Volume 41 — Texas Criminal Reports

Tried below before Hon. E. D. McClellan. Appeal from a conviction for robbery; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with the robbery of Joseph Sea-gall, by assault and violence and putting him in fear of life and bodily injury, on the 17th day of November, 1898. Joseph Seagall was an Assyrian by birth, about 18 years old; was a peddler, and had been in Texas only some seventeen months.

Tried blow before Hon. B. D. McClellan. Appeal from a conviction for robbery; penalty, five years imprisonment in the penitentiary. This is a companion case to Ford v. State, ante, page 1, and the facts are stated in that case.

<p>Appeal from the District Court of Fort Bend. Tried below before Hon. Wells Thompson.</p> <p>Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with the murder of J. B. Seay,, on the 23d day of September, 1898, by shooting him with a gun.</p> <p>Alex Kegans, Dabney Walker, Bobert McKnight, and J. B. Seay, the deceased, were appointed by the court a jury of view to lay out a public road through defendant’s land. After they had been a short time at the place where they were going to commence the view, defendant, who had been notified, came with a shotgun out to where-they were, and directing his remarks to Walker, cursed him and Kegans, saying they were prejudiced against him, and if they had been gentlemen they would not have accepted the appointment upon the-jury of view. He stated his opinion as to how the road should be laid out, and said: “You are a prejudiced jury of view.” Deceased said, “I am not prejudiced against you,” and defendant replied, “Mr. Seay, I don’t fault you and McKnight, in any way, but Kegans and Walker are enemies of mine and should not serve on this jury of view.” Deceased then said, “All I have against you, Mr. Furlow, is that I hear you have been talking about my son.” Defendant said, “You are a G—d d—n liar.” At this Seay came around the corner of the fence into the open space between him and defendant, and going towards defendant told him he would not take that off any son of a bitch, and that he would take his gun away from him'and break it over his head. When they were about twenty-five feet apart, defendant shot, and deceased fell and expired in a few moments. Deceased was in his shirt sleeves and had no arms about him. He was, however, a powerful man, who, one of the State’s witnesses said, “was strong enough to have taken old man Furlow, the defendant, across his lap and paddled him like a child.” It was proved that defendant frequently carried his gun with him. It was proved by the witness Bertrand that in the month of August before the killing, defendant had said that “he would stop the laying out of the road through his land with a shotgun.”</p>

<p>1. Theft of Horse—Indictment—Allegation and Proof—Variance.</p> <p>Where the indictment for horse-theft alleged that the offense was committed “anterior” to its presentment, and on or about the 13th day of January, 1898, proof that the animal was stolen in June, 1896, would constitute . no material variance.</p> <p>2. Bill of Exceptions.</p> <p>A Bill of exceptions to testimony “because the same is immaterial,” is too vague and indefinite.</p> <p>3. Evidence—Declaration of Defendant.</p> <p>A declaration of defendant made in a conversation with witnesses shortly after the commission of the crime and going to show his guilt, is admissible in evidence against him.</p> <p>4. Circumstantial Evidence—Charge.</p> <p>On a trial for theft of a horse defendant’s statements as to where he got the horse may be proved untrue by circumstantial evidence, provided the cirumstances are sufficient to satisfy the jury, etc., and it was not error for the court to so instruct the jury.</p>

<p>1. Juror and Jury Law—Conscientious Scruples.</p> <p>On a trial for murder, where the court held certain jurors incompetent because ■of conscientious scruples against the infliction of the death penalty in cases of circumstantial evidence, Held, in the absence of any showing that the case was not one of purely circumstantial evidence, it will be assumed that the action of the court was correct.</p> <p>53. Murder—Evidence—Declarations of Deceased.</p> <p>On a trial for murder, it was not error to refuse to permit proof of a bare statement of deceased, not shown to have been a dying declaration, and which was made some days after he was shot, to the effect that it was his fault, that he struck defendant, and if his friends had not interfered he would have fixed him.</p> <p>3. Self-Defense—Requested Instructions.</p> <p>Where the court has given a correct eharge on self-defense fully covering that phase of the case as presented by the evidence, it is not error to refuse requested instructions upon that issue.</p> <p>4. Murder—Argument of Counsel.</p> <p>On a trial for murder, where the district attorney in his closing argument to the jury said, “Crime is on the increase in this State; and crimes of this kind,— the negro boy and his six-shooter in these dives violating the laws against gambling,—are getting too frequent, and you should make an example of this big, strong man,” etc.; Held, that for aught that appears the remarks were not unauthorized, and they can not be considered improper where it is not shown that defendant has been prejudiced thereby.</p> <p>5. Improper Remarks of Counsel.</p> <p>The court should not allow remarks of the district attorney, made with the purpose to belittle defendant’s exceptions. Counsel has at all times a right, in a proper manner, to reserve a bill of exceptions to supposed errors, and, in taking his bill, he has the right to be treated in a respectful manner.</p> <p>6. Murder—Cause of Death—Gross Neglect or Improper Treatment.</p> <p>On a trial for murder, where it appeared that, in the opinion of the physician, death might not have resulted had deceased submitted to amputation of his leg, which he refused to do until it was too late, Held, the refusal of a person shot to have his limb amputated can not be imputed to him as gross neglect or manifestly improper treatment. A wound resulting in death constitutes the killing, though the individual might have recovered had he used proper care or submitted to a surgical operation which he refused.</p> <p>7. Same—Proximate Cause of Death.</p> <p>Where death results from disease brought on directly by a wound inflicted by defendant, and there is no manifest improper treatment or gross neglect of the wounds, defendant can not be heard to say that his act was not the proximate cause of the death.</p>

<p>The indictment charged appellant with the murder of T. S. Bone, on the 7th day of December, 1898, by shooting him with a pistol.</p> <p>The essential facts shown by the record, briefly stated, are: That defendant, Bruce, was a young married man and T. S. Bone, deceased, had boarded with him and owed him a bill for five months board, which he failed and refused to pay; and Bruce sued him and recovered a judgment. Bone sued Bruce for damages for injury to his horse, but dismissed his suit. Bruce had execution issued on his judgment against Bone; but, failing to make his judgment debt, finally dismissed his cause. This was the origin of the trouble, and Bone was greatly incensed at and frequently threatened Bruce. On' the evening before the homicide Bone went to Bruce’s place to get some corn he had there in the crib, and a wordy, angry altercation ensued between them about the debt Bone owed him, Bone cursing and bantering him for a fight, which Bruce declined, and as Bone left he told Bruce he would see him again. On account of apprehended trouble, Bruce got a pistol, after the first difficulty, which- he carried when he went from home. On the •day of the homicide, Bone had armed himself with a pistol. Bruce was physically a weak man, and besides had been suffering with chills and fever. Bone was a large and much more powerful man. The killing occurred on a public road upon which the parties were traveling in opposite directions in wagons. When the wagons had met and were about passing each other Bone told Bruce to stop; jumped out of the wagon he was in, went to Bruce’s wagon, and asked him if he was ready to settle that difficulty. Bone had his right hand in his right pants pocket. Bruce said, “Shoot me, you G—d d—d son of a bitch! You have a pistol and I haven’t.” Bone asked him if he would fight him a fair fight, and Bruce said he would. Bone then went back to his wagon, took his pistol out of his pocket, pulled off his coat and vest and laid them and his pistol in the wagon, and returned rapidly to Bruce’s wagon. Bruce was sitting upon a load of corn with his legs hanging over the side of the wagon bed. In his testimony he says he jumped upon the top of the corn to get out of the way, when Bone caught him by the bottom of the pants and pulled him off the wagon. He says:” “We at once began fighting, and fought for some time by the side of the wagon; we struck several blows, then clinched and scuffled around, he trying to throw me down, and I catching to the side of the wagon bed and the wheels to keep from falling; finally he got me by the throat and began choking me until I was almost sinking down and was holding to the top of the hind wheel with my left hand to keep from falling; just then I looked toward J. J. Crow, who was standing at the head of my team, with an appealing look that ought to have convinced any man that I needed help; I could not speak or relieve myself, and took out my pistol and shot Bone; this was all I could do to save myself. Bone staggered back and Crow ran up and caught the pistol, saying, ‘Hold up; you can’t cut anything like that,’ and wrenched the pistol from me; as he did so the pistol fired again and shot off the forefinger on the left hand. The pistol was a double-action pistol. As the pistol fired the second time my team started to run, and I called to Cal Norris, who was standing behind the wagon, to catch them. I then said to Crow, ‘Now you have my pistol and I have killed the damn son of a bitch, and I am glad of it, and I have shot off my forefinger; but I was justified in it.’ I then went to my wagon, about twenty or thirty yards distant, where Norris was holding the team, and said; ‘Now, you see what you have done. I told you not to let him jump on me. I have killed the son of a bitch, and I am glad of it, but I was justified in it.’ I told Norris that I had told Bone the evening before that I did: not want anything more to do with him. I came on to town and surrendered to the sheriff.”</p> <p>The court charged the jury among other instructions as follows, viz: “Serious bodily injury, as used in the foregoing instructions, means such injury to the person assaulted as might eventuate in death or might probably cause his death.”</p>

The appellant and Albert Highsmith were jointly charged by the indictment with the murder of Thomas A. Evans, on the 22d of November, 1897, by shooting him with a pistoh On a severance being granted, Albert Highsmith, who was the father of this appellant, had been tired first and acquitted. The important facts attendant upon the homicide are stated in the two opinions below, and no additional statement is required.

The evidence showed that about two and a half miles of Charles Schriner’s pasture fence was cut on Saturday night. Defendant owned eighteen acres inside the pasture where he lived. It was proved by several witnesses that before the cutting defendant had talked about doing it, and proposed to them to aid him in cutting it. Bob Davis turned State’s evidence under an agreement of immunity from punishment.

Tried below before Hon. J. W. Patterson, Judge Forty-third Judicial District, on exchange with Hon. Irby Dunklin. Appeal from a conviction of attempt to commit burglary with intent to rape; penalty, two years imprisonment in the penitentiary. ■ The indictment in this case charged appellant, in two counts, first, with burglary with intent to commit rape upon Ella Garrett; and second, for attempt to commit burglary with intent to commit rape upon Ella Garrett.

The charging part of the indictment is set out in the opinion. Defendant filed a motion to quash, which was overruled. Ho statement necessary.

Tried below before Hon. H. Tbichmuller. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary.

<p>Murder—Habeas Corpus—Practice on Appeal.</p> <p>Where, a party arrested for murder has appealed from a judgment refusing bail upon a habeas corpus proceeding, and pending such appeal he has been arrested and is now held by virtue of a capias issued upon an indictment for said murder found since the appeal was taken, the appeal will be dismissed.</p>

Tried below before Hon. J. E. Dillard. Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary.

<p>1. Theft of Cattle—Bill of Sale.</p> <p>The fact that a bill ' of sale for the alleged stolen animal which, though executed by defendant, was not acknowledge by him and recorded, does not render it inadmissible as evidtence against him. There is no law which requires a bill of sale to be acknowledge and recorded.</p> <p>2. Same—Variance.</p> <p>The fact that a bill of sale, executed by defendant for a stolen animal, gives a different description of the brand on the animal from that of the true owner, would simply go to the weight of proof that the bill of sale would carry with it, and not to its admissibility.</p> <p>3. Brands as Evidence—Charge.</p> <p>A brand recorded after the theft of the animal carrying said brand affords no proof of ownership, but is only a circumstance to be shown with others to identify the stolen animal, and should be so limited by the charge of the court.</p> <p>4. Unrecorded Brands—Charge.</p> <p>While an unrecorded brand can not be used as evidence of ownership (Revised Statutes, article 4930), still it may be proved in order to identify an animal; but the jury should be limited in its consideration to this proposition, and it is error to permit the same to be used as proof of ownership.</p> <p>5. Requested Instructions.</p> <p>A requested instruction is properly refused where there is no evidence to support it.</p> <p>6. Same.</p> <p>On a trial for theft of one head of cattle, whére a bill of sale of said animal executed by defendant to one G. had been introduced in evidence, and defendant requested the court to instruct the jury, in effect, that if at the date of the bill of sale the animal was on the range, then no title passed to G., and defendant would not be liable, Held, properly refused by the court, as such was not the law.</p> <p>7. Evidence—Written Contract—Hearsay.</p> <p>If a contract between a partnership and a third party is in writing, the writing is the best evidence of the contract. Testimony of one partner as to the terms of such contract, based solely upon information derived from his copartner, who had executed it, and not derived from an examination of the contract itself, is hearsay and inadmissible.</p> <p>8. Unrecorded Brand—Charge Limiting.</p> <p>On a trial for theft where a witness was permitted to testify that he knew* that the alleged owner 'had run a certain unrecorded brand for nineteen years on the left side for a cattle brand, it was error for the court to fail or omit to limit the effect of this testimony to the identification of the animal.</p> <p>9. Same—General and Special Ownership.</p> <p>If an unrecorded brand is no evidence of ownership in the actual owner, it can not be evidence that a special owner has the management and control or possession of the animal.</p>

<p>1. New Trial—Newly Discovered Evidence.</p> <p>Defendant filed two motions for new trial on the ground of newly discovered •evidence. The first had attached to it the affidavit of defendant but not the •affidavit of the witness by whom the facts were expected to be proved. The second contained the affidavit of the party by whom the facts were expected to be proved, put defendant’s affidavit was not attached to the same. Held, there was no compliance with the statute as to newly discovered evidence, and the motion would not be reviewed.</p> <p>'52. Same—Diligence.</p> <p>Where a motion for new trial for newly discovered evidence is controverted by the prosecution as to diligence, and a total want of diligence is shown, the motion is properly overruled.</p> <p>3. Exclusion of Evidence—Practice—Bill of Exceptions.</p> <p>Where no bill of exceptions was reserved to the exclusion of testimony, the same will not be reviewed on appeal, though the same was complained of on motion for new trial.</p> <p>4. Charge of Court.</p> <p>It is not error for the court to fail or refuse to charge upon issues not raised by the evidence.</p> <p>5. Failure to Prove Venue—Practice.</p> <p>Under provisions of article 904, Code of Criminal Procedure, now amended, the failure 'to prove venue on the trial of a case can not be raised unless a bill of exceptions is reserved in the court below.</p>

There is no statement of facts in the record. The only question presented on the appeal is the validity of defendant’s plea- in bar of a contract and agreement with the district attorney for immunity from prosecution in this case in consideration of his turning State’s evidence. • ■

Tried below before Hon. J. E. Dillard. Appeal from a conviction as an accomplice to swindling; penalty, • two years imprisonment in the penitentiary. The two Singletons, who were the principals in the swindle, and Tuttle, this defendant, who was charged as an accomplice to the swindle, were in the employment of Sam Roberson in Rockwall County, cutting cordwood. Roberson sent a team of mule's and a wagon to Tuttle to their camp.

<p>1. Theft of Cattle—Indictment—Description of Property.</p> <p>An indictment for theft of cattle is sufficient which describes the property as “one head of cattle.”</p> <p>Z. Continuance—Second Application.</p> <p>- It should be made to appear by the application itself, or in some other proper manner, whether the application for continuance is a first or second application. If it be a second application it is essential to its sufficiency that it should state that the testimony can not be procured from any other source.</p> <p>3. Same.</p> <p>An application for continuance will be held properly overruled where, from the testimony adduced at the' trial, it is apparent that the absent testimony, if availed of, would not probably change the result, or where the same is not probably true.</p> <p>4. Circumstantial Evidence—Charge.</p> <p>It is not error to refuse to charge on circumstantial evidence where the State has proved the confession of defendant.</p> <p>5. Improper Argument.</p> <p>It is not improper for the county attorney, in his argument, to asseverate that “the evidence in this case beyond question shows that this defendant is a thief, and society is entitled at your hands to protection from all thieves and Violators of the law.”</p> <p>.6. Same.</p> <p>If improper argument be indulged by the prosecuting officer, jt is not revisable on appeal unless defendant has presented a written charge instructing the jury to disregard same.</p> <p>7. Same—Allusion to Former Trial.</p> <p>Where the allusion of the State’s counsel to a former trial of the case has been provoked by the conduct and actions of defendant’s counsel, the error is not revisable.</p>

The indictment charged appellant with the seduction of Rosa Green, an unmarried female under the age of 25 years, and that he obtained carnal knowledge of her by means of his promise to marry her. Ho statement necessary.

The indictment charged appellant with the murder of Ellis Fletcher, on the 22d day of February, 1899, by shooting him with a pistol. The opinion gives a very concise but sufficient statement of the important facts concerning the killing.

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

Tried helow before Hon. J. M. Talbot. Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of O. D.Perry by shooting him with a pistol, in Bowie County, on the 39th day of July, 1897.

Tried below before Hon. M. J. Moose, Special Judge. Appeal from a conviction of theft of cattle; penalty, four years imprisonment in the penitentiary. For previous habeas corpus proceedings in this case, see Ex Parte Wilson, 39 Texas Criminal Reports, 630.

<p>Appeal from the District Court of Fort Bend. Tried below before Hon. Wells Thompson.</p> <p>Appeal from a conviction of murder in the first degree; penalty, death.</p> <p>Appellant was charged in the indictment with the murder of Oscar D. Kirkland, on the 2d day of November, 1898, by striking him with a pistol and with some instrument, the kind and character of which is unknown to the grand jury.</p> <p>The following statement of the important facts in the case, which is substantially correct, is taken from the brief filed in behalf of the State on this appeal:</p> <p>On the night of November 2, 1898, at his home in Richmond, Fort Bend County, Texas, Oscar D. Kirkland was struck twice on the left side of the head with a pistol by a burglar. One wound, about three inches long, was over the ear and the other was practically on the temple. Mr. Kirkland lingered between semi-consciousness and delirium until the evening of the 4th, when, seized with a convulsion, he expired, with blood pouring from his ears and nose. Mrs. Kirkland, wife of the deceased, stated at the time and subsequently testified, that she was sleeping with her baby in one end of the room and that Mr. Kirkland was sleeping in .the other end with their little boy. Between them, however, and practically dividing the room into two compartments, was a curtain which hung from the ceiling to the floor. On the night in question a lamp and fire were burning in the apartment where Mrs. Kirkland slept. The lamp was upon a desk. Her purse was upon the bureau. All doors were closed, but unlocked. About 12 o’clock she was awakened by a slight noise and saw a negro man standing at the bureau. She screamed and sprang out of bed. The man turned and looked at her and then ran through the curtain into where deceased was. After screaming she heard her husband moving in his bed. A second after the negro disappeared behind the curtain she heard the sound of a blow and fainted. She came around presently and began screaming for help. The sheriff of the county, who lived near, was at once called. After he came Mrs. Kirkland found her purse, which had been on the bureau where she first saw the man, on the floor of the room where deceased was. It was lying near the curtain. The sheriff, Parnell, telegraphed the description of the negro, as given by Mrs. Kirkland, to surrounding counties, and in a few days appellant was arrested in Wharton, suspected of the crime, and brought back to Richmond. On being placed in line with several other negroes he was at once selected by Mrs. Kirkland as much resembling the man, she saw in her room. She subsequently testified that he did look very much like him,—being very. large about the breast and shoulders, with a short neck and stoop like the burglar.</p> <p>After being in jail a day .or so appellant confessed the crime to Parnell, saying that the Kirkland house was covered with vines (as is true); that there were cedar trees in the yard (as is true); that he had entered the house through an unlocked door (all the doors were unlocked); that he went to a bureau and found a purse; the lady awoke and screamed and jumped out of bed; that there was a lamp burning upon a desk or table, and that he ran through a curtain, dropped the purse, and as a man was getting out of bed struck him with a pistol, and then got out of the room and ran out through a gate and closed and fastened same behind him, and then went to the river (not knowing it was there); threw the pistol in; then partially retraced his steps and heard the lady screaming. He then expressed his willingness to go to the place and show how the whole thing occurred. He lead the way, and before getting there stated that he went in through a front gate which had a weight upon it (as was a fact); and upon arriving at the house showed the door where he entered; showed the bureau; showed how and where he went through the curtain; where he dropped the purse, which was near the spot where Mrs. Kirkland picked it up; showed where the man was when he struck him; showed the gate which he went out of and fastened ■behind him. He 'subsequently reiterated this confession to Mr. Rich at Houston.</p> <p>Appellant was indicted on the 18th of March, 1899, and a few days later made application for a writ of habeas corpus, stating that his case was bailable and demanding bond. The district attorney admitted it was a bailable case, and appellant was allowed bond in the sum of two thousand dollars. He was placed on trial April 6th, and after moving to quash the indictment, for change of venue, to quash the venire, and for a continuance, all of which motions were overruled, plead not guilty.</p>

<p>1. Rape—Indictment—Duplicity.</p> <p>An indictment for rape of a female under the age of 15 years, which charges that defendant did ravish and have carnal knowledge of her, is not duplicitous, but only charges two kinds of rape,—that is a rape with force and a rape without force.</p> <p>2. Same—Grand Jury.</p> <p>On a trial for rape defendant complained that the grand jury had heard illegal testimony, on account of which the indictment should be set aside. Held, whether the grand jury heard illegal testimony is a matter which can not be inquired into, nor would the same, if they had done so, render the indictment invalid.</p> <p>3. Wife as Witness—Cross-Examination.</p> <p>On a trial for rape, where the wife becomes a witness for her husband, the defendant, it is competent on cross-examination to ask her if she has not taken great interest in behalf of her husband in the defense. And if she had not asked the prosecutrix not to know anything when put upon the stand, and not to tell anything or swear to anything. And if she had any conversation with prosecutrix. Held, the questions were admissible on cross-examination.</p> <p>4. Evidence of Flight of Defendant.</p> <p>On a trial for rape it is competent to prove that a prior affidavit had been filed against defendant for incest with the prosecutrix, and that when it was sought to arrest him for said incest he attempted to flee and was overtaken and recaptured. Held, the evidence was admissible as tending to show defendant’s guilt notwithstanding he had not been indicted for the rape at the time of his attempted flight.</p> <p>5. Evidence Elicited by Defendant.</p> <p>It is well settled that a defendant can not offer testimony even of the most damaging character, and claim a reversal because of its admission.</p> <p>3. Illegal Evidence—Withdrawal of by Court.</p> <p>On a trial for rape, where defendant’s counsel asked a witness if there was not a great prejudice against defendant on acount of his (defendant’s) religion, and then asked witness if he knew to what sect or church defendant belonged, to which witness answered, “I think he belongs to that - gang that was run out of Oklahoma for seducing women and having caused several men to be killed up there;” Held, the instruction of the court to the jury to disregard this testimony with an admonition to the witness to confine his answers to the questions asked him, removed whatever of error or prejudice the witness’ answers may have produced.</p> <p>7. Witness—“The Rule.”</p> <p>It is within the sound discretion of the court to permit a witness who has not been placed under the rule, to testify.</p> <p>8. Venue—Proof of—Illegal Remarks of Bystanders.</p> <p>•On a trial for rape a State’s witness, on cross-examination, having stated that he did not believe the place of offense was in B. County (the county of the prosecution), whereupon a bystander in the audience spoke out in a tone to be heard by the witness, jurors, and counsel, “It is in B. County, all the same,” whereupon the court reprimanded said bystander and had him sworn to testify, and he did testify that the locus of the offense was in B. County; Held, no reversible error is made to appear.</p> <p>9. Rape of a Female Under Fifteen Years of Age—Charge.</p> <p>On a trial for rape of a female under 15 years of age, where the court instructs the jury, “Bape, as 'charged in the indictment, is the carnal knowledge of a female under the age of 15 years, other than the wife of the person, with or without her consent, and with or without the use of force, threats, or fraud,” Held, correct and in direct response to the indictment.</p> <p>10. Same—Charge—Punishment.</p> <p>On a trial for rape of a female under 15 years of age not the wife of defendant, the court properly charged the jury, in effect, that if they found that defendant did ravish and carnally know such female, they must find him guilty and assess his punishment by death, or confinement in the penitentiary for life, or for any term of years not less than five, in their discretion.</p> <p>11. Requested Instructions.</p> <p>It is not error to refuse requested instructions which were covered by the main charge. And such instructions should always be refused when they are upon the weight of evidence. •</p>

. Appeal from the District Court of Bell. Tried below before Hon. J. M. Furman. Appeal from a conviction of. murder in the second degree; penalty, fifty years imprisonment in the penitentiary.

Tried below before Hon. Wells Thompson. Appeal from a conviction of murder in the first degree; penalty, death. The indictment charged appellant with the murder of Carrie Reed, by beating and bruising her with a rope, on or about the 26th day of December, 1898. The deceased was the stepdaughter of appellant, and was a girl of some seven or eight years of age.

<p>The charging, part of the indictment is set out in the opinion. Motion in arrest of judgment attacking the sufficiency of the indictment was overruled.,</p>

<p>1. Bills of Exception—Filing—Practice on Appeal.</p> <p>Bills of exception which are filed after adjournment of the term will not be considered on appeal.</p> <p>2. Statement of Facts—Filing—Diligence.</p> <p>A statement of facts not filed within the ten days allowed after adjournment will not be considered on appeal where there is an apparent utter lack of diligence to have it secured and filed within the time.</p> <p>3. Perjury by Witness Before County Attorney as to Gaming—Indictment.</p> <p>An indictment for perjury may properly be predicated upon the false statements of a witness summoned and sworn to testify before the county attorney as to violations of the gaming laws. The authority of the county attorney to summons and administer oaths to witnesses in such cases is expressly conferred by articles 34, Code of Criminal Procedure, and 391, Penal Code.</p> <p>4. Same.</p> <p>It is not necessary to an indictment for perjury based upon the statement of a witness before the county attorney to the effect that he had not seen certain parties play at a game with cards, that said statement should have been reduced to writing and sworn to by defendant. Such a statement could not form a basis for a complaint, and the complaint alone is required to be in writing and sworn to.</p> <p>5. Same.</p> <p>It is not necessary in an indictment for perjury, predicated upon the false statements of a witness before the county attorney that he had not seen certain parties play at any game with cards, to set out the game played, because it is not even necessary that the complaint should set out the game played.</p> <p>6. Charge of Court Not Warranted but Beneficial to Defendant.</p> <p>A defendant can not be heard to complain of a charge of the court, though not included in the pleading, which puts an additional burden upon the State and is beneficial to the defendant.</p>

Tried below before Hon. Wells Thompson. Appeal from a conviction of horse-theft; penalty, five years imprisonment in the penitentiary. The statement of facts was not considered on this appeal because not filed in time, and the motion of the Assistant Attorney-Geneial in this regard was sustained.

Tried below before Hon. A. L. McLane. ■ Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary. This is a second appeal in this case. See Guerrero v. State, 39 Texas Criminal'Eeports, 662, where the facts attendant upon the homicide will be found fully reported.

<p>1. Statement of Facts—Approval and Filing.</p> <p>The trial judge has no authority to approve a statement of facts after term time without a previous order allowing time not exceeding ten days for making up and filing the same after adjournment; and the clerk has no authority to file a statement of facts as of term time which was made up after adjournment.</p> <p>2. Perjury—Instructions—Absence of Statement of Facts.</p> <p>On a trial for perjury, where there is no statement of facts in the record which can be considered, the court upon appeal can not determine the applicability of requested instructions which necessarily depend upon the testimony adduced.</p> <p>3. Charge of Court—Correction of by Court After Beading and Filing. Under the law as aforetime (Paschal’s Digest, article 1464) the trial judge could</p> <p>not make any further charge after he had once given his charge to the jury unless on the application of the jury, the party, or his counsel. This is not now the law. Under the presént law the court may of its own motion recall the jury and correct any error of omission or commission in the charge before verdict is rendered. A contrary, doctrine announced in Granger v. State, 11 Texas Criminal Appeals, 455, is overruled.</p> <p>4. Same.</p> <p>On a- trial for perjury where, after the court had charged the jury and they had retired, the- court ascertained that on account of a recent change in the law as to the penalty for said ofiense he had committed an error in charging the penalty as prescribed in the old law, Held, it was not only proper but the court’s duty to recall the jury and correct the charge as to the penalty.</p>

The indictment contained three counts, the first charging appellant with the murder of Lucretia Blackwell on the -12th day of September, 1896, by shooting her with a pistol and then striking her with a stick .and then drowning her. The second charged one Orrie Kent with the murder in the same manner and by the same means, and charged appellant as an accomplice to said murder by said Kent.

Tried below before Hon. Tom C. Davis. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. Appellant was charged by the indictment with the murder of Joe Collins on the 15th day of December, 1898, by shooting him with a gun. Appellant owned a farm in Shelby County, a part of which he rented to deceased, Joe Collins, who lived on said farm in a house, about a quarter of a mile from where defendant lived.

Tried below before Hon. L. L. Wood, Special Judge. Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary. Appellant was charged by indictment with the murder of Minnie Wilson on the 18th of November, 1898, by administering poisonous medicines to her, and by inserting into her womb some hard instrument which the grand jury are unable to describe.

<p>1. Statement of Facts—What Is—Filing.</p> <p>Our statutes, both civil and criminal (Revised Statutes, articles 1377-1379a, and article 824, Code of Criminal Procedure), with regard to the preparation and filing of a statement of facts for appeal have reference only and exclusively to a statement of the facts adduced upon the trial upon the merits of the ease before the jury or the court as the case may be. And this statement of facts must be filed during the term or within ten days after adjournment upon an order of court allowing that time. ></p> <p>2. Statement of Facts on Motion for New Trial—Filing.</p> <p>Our statutes with reference to the statement of facts in a case have no application to issues of fact formed on grounds set up in the motion for new trial. The-facts as to such issues, in order to be entitled to consideration on appeal, must have been filed during the term. The court can not, by order, allow the filing of such a statement after adjournment, there being no statute to authorize such order.</p> <p>3. Same—New Trial—Misconduct of Jury.</p> <p>A statement of facts with regard to an alleged misconduct of the jury made one of the grounds of the motion for new trial, if filed after adjournment can not be considered on appeal.</p> <p>4. New Trial—Misconduct of Jury.</p> <p>An affidavit of an attorney as to his information concerning misconduct of the jury in discussing defendant’s failure to testify while deliberating upon their verdict, which states no fact and is not supported by the affidavit of his informer, is entitled to no consideration.</p>

<p>1. Local Option—Order Publishing Result of Election.</p> <p>It is not a valid objection to the entry of the order declaring the result of a local option election that said entry was made a year and a half after the actual publication of the order. Nor is the entry of the order vitiated by the fact that it was made not by the county judge who was in office at the time the result of •the election was determined, but by his successor.</p> <p>2. Same.</p> <p>It is the province and duty of a county judge to make an entry of the order declaring the result of a local option election upon satisfactory proof that publication of the same had in fact been made,—where there was a failure or omission of his predecessor in office to make said entry,—and his certificate of the publication of the result is admissible in evidence, though said certificate is made upon •the testimony of his predecessor in office and the publisher of the newspaper, ■and his personal examination of the newspaper in which the publication was made.</p> <p>3. Same—Charge of Court.</p> <p>On a trial for violation of local option, a charge of court that “before you can find defendant guilty, you must find the law prohibiting the sale of intoxicating liquors in the county was in force and effect in said county at the time said sale was made,” is not upon the weight of evidence nor obnoxious to objection that it assumed that defendant made a sale, especially in view of the fact that the •court had otherwise correctly charged upon the question of sale.</p> <p>4. Same—Verdict.</p> <p>On a trial for violation of local option a verdict of guilty will not be disturbed for insufficiency of evidence where the evidence for the State is direct and positive "that defendant made the sale of the liquor as charged.</p>

<p>1. Exceptions to Testimony in Rebuttal and in Support of Impeached Witness.</p> <p>Exceptions to the testimony of a witness introduced in rebuttal to support the testimony of an impeached witness, as to dates of certain occurrences, are without merit where they fail to show any conflict between said testimony and that of the impeaching witness.</p> <p>2. Adultery—Principals and Accomplices—Charge.</p> <p>On a trial for adultery, where the only accomplice was one of the alleged parties to the offense, a charge of court was sufficient which, after instructing the jury that all persons who are guilty of acting together in the commission of an offense are principals, further instructed them, that “all persons are accomplices who participate in the commission of an offense as a principal as before defined.”</p> <p>3. Same—Accomplice—Submitting Question as to, to Jury.</p> <p>On a trial for adultery, while it would be proper for the court to instruct the jury that the female involved in the offense is an accomplice, still there is no harm in the court’s submitting to the jury the question as to whether she was an accomplice.</p> <p>4. Same—Accomplice Testimony—Corroboration—Charge.</p> <p>On a trial for adultery, where the State’s case, as to the acts of carnal intercourse, mainly depended upon the testimony of the female paramour,- who testified to one act in another county, it was error for the court to instruct the jury to consider this act in such other county as corroborative of her other testimony of acts committed in the county of the prosecution.</p> <p>5. Same.</p> <p>On a trial for adultery, where the prosecution mainly relied upon the testimony of the female paramour, it was error to refuse to instruct the jury that they could not consider, as corroborative of her testimony, her statements to other parties.</p> <p>6. Adultery—“Habitual Carnal Intercourse”—Charge.</p> <p>On a trial for adultery, alleged upon “habitual carnal intercourse of parties not living together,” it is not required that the court should define or explain the words “habitual carnal intercourse,” in its charge, since such words are not technical and are understood as used in common acceptation.</p> <p>7. Same—Evidence oí Resemblance of a Child.</p> <p>On a trial -for adultery, evidence as to the resemblance of a child seven months old to defendant, its reputed father, is not admissible for the purpose of comparison in order to establish paternity.</p> <p>8. Same—Evidence Insufficient.</p> <p>See opinion for evidence held insufficient to support a conviction for adultery predicated upon a charge of “habitual carnal intercourse” of parties not living together.</p>

<p>This indictment contained four counts in substance charging that appellant did on the 7th day of July, 1898, finlawfully marry and have for his wife one Ludie Glasson, he, the said R. M. Waldrop, then and •there having a lawful former wife then living, to wit, one Laura Nabors Waldrop.</p> <p>The State proved by A. M. Nabors that he was the father of Laura Nabors, and that on the 25th day of February, 1892, in Morgan County, Alabama, where witness then lived, defendant was married to his daughter, Laura Nabors. That the ceremony was performed by one Ryan, a justice of the peace in said State and county at that time. That the said justice held a paper in his hand and stated that by virtue of that instrument and the authority vested in him he would solemnize the rites of matrimony between defendant and the said Laura Nabors. That after the marriage the parties lived together as husband and wife three or four years, and there were two children the issue of said marriage, one of whom was still living. That defendant’s wife, Laura Nabors, is still living, is now present in court, and there was never any divorce gotten by either party. Several other witnesses testified that they were present at defendant’s marriage to Laura Nabors in Morgan County, Alabama.</p> <p>Defendant’s second marriage to Miss Ludie Glasson, in Bell County, Texas, on the 7th day of July, 1898, was proved by several witnesses who were present and witnessed the ceremony. It was proved that since defendant had been living with Ludie Glasson one child had been born to them.</p>

<p>1. Indictment—Pool Table—Occupation .Tax.</p> <p>An indictment for keeping a pool table without paying the occupation tax (as prescribed by Revised Statutes, page 1016), which follows the statute, is good, though it does not use the term “occupation” in the outset.</p> <p>2. Occupation Tax on Pool Table Not Run for Profit.</p> <p>The Legislature had a perfect right to levy an occupation tax on a pool table run in connection with a drinking saloon, regardless of any profit or payment whatever to the owner of such table; and where the table is kept in a drinking saloon, the statute (Revised Statutes, page 1016) requires the tax to be paid regardless of any profit.</p>

<p>From Wood County. Original application for habeas corpus to Court of Criminal Appeals for discharge of a county convict from ■custody.</p>

Tried below before Hon. J. M. Hall. Appeal from a conviction of cattle-theft; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with the theft of one head of cattle from the possession of F. Burleson on the 15th day of February, 1897. Briefly stated, the evidence in substance was as follows:

Tried below before Hon. J. S. Straughan. Appeal from a conviction for forgery by alteration of a written instrument; penalty, two years imprisonment in the penitentiary. A motion to quash the indictment for want of explanatory and innuendo averments was overruled in the lower court, as was also defendant’s motion in arrest of judgment which was based upon the insufficiency of the indictment. The charging part of the indictment is set out in the opinion below.

<p>The indictment, which was presented by the grand jurors of Guadalupe County, charged appellant with rape committed upon Rosa Macha, in Colorado County, on the 13th day of April, 1899.</p> <p>Counsel for defendant filed the following motion to quash the indictment, viz :</p> <p>“1. The session act of the special session of the Legislature of the State of Texas, passed at the first called session of the Twenty-fifth Legislature, under which this court assumes jurisdiction in this cause, is in flagrant violation of the constitutions of both the United States and the State of Texas; in this, that said law, in attempting to confer original jurisdiction on this court, also attempts to confer original jurisdiction upon the district court of every county in the district the judge of which resides nearest the county seat of the county in which the offense is committed, thereby constituting a new district, which said new district is other than that in which the offense was committed, and which said new district should have been previously ascertained by law.</p> <p>“2. Article 6 of the amendments of the Constitution of the United States expressly provides, that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; hence, the special act of the Legislature above referred to, in attempting to confer original jurisdiction upon all of the counties of two separate and distinct judicial districts, is a nullity and of no force or effect.</p> <p>“3. That the said act of the special session of the Legislature above referred to is in violation of the express provisions of the Constitution of the State of Texas, in this, that section 45 of article 3 of the Constitution of the State of Texas, imposing limitation upon Legislative enactment, reads as follows: ‘The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law; and the Legislature shall pass laws for that purpose.’ And section 56, article 3, of the Constitution of the State of Texas, provides that the Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing changing the venue in civil or criminal ■cases. That said special act of the Legislature in changing the vernie from Colorado County, where the offense is alleged to have been committed, to the district court of every county in this judicial district, as well as to the district court of every county in the judicial district the judge of which resides nearest to the county seat of the county in which the offense was committed, was without constitutional warnanty and in usurpation of the authority expressly conferred by the Constitution upon the courts of this State.</p> <p>“4. It does not appear from the indictment in this cause that it is the act of the grand jury of the proper county, since no grand jury ■except that nf Colorado County could be a grand jury of the proper county, from the allegations in the indictment, as it appears on the iace of said indictment that the same was presented by, and is the •act of, the grand jury of Guadalupe County, for an offense committed in Colorado County, without setting out, or attempting to show by what authority the grand jury presents an indictment for an offense ■committed in Colorado County.</p> <p>“5. The indictment' is defective in that it fails to show that the place where the offense was committed is within the jurisdiction of the - court in which the indictment was presented, in that it appears from said indictment that the offense was committed in the county of Colorado, and beyond the limits of Guadalupe County; and it also appears from said indictment that it was returned into the District Court of Guadalupe County by a grand jury of said Guadalupe County, the same not being the county in which the offense is alleged to have been committed.</p> <p>“6. The indictment is defective in that the offense charged appears therefrom to have been committed in the county of Colorado, and beyond the limits of the county of Guadalupe; and said indictment fails to allege that Guadalupe County is a county of the judicial ■district in which the offense was committed; and further fails to allege that said Guadalupe is a county of the judicial district the judge of which resides nearest the county seat of the county, to' wit, Colorado County, in which the offense is alleged to have been committed; and said indictment fails to allege that the judicial district, in which the offense was committed comprises only one county, or that Guadalupe County is an adjoining county to said Colorado County, in which, in said indictment, the offense is alleged to have been committed. /</p> <p>“7. Said indictment shows on its face that the court trying this cause, to wit, the District Court of Guadalupe County, has no jurisdiction thereof.”</p>

<p>1. Statement of Facts—Right to.</p> <p>It is an unquestioned right of an appellant to have a statement of facts prepared, approved, and sent up in the record on appeal; and it is only where there is a want of sufficient diligence on his part that he will be considered negligent or at fault in this matter.</p> <p>2. Same.</p> <p>See opinion for facts stated upon which the court holds that appellant has been deprived of a statement of facts without negligence or laches on his part; and, on account of which, the judgment is reversed.</p>

value of $35, from an officer who had levied an execution upon it; penalty, a fine of $35 and one day’s imprisonment in the county jail. The opinion states the case.

<p>1. Appeal Bond—Signature of Obligors.</p> <p>On appeal from a justice to the county court, the appeal was dismissed on the ground that the bond was not signed by the principal and sureties. Held, the evidence showing that said obligors signed their names in the body of the bond, where their names appeared, with intent to obligate themselves, was a sufficient signing and compliance with the law, though such practice is not commended.</p> <p>2. Appeal from Justice Court—Final Judgment.</p> <p>A final judgment in the justice court is a prerequisite to an appeal to the county court, and the transcript must contain the final judgment to give jurisdiction. The absence of a final judgment itself, in the transcript, can not be supplied by recitals in the appeal bond that there was such judgment.</p> <p>3. Same—Jurisdiction.</p> <p>Where a case is appealed from a justice to the county court, and is there dismissed, or should have been dismissed for want of final judgment, and appeal is taken to the Court of Criminal Appeals, the latter court only obtains such jurisdiction as the county court possessed; and where tnere was no final judgment in the justice court, the appeal will be dismissed in this court.</p>

<p>The indictment charged appellant with the theft of one head of cattle from the possession of its owner, B. Lindley, on or about the 1st of February, 1898.</p> <p>In brief, the main facts adduced in evidence may be stated as follows: B. Lindley lost three three-year-old head of cattle; two heifers and one steer in December, 1897. Some little time thereafter, hearing that they were in the pasture of the defendant, he went before a justice of the peace, and without having seen or notified defendant of his proceedings, sued out a writ-of sequestration for the cattle, placed the writ in the hands of - an officer, and went with the officer; and, without seeing defendant, or anyone in possession of the pasture, he levied the writ- upon the animals and the officer took possession of the same. The officer could not drive the animals off that evening, hut went back the next morning to get them, and met the defendant; and after talking with him, they went over to the justice of the peace to get a replevy bond to be executed by defendant. The justice of the peace advised the defendant not to replevy or contest the suit. Defendant said that he had bought the two heifers from a man by the name of Tims, and had paid him for them, hut that he did not claim the steer. After advising with the justice, defendant declined to make the replevy bond, and said that he would go and see R. Lindley concerning the cattle. Lindley testified that the defendant did come to see him, and said that he did not claim the steer, but that he had bought the two heifers from a man named Tims, who lived in Hunt County in 1898.</p> <p>It was shown that the steer had gotten into defendant’s pasture and had been turned out by his orders several times, but would get back into his field. It was also proved that defendant was seen driving this steer, along with some other cattle belonging to himself and sister, along the road, and that he had stopped and cut him out and driven him away from his herd some distance.</p> <p>Defendant proved by a number of witnesses his good character for honesty and fair dealing. Defendant’s bill of exceptions show, that while the witness T. L. Bird, the deputy sheriff who executed the writ of sequestration, was upon the stand and had testified for the State, defendant propose!! to prove by him, on cross-examination, that defendant claimed no interest in the three-year-old steer; that the steer jumped into the pasture and that he had tried to get rid of him and could not; that he had turned him out and driven him off several times, but that he would return and jump in again; but that the two three-year-old heifers were his; that he bought them about the first of January, 1898, from one Frank Tims, in Hopkins County, near the Hunt County line; that he paid $22 for them; that he understood that said Tims lived in Hunt County near Lone Oak; that he would file a bond for the two heifers; that this was the first time he ever spoke to defendant concerning said yearlings or of Lindley’s claim of title to same. And the State’s counsel objected to said question and answer and to said proposed testimony when offered, upon the ground that the same was self-serving, and the court sustained the said objections and excluded said testimony.</p> <p>Ho further statement is necessary.</p> <p>Defendant’s counsel asked the court to instruct the jury upon the law of circumstantial evidence, in the language of approved precedents, and the court refused to give the instructions.</p>

<p>The important facts adduced in evidence are sufficiently stated in the opinion.</p>

<p>Motion was made to quash the information because “it fails to charge that the alleged bank was kept or exhibited for the purpose of gaming.” This motion was overruled.</p> <p>The evidence shows that the “device” in question was what is known as an “automatic slot machine,” operated by electricity. The machine was about five feet high and thirty inches wide. It was so constructed that there were five small holes or slots therein of five different colors, for the purpose of depositing a nickel in each or either slot; there was a wheel revolving which was divided off into five colors, viz., red, black, green, white, and yellow; there was a slot for each one of said colors, five in all. The machine was operated by placing a nickel in one or more or all of said slots, and then the person depositing the nickel by turning a crank or handle would start the wheel in motion; and if the wheel, when it ceased revolving, stopped on th§ same color as that ih which the nickel was deposited the machine would pay, in nickels, the amount which said color called for, and which was marked or printed on the wheel of the machine, and an indicator showed the color on which it stopped. Red and black each called for 10 cents; white for 25 cents; green for 50 cents, and yellow for $1. If a person placed a nickel in all of the slots the machine would always pay something, not less than ten cents; but if the nickel was deposited in only one slot the machine would pay nothing unless the wheel stopped at that particular color. The machine was operated by an electric connection made inside the machine which set the wheel in motion when the nickel was deposited and the crank turned. The machine paid by letting the nickels run out of an aperture on one side and at the bottom of the machine into a cup placed there to receive them.</p>

<p>1. Habeas Corpus—Sentence—Misnomer in Entry of.</p> <p>The insertion by the clerk of a wrong name, that is, a different name than that of the defendant, in his entry of the sentence of the court upon a proper valid judgment of conviction, is merely an irregularity which may be amended or corrected; and defendant is not entitled to a writ of habeas corpus in order to have the said judgment and sentence declared void.</p> <p>2. Same.</p> <p>The writ of habeas corpus can not be used in order to have irregularities revised. Illegality signifies that which is contrary to the principles of law,—radical defects as distinguished from mere rules of procedure. Habeas corpus is a remedy only where the procedure is void for illegality.</p> <p>3. Same—Final Sentence—Entry Nunc pro Tunc.</p> <p>A misnomer in the final sentence may properly be amended by a nunc pro tunc entry at a subsequent term of the court.</p>

The indictment charged appellant with an assault with intent to murder Walter Woods, on the 23d of December, 1898. The testimony of the prosecuting witness shows all the material facts, and it is as follows, viz.: Walter Woods, sworn for the State, says: “I live in Gonzales County; my name is Walter Woods, and I am the party alleged to have been assaulted by the defendant. I know the defendant, Dock Martin (here recognizes him in court). He is my brother-in-law.

<p>Ho statement necessary.</p>

The indictment charged appellant and one W. M. Gates jointly with assault with intent to murder Pryor Stribling on the 13th day of October, 1894. Appellant was alone tried in this case. Ho statement is required to further illustrate any of the questions discussed in the opinion.

<p>1. Local Option—Publication of Result of Election—Parol Proof.</p> <p>On a trial for violation of local option, the State may resort to parol proof of' the order of the judge certifying to the fact of the publication of the result of the election in the newspaper for the required length of time.</p> <p>2. Same—Evidence Insufficient.</p> <p>Where the complaint for a violation of local option was filed the 10th of October, 1898, and the information was not hied until 28th of February, 1899, Held, that testimony of the prosecuting witness, that the whisky was purchased by him some time in the fall of 1898, but that he did not know whether in October or not, is insufficient to support the' conviction, because it fails to show that the-offense was committed prior to the filing of the complaint.</p>

<p>Defendant filed exceptions to the indictment, (1) because it did not. negative the fact that defendant was a merchant; (2) the law under which it was drawn was violative of article 8, sections 1 and 2, of the Constitution. The exceptions were overruled.</p> <p>Ho statement necessary.</p>

Tried below before Hon. Ed. R. Sinks. Appeal from a conviction of murder in the second1 degree; penalty, seven years imprisonment in the penitentiary. The indictment charged one Reinhardt Fisher, and the appellant, jointly, with the murder of Henry Kramer on the 1st day of February, 1899.

<p>Appeal from the District Court of Red River. Tried below before Hon. E. D. McClellan.</p> <p>Appeal from a conviction of murder in the second degree; penalty,. twenty-five years imprisonment in the penitentiary.</p> <p>'The indictment charged this appellant and Irving Thompson and Lewis Hopkins jointly with the murder of Jesse Simon, on the 24th of December, 1897, by hitting and striking him with a stick and with. a rail, and with a club, and with a piece of rail, and with some weapon to the grand jurors unknown. A severance was- granted upon motion of defendants, and appellant Frank Prewett was alone tried, the trial resulting as above stated.</p> <p>The evidence shows that the deceased, as well as the three parties-charged with his murder, were all negroes; that deceased had been working for a man by the name of Teal, and that Teal had paid him that day, the 24th of December, $10. Deceased went to town, where he purchased several articles of clothing, and was seen in company with the defendants, off and on, frequently, during the day and until a late hour of the night. His dead hody was found the next day, or the day after, in Teal’s pasture, about three-quarters of a mile south of Clarksville. There were two bruises upon his face, one of which crushed the skull, and apparently was made by a niece of fence rail, which was found near by with blood on it. There was also a hois d’arc club found near the body, that some of the witnesses thought had wool or hair on it. The face was badly burned, a fire having been made over his face with some rails piled upon it, and his shirt and vest were burned down to the waistband of his pants. His pants pockets were turned inside out, and the ends of the pockets were also burnt off. Several feet from where the body was found lying there were signs of a fire having been built, and near this fire was a smooth plank about ten or twelve feet long and about a foot wide; and apparently from these facts, the parties must have been shooting craps before the murder. The nearest house to the scene of the homicide was occupied by Eosa Hopkins, a colored woman, the mother of Lewis Hopkins, one of the defendants charged with the murder. This house was about 200 yards from the place where the murder was committed.</p> <p>Mat Hopkins, a daughter of Eosa Hopkins and sister of Lewis Hopkins, one of the defendants, testified on this trial as a witness for the State. She stated, that on the night of the 24th of December, 1897, she stayed at her mother’s house, and some time very late, during that night and after the other members of the family had gone to bed, appellant, Frank Prewett, her brother Lewis Hopkins, and Irving Thompson came through the yard and went out of the gate and went along the path in the direction of where the deceased was afterwards found killed. That shortly thereafter she heard some one say, as though in distress, hollooing, “0 boys, don’t do me that way.” And shortly thereafter the same parties came running back from that direction. That her brother, Lewis Hopkins, stayed the balance of the night at the house, as did the appellant Frank Prewett also. And the next morning her brother Lewis Hopkins showed her a half dollar, and she saw a small spot of blood on his pants the size of a quarter of a dollar.</p> <p>Frank Prewett, the appellant, was arrested by Constable L. D. Elliott, at a place called High, in Red River County. When arrested, defendant asked the officer what he was arresting him for, and he replied, “for shooting craps.” After he was arrested and handcuffed to one Will Totten, who had gone to the place with the officer, defendant asked Will Totten if they had arrested Lewis Hopkins and Irwin Thompson. This was after the officer had read the warrant of arrest charging defendant with murder, and after he had warned him that anything he might say could be used in evidence against him. When Totten told him they had not arrested Hopkins and Thompson, de- ' fendant replied, “I am all right, then.” Both the constable and Will Totten swear that before defendant asked this question and made this statement neither of them had ever mentioned to him or called the names of Lewis Hopkins and Irwin Thompson.</p> <p>The defense was an alibi, and there was some evidence introduced in support of this defense. The defendant also contended, that the State’s witness Hat Hopkins was an accomplice, or an accessory after the fact, and that the court should have charged the law applicable to accomplice testimony. The evidence pertaining to this contention is sufficiently stated in the opinion.</p>

<p>County Convict—Pauper’s Oath—Imprisonment as Satisfaction of Judgment.</p> <p>A defendant convicted of a misdemeanor with punishment assessed at a pecuniary fine, who makes oath that he is unable to pay the fine and costs, is entitled to his discharge from the judgment and further imprisonment after he has been confined in the.county jail a sufficient length of time, dt $3 per day, to make the amount equal to the amount of the judgment. Code Crim. Proe.» art. 856.</p>

<p>No statement necessary.</p>

Appellant was indicted for an assault with intent to commit rape upon Mamie Boyd, by force, threats, and fraud, on the 17th day of June, 1899. The facts are sufficiently stated in the opinion.

<p>Defendant testified as a witness, and over his objections the court permitted the State to elicit from him the following statement in answer to questions propounded to him on his cross-examination, viz:</p> <p>“The reason that my head is tied up is because I got knocked in the head this morning. I had some trouble with a man they told me was Bolivar Williams. That he gave Bolivar Williams a ten-dollar bill after buying some goods and he only gave him change back for five. I told Mr. Williams I gave him .a ten-dollar bill and he told me I didn’t. I told Mm I didn’t want him to beat me out of my money; that I had given him a ten-dollar bill, and if he said I did not he was a damn liar, and about this time he struck me over the head. I don’t know what he hit me with, but it sounded like a gun to me. 'There was no fight in it; I was just knocked in the head, that was all. That is the reason my head is now tied up.”</p> <p>'The prosecuting attorney commented upon this evidence, as follows: “All of you know Bolivar Williams down here, who clerks for Mayer &' Schmidt, and you know if he had to knock the defendant in the head that he had a right to do it, for you know that Bolivar Williams would not strike a man unless he was in the right. That the defendant, who is an Italian and French, went down there and raised a row this morning with Bolivar Williams and accused him of trying to steal $5 from him, and you all know Bolivar Williams would not do it, and this shows what kind of man the defendant is.”</p> <p>Flo further statement required.</p>

<p>1. Perjury Assigned Upon an Affidavit—Indictment.</p> <p>An .indictment for perjury based upon an affidavit containing several statements, some of which are incontrovertible or nondemurrable, is fatally defective which alleges that said affidavit is false, and fails to single out the allegations in the same on which it was proposed to assign the perjury, and which are claimed to be materia], alleging their materiality as well as falsity. Following Ross v. State, 40 Texas Criminal Reports, 349.</p> <p>2. Same.</p> <p>On a prosection for perjury, it is necessary that there should be a specific assignment upon each matter claimed to be material. Where there are several statements in the instrument declared on, some of which are absolutely true, and the assignment is in solido, and traversed in solido, the indictment is manifestly defective.</p>

<p>"1. Bail in Capital Cases—Eight to—Agreement to Turn State’s Evidence.</p> <p>Prosecuting attorneys have no right, under our statutes, to make an agreement "with a defendant in a capital case that he shall be granted bail in consideration of his turning State’s evidence.</p> <p>2. Same—Contract Is Continuous.</p> <p>A contract, by one of several indicted parties, to turn State’s evidence, is continuous, and only consummated where there has been a final trial of the parties against whom he agrees to testify and has testified; and, if appeals are prosecuted, he is not entitled to release under the contract until there is an affirmance of the judgment on appeal.</p> <p>3. Same.</p> <p>Before testifying, the accomplice who has agreed to turn State’s evidence has acquired no special privileges. He is not consequently entitled to have bail, and an agreement with him by the prosecuting attorney, that he shall have bail in a capital case, is ultra vires and not binding upon the State.</p> <p>HENDERSON, Judge, concurring.—In this State the court alone is authorized to make or approve a contract with an accomplice as to his turning State’s evidence. The contract must be in consideration that he shall testify fully and fairly with regard to the guilt of his associates in the particular case; his immunity being limited to that particular case. An accomplice is not entitled to bail pending the disposition of the ease against his principal. There must have been a compliance with his contract by the ■ accomplice before he can claim immunity.. After he has fully complied with his contract, the court then, and not before, authorizes a dismissal or nolle prosequi of the case in so far as he is concerned.</p>

<p>Assault with Intent to Rape—Evidence Insufficient.</p> <p>See opinion for facts stated which a majority of the court hold plainly and palpably insufficient to show an intent to ravish the prosecutrix, a girl of 13 years</p> <p>of age.</p> <p>Hendebscn, Judge, concurring in disposition of the case, holds the evidence tends to show an assault upon prosecutrix, but that there was lacking evidence of that sufficient force establishing the intent of defendant to copulate with prosecutrix without her consent, which is required by law.</p>

The indictment charged appellant with incest with Nettie Bohrer, who was his aunt, she being a half-sister of the mother of appellant. The case is sufficiently stated in the opinion.

Tried below before Hon. J. M. Hall. Appeal from a conviction of theft of cattle; penalty, three years imprisonment in the penitentiary. The opinion states the case.

Tried helow before Hon. M. Kennon. Appeal from a conviction of embezzlement; penalty, two years, imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

This is a second appeal in this case. The first appeal is Preston v.. State, 40 Texas Criminal Reports, 72, and it will be found to contain.' quite an elaborate statement of all the material facts involved in the-prosecution. On-this trial, defendant again pleaded former jeopardy and acquittal,, in the District Court of Bexar County, for the offense of forging the deed declared upon in the indictment in this case.

Tried below before Hon. Ed. E. Sinks. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with the murder of W. M. Mun-dine, on the 22d day of April, 1899, by shooting him with a pistol. The opinion states' the essential facts in the case.

The indictment charged appellant with the murder of Sudie Speights (his wife) by mingling strychnine with water and other medicines, with the intent and well knowing that she would take and swallow the same, and that the said Sudie Speights did take and swallow the same and died from the effects thereof on the 4th day of June, 1896. The opinion states the case.

The indictment charged appellant with .the murder of Charles W. Jennings, by cutting him with a knife, on the 12th day of March, 1899. This is the third appeal. The two former appeals have not been reported in our reports, hut may be found in 46 Southwestern Reporter, 830, and 51 Southwestern Reporter, 366.

■ Appeal from the District Court of Busk, on change of venue from Smith County. Tried below before Hon. W. J. Graham. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. The indictment charged' appellant with the murder of George Buckingham and Charlie Learned, with a gun, on the 23d day of May, 1894, in Gregg County, while he, defendant, was engaged in the perpetration of robbery.

<p>Bill of Exceptions—Presentment and Filing of—Practice on Appeal.</p> <p>A bill of exceptions, to be valid and entitled to be considered on appeal, must have been presented to the trial judge within ten days after the motion for new trial is overruled, or final trial in the case where there is no motion for new trial and must be filed in the lower court within term time. Rev. Stats., art. 1366; Code Grim. Proe., Art. 724.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>From El Paso County.</p> <p>Original application to Court of Criminal Appeals from an order and judgment finding and committing relator to custody for contempt for failing and refusing to serve as a juror in the District Court.</p>

.Appeal from the Criminal District Court of Galveston. Tried below before Hon. E. D. Gavin. Appeal from a conviction for establishing a lottery; penalty, .a fine of $100.

Tried below before Hon. Wells Thompson. Appeal from a conviction of manslaughter; penalty, five j'ears imprisonment in the penitentiary. The indictment charged appellant with the murder of Charles Davis, on the 26th day of August, 1899, by shooting him with a pistol.

<p>Appeal from the District Court of Howard, on a change of venue from Glasscock County. Tried below before Hon. W. R. Smith.</p> <p>Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with assault with intent to murder M. Porter, in Glasscock County, on the 11th day of April, 1898.</p> <p>The opinen states the ease. .</p>

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

This is a companion case to Arismendis v. State, ante, p. 374, and the evidence will, substantially, be found set out in the opinion in that case. Ho further statement necessary.

<p>The indictment charged appellant with the murder of S. L. Winston, in Fort Bend County, on the 30th day of December, 1897, by shooting hinr-with a gun. On application of defendant, the venue was changed to the county of Wharton.</p> <p>The opinion states the substance of the facts attendant upon the homicide, and also states all that is essential to an understanding of the hills of exception in relation to the questions discussed regarding the admission of evidence of deceased's title to the land and its subsequent recovery at law, and occupancy as a home by the wife and. children.</p> <p>The State was allowed to prove, over objections of defendant, by the witness Coburne, that “the witness had come to the premises shortly after the homicide and saw the shotgun of the deceased lying on the jolt near the fence, and that witness unbreeched the gun and examined the contents of same, and that said gun was loaded with small shot—one shell about No. 6 and the other about No. 8.” This testimony was objected to because it was not shown that the defendant had any knowledge at the time of the killing of the contents of the gun, and because said testimony was immaterial and incompetent and calculated to prejudice the rights of the defendant.</p> <p>The defendant also saved an exception to the refusal of the court to allow him to prove, by the deputy sheriff W. B. Smith, who dispossessed the dcease^ of the premises on the day prior to the homicide, that he instructed the defendant as follows: “I told defendant when I left him in possession of the premises that he must hold them for himself now; that the sheriff had discharged his duty, and if deceased retook them, there could be no more writs to put him off. I also told defendant not to let deceased come back on the premises at all, for fear of trouble, and for fear he might attempt to retake them, and advised defendant if there had been anything belonging to deceased left on the premises, to let him send for it, but not to let deceased come on the premises at all."</p>

Tried below before Hon. E. S. Chambers, Special Judge. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary. The indictment charged appellant with the murder of Barney Gray, on the 22d day of October, 1898, by shooting him with a pistol. The defendant, Will Warthan, testified as a witness on his own Behalf, and his testimony was as follows, viz.: “I am the defendant in this case. I live at Annona. I knew Barney Gray.

Tried below before Hon. V. W. Hale, Special Judge. Appeal from a conviction of burglary; penalty, five years imprisonment in the reformatory. The house burglarized was the Avenue Hotel, in Paris, Texas, at the time under the control and in possession of L. P. Harrison. The property taken therefrom consisted of carpets and quilts, etc., which were found by the officers in an old kitchen.

<p>Intoxicating Liquors—Finding and Taking Possession of, etc., at Election Polls.</p> <p>The last clause of article 185, Penal Code, provides that “If any person shall find and take possession of any intoxicating liquors at or near the polling place [on election day] or inform another of the whereabouts of the said intoxicating liquors, he shall be fined,” etc. Held, to constitute the offense, (1) the party must find. the liquor at the designated place; (2) having found it, he must take possession of it; or (3) after finding it, he must inform another oi its whereabouts.</p> <p>See opinion for evidence held wholly insufficient to support a conviction for this offense.</p>

Appellant was indicted for the murder of Harry Alford, on the 19th. day of May, 1899, by shooting him with a gun and pistol. The evidence shows the killing occurred on Friday evening, the 19th of May, 1899, about 3 o’clock p. m., at the mill of Joe Attaway, a brother of defendant. Alford, the deceased, had gone to the mill with August Hager. Hager stopped at the mill to wait for Joe Attaway, who was absent at the time, hut was expected to return in a short time.

Tried below before Hon. W. D. Harris. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary. The indictment charged appellant with the murder of Green Durrett, alias Doc Carver, on the 29th day of May, 1899, by shooting him with a pistol.

Appellant, John Holden, was tried under indictment charging a -violation of the local option law in school district No. 66, was convicted, and his punishment assessed at a fine of $25 and twenty days imprisonment in the county jail, from which said judgment and sentence he appeals to this court. Appellant moved in arrest. of judgment because the indictm'ent failed to set forth the metes and bounds of said school district, and the motion was. overruled.

<p>malicious mischief—Injury to Property—Evidence Insufficient.</p> <p>See opinion for evidence held insufficient to support a conviction for malicious mischief under article 791, Penal Code, where the prosecution was for injury to and not a destruction of property.</p>

<p>The case as considered on the appeal is sufficiently stated in the opinion. Defendant made a motion .for continuance; motion for new trial based upon the refusal of a continuance; motion to retax the ■costs, and a motion in arrest of judgment,' all of which were overruled and exceptions duly reserved.</p>

<p>1. Homicide—Charge—Failure or Neglect of Defendant to Call Aid to Preserve Life.</p> <p>On a trial for murder, where the court, after having submitted in the charge the issues of improper treatment, etc., by physicians, accidental shooting, and self-defense, and then further instructed the jury in the language of article 653, Penal Code, that “if the person inflicting the injury which makes it necessary to call aid in preserving the life of the person injured shall willfully fail or neglect to call such aid, he shall be deemed equally guilty as if the injury were one which would inevitably lead to death;” Held, the charge was erroneous and prejudicial, a physician having been called to see deceased a few moments after he was shot, and the only issue as to medical aid was whether the physician’s treatment of the case was improper and caused the 'death of deceased or whether the death was caused by the wound inflicted by defendant.</p> <p>3. Same—Construction of Statute.</p> <p>Under provisions of the Statute (Penal Code, article 653) as above quoted, the mere omission to call aid without the element of legal malice or evil intent would not satisfy the demands of the statute. And a willful failure or neglect to call aid would not of itself make defendant guilty of the homicide if death was produced not on account of such failure but caused by act of third parties; nor would it make defendant guilty of the homicide if the killing was accidental or was done in self-defense. Henderson, Judge, dissenting as to the construction of the statute, and because the case should not be reversed on account of said charge, it not being made to appear that the charge was prejudicial to defendant.</p>

<p>1. Sunday Law—Sale by Agent—Indictment.</p> <p>An indictment against an agent for violation of the Sunday law which charges that defendant was the agent of a merchant, etc., and as such did unlawfully and willfully open and keep open the store for the purposes of traffic, etc., and did then and there barter and sell to one C. W. whisky, is sufficient. Following Brown v. State, 44 Southwestern Reporter, 176.</p> <p>2. Same—Evidence Sufficient.</p> <p>See opinion for evidence held sufficient for conviction for violation of the Sunday law by an agent of one F., a merchant, in the sale of whisky, though F. testified that defendant was not his agent.</p>

<p>Appeal from the District Court of Clay. Tried below before Hon. A. H. Carrigan.</p> <p>Appeal from a conviction of murder in the second degree; penalty, fifty years imprisonment in the penitentiary.</p> <p>The record in the case and especially the statement of the facts is very voluminous. But the material facts immediately connected with the homicide are so fully stated in the opinion that a further statement is unnecessary; and the facts pertaining to the questions discussed need no further statement to illustrate them.</p> <p>The indictment charged appellant with the murder of Mrs. S. E. Whitesides, on the 20th day of March, 1899, by shooting her with a pistol.</p>

Appellant was tried and convicted for the murder of Margaret Leslie, by shooting her with a pistol, the jury assessing his punishment at death. We give below the testimony of the principal witnesses in the case, as follows: Nannie Crowder testified: “I am a sister of the deceased, Margaret Leslie, and I lived in the city of Greenville at the time she was killed by Bob McKinney, this defendant, on the 33d day of September, 1899.

The application for the writ of habeas corpus alleged that applicant was held in jail by the sheriff of -Duval County by virtue of a capias duly issued upon an indictment pending in the District Court charging 'him with rape. The alleged injured party was one Rosa Garcia, a female who was proven to be about 13 years of age.

This is an appeal from a judgment final on a forfeited bail bond for $300, entered in the District Court of Scurry County against appellant Sam Sims, as principal, and I. H. Kelson and Billy Brown, as sureties. The case is sufficiently stated in the opinion.

<p>1. Murder—Evidence—Declarations of Deceased—Res Gestae.</p> <p>On a trial for murder, where the homicide occurred within some 150 to 200 yards of an election polling place from which the parties were returning home, it is inadmissible to prove that deceased said before starting for home that he was going home because he was afraid defendant and his brother were going to-raise a difficulty with him. Such declarations were not res gestae, but were self-serving and incompetent for any purpose.</p> <p>2. Argument of Counsel—Practice and Duty of Court as to.</p> <p>Where improper argument has been indulged in by the prosecuting attorney, it is the duty of the court, when requested by defendant, to instruct the jury not to consider the same; and the bare statement of defendant's counsel in the presence and hearing of the court and jury of his objections to and why the argument is illegal does not relieve the court of the duty to instruct the jury to disregard it as requested. It is error for the court to refuse to do so.</p> <p>3. Murder—Evidence—Proof of Character of a Deceased Party—Cross-</p> <p>Examination.</p> <p>On a trial for murder, where the defendant had proved by witnesses that his brother, who had been killed by deceased, at the time and place of the killing, was of good, peaceable, and orderly reputation, it was competent for the State on cross-examination of the witnesses to prove that the defendant’s said brother had had a difficulty about a year preceding his death.</p> <p>4. Manslaughter—Provoking Difficulty—Charge.</p> <p>On a trial for murder, where the evidence raises such issue, it is error for the court to fail or refuse to charge the jury that if defendant provoked or brought on the difficulty without intending to kill or do deceased any bodily harm, and thereafter made a demonstration of simply engaging in a fist fight at the suggestion of such fight by deceased, he would be guilty of no higher offense than manslaughter.</p> <p>5. Manslaughter—Provoking Difficulty—Adequate Cause—Charge.</p> <p>On a trial for murder, where the evidence tended to show that defendant sought the difficulty without any apparent intention of killing deceased, and that deceased shot and killed a brother of defendant, whereupon defendant shot and killed him, Held, the court should have charged the jury that if, actuated by such killing of his brother alone and the sudden passion produced thereby, defendant shot and killed deceased, he would be guilty of no higher offense than manslaughter, and it was error to fail to so charge.</p>

Tried below before Hon. V. E. Middlebrook, County Judge. Appeal from a conviction of a county convict for unlawfully and willfully escaping from his hirer; penalty, twenty-four hours confinement in the county jail. The opinion states the case.

The information charged appellant with an assault upon Henry Smith, marshal of the town of Morgan, who was then and there in discharge of the duties of his office. No statement necessary.

<p>Ho statement necessary.</p>

Tried below before Hon. G. A. Brown. Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary. The indictment was a joint one against appellant and one Joe L. Beard. It contained two counts, one for the theft of “twenty head of cattle” owned by and taken from the possession of one W. Z. Drummond; the other charged them as receivers of said stolen cattle.

The charging part of the information is as follows, to- wit: “That Fayette Williamson, on or about the 24th day of November, A. D. one thousand eight hundred and ninety-eight, and before the filing of this complaint, in the county of Hunt and State, of Texas, did then and there in justice precinct number two of said- county unlawfully engage in and pursue and follow the occupation of selling spirituous, vinous, malt, and intoxicating liquors, which- occupation was then and…

Appellant, 0. D. Cannon, who was at the time of the commission of the homicide county judge of Robertson County, on March 23, 1899, shot and killed deceased, W. A. Gray, for which homicide he was on June 9, 1899, indicted by the grand jury of Robertson County, charging him with murder upon his malice aforethought. The indictment was found at the June term of the District Court of Robertson County.

The indictment charged appellant with the theft of one horse, the property of John Callahan. The case is sufficiently stated in the two opinions of the court.

The indictment charged appellant with the rape of one Laura Batchelor, on the 1st of March, 1899, the said Laura Batchelor being a female under the age of 15 years, etc. Appellant was the father of the alleged injured female. Ho further statement is required in view of the case as made on this appeal.

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

Appellant was tried in the District Court of Houston County for “assault with intent to kill and murder” one Bufe Walker, and was convicted, his punishment being assessed at two years confinement in the State penitentiary. The opinion of the court having discussed only the matter of law, raised by appellant, no statement of the facts is deemed necessary.

Defendant made a motion to quash the indictment upon the ground that it did not charge that defendant permitted any game to be played which was prohibited by the statute. This motion was overruled. Ho statement necessary.

<p>Local Option—Evidence—Different Transactions—Election.</p> <p>On a trial for violation of local option, the State proved two different and distinct transactions, occurring on different days, whereupon appellant moved the court to require the prosecution to elect upon which transaction a conviction would be sought, and the motion being refused, the same was renewed after appellant had closed his testimony, and again refused. Held, error.</p>

<p>1. Disturbance of the Peace—Illegal Arrest by Officer.</p> <p>An officer who, without a warrant attempts the arrest of a party for disturbing the peace which has not been committed in his presence or view, and who did not state to the party he was attempting to arrest that he was an officer and the reason why he was arresting him, is himself making an illegal arrest, and the party he is attempting to arrest has the same right to defend himself against such illegal arrest by the officer as he would have against any other citizen.</p> <p>2. Same—Charge.</p> <p>By provision of article 247, Code of Criminal Procedure, a peace officer is authorized, without warrant, to arrest a party disturbing the peace where the offense is committed in his presence, or view; but where the offense has not been committed in his presence or view, it is error for the court to instruct the jury that such officer may arrest a party without warrant when he is committing an offense against the public peace.</p> <p>3. Same.</p> <p>Where an officer undertakes to make an arrest he must make known his authority as such officer and the reason for the arrest, unless prevented from doing so, otherwise he is attempting an illegal arrest; and where the evidence shows that the officer had the opportunity but failed to do his duty in this respect, it was error for the court to charge the jury in effect that if the officer’s purpose and capacity are known to the party whose arrest is attempted and the arrest is otherwise lawful, it is the duty of such party to submit to such arrest, and resistance by him would be unjustifiable.</p> <p>4. Assault with Intent to Murder Officer—Attempting an Arrest Without Warrant—Special Instruction.</p> <p>On a trial for assault with intent to murder an officer attempting without a warrant an arrest for disturbance of the peace, the court erred in refusing to give in substance to the jury a special requested instruction presenting defendant’s theory of the case as follows, viz.: “There is not sufficient evidence adduced in this case to prove that defendant, prior to the time of the difficulty which resulted in the shooting of T., had committed any such offense in the presence or view of said T. as would authorize said T. to arrest defendant without a warrant issued by some competent court commanding such arrest, and therefore you are instructed that the said T. had no right to arrest or attempt to arrest defendant; and you are further instructed that defendant had the right to defend himself against an attempt by said T. to arrest him or take away from defendant any property; and in such defense of himself or his property defendant had the right to use all such force as was necessary to prevent such arrest or such taking away of his property, even to the extent of killing the said T. if such killing was necessary to prevent such arrest or such taking away of his property.”</p> <p>5. Illegal Arrest—Self-Defense—Manslaughter—Charge.</p> <p>On a trial for an assault with intent to murder, where it appeared that the assaulted party was an officer who was illegally attempting the arrest of defendant, the court should have charged fully upon -self-defense, and as a killing to avoid illegal arrest would have been manslaughter, a charge upon manslaughter should also have been fully given.</p>

<p>Ho statement necessary.</p>

A brief summary of the evidence shows that appellant, who, according to his own testimony, was about 17 years old, was going on foot with his little brother to Monterey, Mexico. They had just crossed the Rio Grande to Piedras Negras, and near the railroad bridge 'met deceased, who was a stranger to them. He had some conversation with them. When they started down the street, deceased followed and overtook them, and deceased insisted upon appellant’s treating him.

Tried below before .Hon. Don A. Bliss. Appeal from a conviction for murder in the first degree; penalty, death. The indictment charged appellant with the murder of Emma Spears on the 6th day of July, 1899, by cutting her throat with a razor. ' Emma Spears was the wife of appellant.

Abpeal from the District Court of Bowie. Tried below before Hon. J. M. Talbot. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The indictment charged appellant with the murder of Ben Miller, on the 16th day of September, 1899, by shooting him with a pistol. All the essential facts pertaining to the killing are concisely but sufficiently stated in the first opinion below.

Inasmuch as the opinion of the court on this appeal deals only with the law points decided, a general statement of the facts in the case becomes unnecessary.

<p>Occupation Tax—Interstate Commerce—Traveling Salesman.</p> <p>A nonresident traveling salesman working upon a salary and soliciting orders for a wholesale drug house of another State, and who had no further interest in the goods than to sell by sample and brand and deliver and collect for the same, is engaged in interstate commerce and can not be required to pay an occupation tax for pursuing such business. And in so far as our statute imposes such occupation tax it is in violation of the Federal Constitution with regard to interstate commerce.</p> <p>Appeal from the County Court of Wichita. Tried below before Hon. W. P. Skeen, County Judge.</p> <p>Appeal from a conviction for pursuing an occupation without first having paid the occupation tax and procured a license; penalty, a fine of $150.</p> <p>The opinion states the ease.</p>

<p>Appeal from the District Court of Nueces. Tried below before Hon. M. F. Lowe, on exchange with Hon. Stanley Welch.</p> <p>Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with the murder of Sabas Ramirez, on the 28th of February, 1899, by beating and kicking him. The following statement of the evidence adduced at the trial is taken from the brief of appellant:</p> <p>The witness for the State, Martinez, testified that on Saturday, February 25, 1899, appellant, deceased, and witness, with others, were at the county convict camp near Alice, Texas, working out some fines and costs. That- about sundown appellant and witness visited Losano’s saloon, in Alice, where they found deceased and some of the others who had preceded them, drinking, and that they joined them. That deceased and appellant commenced to drink together; that both drank heavily, the deceased drinking the most, and witness sometimes drinking with them. That there was a dispute and contest between appellant and deceased as to which could drink the most liquor. That all three of them remained there drinking together until after midnight. That during that time they visited a gambling house in the back yard of the saloon. That the last time they returned to the saloon they found the front door closed, and that they all then left for camp, passing out the back door, then through a'n alleyway to the sidewalk in front of the saloon. That they proceeded to camp, but that when they got in front of a small house appellant and deceased again commenced to fuss, when appellant knocked deceased down, and after beating and kicking him for awhile, called to witness to stop. That he caught up with witness, and told him that he had killed deceased, because the latter’s brother had knocked two of appellant’s teeth out. That appellant then compelled witness to kneel down, raise his hands, and swear that he would never tell anybody about the tragedy. That they then proceeded to camp, where they were arrested that morning; and had been held in custody until the grand jury met, when witness was released. That when they were arrested appellant put a bloody towel in his pocket. To corroborate this witness and to connect appellant with the offense charged to have been committed, the State relied on the following facts, briefly stated, and testified to by its witnesses, to wit: By Losano, that appellant, deceased, Martinez, and .others of the convict gang were drinking at Losano’s saloon and continued to do so until after midnight. That during that time appellant and deceased had several disputes as to which was the best man at drinking liquor, each alternately buying small bottles of whisky or mescal and drinking together. That while there appellant, deceased, and Martinez visited a gambling house in the back yard of the saloon several times together, each time returning to the saloon, and that the last time they returned, after midnight, the front door was closed. That the three then left by the back door, witness not seeing where or which way they went from the saloon. By Boark, Bates, Walker, and Whelan that deceased was found next morning lying unconscious in the street or road in front of witness Boark’s house, severely injured about the head and face, which were bruised and very much swollen, with slight blood marks on the face and one of the ears, which was partly torn or cut away. That he appeared to have been beaten and kicked about the face and head, and there were bruises on his breast that looked as if they had been made by some one stamping on him. That the bruised places on the face and head appeared to have been made with the heel of a shoe; the prints of the nails could be clearly seen on the cheek of deceased’s face. That appellant was wearing shoes when arrested, and that on comparison with said prints or marks on deceased’s cheek, they were very similar and corresponded exactly. Deceased was removed to the ranger camp, where he died next day. That appellant and Martinez were arrested that day at the convict camp. The boss of the camp handed the officers making the arrest a towel with some blood spots on it, saying that it belonged to appellant. One of the officers also noticed some blood spots on the front and back of appellant’s pants, one on the rim at the side near the back part, and another spot a little above; and stated that he knew and was certain it was blood, as he scratched it off with his finger nail. That defendant’s pants were dark colored pants. To rebut the foregoing, appellant relied upon its weakness, as well as on the following facts, also briefly stated, and testified to by his witnesses, to wit: By Garcia and Sanchez and appellant, that the latter and deceased were very friendly. That appellant, being a barber, shaved deceased and cut his hair on Saturday evening just before they all went to the saloon. That the blood on the towel testified to by Martinez and Bates came from a cut made by appellant on Vivian Herrera’s neck while shaving him the same evening he shaved deceased. By Losano and appellant, that while appellant and deceased had two or three disputes and were fussing as to which could drink the most liquor, they did hot quarrel, but appeared to be friendly and contented with each other; and that when Losano told them not to make a fuss in the saloon, appellant told him not to be afraid, they would not fight. By Martinez, Losano, and appellant, that the latter, with Martinez and deceased, all left the saloon by the back door when Losano closed the front door; Losano stating that when they went out he did not see which way or where they went. By appellant, that "Martinez and deceased went towards the gambling-house• again .and that he started for the convict camp, taking the public road. That he had gone some ways when Martinez caught up with him out of breath and scared, saying that they (meaning the gamblers) were mad because appellant had taken two quarters from the table, and proposed that they run, which they did, finally reaching camp, where they were arrested next morning. By appellant, that he did not kill deceased, as they were friendly, and he had nothing against him. By Bios, Dr. Cutler, and appellant, that appellant bled quite often and profusely from the nose, ears, and throat the day after he was brought from Alice and placed in jail at Corpus Christi, charged with the murder of deceased; and that the blood would sometimes drop on his clothes. That Dr. Cutler was called in as county physician to treat him for these troubles. That he continued to be so afflicted, and that Dr. Cutler was treating him at the time of this trial for same. That defendant had been so afflicted for several years. Appellant further stated that he did not have blood on the bottom of his pants as testified by the ranger. That the pants he wore -on this trial were black pants and the same that he had on when the ranger arrested him. They had blood spots on them below and above the knee when he was arrested, and that these spots came from his nose while it was bleeding, and that they would not wash out. Martinez and Deputy Sheriff Biggs testified that Martinez had been convicted in 1892 in the District Court of Nueces County for an assault with intent to murder and had nearly completed his sentence of three .years when he was pardoned. Martinez further testified that he had been convicted in the magistrate’s court several times for disturbing the peace. Deputy Sheriff Biggs, Constable Kelly, Justice of the Peace Dunn, Marshal Niland, and Policeman Lege all testified that they had known Martinez for many years in Corpus Christi, where he lived. That they knew his general reputation for truth and veracity in that community, and that said reputation was very bad.</p>

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

<p>1. Recognizance—Jurisdiction on Appeal.</p> <p>A recognizancd taken for appeal from a misdemeanor conviction must be entered of record in the final minutes of the" court during the term at which the appeal was taken. This is essential to the jurisdiction of the court on appeal. Affidavit of the judge that the recognizance was taken will not suffice.</p> <p>.8. Same—Practice on Appeal.</p> <p>Where the record on appeal fails to show a recognizance properly entered in the ■court below and contains no certificate that appellant is in jail pending the appeal, •the appeal will be dismissed.</p>

The information charged appellant with an aggravated assault upon W. F. Cox with a knife, a deadly weapon. Both aggravated and simple assault were submitted tó the jury, and their verdict was a general one assessing a punishment of $25. Ho further statement necessary.

<p>1. Cattle-Theft—Evidence.</p> <p>On a trial for cattle-theft, where it appeared that defendant sold to D. a bull yearling and told D. that one W. would point out the yearling to him, which W. did, and D., assisted by W., drove up and carried the animal away, it was competent for the State to .prove these tacts by W., who was a witness in the case.</p> <p>2. Same—Voluntary Return—Charge.</p> <p>On a trial for cattle-theft it is not error for the court to fail or omit to charge the law with reference to a voluntary return of the stolen animal where there is no evidence of such voluntary return.</p> <p>3. Same—Using an Innocent Agent.</p> <p>On a trial for cattle-theft where the defendant sold the animal to D. with the fraudulent intent to deprive the owner of the same, and D. actually took it, defendant was guilty of the taking because he used an innocent agent in consummating his purpose.</p> <p>4. Reasonable Doubt—Charge.</p> <p>Where the court omitted to insert the word “doubt” after the word "reasonable” in the charge on reasonable doubt, the omission was fully cured in another paragraph of the charge which instructed the jury that before they could convict they must find from the evidence beyond a reasonable doubt, that defendant did take the animal, etc.</p> <p>5. Cattle-Theft—Evidence Sufficient.</p> <p>See opinion for facts stated which are held to be amply sufficient to support a conviction of cattle-theft.</p>

The defendant was a negro who was deaf and dumb. The record shows that his animosity to deceased grew ont of Gibbs having used his horse and saddle. On the day of the killing he gave the people at his house to understand he intended to kill Gibbs. He got his pistol, went to Gibbs’ house, where the latter was alone, broke open the door, went in, and fired twice; came out, and gave parties he met to understand that he had killed Gibbs.

On June 9, 1898, appellant, Jeff Taylor, Bud Newman, Bill Taylor, and Pearce Keaton attempted to rob the messenger of the Wells Fargo Express on the west-bound passenger train near Coleman, Coleman County, Texas, when the train stopped to go on the “Y” leading west. They shot a fusilade of shots in the air. One of them took Lee Johnson, the fireman, to the express car door, to have L. L. White, the messenger, open up.

The ease generally is sufficiently stated in the' opinion of the court. We make the following statement taken from the evidence:

<p>Ho statement necessary.</p>

<p>Constitutional Daw—Corporation Courts.</p> <p>The Constitution, article 5, section 1, as amended in 1891, clearly authorizes the creation of corporation courts, it being expressly provided in said amendment that “the Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” This amendment is not in conflict with section 18 of article 5, which makes provisions for justices of the peace and the number of justices of the peace to be elected in the counties. Corporation courts are in no sense justices’ courts, though within the limits of the cities where they are created they are vested with jurisdiction concurrent with that of justices’s courts in offenses arising under our State laws. Davidson, Presiding Judge, dissents.</p>

<p>1. Statement of Facts Filed—Diligence.</p> <p>Where there was no order allowing ten days within which to file a statement of facts after adjournment for the term, and the purported statement was filed four days after the adjournment, no proper diligence is shown, and an unsworn statement of the trial judge in explanation of the matter can not be considered.</p> <p>2. Same—Bill of Exceptions.</p> <p>In order to entitle a statement of facts and bills of exception not filed in term time to be considered on appeal, it must be made to appear that oefore the time elapsed for filing the same appellant, through counsel, went to the judge and demanded the approval of said papers in order that he might file them in time, or that having called on the judge for the papers the judge refused to deliver them to him, and distinctly promised to approve and file the same within the time authorized by law.</p> <p>3. Absence of Statement of Facts and Bills of Exceptions—Practice on Appeal.</p> <p>Assignments of error relied on by appellant can not be reviewed on appeal in the absence of a statement of facts and bills of exception.</p>

<p>1. Sunday Law—Evidence.</p> <p>Where one of the counts in the indictment was for opening and keeping open his place of business for the purpose of trade and traffic, it was competent to prove by a witness that he had bought whisky from defendant on the alleged Sunday.</p> <p>2. Witness—Impeachment.</p> <p>It is not competent to attack the credibility of a witness by asking him if he was not afflicted with a loathsome disease.</p> <p>3. Defendant as Witness—Impeachment.</p> <p>A defendant testifying in his own behalf may be cross-examined as to any matter affecting his credibility.</p> <p>4. Misdemeanor—Indictment—Counts—Election.</p> <p>Where the ease is a misdemeanor and the indictment contains two allegations, either of which if found true would constitute an offense, the State can not be compelled to elect upon' which a conviction would be claimed.</p>

<p>1. Continuance.</p> <p>It was not error to refuse an application for continuance where the absent testimony would have been merely cumulative of testimony which was adduced at the trial, nor where the proposed absent testimony would not be material, nor where it would be purely of an impeaching character.</p> <p>2. Evidence After Argument Has Begun—Practice.</p> <p>The admission of testimony after argument has begun (Code of Criminal Procedure, article 698) is a matter in the sound discretion of the court, and a refusal to admit such testimony affords no ground for error unless there has been an abuse of the court’s discretion.</p> <p>3. Improper Argument—Practice on Appeal.</p> <p>Improper remarks of the State’s counsel will riot be reviewed on appeal where defendant asked no charge of the court instructing the jury to disregard said remarks.</p> <p>4. Witness—Leading Questions—Bill of Exceptions.</p> <p>A bill of exceptions to the court’s permitting leading questions to be asked a witness should show the connection in which the questions were asked and negative the fact that the circumstances surrounding the witness were such as to authorize leading questions to be asked.</p> <p>5. Hape—Charge.</p> <p>On a trial for rape, where the evidence depends solely upon the testimony of the injured female, while it is the duty of the jury to exercise great care and scrutiny in arriving at their verdict, there is no rule of law which requires the court to so instruct them. Gazley v. State, 17 Texas Criminal Appeals, 267, distinguished.</p>

<p>Appeal from the District Court of Houston. Tried below before Hon. A. D. Lipscomb.</p> <p>Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with the murder of one Jones Reinhardt, on June 26, 1899, by shooting him with a gun. The opinion below states all the important facts attendant upon the homicide. The main questions discussed on this appeal relate to errors in the charge of the court upon excusable homicide by accident and self-defense, which portions of the charge are set out in the opinion.</p>

<p>1. Gambling House—Indictment.</p> <p>A common gambling house is a public place, and it is immaterial that the pleader in the indictment called the gaming house a public place instead of a public house.</p> <p>2. Charge of Court.</p> <p>On a charge of playing cards at a public place, applying the law to the facts the . court charged the jury, “if defendant did then and there play at a game with cards in a gaming house, then you are instructed to find him guilty and assess his punishment.” Held, this being a direct application of the law to the facts, was ¡sufficient.</p> <p>3. Counts in Indictment.</p> <p>Where several counts in an indictment, any one of which is good, are submitted to the jury, and the evidence supports such good count, it will be applied to the good count.</p>

The opinion of the court below being limited to the question of the validity of the substitution of the indictment, renders a statement of the facts unnecessary.

Tried helow before Hon. Chaeles F. Clint. Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with the murder of Jim Peel, on the 20th day of January, 1898, by shooting him with a pistol. The following statement of the case, which is substantially correct, is taken from the brief of counsel for appellant.

<p>Murder—Self-Defense—Charge.</p> <p>On a trial for murder, where the killing occurred in a sudden broil and there was no evidence of any previous difficulty between the parties, and where the court in the charge upon self-defense, after grouping the facts, told the jury to find defendant not guilty unless he acted “in pursuance of a design theretofore formed;” Held, the charge was erroneous in that it did not tell the jury that such previously formed design must have been “unlawful;” it utterly destroyed defendant’s right of self-defense by qualifying it by a supposed state of facts not in evidence, and left the jury in such a confused state as that they could not make an intelligent application of said charge.</p>

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

Tried below before Hon. J. 0. Woodward. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. This is a companion case to Jeff Taylor v. State, ante, p. 564. The indictment charged appellant with the murder of Lee Johnson on June 9, 1898, by shooting him with a gun and pistol. The murder was committed in the attempted perpetration of a train robbery.

The indictment charged appellant with the libel of John D. Fields. 'The libel was charged to have been committed by the writing and circulation of a certain pamphlet which contained libelous matter. The indictment was framed in the usual form down to the pamphlet said to contain the obnoxious matter, at which point the pamphlet, or one of the copies of it, was attached, and made part of the indictment in extenso and haec verba, including the title on outside title page.

<p>No statement necessary.</p>

<p>1. Indictment—When Sufficient—Surplusage.</p> <p>If after eliminating surplusage, an indictment so avers the constituent elements of the offense as to apprise defendant of the charge against him and enable him to plead the judgment in bar of another prosecution, it is good under our code and sufficiently charges the offense.</p> <p>8. Same—Assault with Intent to Commit Bobbery.</p> <p>In an indictment for assault with intent to rob one C., the indictment alleged that on the date and at the place mentioned defendant “did in and up,” instead of “upon” C., make an assault; Held, it being further alleged that defendant “did make an assault and did then and there by said assault and violence upon the said C. and by putting said C. in fear of his life and bodily injury, attempt fraudulently to take from the person,” etc., and by eliminating the words “in and up” (which were surplusage) the assault was sufficiently charged.</p>

<p>1. Indictment—Variance in Name—Surplusage.</p> <p>If the name of a person be misnamed in an indictment, and the allegation in which the misnomer occurs be immaterial, so that it may be rejected as surplusage, it will not vitiate the indictment.</p> <p>2. Same—Hog-Theft.</p> <p>In an indictment for hog-theft, where the name of the owner has been properly alleged, the subsequent allegation, which substituted by mistake the name of the defendant in place of the said owner in connection with the deprivation of the owner of the value of the property, can be treated as surplusage, since the name of the owner was not necessary to be repeated in this particular allegation.</p>

<p>1. Assault to Murder—Evidence—Malice—Motive.</p> <p>On a trial for assault with intent to murder, where it appeared that the prosecutrix was defendant’s divorced wife, evidence was admissible to show a previous assault by defendant upon the mother of prosecutrix because she interceded with him in behalf of her daughter, whom he was beating prior to the divorce. Such evidence was competent to show the motive, animus, and malice of defendant towards prosecutrix.</p> <p>2. Same—Charge of Court Limiting and Restricting.</p> <p>' On a trial for assault with intent to murder, where evidence of previous assault by defendant upon prosecutrix has been admitted, and where such testimony could not have been considered and used by the jury for any other purpose than as it might illustrate defendant’s motive, malice, and intent in the case on trial, it was not obligatory upon the trial court to limit and restrict such testimony in his charge to any specific intent.</p> <p>3. Same—Remote Evidence.</p> <p>On a trial for assault by defendant upon his divorced wife with intent to murder her, evidence of previous assault upon her is not bbnoxious to the objection that it is too remote because afterwards his wife became reconciled to and lived with him until the divorce. Such evidence was admissible to show intent, motive and malice.</p> <p>4. Assault with Intent to Murder—Constituents of.</p> <p>It is not necessary that there should be "a deliberately forméd intent to kill” to constitute an assault with intent to murder. It is sufficient if the intent to kill arose from a sudden impulse without adequate cause, and the malice actuating the intent may be express or implied.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without any written opinion.—Reporter.]</p>

<p>1. Cattle-Theft—Expert Evidence as to Hides.</p> <p>Witnesses who are cattlemen and have qualified as experts in the cattle and hide business -may testify that in their opinion certain hides which they have seen and examined were taken from animals recently slaughtered and not taken from animals that died of natural causes.</p> <p>2. Same—Declarations of Defendant.</p> <p>On a trial for cattle-theft, where the State has not introduced any portion of defendant’s conversation with the sheriff after he was put in jail, it is not competent for defendant to prove such conversation and his statements made to the sheriff. Such declarations and statements of defendant as to the stolen animals are only admissible as to his possession when he is first found in possession of the animal and his right thereto had been challenged.</p> <p>3. Bill of Exceptions to Excluded Testimony.</p> <p>A bill of exceptions to the exclusion of testimony must show the object in. desiring such testimony.</p> <p>4. Defendant as a Witness—Cross-Examination.</p> <p>On a trial for cattle-theft, where a defendant on cross-examination is asked, “Is it not a fact that every Monday morning for a year or so * * * you bought, and sold from two to five hides?” to which he answered in the negative, this eliminated an objection that the question related to distinct transactions, and his answer was not calculated to prejudice him.</p> <p>5. Same.</p> <p>On a trial for cattle-theft it was not error to exclude testimony as to how much money defendant had made cutting and selling hay, nor in refusing to. permit defendant to testify as to his reasons for skinning cattle.</p> <p>6. Cattle-Theft—Expert Evidence.</p> <p>On a trial for cattle-theft a witness can not be permitted to give his opinion, as an expert unless he is shown to be an expert. And it is not within the-category of expert evidence that four head of cattle could not have died in the same vicinity at the same time unless they died from some prevalent disease.</p> <p>7. Same.</p> <p>On a trial for cattle-theft, where one of the inculpatory facts was that defendant had sold the hide of the animals, it is not competent to prove by an expert what he could do with reference to catching, choking, and skinning cattle. It would have been admissible for such witness to state what -a party who was experienced in the business could do in the way of roping and choking cattle to-death and then skinning them, and the time that would be thus employed. Disapproving Tyler v. State, 11 Texas Criminal Appeals, 388.</p> <p>8. Same—Evidence—Verbal Acts—Defendant’s Declarations.</p> <p>On a trial for cattle-theft, where the State’s theory was that defendant killed the animal and skinned it for the purpose of selling the hide, but the State had introduced no inculpatory testimony as to defendant’s skinning cattle on a certain particular occasion, it was incompetent for defendant to prove his declarations as he started from home on that occasion as to what he had seen and what he was going to do as a part of the res gestae of his act in skinning cattle on said ■occasion. The rule that a party may prove his verbal acts as explanatory of certain facts does not mean that he can prove some irrelevant fact in order to introduce his statement in regard thereto made at the time and not exculpatory of any fact proved against him.</p>

<p>Ho statement necessary.</p>

<p>The opinion sets out the charging part of the indictment. Ho statement necessary.</p>

. The opinion sets out the charging part of the first count of the information upon which the conviction was had, and the opinions state, the case sufficiently.

<p>1. Burglary—Ownership—Variance.</p> <p>On a prosecution for burglary the indictment alleged ownership of the house and property in one S. The proof showed that a mercantile corporation composed of several persons was the occupant and owner of the house and property, but that S., the alleged owner, was the manager of said mercantile business and had the actual care and control of the same. Held, no variance between the allegation and proof.</p> <p>8. Defendant’s Confession—Circumstantial Evidence—Charge.</p> <p>On a'trial for burglary, where the defendant’s confession of the burglary is proved, it is not error for the court to fail to charge upon circumstantial evidence.</p>