder in the second degree where all the evidence tends to show that the killing was for the purpose of robbery.</p> <p>7. Accomplice Testimony—Charge as to Not Required, When.</p> <p>On a trial for murder, where it appeared that some time after the homicide defendant confessed to one C., a fellow-prisoner in the jail, that he had killed deceased for the purpose of robbery, and had robbed him of $2800, which he had buried at a certain place, and which C., after he was discharged, was to get and take a portion and give the balance to the wife of defendant; all of which confession was disclosed by C. to a deputy sheriff. And it further appeared that C. nor anyone else ever found or got the money at the place defendant said he had concealed it. Held, C. was not an accomplice after the fact, nor an accessory, and the court did not err in failing or refusing to submit the law of accomplice testimony as to his testimony.</p> <p>8. Defendant’s Failure to Testify—Charge as to.</p> <p>It is not error for the court to instruct the jury as to defendant’s statutory rights as a witness in his own behalf, and it is proper to tell them, “You must not directly or indirectly, verbally or mentally, take such failure to testify as a circumstance against the defendant, nor must you either directly or indirectly allude to or refer to or mention such failure.” Following Fulcher v. State, 28 Texas Criminal Appeals, 465; Guinn v. State, 39 Texas Criminal Reports, 257.</p>

Tried below before Hon. J. H. Wood, County Judge. Appeal from a conviction for a violation of local option; penalty, a fine of $50, and twenty days imprisonment in the county jail. No statement necessary.

<p>1. Continuance—Diligence.</p> <p>An utter want of diligence is apparent, on an application for continuance, where no process has been issued for the absent witness, and the excuse stated is that the witness promised defendant that he would attend the trial.</p> <p>2. Same.</p> <p>A defendant can not rely for a continuance upon the fact that the State had issued process for the absent witnesses in another case.</p> <p>3. Witness—Cross-Examination.</p> <p>On a trial for violation of local option, where defendant on the examination in chief of his witness elicited the fact that it was understood the prosecuting witness was' in town to catch violators of the law, it was competent, on cross-examination, to prove by the witness that he had heard such fact in a conversation at a time when defendant was not present.</p> <p>4. Local Option—Evidence.</p> <p>On a trial for violation of local option, it is not error to permit a witness to testify that one B. sold whisky, etc., in defendant’s place of business, where it appeared that B. was in defendant’s employ, had charge of the whisky department in the house, and only sold whisky belonging to defendant.</p> <p>5. Evidence—United States Revenue License.</p> <p>On a trial for violation of local option, it was not error to permit the State to prove, on cross-examination, by defendant, who had testified that he had not sold whisky even on prescription, that he had a United States revenue license to sell whisky, and the production of the license itself was not better evidence of the fact that he had it than his own statement.</p> <p>6. Local Option—Sales—Notice of by Defendant.</p> <p>On a trial for violation of local option, where it appeared that defendant was proprietor of the entire business, bought all the whisky and other goods, but that he only gave his personal attention to the lunch stand, it was legitimate to show by facts and circumstances that defendant must have known that the. whisky was being sold at his place of business, since that was a matter of which the law required him to take notice.</p> <p>7. Extraneous Crimes—Instructions.</p> <p>On a trial for violation of local option, where the prosecuting witness testified only to purchase from defendant, it was not error to refuse a requested instruction, based upon the testimony of other witnesses, to the effect that the jury could not consider the testimony of sales by any other person than defendant as evidence against him; especially where they had been charged by the court that unless they believed that defendant sold the prosecuting witness the whisky, they should acquit.</p> <p>8. Improper Argument of Counsel—Practice.</p> <p>Where an improper remark of counsel is not objected to at the time, nor during the trial, it was not error, after the main charge was read to the jury, to refuse a special instruction to the jury to disregard it.</p>

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

A motion was made by the Assistant Attorney-General to dismiss the appeal, because “the statutes of this State do not provide for an appeal from the order of the court overruling such a motion, and hence this court has no jurisdiction of this appeal.

<p>Wife Murder—Murder in the First Degree—Evidence Sufficient.</p> <p>-See opinion for evidence stated which is held sufficient to support a verdict and judgment of conviction for murder in the first degree, with the penalty assessed at •death.</p>

<p>1. Jury Law—Qualification of Juror—Formed Opinion—Construction of Statute.</p> <p>Article 673, Code of Criminal Procedure, subdivision 13, with regard to testing the qualifications of jurors as to formed opinion of the guilt or innocence of a defendant, seems to measure the extent of the investigation by the sources from which the juror may have formed his opinion; and there is a distinction between the formation of an opinion from hearsay and an opinion derived from, original sources. Where the opinion is derived from hearsay, the court may, in the exercise of its discretion, hold the juror competent. If the opinion is formed from original sources, that is, from the statements of witnesses in the case, the juror is incompetent and disqualified.</p> <p>2. Same.</p> <p>A juror who has formed his opinion from having talked with witnesses in the case is disqualified and incompetent. Such opinion is not formed from hearsay.</p> <p>3. Same—Peremptory Challenges—Practice.</p> <p>Where a challenge for cause, that the juror has talked to witnesses, was overruled, and defendant was compelled to use a peremptory challenge to rid himself of such disqualified juror, and, after exhausting his peremptory challenges, jurors who had formed opinions from hearsay were sought to be challenged by him peremptorily, but the same were refused by the court, Held, the improper ruling of the court as' to the juror who was disqualified for cause, deprived defendant of a peremptory challenge which he could and was entitled to exercise as to one of the subsequent objectionable jurors, and constituted reversible error.</p>

<p>1. Theft—Indictment—Description of Property.</p> <p>An indictment for theft sufficiently described the property as “one watch and one pocketknife.”</p> <p>2. Theft from the Person—Several Articles—Proof as "to One.</p> <p>Where an indictment for theft from the person alleges that several different articles were taken, proof of the taking of any one of them will support a conviction.</p> <p>3. Charge of Court.</p> <p>In order to authorize a reversal for errors in the charge of the court, such errors must not only be calculated to injure the rights of the accused, but they must be excepted to at the time of the trial or on motion for new trial. Such errors can not be urged for the first time in the assignment of errors and after jurisdiction on appeal has attached.</p>

<p>1. Continuance—Absence of Bill of Exceptions—Practice on Appeal.</p> <p>Where a special bill of exceptions was not reserved to the ruling of the court refusing an application for continuance, the matter will not be revised on appeal.</p> <p>2. New Trial—Newly Discovered Testimony.</p> <p>A new trial will not be granted for newly discovered testimony, where it is shown such testimony was known to the defendant by reason of a conversation he had with {he proposed absent witness.</p> <p>3. Hurried Trial.</p> <p>A defendant can not be heard to complain that he was hurried, unprepared, into the trial, where the special venire was drawn and served upon him, with a copy of the indictment, two days prior to his being placed upon trial.</p> <p>4. Murder—Arraignment.</p> <p>On a trial for murder, if the record on appeal shows, in the recitals' of the judgment of conviction, that defendant was duly arraigned and pleaded not guilty, this is sufficient, though the practice contemplated by the statute would seem to indicate the arraignment as a separate proceeding preliminary to the trial. Following Steagald v. State, 22 Texas Criminal Appeals, 464.</p> <p>5. Murder in the First Degree—Evidence Sufficient.</p> <p>See evidence which the court holds amply sufficient to support a conviction for murder in the first degree, with the penalty assessed at imprisonment for life in the penitentiary.</p>

Tried below before Hon. W. J. Graham. 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 A. D. Bane, on the 35th day of October, 1898, by shooting him with a pistol.

The indictment charged appellant with the murder of Mollie Blalock, on the 8th day of March, 1898, by shooting her with a gun. Mollie Blalock was the wife of appellant. The important facts, as shown by the evidence adduced at the trial, are fully stated in the opinion, and no further statement of them is necessary.

Tried below before Hon. J. P. Hall, County Judge. Appeal from a conviction for obstructing a public road; penalty, a fine of $25. The facts are substantially stated in appellant’s brief. George Cornelison owned fifty acres of land, and about the 1st of April he fenced the north side of his land.

<p>1. County Convict—Hiring—Construction of Statute.</p> <p>The statute authorizing the punishment by hiring of a county convict is highly penal in its terms, and is entitled to a liberal construction in favor of the convict.</p> <p>2. Same.</p> <p>Article 3744, Revised Statutes, provides that a county convict who has been hired out shall be entitled to 25 cents credit on his fine and costs for each day he may serve under such hiring, but that his term of service is in no event to be greater than one day for each 50 cents of fine and costs. Held, this means that where, by his services at 50 cents per day, he has discharged his fine and costs, he is entitled to be released.</p>

<p>1. Forgery—Indictment—Innuendo.</p> <p>In an indictment for forgery, it is' proper to set forth the meaning of misspelled words by innuendo averments.</p> <p>3. Same—Explanatory Averments.</p> <p>In an indictment for forgery, it is proper pleading, by explanatory averment, to allege (where such is the ease) that the name of the purported maker of the instrument was signed on the reverse or opposite side of the instrument, because there was no room on that page to sign the name.</p> <p>3. Same—Averment as to Payee.</p> <p>In an indictment for forgery of an order, the name of the payee, or something from which to ascertain to whom the payment is to be made, is' essential; and where the instrument is not made payable to bearer, but to “a negro,” it should be stated, by explanatory averrpent, what negro.</p> <p>4. Same—Averment as to Partnership.</p> <p>On a trial for forgery of an order drawn against a copartnership firm, the indictment should, by explanatory averment, set out who composed the firm.</p>

Tried below before Hon. J. E. Dillard. Appeal from a conviction for assault with intent to murder; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with making g,n assault, with malice aforethought, on O. Powell, on the 18th of October, 1897, and shooting at him with a pistol with intent to kill and murder him.

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

<p>1. Habeas Corpus—Order Refusing Relief—Statement of Facts.</p> <p>On appeal in a proceeding by habeas corpus, where there is no regular or agreed statement of facts, and the order of the court refusing the relief sought merely states that the parties agreed that the hearing be upon the application alone, this is not an admission that the recitations contained in the petition are true; and Held, this is a loose way of attempting to get before the court on appeal a statement of facts, and is not in accord with the statute and decisions. Citing Ex Parte Malone, 35 Texas Criminal Reports, 297.</p> <p>2. Same—Judgment for Contempt.</p> <p>Where a motion to punish for contempt recites the particular "ease in which the alleged contempt was committed, and further recites the nature of the contempt, it can be referred to in support and aid of the judgment. The order adjudging the contempt need not recite the offense where the latter is set forth with sufficient particularity in the affidavits and reports filed in the proceeding, and the order is connected therewith by sufficient reference.</p> <p>3. Same—Contempt.</p> <p>Where the order adjudging a contempt recites that relator pleaded guilty to the charge contained in the motion, the motion can be referred to to render the order certain as to the nature of the alleged contempt. •</p> <p>4. Adjudication for Contempt—Sufficiency of.</p> <p>Where the order adjudging a contempt recited that the relator pleaded guilty to the allegations in the motion, which motion unquestionably recited the facts establishing a contempt of court, and the order adjudging the contempt assessed a fine of $100 and forty-eight hours in ■ the county jail for contempt, but only committed to jail in default of payment of the fine, and there was no commitment as to the forty-eight hours imprisonment, Held, this did not render void that portion of the said order malting an adjudication as to the fine and costs.</p> <p>5. Same.</p> <p>Where there was, in' the order of the court, a specific adjudication as to the fine and costs, and the defendant was remanded to jail "to' await the further order of this court or such fine and costs are paid in full,” Held, a fair construction of the language here used is that the party was entitled to be enlarged on the payment of said fine and costs, and that if said fine and costs should not be paid, the court, notwithstanding his failure to pay, might enlarge him".</p> <p>6. Same—Order Remanding to Jail.</p> <p>Where an order in committing a party to jail uses the word “remand,” this contemplates that applicant was brought before the court from jail and was returned thereto, and is a sufficient commitment to jail.</p>

Tried below before Hon. T. H. Conner. Appeal from a conviction for burglary; penalty, two years imprisonment in the penitentiary.

<p>1. Counts—Applying Plea of Guilty to.</p> <p>Where an information contained two counts, one for violation of local option and one for selling liquor without license, and the defendant pleaded guilty before the court without a jury, whereupon judgment was rendered in general terms, without stating the offense of which he was convicted, Held, inasmuch as the amount of the fine imposed showed that the court applied the plea of guilty to the first count, and could not have applied it to the second count, the judgment is sustained and affirmed,</p> <p>3. Same—Judgment.</p> <p>See a judgment as to which the court applies, as a safe rule, the maxim, “Id certum est, quad certum reddi potest.”</p>

<p>Appeal from the District Court of Hill. Tried below before Hon. J. M. Hall.</p> <p>Appeal from a conviction for- theft of money over the value of $50; penalty, two years imprisonment in the penitentiary.</p> <p>The following statement of the material facts in the case, which is substantially correct, is taken from the brief for appellant: Appellant and his wife moved to the farm of the State’s witness, J. F. Myrick, near Mertens, in Hill County, in the spring of the year 1896, for the purpose of renting and cultivating land, and remained upon the place as Myrick’s tenants until the latter part of December, 1897, working the latter year upon shares, and residing in the same house with Myrick, who was a physician, from the time of their coming until March, 1897, at which time they moved into a house about sixty feet distant from that theretofore occupied, and continued to live in this house until their departure from the place in December, 1897. During the time of their occupancy of the house with Dr. Myrick, appellant’s wife did the general housekeeping. According to Myrick’s testimony, about December 21, 1896, he missed $300 that he had had in a bureau drawer in the house, the larger portion of which was in gold, but some in greenbacks. About six days prior to this time he had discovered said drawer in an open condition, but seeing some silver lying in the front part of it, his suspicions as to his loss were not aroused. On the next day after discovering the money gone, Myrick went to Hillsboro and reported the loss to Tom Bell, sheriff of Hill County, telling him who he thought got the money. Ho complaint was made against appellant until some time after he left Myrick’s place, though, as above stated, he resided there for a year after the time of the alleged loss of the money, Myrick testifying that his reason for not preferring complaint sooner was that he was acting under Bell’s instructions. Ho search was made for the money until about a month after the alleged loss, at which time search was made by Myrick and his daughter, Miss Alice Myrick, between the mattresses of the bed occupied by appellant and his wife, and there was at that time found some trimming and underskirts between said mattresses, Miss Myrick testifying that these articles were hers, and had been taken without her consent. In this connection it will be noted from the record that further testimony was offered by the State and admitted by the court, that of H. C. Myrick, a son of Dr. Myrick, the prosecuting witness, to the effect that in the latter part of January, 1897, he saw appellant wearing an undershirt that he recognized as his, and that it had been taken from him without his consent. That he had not missed it until that time, and had never made any charge against appellant for “stealing it.”</p> <p>Dr. Myrick never at any time searched for the money when alone.</p> <p>It was shown that in the fall of 1897 appellant purchased a pair of mules, a wagon, and set of harness, which facts were by him admitted. That upon leaving Myrick’s place in December 1897, which was known to Myrick, no secret being made of his departure, or where he was going, he carried his household effects in his wagon to the house of Mr. and Mrs. W. C. White, near Abbott, in Hill County, and left with Mrs. White a purse of money, while he returned to Myrick’s place for his wife. That during his absence thus occasioned, Mrs. White, true to that prominent and distinguishing characteristic of woman, opened the purse and counted therein $300 in gold. That no effort toward concealment of the money was made by appellant. That appellant and his wife remained at the White residence two or three weeks, going from there in the wagon to Groesbeck, Limestone County, Texas, and after-wards writing to the Whites from that point, no attempt being made to conceal where they were going. There was testimony of the additional State witness W. C. White to the effect that he wrote a letter to appellant to Groesbeck, in reference to a hog left in White’s possession, in which he also stated that Dr. Myrick had missed some money, that appellant was accused of having taken it, and that he had better come back and fix it up. 'That he did not know whether appellant received the letter; that he received no reply to it. Appellant testified that he never received it. In Limestone County appellant “pitched a crop,” breaking up his ground and planting some corn. Upon learning of his father’s death in Mississippi, he was induced to dispose of his crop, and from there went, in the spring of the year 1898, to the Indian Territory. Ho knowledge of any charge of crime reached him until the occasion of his wife’s arrest in Hill County, in the summer of said year, charged with the theft of this money, she being in Hill County at that time, near Mertens, on a visit to her relatives. Upon being apprised of this fact appellant came immediately and directly to Hill County, to Mertens, called Tom Bell, sheriff, by telephone, informed him of his presence there, and that if he was wanted for any charge to send there for him. He was there arrested on the following day, and was released on bond.</p> <p>It was shown that appellant paid Myrick his rents, there being no trouble between them in that respect, and that for his crop of the year 1897, raised on Myrick’s pla'ce, he realized the sum of $190.</p> <p>On behalf of appellant, by the proof, it was shown that in the early days of December of the year 1896, 'while he and his wife were living upon Myrick’s place, and in the same house with him, under th» circumstances above stated, Myrick produced an abortion upon plaintiff’s wife. To this direct effect is the testimony of Mrs. James and of Mrs. Tanner.</p> <p>The purchase of the wagon, mules, and harness by appellant, and the fact of his possession of the money in gold coin as testified to by the State’s witness Mrs. White, all of which facts were admitted by him and also by him testified to, were shown to have been made by him with the money already in his possession that he realized from his crop of 1897, and to have been occasioned by the payment to him by said Myrick, about December 6, 1896, of the sum of $350 in settlement and as a compromise of appellant’s claim of damages against him for producing an abortion on his wife. The fact of this sum being so paid by Myrick, and mostly in gold coin, was established by the testimony of appellant, of Mrs. James, T. Tanner, Mrs. Tanner, Will Tanner, and Ed Tanner, all of whom were present at the time of the payment.</p> <p>By the witness J. A. Herring, a brother of the State’s witness Mrs. White, it was shown by appellant that in the spring of 1897 he approached Herring for the purpose of borrowing from him $50. That upon Herring’s requiring some security in the event he made the loan, appellant offered to give him a mortgage upon his cotton crop. Knowing that Myrick was appellant’s landlord, Herring approached him for the purpose of ascertaining whether appellant owed Myrick anything, and if the mortgage would be all right. In conversation had with Myrick respecting this matter, he stated to Herring that appellant owed him nothing; that he, Myrick, had had a settlement with appellant, and had paid him enough money for him not to want to borrow any. Herring made the loan upon appellant executing the mortgage. Before doing so Herring asked him why it was he was desiring to borrow money from him when, as Myrick had stated, enough money had been paid him as not to cause him to need it. Appellant replied that it was true that Myrick had paid him $350, but that he had promised Myrick not to use it that year, Myrick having requested this of him, fearing that his children would discover the fact of his having paid it to appellant. That before this appellant had told said witness about his trouble with Myrick, and his claim for damage against him for having produced the abortion on his wife, and in this conversation appellant stated to the witness that the $350 paid him by Myrick was in settlement of the matter.</p> <p>Ed. Herring also testified to having heard Myrick make the statement to J. A. Herring to the effect that he had had a settlement with appellant, and had paid him sufficient money as would not cause him to need to borrow any.</p> <p>Appellant and his wife denied any knowledge of or connection with the loss of the money or the articles of wearing apparel above referred to.</p> <p>It was shown that the State had dismissed the case against Mrs. James, appellant’s wife, similar in charge to this one; and that the State’s witness, I)r. Myrick, stood indicted in said court for the offense of having caused said abortion upon Mrs. James.</p>

<p>No statement necessary.</p>

Tried below before Hon. George W. Armstrong, County Judge. Appeal from a conviction for aggravated assault; penalty, a fine of $500, and one year imprisonment in the county jail. The indictment charged appellant, an adult male, with an aggravated assault, with a whip, upon Lula Leverett, a female, and thereby inflicting upon her disgrace and serious bodily injury.

<p>Appeal from the District Court of Hill. Tried belotv before Hon. J. M. Hall.</p> <p>Appeal from a conviction for murder in the second degree; penalty, five years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with the murder of Pearl V. Adams, on the 19th of December, 1896, by hitting him with a rock.</p> <p>The facts attendant upon the homicide are concisely but sufficiently stated in the opinion.</p>

<p>1. Rape—Charge of Court—Singling Out Testimony.</p> <p>On a trial for rape, where the charge of the court nowhere mentions, in terms, the testimony of the prosecutrix, but in presenting the State’s theory as to the character of force necessary under the circumstances proved to constitute rape predicates the same on her testimony alone, such charge is not improper nor upon the weight of evidence.</p> <p>2. Rape of a Woman Who Is Asleep—Force—Charge.</p> <p>On a trial for rape, where it appeared that prosecutrix was a married woman, and asleep in bed with her husband at the time, a charge of court is both proper and correct which instructs the jury that the act of copulation of a male person with a woman, she being asleep at the time and not consenting, was sufficient force to constitute the offense of rape.</p> <p>3. Same.</p> <p>The act of copulation with a woman, had "without” or “against” her consent while she is asleep, is sufficient to constitute rape, though the force used is only such force as may be used in the act of copulation.</p> <p>4. Conflicting Evidence—Practice on Appeal.</p> <p>When a case is on appeal it comes with the approval of the trial judge, who has seen, heard, and passed upon the credibility of the witnesses and the weight of their testimony; and where there is a direct conflict in the testimony, the judgment will be affirmed where it appears there is sufficient testimony in the record to support the verdict.</p> <p>5. Rape of a Married Woman Who Is Asleep—Evidence Sufficient.</p> <p>See the opinion for facts stated which are held amply sufficient to support a conviction for rape perpetrated upon a married woman asleep in bed with her husband.</p>

The indictment charged appellant with the murder of John Turman, on Monday, March 28, 1898, by shooting him with a pistol. The District Court of Kimble County was in session at the time the killing occurred, and the indictment against appellant was returned by the grand jury on March 29th, the day after the killing. The case was set for trial, and defendant was placed on trial on the following Monday, it being the 4th day of April.

<p>1. Continuance—Second Application.</p> <p>A second application for continuance which does not comply with the requirements of the law should be overruled. And where the deposition of the witness could-have been taken, the application should be refused.</p> <p>2. Local Option—Evidence—Record Book of Commissioners Court—Bill</p> <p>of Exceptions.</p> <p>On a trial for violation of local option, it was objected to the reading from a book, styled “Election Returns,” the orders of the commissioners court pertaining to said election, because the book was not the regular book of minutes of the commissioners court. Held, if it was not a record book of the commissioners court, the bill of exceptions should have recited that fact; or, if the State had failed to prove that fact, the judge should have been required to so certify. In the absence of such showing by the bill of exceptions, the objection will not be considered..</p> <p>3. Same—Evidence—Certificate of Judge Declaring the Result.</p> <p>A certificate of the county judge, declaring the result of a local option election, which fails to show the date of the publication of the order putting prohibition in force, is inadmissible in evidence without other supplementary evidence showing the date of publication.</p> <p>4. Same—Burden of Proof—Special Instructions.</p> <p>On a trial for a violation of local option, the burden is upon the State to show a publication of the order declaring the result of the election prior to the date of the alleged commission of the offense; and where such issue is raised by the record, the court should give in charge a special requested instruction to that effect.</p>

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 with the murder of a person, whose name was to the grand jury unknown,, on the 7th day of July, 1895, by striking him with some instrument and weapon to the grand jurors unknown.

Tried below before Hon. J. H. Wood, County Judge. Appeal from a conviction for failing to make report, to the Commissioners Court, as a butcher of animals, of the number, etc., of animals slaughtered by him; penalty, a fine of $50. Ho statement necessary.

<p>1. Grand Jury—Reassembling.</p> <p>The fact that upon the reassembling of the grand jury it was shown that the name-of one W-, who was one of the jurors, occurred twice on the list, by mistake, and that the name of one M., which did not appear on the list, should have appeared in one of the places where the name of W. was inserted by the mistake, does not constitute the grand jury thus reassembled a new grand jury, nor does it constitute a ground for quashing the indictment.</p> <p>3. Same—Practice.</p> <p>To reassemble the same grand jury it is only required that the court should set aside the order discharging them and then order their reassembly. Code Crim. Proc., art. 411. On their reassembly, it is not necessary to reimpanel them and go through the formality of testing anew their qualifications and reswear the members. It would be otherwise where other persons are summoned to fill out the original panel.</p> <p>3. Summoning Special Venire—Sick Jurors—Diligence.</p> <p>It is the duty of the sheriff to summon jurors whose names are on the special venire, notwithstanding they may be sick or exempt from over age; and where a juror has not been summoned, the diligence used to summon him should be stated in the return of the sheriff; but a failure of such duty on the part of the officer is not ground for a reversal under the circumstances of this case.</p> <p>4. Same.</p> <p>On a special venire ordered for one hundred jurors, where it appears that one of the persons was drawn and his name twice entered upon the list, thereby making in fact only ninety-nine jurors drawn; Held, this was a mere clerical mistake which did not vitiate the panel or constitute a ground to quash the venire.</p> <p>5. Same.</p> <p>Where the sheriff has made a mistake as to his having summoned a juror, the defendant can not be heard to complain unless he asks for an attachment for the absent juror as soon as it is ascertained from the calling of the list that he is absent.</p> <p>6. Murder—Evidence—Character of Deceased.</p> <p>On a trial for murder, if evidence as to the good character of the deceased is at all admissible, only his general reputation can be shown, and not the individual opinion of the witness to the effect that he was well thought of and was a good man.</p> <p>7. Same—Declarations of Deceased as to His Ownership of Personal Property.</p> <p>On a trial for murder, where the death of the alleged deceased party is not conclusively established, and the defense was that he was not dead but had gone off—leaving the State; Held, that declarations of deceased to third parties before he disappeared, that a certain pipe in his possession and found in the house after his disappearance was a highly-prized keepsake he had received from a brother long since dead, was legitimate and admissible as evidence showing the improbability that he would go away, in the manner claimed by defendant, without, taking said pipe with him. His declarations were verbal acts as to his title and possession of the pipe, and as such were not incompetent as being hearsay evidence.</p> <p>8. Impeachment of Witness—Evidence in Rebuttal.</p> <p>Where it was sought to impeach the credibility of a State’s witness by showing that he had falsely registered at a hotel as a resident of a certain town, when in fact he was living in another State; Held, it was competent in rebuttal for the State to show that he did formerly reside at the place named by him on the register, and his acquaintance with the parties there.</p> <p>9. Evidence—Statements and Declarations of Defendant to an Officer Who Intended to Arrest Him.</p> <p>The voluntary statements of a defendant made to an officer who has practiced a ruse upon him in order to obtain testimony from him, are not incompetent or inadmissible as evidence against him when he was not in arrest and there was no suggestion that he was to be arrested, though the officer states that he would not have let him go at that time, and he subsequently did arrest him.</p> <p>10. Same—Statements and Declarations of Deceased.</p> <p>Evidence of the statements and declarations of the deceased, to the effect that he had loaned money to the defendant, are not admissible when made in the absence of defendant.</p> <p>11. Same.</p> <p>On a trial for murder, where the alleged murdered party has disappeared, it is competent, in connection with other facts going to establish his death, to prove, as evidencing his intent to remain in that section of country, that he had made inquiries of different parties with reference to the purchase of land in the county.</p> <p>13. Murder in the Perpetration of Robbery—Indictment.</p> <p>Under an indictment for murder upon express malice, evidence is legitimate and admissible to show that it was committed in the perpetration of robbery. Following Sharpe v. State, 17 Texas Criminal Appeals, 486.</p> <p>13. Same—Charge of Court.</p> <p>On a trial for murder under an indictment which alone charges a murder upon express malice, it is error for the court to charge upon murder in the perpetration of robbery, where there was no evidence of a direct or immediate taking of property from the person or possession of the deceased by means of the robbery. A killing for the purpose of being able thereafter to assert and establish title in property owned by deceased would not constitute robbery.</p> <p>14. Murder—Corpus Delicti.</p> <p>It is essential to a conviction for any degree of culpable homicide, first, the deceased must be shown to have been killed; second, the killing must be proved to have been criminally caused, and the death of deceased must be shown to have been caused by the act or agency of the accused.</p> <p>15. Homicide—Identification of the Body or Portions of—Proof of.</p> <p>Our statute, Penal Code, article 654, provides that no person shall be convicted of any grade of homicide unless the body of the deceased or portions of it are found and sufficiently identified to establish the fact of the death of the person charged to have been killed. Held, this only requires that the proof be of a legal character—it need not be positive. If it be circumstantial, that is all that is necessary if it sufficiently identifies the remains, or the portions thereof found, as those of deceased.</p>

<p>Appeal from the County Court of Denton. Tried below before Hon. I. D. Ferguson, County Judge.</p> <p>Appeal from a conviction for a violation of local option; penalty, a fine of $25 and twenty days imprisonment in the county jail.</p> <p>No statement necessary.</p>

Tried below before Hon. E. D. McClellan. 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 W. W. Lyons, by shooting him with a pistol, on the 7th day of November, A. D. 1897. W. W. Lyons, the deceased, was a son-in-law of defendant. No witnesses were immediately present at the killing, and no one heard what occurred between the parties.

<p>No statement of facts in the record.</p>

<p>1. Assault With Intent to Murder—Charge as to Aggravated Assault.</p> <p>Upon a trial for assault with intent to murder, a charge of court as to aggravated assault is erroneous, and imposes upon defendant a burden not authorized by law, which requires the jury not only to believe that adequate cause existed to reduce the offense to manslaughter, had death resulted, and that passion was engendered, which rendered defendant’s mind incapable of cool reflection, but also that defendant did not have, at the time, the specific intent to take the life of the prosecutor. The effect of such charge was to deprive defendant altogether of the defense of aggravated assault</p> <p>2. Same—Where Another Party Was Acting in Concert With Injured Party.</p> <p>On a trial for assault with intent to murder, where the evidence showed that, during the rencounter, a friend of the alleged injured party ran up in a hostile manner with a knife, it was error for the cuurt to fail or refuse to give instructions to the jury both as to manslaughter and self-defense predicated upon the acts and conduct of said third party in connection 'with those of the alleged injured party. If defendant was the aggressor and struck the first blow with intent only to have a fist fight, and the hostile manner of this third party aroused his passion to such an extent as that he was incapable of cool reflection and he then formed 'the intent to kill, death not ensuing, his offense could be of no higher grade than manslaughter. And if defendant was not the aggressor, although he used apparently more force than was necessary as against the one party, yet as against the combined assault of both he might only have been guilty of aggravated assault, and the court should have explicitly instructed the jury in this regard.</p> <p>3. Same—Aggravated Assault—Adequate Cause.</p> <p>On a trial for assault with intent to murder, where it appeared that defendant, being in his own place of business, was struck by a rock which came apparently from the wagonyard of the prosecutor, to which defendant immediately went and politely inquired of prosecutor who it was that had thrown it; and during the colloquy prosecutor ordered him off, called him a liar, advanced upon and struck him; Held, this in itself might be adequate cause sufficient to reduce to aggravated assault an offense which would otherwise have been an assault with intent to murder; and this phase of the ease should have been presented in an appropriate charge.</p>

Appellant was charged by the indictment with the murder of Lucinda Moore by shooting her with a pistol, on the 25th day of June, 1898. The evidence showed that defendant had been paying his attentions to the deceased for more than two years; that they were lovers and were engaged to be married.

<p>1. Plea of Former Conviction—Burden of Proof.</p> <p>On a trial for theft of cattle, where defendants interposed a plea of former convie tian upon the ground that they had been already convicted for the theft of cattle taken at the same time and place as the. ones involved in this prosecution, the burden of proving the plea by a preponderance of evidence was on the defendants. And when all the evidence except that of the defendants themselves was to the effect that the cattle were not taken at the same time and place, the plea is not sustained.</p> <p>2. Plea of Former Acquittal—Theft from Different Owners.</p> <p>On a trial for theft of cattle, the property of different owners, an acquittal for the theft of one animal, the property of one owner, is not a bar to the prosecution for theft of an animal or animals -belonging to another owner, notwithstanding all the cattle may have been taken at the same time and place' and in one transaction, because the evidence might, in the first case, have been insufficient, and still have been amply sufficient to convict in the latter case.</p> <p>3. Pleas of Former Conviction and Acquittal—Burden of Proof.</p> <p>Where there are special pleas of former conviction or acquittal on a prosecution for theft, the burden is upon the defendant to establish that the taking and transaction is one and the same, arid not upon the State ,to establish that they were separate and distinct transactions.</p> <p>ON MOTION FOB EEHEABING.</p> <p>4. Verdict Against Joint Defendants.</p> <p>Where on a joint trial of two defendants, the verdict was, “We the jury find the defendants’ plea of former conviction untrue, and find them guilty as charged, and assess their punishment at two years confinement in the State penitentiary;” Held, the verdict shows that the jury intended to assess a punishment of two years confinement in the penitentiary against each" defendant. Following Mootry v. State, 35 Texas Criminal Reports, 457, and Polk v. State, 35 Texas Criminal Reports, 495.</p>

Tried below before Hon. W. D. Harris. Appeal from a conviction for burglary; penalty, two years imprisonment in the penitentiary. A statement of the evidence adduced is not necessary. Appellant based his motion for new trial upon the following grounds: 1. Permitting the State to prove by defendant that he had before been indicted. 2. Permitting the State to prove the good character, etc., of the State’s witness, Jack Dean, for truth and veracity. 3.

Tried below before Hon. E. D. Cavin. Appeal from a conviction for murder in the first degree; penalty, death. The indictment charged appellant with the murder of Kate H. Gallaher, on the lath day of August, 1897, by cutting her with some sharp instrument, to the grand jurors unknown. Kate H. Gallaher, the murdered woman, was the mother of appellant.

<p>1. Murder—Evidence.</p> <p>On a trial for murder, evidence is not admissible to prove, by the testimony of a physician, that the blow inflicted by defendant on the head of the deceased with a beer glass would not have caused death but for the inflamed condition of the brain of deceased, caused by the excessive use of alchoholic liquors. Where the blow was the proximate cause of the death, the enfeebled condition of deceased at the time would not be material.</p> <p>2. Same—Declarations of Defendant—Res Grestae.</p> <p>Where it appeared on a trial for murder that within five or ten minutes after defendant had struck the fatal blow with a beer glass, he, being much excited and frightened, stated to the first persons he mentioned the matter to after leaving the house and going some thirty feet, “I hope I haven’t hurt him much. I did not think the glass was heavy enough to knock him down. I just wanted to keep him from kicking me any more.” Held, the declarations were res gestae and admissible in evidence.</p> <p>3. Same.</p> <p>The fact that defendant, as a witness, testified to the facts stated in paragraph 2, supra, would not cure the error of the court in excluding the evidence when offered to be proved as res gestae.</p> <p>4. Improper Questions by Prosecution.</p> <p>On a trial for murder, while it was improper for the district attorney to ask questions suggesting that a relative of defendant had robbed deceased, shortly before the homicide, the court not having permitted the testimony, the simple asking such questions would not constitute reversible error.</p> <p>5. Murder—Charge as to Evil and Cruel Disposition.</p> <p>Where it appears that the homicide was the result of a sudden quarrel, that deceased struck defendant the first blow and kicked him out of the saloon, whereupon defendant threw a beer glass which struck deceased on the head, causing death; Held, the facts did not warrant a charge from the court as to a homicide committed with evil and cruel disposition.</p> <p>6. Same—Charge as to Weapon or Means Used.</p> <p>On the facts stated in paragraph 5, supra, the jury should have been pointedly instructed that if they believed the weapon used was not likely to produce death, they could not presume that the death was designed; and that before they could convict of any degree of culpable homicide they must believe from the manner in which the weapon was used that it was evidently intended by defendant to take the life of deceased.</p>

<p>1. Setting Aside Order Granting New Trial—Practice.,</p> <p>Where, on an application to the court to set aside a previous order granting defendant a new trial in a criminal case, it is made to appear that appellant’s counsel was notified of said application, but failed to put in an appearance at the hearing; Held, that defendant can not be heard to complain that the action of the court in setting aside the order granting the new trial, even if the court had such authority, deprived him of his right of preparing and filing certain bills, of exceptions' which he had taken.</p> <p>2. Construction of Statutes—Setting Aside an Order Granting a New</p> <p>Trial.</p> <p>The rule in civil cases, that a court may set aside an order granting a new trial, can not be applied to criminal cases in view of our statutes with regard to new trials in the latter cases. Code Grim. Proe., title 9, chap. 1. In criminal cases the action of the court in once granting a new trial is final, and the court can not again call up the case and set aside said order, and thus' reinstate the judgment it has previously rendered against the accused in the case. The new trial must be heard again before the judge or another jury, as the case may be.</p>

<p>1. Forgery of a Deed—Venue of the Prosecution.</p> <p>Penal Code, article 553, authorizes the prosecution of forgery of land titles in either the county where the forgery was committed or in the county where the land involved in the forgery is situated. An indictment for such a forgery, alleging it in the county where the land was situate, will support a conviction, though the forged deed, as set out in said indictment, purports on its face to have been executed in another county.</p> <p>2. Change of Venue by Agreement—Jurisdiction.</p> <p>Article 553, Penal Code, confers jurisdiction in Travis County of all prosecutions for forgery of land titles, and inasmuch as Travis County has original jurisdiction in such cases, it would be competent, by agreement of parties, to transfer the same from another county to Travis.</p> <p>3. Change of Venue by Court of Its Own Motion to County Out of the District.</p> <p>Where a court, ex mero motu, changes the venue to a county not in his own nor in an adjoining district, it will be presumed, in support of the change of venue, that the same reasons for change of venue existed in said adjoining counties as existed in the county where the prosecution was instituted.</p> <p>4. Forgery—Severance.</p> <p>On a trial for forgery, an application for severance from a party separately indicted, which alleged in general terms that the parties were indicted for the same transaction, may be controverted, and it is entirely competent for the State, in reply, to set up and establish by investigation that the transactions are different and distinct.</p> <p>5. Secondary Evidence of a Deed or Writing—Photographic Copy.</p> <p>Before secondary evidence of the photographic copy of a deed or other writing can be resorted to, it must be shown that the copies are accurate. Such secondary evidence is admissible where the deed or writing is shown to be in the possession of the adverse party, and he has been duly notified to produce, and fails to produce, the original.</p> <p>6. Same—Presumption as to Photographic Copies.</p> <p>Where an adverse party, in possession of the original deed or other writing, has been duly notified to produce, and fails to produce, the original, every intendment will be presumed in favor of the correctness of photographic copies of said deed or instrument.</p> <p>7. Evidence—Handwriting—Standards of Comparison.</p> <p>Writings confessedly in the handwriting of defendant are proper standards of comparison on a trial for forgery.</p> <p>8. Expert Evidence as to Handwriting.</p> <p>A witness who has qualified as an expert may testify as to handwriting; and where he is also shown to be familiar with the handwriting of the party, his competency to give his opinion is unquestionable.</p> <p>9. Forgery of a Deed—Expert Evidence—Proof by Negative Pregnant.</p> <p>On a trial for forgery of a deed, it is entirely competent to attack the genuineness of the signature of the purported maker by negative pregnant proof of qualified experts as to his nonexecution of the deed, by proof that it was in the handwriting of the accused. And such proof is amply sufficient where the purported maker of the deed was unknown to any witness, and the State was unable to procure any direct testimony as to his handwriting. .</p> <p>10. Expert Evidence.</p> <p>The fact that some of the expert witnesses may have been shaken, as experts, in the cross-examination, does not go to the admissibility of their testimony, but rather to its strength.</p> <p>11. Forgery—Defendant as a Witness—Cross-Examination as to Handwriting.</p> <p>On a trial for forgery, where an original paper on file in the district court in another case, and shown to have been written by defendant, has been already introduced as a standard of comparison of handwriting, Held, that on his cross-examination as a witness in his own behalf, it was competent and germane with reference to his examination in chief as to the forgery, to interrogate defendant with reference to his genuine writing in said original paper. This was neither introducing new matter on cross-examination, nor was it obnoxious to constitutional objection that it was compelling defendant to give evidence against himself.</p> <p>18. Forgery—Suppression of Evidence by Defendant.</p> <p>On a trial for forgery, evidence which directly involves the suppression of the alleged forged deeds by the defendant is competent and admissible testimony against him.</p> <p>13. Same.</p> <p>On a trial for forgery of a deed, it was competent for the State to prove that defendant admitted his possession of the original deeds', and stated “that he would not be damn fool enough to give them up.”</p> <p>14. Remarks by District Attorney.</p> <p>Upon objection by defendant’s counsel to the introduction of the evidence, as stated in the foregoing paragraph, the district attorney remarked that his purpose was to put the original deeds in evidence. Held, the statement by the district attorney as to what his object was was not illegal or improper, it being made to appear that every legal effort was used by him to accomplish this purpose.</p>

The indictment charged appellant with the murder of Watson Whit-taker, on the 21st of July, 1898, by shooting him with a gun and pistol. The important facts proved on the trial are sufficiently stated in the opinion.

Tried below before Hon. Charles F. Clint. Appeal from a conviction for theft, by conversion of property by a bailee for hire; penalty, three years confinement in the penitentiary.

<p>Ho statement necessary.</p>

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

<p>Appeal from the District Court of Bandera. Tried below before Hon. I. L. Martin.</p> <p>Appeal from a conviction for perjury; penalty, three years imprisonment in the penitentiary.</p> <p>No statement necessary.</p>

<p>Appeal from the County Court of Dallas. Tried below before Hon. T. F. Nash, County Judge.</p> <p>Appeal from a conviction for gaming in a house under defendant’s control; penalty, a fine of $25.</p> <p>This is a second attempt to appeal this case. See Quarles v. State, 37 Texas Criminal Reports, 362.</p> <p>Ho statement necessary.</p>

<p>1. Aggravated Assault by Adult Male Upon a Female—Complaint and Information.</p> <p>A complaint and information are sufficient to charge an aggravated assault by an adult male upon a female, where the allegations are that the accused, R., “did commit an aggravated assault. The said R. then and there being an adult male, and the said B. K. then and there being a female; and the said R. did then and there touch and indecently handle the said B. K. with his hand,” etc. Following Hill v. State, 37 Texas Criminal Reports, 279.</p> <p>2. Admission of Testimony Before Argument Is Concluded.</p> <p>Under provisions of article 698, Code of Criminal Procedure, the court shall allow testimony to be introduced at any time before the argument of the case is concluded, if it appear that it is necessary to the due administration of justice; and it matters not that both parties had previously announced that they had closed their case in chief.</p> <p>3. Aggravated Assault by an Adult Male Upon a Female Child.</p> <p>An assault upon a female child about eight years of age can be committed whether with or without her consent.</p> <p>4. Same—Evidence—Other Similar Assaults.</p> <p>On a trial for aggravated assault by an adult male upon a female child, evidence of like assaults on other occasions is admissible upon the question of intent of accused.</p> <p>5. Same—Charge.</p> <p>On a trial for aggravated assault alleged to have been committed, as stated in paragraph 1, supra, it was not error for the court, in applying the law to the facts, to fail or refuse to instruct, that to warrant a conviction, such assault must have been without the consent, against the will, and with intent to injure the female.</p> <p>6. Same—Intent Presumed—Charge.</p> <p>On a trial for aggravated assault by an adult male upon a female child, a charge of court to the effect that when injury is caused by violence to the person the intent is presumed, etc., and further, that “the injury intended may be either bodily pain, constraint and sense of shame, or other disagreable emotions of the mind,” is not such objectionable repetition as was likely to or probably did prejudice the rights of the accused.</p> <p>7. New Trial—Corrupt Juror.</p> <p>On motion for new trial, where one of the grounds was that a certain named juror was corrupt, in that prior to being selected on the jury he had said to the supporting affiant that defendant “ought to he hanged, and that he (the juror) would join a mob,” which affidavit was controverted by the juror’s statement under oath that he knew nothing of the case when selected as a juror, and that he gave defendant a fair and impartial trial; Held, upon this state of the record the court could not say that the juror was not a fair and impartial juror.</p>

Tried below before Hon. J. W. Patterson. Appeal from a conviction for manslaughter; penalty, four years imprisonment in the penitentiary. This is the second appeal in this case (see Merritt v. State, 39 Texas Criminal Reports, 70), and the facts on this appeal being in the main the same as were presented on the former appeal, renders a further statement unnecessary.

Tried below before Hon. Ed. R. Sinks. Appeal from a conviction for murder in the first degree; penalty, a life term of imprisonment in the penitentiary. The indictment charged appellant with the murder of Louis Drisdale, on the 21st day of May, 1897, by shooting him with a pistol. The opinion states the case.

<p>I. Murder—Evidence—Bes Gestae.</p> <p>On a trial for murder, statements made by deceased, who, within five minutes after he was shot, got into the witness’ wagon to go to his home some three-quarters of a mile, are admissible in evidence as part of the res gestae, there being nothing to indicate that the statements were not spontaneous.</p> <p>Í2. Homicide in Prevention of Bobbery—Charge.</p> <p>On a trial for murder, where it appeared that in a previous scuffle between the parties deceased took defendant’s knife from him and put it into his pocket, saying, “I will show you how to cut me with a knife,” and got into a wagon and rode off; whereupon the defendant followed, grabbed a whip from the wagon and struck at deceased, and deceased jumped off the wagon with his hand in his pocket and defendant shot him; Held, the court did not err in refusing a special instruction upon homicide to prevent a robbery, since the circumstances surrounding the transaction preclude any thought of robbery.</p> <p>3. Confession.</p> <p>■ Where it is expressly admitted by defendant that he was properly warned by the county attorney before making the statement or confession, such statement or confession is properly admissible in evidence.</p>

The Assistant Attorney-General moved to dismiss the appeal, (1) because the record fails to show that notice of appeal was given; (2) because the record fails to disclose, by the clerks’s certificate, that appellant was by the court remanded to jail upon failure sto enter into recognizance pending the appeal.

The indictment contained four counts: 1. Charging appellant, on the 9th day of September, 1895, with the murder of Ad Pate, by shooting him with a pistol. 2. Charging that the murder was committed by Lou Moore and E. L. Cady. 3. Charging that prior to the commission of the offense by E. L. Cady and Lou Moore, appellant advised, commanded, and encouraged them to commit the offense. 4.

<p>1. Indictment—Service of Copy of Indictment.</p> <p>A defendant, after his conviction, can not be heard to complain that the copy of the indictment served upon him was defective.</p> <p>2. Charge of Court—How Considered.</p> <p>The charge of the court must be considered as a whole, and not by isolated sentences.</p> <p>3. Murder—Threats—Charge.</p> <p>On a trial for murder, where the evidence showed that deceased was making no demonstrations at the time he was killed, - and the court charged the jury that “threats made by one to kill another will not justify the latter in killing the former, unless he (the one who made the threat) was at the time of the killing making some demonstration to execute the threat. If deceased had threatened to take the life of defendant, such threats, if any, would not justify defendant in killing deceased.” Held, not prejudicial.</p> <p>4. New Trial—Absence of Witness.</p> <p>The absence of a summoned witness is not ground for a new trial where no motion for continuance or postponement has been made before announcement of ready for trial, or as soon thereafter as it is ascertained that the witness is absent, where defendant has announced ready under the impression that his witness was present.</p> <p>5. Jury Law—‘Verdict—Time of Deliberation Upon.</p> <p>The length of time a jury may take in considering their verdict and arriving at a conclusion is not fixed by law, and there is no rule by which to determine the matter. That they return a verdict in twenty-five or thirty minutes, in a murder case, would not indicate that they had not sufficiently deliberated.</p> <p>6. Murder—Charge as to Lower Degrees.</p> <p>On a trial for murder, where the facts are positive and uncontradicted that the killing was done deliberately and sedately, the court is only required to submit the law of murder in the first degree. It is only where there is doubt as to deliberation and express malice that the law applicable to murder in the second degree should be given; and only where the facts justify or call for it, that the law of other inferior degrees of homicide should be given.</p> <p>7. New Trial—Newly Discovered Evidence.</p> <p>A new trial for newly discovered evidence to prove a defendant’s insanity will not be granted where, if defendant’s mind was weak or erratic, the slightest diligence could have ascertained that fact at any time before the trial; and where the affiants supporting this ground for new trial were friends, at least associates, of defendant, and knew him intimately.</p> <p>8. Murder in the First Degree—Evidence Sufficient.</p> <p>See opinion for evidence summarized which the court holds amply sufficient to support a verdict and judgment for murder in the first degree, inflicting the death penalty.</p>

The indictment charged appellant with the murder of W. T. Willard on the 20th day of March, 1897, but cutting him with a knife. The important facts connected with the homicide are summarized in the court’s opinion below.

<p>From Dallas Countys.</p> <p>Original application for a writ of habeas corpus to he released from custody for a contempt of court on account of disobedience of a writ of injunction.</p>

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

Tried below before Hon. G. W. Dakan, County Judge. Appeal from a conviction for malicious mischief, in willfully and wantonly maiming and wounding a dog; penalty, a fine of $-1. No statement necessary.

Tried below before Hon. W. F. Robertson, County Judge. Appeal from a conviction for disturbance of the peace, by rudely displaying a pistol in a manner calculated to disturb the inhabitants, etc.; penalty, a fine of $10. The opinion states the case.

Tried below before Hon. Charles F. Clint. Appeal from a conviction for murder in the first degree; penalty, imprisonment for life in the penitentiary. Appellant was charged by the indictment with the murder of Ad Pate, on the 9th day of September, 1895, by shooting him with a pistol. The indictment contained three counts: (1) Murder; (2) accomplice to murder, and (3) accessory to murder. The court submitted only the issue of murder as laid in the first count.

Tried below before Hon. John Seiders, 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 necessary.

<p>Appeal from the District Court of Erath. Tried below before Hon. J. S. Straughan.</p> <p>Appeal from a conviction for murder in the first degree; penalty, death.</p> <p>Appellant was charged by the indictment with the murder of John Adams, on the 18th day of December, 1897, by shooting him with a gun.</p> <p>The essential facts attendant upon the killing are the same as those stated in Ex Parte Wright and Leslie, 39 Texas Criminal Reports, 193, which was a writ of habeas corpus sued out for hail in this case, and it is not necessary to make a further statement.</p> <p>No briefs for either party have come to the hands of the Reporter. Nor is appellant’s motion for rehearing, which appears to have been filed and to have been overruled without a written opinion, found in the record as it has come to the Reporter’s hands.</p>

Tried below before Hon. John M. Furman. Appeal from a conviction for burglary; penalty, two years imprisonment in the penitentiary. The indictment charged appellant, in two counts, with the burglary of a house owned and belonging to one L. A. Bigham. The first count charged a daytime, and the second a nighttime burglary. The conviction was upon the second count. The salient features of the evidence are sufficiently stated in the opinion.

<p>1. Charge of Court—Bill of Exceptions.</p> <p>A bill of exceptions to the charge of the court should state the objections and reasons for the exception.</p> <p>2. Aggravated Assault Upon a Female—Conviction for Simple Assault.</p> <p>A defendant can be legally convicted of a simple assault under an information charging him with an aggravated assault by an adult male upon a female. Code Crim. Proc., art. 817, subdiv. 9.</p>

The instrument set out and alleged to have been forged or fraudulently altered by defendant was the affidavit, made by a parent in the city of Laredo, as to the ages, names, and number of her children within the scholastic age. It was alleged the alteration of the affidavit would, if the same had been legally made, have increased the pecuniary obligation of the State of Texas to the city of Laredo, and to the census trustees of said city.

<p>1. Certiorari to Perfect Record.</p> <p>■See opinion for valid objections to a transcript on appeal, on account of which a certiorari is awarded requiring the clerk to prepare and forward a perfect one in accordance with law, and adjudging the costs against said clerk.</p> <p>ON THE MERITS.</p> <p>2. Sunday Law—Constitutional Law—Class Legislation.</p> <p>Our Sunday law, Penal Code, articles 199, 200, denouncing a penalty for selling goods on Sunday, but exempting certain characters of business and sales from the operation of the law, is not class legislation, because the Legislature is authorized, under its police power, to exempt certain articles of merchandise as common necessities', the sale of which should not be prohibited.</p> <p>3. Selling Liquor on Sunday.</p> <p>Whisky, when not sold as a medicine, or by a druggist, on Sunday, is regarded as a beverage, and comes within the inhibitions of the statute.</p> <p>4. Construction of Statutes.</p> <p>Where a statute is even of doubtful import, it is the duty of the court to give it that construction which will uphold its constitutionality.</p> <p>ON MOTION FOR REHEARING.</p> <p>5. Construction of Statute, Article 1018, Penal Code, as to Additional Process for Witnesses.</p> <p>Penal Code, article 1012, inhibiting clerks from issuing further process where witness has been served with process by one party, except upon order of the judge, etc., applies only in felony cases; it has no application to misdemeanors.</p> <p>6. Continuance—Witness of Opposite Party.</p> <p>Where an application of defendant for continuance is based upon process sued out for a witness by the State, the application must connect the defendant seeking the continuance with the original process; and the process should show the fact that at the time it was issued the defendant also desired the witness.</p> <p>7. Same.</p> <p>A continuance will be held to have been properly refused where in the face of the record it is not probably true that the witness would testify as stated in the application, or if he did, that an honest jury would not believe his testimony.</p>

Tried below before Hon. Wells Thompson. Appeal from a conviction for rape; penalty, twenty-five years imprisonment in the penitentiary. This is a second appeal in this case, and the material facts will be found in the report on the former appeal, Hamilton v. State, 36 Texas Criminal Reports, 372.

<p>1. Murder—Provoking a Difficulty—Self-Defense—Charge.</p> <p>On a trial for murder, a charge of court was erroneous which instructed the jury, in substance, that if they believed defendant sought deceased with intent of provoking or bringing about a difficulty for the purpose of killing deceased or doing him some serious bodily injury, the law will not permit him to avail himself of the law of self-defense, although he may -have been compelled to act upon the defensive during the progress of the difficulty. The charge is erroneous in making the guilt of the defendant depend on his act and purpose in seeking the difficulty; whereas, in- law, his guilt or innocence would depend on the acts done by him at the time of the meeting, looking to his preceding conduct to characterize or lend significance to his acts at the time of meeting.</p> <p>81 Same.</p> <p>In order to provoke a difficulty, the defendant must willingly and knowingly use some language or do acts reasonably calculated to lead to an affray or deadly conflct; and unless the acts were clearly calculated or intended to have such effect, the right of self-defense is not eompromitted, even though the party armed himself and went there for the purpose of a difficulty.</p>

Tried below before Hon. G. A. Brown. Appeal from a conviction for murder in the first degree; penalty, death. The indictment charged appellant with murdering Mrs. G. E. Morrison on the 15th of October, 1897, by mingling poison with medicine which he induced her to take and swallow. The charging part of the indictment is set out in the opinion.

Tried below before Hon. J. S. Straughan. Appeal from a conviction for murder in the second degree; penalty, eighteen years imprisonment in the penitentiary. The indictment charged appellant with the murder of A. A. King on the 8th day of August, 1898, by stabbing him with a knife. The first appeal in this case will be found in Ex Parte Williams, 39 Texas Criminal Reports, 524, which was an application for bail.

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

Bearing upon these questions, it was agreed upon that prohibition was in effect in Clay County, Texas; that the election was held on the 3d day of August, 1897; that the order declaring the result of the election was passed by the Commissioners Court the 18th day of August, 1897. That defendant since November 1, 1897, and up to the date of the filing had been engaged in the sale of intoxicating liquors, but no evidence was introduced showing such a sale on prescription.

<p>1. Assault With Intent to Murder—Evidence Sufficient..</p> <p>See opinion for facts stated which are held amply sufficient to support a verdict and judgment of conviction for assault with intent to murder.</p> <p>2. Improper Statement by Prosecuting Attorney Before the Jury—Practice.</p> <p>Where, upon cross-examination of the defendant, the district attorney asked’ “what her occupation was at the time the offense was committed;” to which defendant objected, and upon the court’s remark, “I can’t see that the testimony is material,” the district attorney said “his object was to prove that the witness was' a prostitute;” Held, even if the statement of the district attorney was improper (which is not conceded), it was the duty of counsel for defendant to request the court to instruct the jury to disregard the remark in order to render the matter a subject for revision on appeal.</p> <p>3. Defendant as a Witness—Cross-Examination.</p> <p>A defendant who voluntarily takes the witness stand is subject to the same rules of cross-examination as every other witness.</p> <p>4. Charge of Court—How Considered.</p> <p>A charge of court is to be considered in its entirety, and where an error of omission in one paragraph is fully supplied in another paragraph, the omission can not be complained of as error.</p> <p>5. New Trial—Newly Discovered Evidence. •</p> <p>A new trial will not be granted for newly discovered evidence, where it is manifest that the evidence is neither newly discovered nor probably true.</p>

Tried below before Hon. J. M. Hall. Appeal from a conviction for murder in the first degree; penalty, a life term in the penitentiary. The indictment charged appellant with the murder of J. F. Pauly, on the 8th day of May, 1897, by shooting him with a pistol. The important facts attendant upon the killing are sufficiently stated in the opinion.

The indictment charged appellant with the murder of J. D. Modgling, on the 28th day of February, 1898, by shooting him with a pistol. The two parties to this homicide were employes on the farm of J. D. Avis, some two or three miles from the town of Wichita Falls. Deceased (Modgling) and wife kept the house, and defendant boarded with them.

Tried below before Hon. T. C. Wilkerson, Special Judge. Appeal from a conviction for arson; penalty, five years imprisonment in the penitentiary. No statement of facts in the record.

Tried below before Hon. S. I. Newton. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. . The indictment charged appellant with the murder of Dan Potter, by cutting him with a knife, on the 27th day of November, 1897. The opinion states all the essential facts attendant upon the homicide.

Tried below before Hon. Charles F. Clint. Appeal from a conviction for theft of horses; penalty, two years imprisonment in the penitentiary. Appellant was charged with stealing two horses from Eliza Johnson, The principal prosecuting witness was one Hugh Chamberlain.

Tried below before Hon. J. E. Dillard. Appeal from a conviction for theft of a hog; penalty, three years imprisonment in the penitentiary. Ho statement necessary.

<p>1. Forgery—Unstamped Instrument.</p> <p>An instrument in the form of an order to pay money, and which under the Federal statutes is required to be stamped, is not per se void for the want of the stamp, and all the authorities, English and American, hold that an unstamped instrument of this character is the subject of forgery.</p> <p>3. Power of Congress to Regulate Evidence in State Courts.</p> <p>The United States Congress has no power to regulate the introduction of evidence in the State courts.</p>

Tried below before Hon. J. S. Straughan. Appeal from a conviction for murder in the second degree; penalty, twenty years imprisonment in the penitentiary. This is a companion case to Williams v. State, ante, p. 497, and the main facts will be found reported in that case.

Tried below before Hon. Charles Rogan, County Judge. Appeal from a conviction for giving a physician’s prescription in violation of local option; penalty, a fine of $25 and twenty days confinement in the county jail. Ho statement necessary. The charging part of the indictment is set out in the opinion.

Tried below before Hon. Tom C. Davis. Appeal from a conviction for burglary; penalty, confinement for two-years in the reformatory. The evidence shows that defendant was about 13 years-of age at the-trial, and was small for his age. The burglarized house was a baker’s-shop, and some candy and 35 cents in money were taken from the-house. Defendant, after he had been duly warned, made a confession to the county attorney.

Tried below before Hon. Charles Rogan, County Judge. Appeal from a conviction for giving a physician’s prescription in violation of local option; penalty, a fine of $25 and twenty days imprisonment in the county jail. The charging part of the information is set out. in the opinion. Defendant’s motion to quash was based upon the ground that the information charges no offense.

The charging part of the information is copied in the opinion. Defendant moved to quash the information upon the following, among other grounds, viz.: “It does not give the name of the party selling or delivering the (liquor), and does not state that the name of such party was unknown.”

Tried below before Hon. Don. A. Bliss. Appeal from -a conviction of theft from the person; penalty, two years imprisonment in the penitentiary. The indictment charged that appellant, on the 1st day of October, 1897, did take from the person of John Droak, and without his knowledge, $25 (twenty-five dollars) in United States money, three silver dollars, one half dollar, and one dime and four -half dimes; all current money of the United States. No statement necessary.

A motion was made by defendant to quash the indictment upon the ground that the United States courts have exclusive jurisdiction over the offense of counterfeiting; and also a motion in arrest of judgment upon the same ground. Both motions were overruled. We take the following statement from the brief of counsel for appellant, to wit: About the 3d day of December, 1898, Deputy Sheriff F. H. Hargon arrested defendant on suspicion that he was making counterfeit money.

<p>Bail Bond—Forfeiture—Time of Filing Transcript on Appeal.</p> <p>By article 1015, Revised Statutes, transcripts on appeal, in civil cases, must be filed within ninety days after filing the appeal bond, unless good cause be shown. Forfeited b.ail bonds are governed by the same rule (Code of Criminal Procedure, article 485),—and, unless the transcript is filed in the Court of Criminal Appeals in such cases within ninety days after appeal is perfected, the appeal will be dismissed.</p>

<p>1. Local Option—Evidence—Minutes of Commissioners Court.</p> <p>On a trial for violation of local option it is competent to introduce in evidence the minutes of the commissioners court, though they are not signed by the judge nor attested by the clerk, where it is uncontroverted that the book from which they were read was the record book containing the minutes of said court.</p> <p>3. Same—Special Session of Commissioners Court—Jurisdiction.</p> <p>On a trial for violation of local option, where it appeared that the regular term of the commissioners court convened on the 14th of November, and was by law authorized to hold a session of one week only; and said court, without specifically calling a special session, adjourned to meet again on the 21st of November; Held, in favor •of the jurisdiction, that the meeting and session held on the 21st should and will be treated as a special or called session, and that the court could then transact ■any business before it, including an order for the local option election.</p> <p>■'3. Same—Election in Precinct After Adoption in Entire County.</p> <p>Under the former law, which was in existence in 1892, it was competent to hold a ■ local option election in a precinct, notwithstanding it had previously been adopted for the entire: county; but under the Act of 1893 the ride is otherwise.</p> <p>•4. Same—Publication of the Result of the Election.</p> <p>An entry of the order declaring the publication of the result of a local option election was made by the county judge in the following words, viz.: “I hereby certify that due proclamation of the result of the election held m justice precinct No. 7, B. County, on the 17th day of December, 1892, has been made as the law requires.” Held, insufficient under the provisions of article 3391, Revised Statutes, which re•quires, in order to constitute an entry of such order prima facie evidence of the publication, it should show the character of publication, how published, and that it was published the required length of time. The entry, as quoted above, merely recites the conclusion of the judge, and does not recite how the result was published, whether by posting or by publication in some newspaper for the required length of time.</p> <p>■5. Same—Charge of Court.</p> <p>On a trial for violation of local option, where the defensive theory, though ¡shadowy, was that defendant did not sell the beer, the court should have given a charge presenting this issue of the ease in behalf of the defendant.</p> <p>■6. Same—Sale.</p> <p>On a trial for violation of local option, a sale of intoxicants will constitute a violation, regardless of whether accused made any profit or not out of said sale.</p> <p>‘7. Same—Evidence.</p> <p>On a trial for a violation of local option, evidence is admissible to show that defendant believed that he was only delivering the beer of another to the party receiving it, and had no idea of selling it to him.</p>

Tried below before Hon.. A. E. Stevenson, County Judge. Appeal from a conviction for failure to remove a fence from the-lands of another after six months notice to do so; penaltjq a fine of $10..

Tried below before Hon. J. L. Dupree, County Judge. Appeal from a conviction for refusing to answer questions as to names and ages of his children for scholastic census; penalty, a fine of $5. There was a motion by defendant to quash the information upon the ground, among others, “that it does not set out the names of accused’s children or allege that the same are within the scholastic age.” This motion or exception was overruled.

<p>1. Witness—Privilege as to Incriminating Matter.</p> <p>As a general rule a witness will not be compelled to incriminate himself, but where the rule applies, the witness only can take advantage of it; an accused can not object to testimony of a codefendant upon the ground that it will inculpate or incriminate such codefendant.</p> <p>2. Same—Codefendant.</p> <p>A witness is not incompetent to testify for the State because indicted or informed against for the same ofiense.</p> <p>3. Same—Leading Questions.</p> <p>A witness who had testified on a previous occasion, but upon a subsequent trial is unwilling to testify, may be asked leading questions.</p>

<p>1. Murder—Special "Venire—Mode of Summoning.</p> <p>On an order to summon a special venire of sixty men who had been regularly drawn, the sheriff simply addressed to each "venireman a postal card notifying him that he had been drawn and must be present on the day stated when the case was set for trial, and instructed each to tear off the return on the postal card and mail it back to him as a notice that he, the venireman, had been served. The sherift made up his return on the writ showing only service in the ordinary way, from the replies thus received. Defendant made a motion to quash the writ, setting up the above facts as to the mode of service, and presented the same by way of objection to the impanelment of the jurors in every conceivable way without avail. Held, our statute, article 650, Code of Criminal Procedure, requires a personal service by the sheriff on each juror drawn on the special venire. The service in this case was tantamount to no service at all, and defendant was in fact deprived of a. special venire which the law guarantees in murder trials.</p> <p>2. Special Veniremen—Excusing by Court.</p> <p>There is no authority on the part of the court to excuse special veniremen in the absence of the defendant. Following Livar v. State, 26 Texas Criminal Appeals, 115.</p> <p>3. Defendant as a "Witness—Recalling to Day Predicate for Impeachment.</p> <p>A defendant who has testified in his own behalf may be récalled to the stand as any other witness for the purpose of laying a predicate for his impeachment.</p> <p>4. Murder—Evidence—Acts and Conduct of Defendant Before the Homicide.</p> <p>On a trial for murder, it is admissible, competent, and relevant, as tending to-show the condition of defendant's mind immediately preceding the homicide, to permit the State to prove that defendant and his brother, who was acting with him, were shortly before the difficulty drinking and carousing and manifesting a turbulent and lawless disposition.</p>

<p>1. Forgery—Deed to Homestead Not Acknowledged by the Wife.</p> <p>A homestead can not be conveyed without the consent, of the wife, and not even then unless her privy acknowledgment has been taken to the deed of conveyance. Held, a purported deed to the homestead which does not affirmatively show her privy examination and acknowledgment, is not such an instrument as may be the subject of forgery.</p> <p>2. Same—Explanatory Allegations.</p> <p>On a trial for having a forged instrument in possession with intent to pass it, which instrument is a deed purporting to convey the homestead of one J. and wife, and which appears also to have been executed by one T., who, from the face-of the instrument, is not shown to have had any interest in said homestead; Held,, the indictment should have contained explanatory averments showing the interest, if any, owned or claimed by said T. in said homestead.</p> <p>3. Having Possession of a Forged Deed with Intent to Pass It.</p> <p>On a trial for having a forged deed in possession with intent to pass it, where the-evidence was that the deed purported to convey a homestead which was also the separate property of the wife, and after it was signed by the husband and one T., it was presented by J., the defendant, to the wife, who refused to execute it unless a certain stipulation in the interest of said T. was erased, and the erasure was made by J., the defendant, and she then signed it; Held, this erasure is the only fact having any tendency to show a forgery, and a conviction could not be had on account of such erasure or alteration, because such facts are not set forth or alleged in the-indictment as the basis of the forgery.</p> <p>4. Forgery—Alteration—Charge.</p> <p>On a trial for having in possession a forged deed, where there was no allegation, of forgery by alteration, it was error for the court to submit to the jury, in its charge, the theory that the forgery was constituted by altering a genuine instrument.</p>

Tried below before Hon. H. 0. Cooke, 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 necessary.

<p>"Rape—Evidence Insufficient.</p> <p>See opinion of a majority of the court for evidence which is held wholly insufficient to support a verdict and judgment of conviction for rape.</p> <p>Henderson, Judge, dissenting, holds that there is evidence sufficient to support the conviction, and that the well established doctrine is that the court, on appeal, will not disturb a verdict where the testimony is sufficient to support it, although, in the opinion of the appellate court, -the weight of the testimony may be" against ■the verdict. Citing White v.- State, 34 Texas Criminal Reports, 153.</p>

Tried below before Hon. W. B. Thompson, County Judge. Appeal from a conviction for a violation of local option; penalty, a fine of $25 and twenty days imprisonment in the county jail. Ho statement necessary.

Tried below before .Hon. N. R. Wallace, County Judge. Appeal from a conviction for engaging in an unlawful assembly; penalty, a fine of $200. Held: and where the conspiracy was formed; and that, although appellant had an appointment to speak at Argua Negra schoolhouse on the night when the conspiracy was formed, as shown by the testimony of the conspirators, he, without being excused, was absent from the meeting, and although a crowd was assembled to listen to appellant, he…

<p>Unlawful Assembly—Information.</p> <p>An information brought under provisions of article 369, Penal Code, for engaging in an unlawful assembly with intent to interfere with the occupation, etc., of another by preventing one E. from employing Mexican laborers upon his farm, to be sufficient, should allege that E. was the owner of a certain farm, and was then and there engaged in running and operating the same, and that he then and there had in his employ, or was about to employ, certain Mexicans for the purpose of running and operating his said farm.</p>

The indictment charged appellant with the murder of Charley Williams, on the 17th-day of September, 1898, by shooting him with a pistol. This is a companion case to Prjror v. State, post, p. 643.

Tried below before Hon. Tom C. Davis. Appeal from a conviction for incest; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with incest by carnally knowing one ISTannie Turner, a daughter of appellant’s sister, and his niece. This is a second appeal in this case. Poyner v. State, 47 Southwestern Reporter, 977, and on motion for rehearing in that case, 48 Southwestern Reporter, 516.

<p>Appeal from the District Court of Waller. Tried below before Hon.. Wells Thompson.</p> <p>Appeal from a conviction for murder in the second degree; penalty, thirty-five years imprisonment in the penitentiary.</p> <p>Appellant was charged by the indictment with the murder of Charley Williams, on the 17th of September, 1898, by shooting him with a pistol.</p> <p>The killing occurred at a dance. Deceased was shot in the back, while standing near a window, by some, one from the outside! The testimony all tended to show that the party who did the shooting was Joe Sullivan. Evidence was adduced to the effect that a brother of this defendant had been killed by Gibson Williams and Charley Williams some two years-before, and that about a year before Gibson Williams had been waylaid and killed, and 'that defendant and his brother-in-law, one Brown, had been arrested upon suspicion that they were the parties who had killed Gibson Williams; but they were never indicted for the murder-</p> <p>Both this defendant and Joe Sullivan, after their arrest for this murder, made statements and confessions. By Sullivan’s confession, he implicated defendant with himself, and denounced defendant for denying his complicity and trying to la3^ the murder upon him.</p> <p>There was other testimony tending to show a conspiracy and acting-together by defendant and Sullivan in the killing.</p>

Omitting formal portions, the charging part of the indictment is as follows: “Whereupon it then and there became and was a material inquiry before said judge and jury in the trial of said judicial proceeding whether the. said R. L. George, Jr., who was present when the assault, alleged to have been made upon H. C. Walker by Dan J ones, was made, stated to E. J. Ward, and in the presence of said E. J. Ward, on the morning following the commission of said assault, that the…

Tried below before Hon. Wells Thompson. Appeal from a conviction of manslaughter; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with the murder of Walter Lewis, on the 15th day of December, 1898, by shooting him with a gun. Defendant testified in his own behalf, and, in the main, his testimony ■ as to what occurred at the time of the difficulty is corroborated by the ■other witnesses, both for the State and the defendant.

<p>1. Statement of Facts—How to Be Prepared.</p> <p>In preparing a statement of facts, it is not necessary to embody every word and sentence each witness may have uttered. All that is required is a proper presentation of the salient features of the case, and where several witnesses agree upon a given point, 'the testimony of but one should be given, accompanied by the statement as to the testimony of the others, that in the specific particular they agreed with said witness. If a fact is not traversed or is conceded, it should be so stated, and immaterial matters not important to be considered in connection with bills of exceptions or the charge of the court might well be omitted entirely.</p> <p>2. Previous Change of Venue for Prejudice Not Bes Adjudicata, When.</p> <p>A previous change of venue was procured by defendant on account of prejudice ■against him in the county. In the county to which the venue was changed, the prosecution was dismissed. Three years later a new indictment was found in the ■original county. Held, upon motion to change the venue in this second case for prejudice, that the ruling of the court in the first case upon this ground was not res adjudicata as' to the then existence of prejudice in the county.</p> <p>3. Agreement as to Continuance in Connection with Change of Venue—■ Estoppel.</p> <p>An agreement of parties, that if the court would grant defendant a continuance ■at the present term he would not move for a change of venue at a subsequent term, can not operate as an estoppel to prevent defendant from making such motion at the subsequent term.</p> <p>•4. Continuance—Diligence.</p> <p>. It is proper for the trial court to refuse a continuance where the application discloses a clear lack of diligence by defendant.</p> <p>■5. Evidence—Hearsay.</p> <p>What others may have told a witness as to matters connected with the offense Is clearly hearsay and inadmissible.</p> <p>6. Same—Belevance.</p> <p>The admission of evidence should be refused where its relevancy is not shown.</p> <p>7. Evidence as to Bribery of Witness by Attorney.</p> <p>Evidence that defendant’s attorney attempted to bribe an important witness against him to leave the country is inadmissible where there is no testimony tending to connect defendant with such attempted bribery, nor that he had authorized the act of his attorney. Such authority by defendant will not be presumed. Where defendant’s connection with, or authority for such attempted bribery, is not shown, evidence as to it is necessarily damaging and injurious to the defendant on trial.</p> <p>8. Impeachment of a Witness—Supporting Evidence as to His Béputation for Truth.</p> <p>When a witness has been attacked as to credibility by proof that he has been in jailj or been charged with criminal offenses, it is competent for the party introducing him to sustain him by evidence supporting his general reputation for truth and veracity in the community in which he lives.</p> <p>9. Witness—Eefreshing Memory.</p> <p>It is competent to permit a witness to refresh his memory by testimony taken down by him in the grand jury room.</p> <p>10. Impeachment of Defendant as a Witness—Predicate.</p> <p>It is not necessary to lay a predicate for the impeachment of a defendant when a witness where the evidence is admissible as original evidence against him.</p> <p>11. Evidence as to a Witness’ Arrest.</p> <p>Where no connection whatever is shown between a witness’ arrest and any issue in the case it is not permissible to prove by the witness that a city marshal, a friend of defendant, had arrested him on the previous day.</p>

While defendant was a mere child his father deserted his mother and came to Texas with the second M.rs. Martin, to whom he was married without being divorced from the first wife. Later he stole defendant from his mother and brought him to Texas, where he grew to manhood thinking his mother dead. His father had several daughters by the second wife, one of whom married deceased, Hodges.

Tried below before Hon. J. M. Hall. Appeal from a conviction for both forgery and uttering a forged instrument; penalty, five years imprisonment in the penitentiary. No statement necessary.

<p>Forgery by Alteration—Indictment—Explanatory and Innuendo Allegations.</p> <p>Where the altered instrument declared on read, f‘May 8, 1897. Mr. L. please let D. P. have 1 pr. shoes, and charge same to me, and oblige I. L. M. to bits of shaggars •one pond of dacco, one dress patton;” Held, the indictment was insufficient which ■did not state who Mr. L. was, and which did not by innuendo averments explain the ■expression used in the latter portion of the order.</p>

Tried below before Hon. Howard Templeton. Appeal from a conviction for seduction; penalty, three years imprisonment in the penitentiary. The indictment charged that appellant, on the 30th day of March, 1898, did seduce Zena Harper, an unmarried female under the age of twenty-five years, by a promise to marry her, and that by means of said promise he obtained and had carnal knowledge of her.

Appellant was' cook in a boarding-house, and occupied a little house in the yard of the hoarding-house. The house was run by Mrs. Hall. A. J. McClure, wife, and little girl were boarders at the house. Some time in May. the girl came home in the afternoon from school and went into the yard to play.

Tried below before Hon. L. B. Hightower. Appeal from a conviction for illegal voting at a general election; penalty, two years imprisonment in the penitentiary. The evidence is substantially as follows: The State’s witness Lyle testified: “I knew James Woodson in No veinber, 1896. I was clerk at the election in Leggett precinct, Polk County, Texas, Hovember 3, 1896.

Tried below before Hon. Stephen P. West. Appeal from a conviction of theft of a hog; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with the theft of a hog, the property of Belda Jenkins.