Volume 42 — Texas Criminal Reports

Tried below before Hon. D. A. Paulus, County Judge. Appeal from a conviction for permitting a game of craps to be played in a house for retailing liquor; penalty, a fine of $50. The opinion states the case.

Tried below before Hon. A. H. Carrigan. Appeal from a conviction of burglary; penalty, three years imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

<p>Appeal from the County Court of Gonzales. Tried below before Hon. W. W. Glass, County Judge.</p> <p>Appeal from a conviction of illegally practicing medicine; penalty, a fine of $50.</p> <p>Ho statement necessary.</p>

<p>Appeal from the Comity Court of Bosque. Tried below before Hon. H. C. Cooke, County Judge.</p> <p>Appeal from a conviction of violating local option, penalty, a fine of $25, and twenty days imprisonment in the county jail.</p> <p>Ho statement necessary.</p>

<p>1. Accomplice Testimony—Charge.</p> <p>A charge upon accomplice testimony should embrace and be applied to all the witnesses shown to have been criminally connected with the transaction, and where there is a question as to whether a witness was or not so criminally connected with the transaction as to make him an accomplice, it should be left to the jury to determine the question.</p> <p>2. Former Jeopardy—Postponement as to Plea—Practice.</p> <p>On a trial for cattle-theft, when the case was called defendant requested the court to postpone this case until a jury had returned a verdict in another case they were out considering for defacing the brand on the same animal and which involved the same facts; Held, the motion to postpone should have been granted, as the jeopardy in the theft case would be complete if the facts sustained it.</p>

Tried below before Hon. Wells Thompson. Appeal from a conviction of defacing the brand upon one head of cattle; penalty, two years imprisonment in the penitentiary. Ho statement necessary.

Tried below before Hon. C. W. Cotton, County Judge. Appeal from a conviction of selling intoxicating liquor in a local option territory without first having obtained a license; penalty, a fine of $300. Ho statement necessary.

<p>Defacing Mark and Brand—Allegation of Ownership.</p> <p>The indictment for defacing the mark and brand upon cattle alleged ownership of the cattle in N. W. The proof showed that N. W., the owner, had loaned the animal (a cow) to his brother D. W., living some ten or fifteen miles from N. W., the owner, and that D. W. had the care, custody, and control of the cow. Held, the proof did not sustain the allegation. The indictment should, as in theft, have alleged ownership in N. W., the real owner, with possession in D. W., or should have alleged the ownership alone in D. W., the special owner.</p>

The indictment charged appellant with the seduction of Hora Livingston, an unmarried woman under the age of twenty-five years, by means of and in virtue of his (appellant’s) promise to marry her. The seduction was alleged to have been accomplished on or about the 1st of June, 1898. On the 18th of March, 1899, Hora Livingston died. The indictment was presented to and filed in court on May 3, 1899.

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

Tried below before Hon. M. Kennon. Appeal from a conviction of robbery; penalty, ten years imprisonment in the penitentiary. The indictment charged appellant with the robbery of one Jim Brooks on the 18th of October, 1899, by assault and by violence and putting Brooks in fear of life and bodily injury. Seven dollars was the amount of money taken by defendant from said Brooks. In brief the evidence was that the parties agreed to play until one of them was broken at the game.

<p>1. Reassembling Grand Jury—Practice.</p> <p>Where a grand jury after having been discharged is reassembled as provided in article 411, Code of Criminal Procedure, and one of the members of said original grand jury who appears and is in attendance is disqualified, it is the proper practice to excuse him and impanel another qualified grand juror in his stead. The impanelment of such new grand juror does not create a grand jury of thirteen men nor upon that ground invalidate an indictment found by them. Following Trevinio v. State, 27 Texas Criminal Appeals, 372. Henderson, Judge, dissenting.</p> <p>2. Murder—Self-Defense—“Serious Bodily Harm”—Charge.</p> <p>On a trial for murder, where the evidence showed that deceased made an assault upon defendant with a pistol, and the court charged upon the right of defense upon appearance of danger, the mere absence of a statement in the charge that defendant had the right to defend against “danger of serious bodily harm” was harmless error, unless there was some evidence that the assault was one intended to inflict serious bodily harm and not death.</p> <p>3. Same—Provoking Difficulty—Charge.</p> <p>It is not necessary for the court in charging upon provoking the difficulty to tell the jury the facts upon which they can find that defendant has provoked the difficulty. The proper practice is to tell the jury that if defendant provoked the difficulty with the intention to kill he would be guilty of either murder in the first or second degree as the ease may be upon the facts; or if defendant provoked the difficulty without such apparent intention, he would be guilty of manslaughter. A contrary holding in Mozee v. State, 51 Southwestern Reporter, 250, is dicta.</p> <p>4. Same—Provoking Difficulty.</p> <p>The whole matter of provoking a difficulty depends upon the intent of defendant. If defendant intends to provoke the difficulty and uses such means as he thinks will and does provoke it, it is immaterial whether the provoking means used by him were reasonably calculated to provoke the difficulty or not.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.] .</p>

. Appeal, from the County Court of Bosque. Tried below before Hon. H. C. Cooke, County Judge. Appeal from a conviction of violating local option in Precinct No. 4, of Bosque County; penalty, a fine of $25, and twenty days imprisonment in the county jail. The opinion states the case.

<p>Appeal from the District Court of Coryell. Tried below before Hon. J. S. Straughan.</p> <p>Appeal from a conviction of murder in the second degree; penalty, seventeen and one-half years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with the murder of Hill Walton, on the 5th day of March, 1899, by shooting him with a pistol.</p> <p>All the essential facts adduced in evidence on the trial are stated in the opinion of the court, and the bills of exception which are discussed need no further illustration from the record.</p>

Tried below before Hon. J. S. Straughan. Appeal from a conviction as a principal, to murder in the first degree; penalty, death. The indictment charged appellant with the murder of John Adams, on the 18th day of December, 1897, by shooting him with a gun. The first appeal in the matter of this killing was Ex parte Tom Wright et al., 39 Texas Criminal Reports, 193, and see the companion case of Tom Wright v. State, 40 Texas Criminal Reports, 447.

Tried below before Hon. John M. Furman. Appeal from a conviction of uttering and passing a forged instrument; penalty, two years imprisonment in the penitentiary. Ho statement of facts in the record.

Tried below before Hon. Ben. W. Fly, County Judge. Appeal from a conviction of breaking, pulling down, etc., the fence of another; penalty, a fine of $25. Ho statement required. .

<p>Appeal from the District Court of Collin. Tried below before Hon. J. E. Dillard.</p> <p>Appeal from a conviction of rape upon a female under the age of fifteen years; penalty, five years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with rape upon Hora Rogers, a female under the age of fifteen years and not the wife of appellant. The date of his alleged offense was stated to be on or about the 15th day of July, 1899.</p> <p>The opinion states the material evidence in the case.</p>

Tried below before Hon. E. D. McClellan. Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary. The indictment charged appellant with the murder of Davie Wig gins on the 21st day of November, 1898, by shooting him with a pistol.

<p>Appeal from the District Court of McLennan. Tried below before Hon. Sam R. Scott.</p> <p>Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary.</p> <p>The indictment charged appellant and one W. M. Gates jointly with the murder of Francis M. B. Stripling, on the 13th day of October, 1894, by shooting him with a gun. In this ease defendant J. M. Sebastian was alone tried. This is the second appeal in this case. See Sebastian v. State, 41 Texas Crim. Bep., 248. This appeal is disposed of on errors in the charge of the court, which are fully set out in the opinion.</p>

Tried below before Hon. G. A. Brown. Appeal from a conviction of burglary; penalty, two j’ears imprisonment in the penitentiary. The indictment charged George Johnson, Charlie Boss, and Horace Jones with the burglary of the private residence of O. A. Swinburne. They were jointly tried and jointly convicted. There is no statement of facts and no bill of exceptions in the record.

Tried below before Hon. G. A. Brown: Appeal from a conviction of theft; penalty, five years imprisonment of each defendant in the penitentiary. The indictment charged George Johnson, Horace Jones, and Charlie Ross jointly with the theft, and they were tried jointly, the verdict rendered being the same as copied in the third paragraph of the syllabus above. This is a companion case to Johnson v. State, ante, p. 87, and grows out of the same transaction.

Tried below before Hon. Irby Dunklin. • Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary. Ho statement required.

<p>1. Contempt—Imprisonment for Debt.</p> <p>A judgment for a sum of money agreed to be paid in a divorce proceeding is a judgment for a debt, and a party failing to pay the same can not in contempt, proceeding be imprisoned for its nonpayment. Imprisonment for debt is expressly prohibited by our Constitution, Bill of Rights, section 18.</p> <p>2. Same—Disobeying Judgment in Divorce Proceeding.</p> <p>A judgment adjudging relator guilty of contempt because of his failure to comply with a judgment of said court in a divorce proceeding is ab initio void,— the court having no jurisdiction to make such order.</p>

Tried below before Hon. P. D. Sanders. 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 Tom Pitner, on the 16th day of September, 1899, by shooting him with a pistol and gun. The record is very voluminous, but the material facts in evidence are sufficiently stated, in the opinion.

Tried below before Hon. Charles F. Clint. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. The appellant was charged in four counts by the indictment with the murder of Frances Cervinka, on the 19th day of July, 1893.

<p>Appeal from the District Court of Shelby. Tried below before Hon. Tom C. Davis.</p> <p>Appeal from a conviction of murder in the first degree; penalty, death. The indictment charged appellant with the murder of Rosa Honeycutton the 21st day of January, 1900, but cutting and stabbing her with a knife. All the important facts are briefly but very lucidly summarized in the opinion.</p> <p>No additional statement is required.</p>

Tried below before Hon. J. W. Parker, Special Judge. Appeal from a conviction of accessory to the theft of cattle; penalty, two years imprisonment in the penitentiary. The indictment charged that one John M. Harris stole the animal which was the property of W. M. Savage, on the 1st of March, 1899. The opinion sets out the other portion of the indictment which charges appellant as an accessory to the theft.

Tried below before Hon. Wells Thompson. Appeal from a conviction of manslaughter; penalty three years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of Abe Harshaw on May 25, 1899, by shooting him with a gun.

<p>1. Theft of Cattle—Opinion Evidence—Identification of Property.</p> <p>On a trial for theft of cattle, where a witness testified that the sheriff had telephoned him that he had captured the thief and wanted him to come and identify defendant’s horse, and that he went to the place and did identify the horse and pointed him out among other horses, Held, the evidence was inadmissible and incompetent, since it was simply opinion evidence of the sheriff that defendant was the theif and opinion evidence of the witness that the horse he pointed out was defendant’s. Following Cannada v. State, 29 Texas Criminal Appeals, 537.</p> <p>2. Same—Alibi—Charge.</p> <p>On a trial for theft of cattle, where the evidence tended to show defendant’s presence in charge of the cattle some twenty-five or thirty miles from where said cattle were taken, and the charge upon alibi required defendant’s absence not only from the original taking but also from the possession of the cattle en route and at the place twenty-five or thirty miles distant, Held, error; the alibi did not depend upon the concurrence of both facts.</p> <p>3. Same—Evidence—Contemporaneous Thefts.</p> <p>On a trial for cattle-theft, where the prosecution relied upon circumstantial evidence, testimony is admissible to show that other animals were found in possession of the accused parties that had disappeared at the same time as the animal alleged in the indictment. It was part of the res gestae of the transaction and admissible as tending to develop the case.</p>

This is the second appeal in this case. See Martin v. State, 40 Texas Criminal Beports, 660, and the facts attendant upon the homicide can be sufficiently gathered from these two appeals.

<p>1. Sunday Law—Constitutional Law.</p> <p>Sunday laws are almost universally held constitutional as being within the police power of the State.</p> <p>2. Same—Barbers.</p> <p>The business of a barber in shaving, etc., his customers is a matter of convenience and not a work of necessity or charity, and such occupation comes within and is not excepted by the statute, article 196, Penal Code, prohibiting all persons from laboring on Sunday.</p>

Tried below before Hon. W. W. Glass, County Judge. Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $35. J. M. Whitesides testified that he is defendant’s father, and that defendant, at the time charged, lived with witness, at his house, on the place of Dr. Jones. Witness rented a part of Dr. Jones’ farm, and was permitted by him to use the pasture for his stock. There was no limit to the number of stock he was to put in the pasture.

county of Henderson. .Tried below before Hon. A. D. Lipscomb. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. The appellant was charged by the indictment, together with Joe Wilkcrson, Walter Wilkerson, W. B. Brooks, Sam Hall, W. A. Johns, and John Gaddis, with the murder of Jim Humphries by hanging him with a rope to a tree, on the 23d day of May, 1899, in Henderson County.

Tried below before Hon. M. F. Lowe. Appeal from a conviction of cattle-theft; penalty, two years imprisonment in the penitentiary. The indictment charged appellant alone with the theft of cattle, the property of W. J. Slaughter. One Tom Sharp was by another separate indictment charged with the theft of the same animal.

Appellant was charged by the indictment with the murder of J. H. Ragland, on the '3d of July, 1898, by shooting him with a gun. Defendant and deceased were brothers-in-law, defendant having married a sister of deceased.

<p>1. Bill of Exceptions—Striking Out After Approval—Practice.</p> <p>Where an erroneous or incorrect bill of exceptions has been approved and filed, the trial court may, upon motion and after due notice during the term, subsequently strike out or correct the same, as the truth of the matter may require. The court has authority to make the matter appear of record as it actually occurred.</p> <p>2. Murder—Evidence—Acts and Declarations of Conspirators.</p> <p>Acts and declarations of conspirators to a murder, even though made prior to the homicide, are admissible against those subsequently entering into and participating in the homicide.</p> <p>3. Same—Charge.</p> <p>Where defendant’s connection with a conspiracy to commit murder, as testified by the State’s witnesses, consisted in part of his presence and participancy in a certain meeting where it was agreed to hang the deceased and which testimony was contradicted by defendant’s witnesses, who testified to facts showing he was not present but was elsewhere at the time; Held, it was not error for the court to fail to charge upon alibi as to that particular occasion where the other evidence abundantly established defendant’s connection with said conspiracy. Henderson, J., dissenting. /</p> <p>4. Murder—Charge—“Malice Aforethought.”</p> <p>On a trial for murder, where, in defining “malice aforethought,” the court instructed the jury: “Malice aforethought is a term used in law to designate the wicked and mischievous intent with which a man willfully does a wrongful act, and it is to be inferred from acts committed and words spoken;” and, then followed this by an explanation of what constituted express malice; Held, the I definition of “malice aforethought” was sufficiently clear and explicit, although not couched in the exact terms generally used and commended for such definition.</p> <p>5. Accomplice to Murder—Who Is.</p> <p>A party who enters into a conspiracy with others subsequently committing the murder is an accomplice to the murder, although he was not present at its commission. Henderson, J., dissenting.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>1. Murder by Negro—Constitutional Law—Equal Protection.</p> <p>On the trial of a negro for killing a white woman, a motion to quash the indictment should have been sustained which was supported by evidence to the effect that there was great race prejudice against the negroes in the county; that the district judge had selected only white persons as jury commissioners, and that said jury commissioners had selected only white persons as grand jurors and had excluded negroes from service on the petit juries whilst there were many negroes in the county competent and qualified under the law to serve both as jury commissioners and as jurors. Where persons of the African race are excluded solely because of their race or color from serving as grand jurors in the criminal prosecutions of persons of the African race, the equal protection of the law is denied them contrary to the Fourteenth Amendment of the Constitution of the United States.</p> <p>2. Same—Objection to Grand Jury—Plea in Abatement, and Motion to Quash Indictment.</p> <p>Where a negro charged in the indictment with the murder of a white person has had no opportunity to challenge the grand jury which found the indictment against him, the objection to the constitution of the grand jury because negroes were excluded from service upon the same may be taken either by plea in abatement or by motion to quash the indictment.</p>

Tried below before Hon. John M. Furman. Appeal from a conviction, for failing to pay the occupation tax as a peddler; penalty, a fine of $10. The opinion states the case.

Tried below before Hon. J. E. Dillard. Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary. The charging part of the indictment, which was claimed to be insufficient, is set out in the opinion.

The indictment reads as follows, viz: In the name and by the authority of the State of Texas: The grand jurors for the county of Jackson, State aforesaid, duly organized as such at the November term, A. D. 1899, of the District Court of said county, upon their oaths in said court present that on or about the 30th day of October, A. D. 1899, in the county and State aforesaid, in the Justice Court of Precinct No. 1 of Jackson County, Texas, said justice court then in session…

<p>Appeal from the County Court of Parker. Tried below before Hon. I. N. Roach, County Judge.</p> <p>Appeal from a conviction of gaming; penalty, a fine of $10.</p> <p>The case is stated in the opinion.</p>

Appellant was charged by the indictment with the murder of Mrs. S. E. Whitesides, by shooting her with a pistol on the 30th day of March, 1899. • This is the second appeal in this case. See Spangler v. State, 41 Texas Crim. Rep., 424. The essential facts pertaining to the killing will be seen by reference to the reported case on the former appeal, and a brief statement ■ will also be found recapitulated in the opinion below.

Tried below before Hon. A. L. McLean. Appeal from a conviction of cattle-theft; penalty, two years confinement in the penitentiary. No statement of the case required.

<p>1. Habeas Corpus—Jurisdiction of Court of Criminal Appeals.</p> <p>The writ of habeas corpus will be originally granted by the Court of Criminal Appeals in extraordinary cases, as where the proceeding is void, and an appeal will not be an adequate remedy.</p> <p>2. Same—City Ordinance.</p> <p>The writ of habeas corpus is the proper remedy, and relief will be granted under it as against a city ordinance where the ordinance is so unreasonable as to be void.</p> <p>3. City Ordinance—Tenpin Alleys.</p> <p>The statutory power conferred upon a municipal corporation to regulate tenpin alleys does not properly include the power to suppress or prohibit them; and an ordinance which, in locating its place of operation away from the business portion and public thoroughfares of the city, practically destroys its use and purposes as a legal occupation is therefore unreasonable and void.</p>

<p>1. Theft of Animals—Indictment.</p> <p>An indictment charging the theft of a domestic animal, charges the theft of a live animal, and the proof to sustain the charge must show the subject of the theft to be a live animal.</p> <p>2. Theft of Hogs—Venue of Prosecution—Construction of Statute.</p> <p>Article 235, Code of Criminal Procedure, which provides that where property is stolen in one county and carried by offender into another, he may be prosecuted in either, must be construed, with reference to a charge of theft of hogs, to mean live hogs. If the animals were killed in the county where stolen, and " the meat is carried. into another county, this would not sustain the charge of theft of the animal. Where the nature of the property has been changed before being brought into the county of the prosecution, it must be described in the indictment in the form in which it was brought into the county.</p>

Tried below before Hon. A. H. Carrigan. Appeal from a conviction of theft of hogs; penalty, two years imprisonment in the penitentiary. This is a companion case to Ballow v. State, ante, p. 261, and the facts are sufficiently shown in the opinion in that case.

Tried below before Hon. P. D. Sanders. Appeal from a conviction of murder in the second degree; penalty, forty-four years in the penitentiary. Appellant was charged by the indictment with the murder of Jim Holan, by shooting him with a gun, on the 21st day of April, 1900. It appears from the evidence, briefly stated, that G. W. Terry, with whom deceased lived, and defendant, T. C. Stanton, lived adjoining each other on the same section of land.

Tried below before Hon. A. H. Carrigan. Appeal from a conviction of hog theft; penalty, two years imprisonment in the penitentiary. This is a companion case to Ballow v. State, ante, p. 261. The case is sufficiently stated in the opinion.

Tried below before Hon. A. H. Cardigan. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with the burglary of the house of one W. J. Shaw, and the theft therefrom of thirty bushels of oats. One W. M. Ballow was indicted separately for the same offense, and, after this appellant was convicted, the said Ballow was tried in his case and acquitted.

<p>The Assistant Attorney-General moved to dismiss the appeal because the amount of the fine in the district court being less than $100, the Court of Criminal Appeals had no jurisdiction.</p>

There is no statement of facts in the record. The motions to quash the indictment and the special venire are fully shown in the opinion.

Defendant filed motions to quash the indictment and the special venire upon the ground that he, being a negro, was denied the equal protection of the law under the Fourteenth Amendment of the United States Constitution, in that negroes were intentionally excluded from said grand jury and special venire. The overruling of these motions are the only questions’ discussed on this appeal.

<p>Appeal from the District Court of Waller. Tried below before Hon. Wells Thompson.</p> <p>Appeal from a conviction of theft of a hog; penalty, two years imprisonment in the penitentiary.</p> <p>Ho statement of the case necessary, inasmuch as the appeal is disposed of on the question of defendant’s plea of former jeopardy, which is fully shown by the opinion.</p>

Tried below before Hon. -M. F. Lowe. Appeal from a conviction of conspiracy to commit theft of cattle; penalty, three years imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

William Hodges, County Judge. Appeal from a conviction for violating local option; penalty, a fine of $25 and twenty days imprisonment in the county jail. The case is sufficiently stated in the opinion.

<p>The opinion sets out the indictment.</p> <p>No statement necessary.</p>

Tried below before Hon. Tom C. Davis. Appeal from a conviction of assault with intent to rape; penalty, two years imprisonment in the penitentiary. Appellant was charged by the indictment with the rape of Arrena Johnson, a female under the age of. fifteen years and not his wife. No statement of the case necessary.

Tried below before Hon. Tom C. Davis. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. Defendant’s motion in arrest of judgment, attacking the sufficiency of the indictment, was overruled, and the correctness of this ruling is the only question discussed on the appeal. The indictment is substantially set out in the opinion.

Tried below before Hon. K. E. Brooks. Appeal from a conviction of assault with intent to commit rape; penalty, five ;rears imprisonment in the penitentiary. The opinion states the essential facts in the case.

<p>1. Theft of Cattle—Evidence—Unrecorded Brand.</p> <p>On the trial for theft of an animal, an unrecorded brand on the animal can only be used as any other flesh mark to identify the animal—it is not evidence of ownership.</p> <p>2. Same—Certified Copy of Brand Recorded Subsequent to the Theft—Charge of Court.</p> <p>On a trial for theft of cattle, where a certified copy of a brand, recorded subsequent to the alleged theft, was introduced in evidence, it was the duty of the court, in the charge, to guard the jury against the use of such evidence as evidence of ownership, where it might likely be so used, and to limit its effect simply to the purpose of identifying the animal.</p>

Tried below before Hon. A. C. Allen. Appeal from a conviction for murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of one Jim Beck on the 3d of May, 1899, by cutting and stabbing him with a knife. The disposition of the case on this appeal renders a general statement unnecessary, there being but one question discussed, which is fully stated in the opinion.

Tried below before Hon. R. N. Lindsey. Appeal from a conviction of incest; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with incest with his stepdaughter, one Viola Huclcaby. The statement of facts, not having been filed in time, was not considered on this appeal. The questions raised by the bills of exceptions are fully illustrated in the opinion.

The indictment charged appellant F. A. Brooks and A. B. Brooks, and Maggie Bose with the murder of an unknown man (a description of whom is given) on the 30th of May, 1899, by mingling and causing to be mingled with beer certain poisons, to wit, laudanum, morphine, and opium, with intent to kill and murder said person; they well knowing that said hpman being would drink and swallow said poisoned beer, etc. At January term, 1900, a severance was granted upon request of F. A.…

Tried below before Hon. E. D. Cavin. Appeal from a conviction for failing to make report of fees collected as district attorney; penalty, a fine of $25. Defendant filed a motion to quash the indictment on the following grounds, to wit: 1. Because the indictment charges no offense against the laws of this State. 2.

Tried below before. Hon. A. C. Allen. Appeal from a conviction under an indictment which charged both forgery and uttering a forged instrument; penalty, two years imprisonment in the penitentiary. The instrument charged to have been forged and uttered reads as follows, viz: “$500. Houston, Texas, Oct. 19th, 1897.

<p>1. Change of Venue.</p> <p>Where appellant made a motion to change the venue from H. County, upon both the statutory grounds, and the court proposed to change the venue to A. County, to which defendant objected upon the ground that the same influences and' prejudices existed against him in A. County as in H. County, which objection was overruled by the court and the venue changed to A. County; Held, no error. If the causes did exist in A. County, defendant should have moved in that county to change the venue to some other county.</p> <p>2. Same—Motion to Retransfer.</p> <p>Where there were pending in H. County two indictments or cases for the same murder, and defendant made an application for change of venue in the first case, and all the orders and trial of the motions were in said first case, but the venue was in fact ordered changed to A County in the second case, in which defendant had not been arrested and arraigned; Held, the venue was improperly charged to A. County, and .it was error to overrule defendant’s motion to retransfer the case to H. County.</p> <p>3. Murder—Malice Aforethought—Charge.</p> <p>On a trial for murder where the court charged the jury that, “It is not necessary that the slayer should have greater enmity against the perscon killed than against others, nor need any enmity be shown in order to constitute legal malice. And, if the homicide be intentional, unlawful, and without excuse or justification, no previous design to kill need be shown in order to constitute malice aforethought; it may be a sudden, rash impulse.” Held, erroneous.</p> <p>4. Same—Self-Defense—Charge.</p> <p>On a trial for murder, where the court instructed the jury, in effect, that, if the acts or words of the deceased were such as raised, in the mind of the slayer, a reasonable expectation of fear of death, etc., then the killing would be justified or excused according as the apprehension was correct or not. Held, the expression, “according as the apprehension was correct or not,” was erroneous. Self-defense does not depend upon the slayer’s correct apprehension of apparent danger.</p> <p>5. Same—Evidence—Fabrication of—Rebuttal.</p> <p>On a trial for murder where the State had introduced testimony tending to show that defendant, through his son, had attempted to fabricate or fix up eveidence in his behalf, defendant had the right to rebut such testimony and remove its effect from the minds of the jury.</p> <p>6. Fabrication of Evidence by Third Party—Inadmissible, Unless, etc.</p> <p>The fabrication or attempted fabrication of evidence by a third party, even the son of defendant, is totally inadmissible against defendant, unless the defendant is connected with or authorized the act of the son in so doing.</p> <p>7. Continuance—Evidence as to.</p> <p>It is not competent on the trial of a case to introduce evidence with regard to the absence of a witness named in an application for continuance. It is not a question of inquiry before the jury.</p>

Tried below before Hon. John M. Furman. Appeal from a conviction of embezzlement of a horse; penalty, two years imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. L. A. Clark. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of Fayette Wilson, on the 13th day of Septemebr, 1899, by shooting him with a pistol.

<p>Appeal from the County Court of Brath. Tried below before Hon. L. N. Frank, County Judge.</p> <p>' Appeal from a conviction of gaming; penalty, a fine of $10.</p> <p>The opinion states the case.</p>

Tried below before Hon. J. C. Smith, County Judge. Appeal from a judgment of dismissal, in the county court, of an appeal from a justice court, because no notice of appeal had been given and entered in said justice court. No further statement required.

Tried below before Hon. E. D. Catikt. Appeal from a judgment final upon a fine of $100 for contempt of court in not properly serving and returning a subpoena for a witness in a criminal case. The case is stated in the opinion.

<p>1. Witness—Impeachment—Supporting Testimony.</p> <p>Where a witness has been impeached by proof of his contradictory statements, it is competent to prove that he had formerly made a statement in regard to the matter similar to, and corroborative of, his statement on the trial shortly after the transaction occurred.</p> <p>2. Homicide—Weapon Used—Intent to Kill—Manslaughter—Aggravated Assault—Charge.</p> <p>Under our stautes, Penal Code, articles 717-720, in every case of homicide, where it becomes a question whether there was an intention to kill on the part of the slayer suggested by the character of the weapon used, as where it is not per se a deadly one, it is the duty of the court, in its charge to the jury, to submit the issue of manslaughter; and, furthermore, if there was no intention to kill, he should submit the issue of aggravated assault.</p>

Tried below before Hon. A. J. Harper, County Judge. Appeal from a conviction for violating local option; penalty, a fine of $25 and twenty days imprisonment in the county jail. Apellant interposed a plea of former conviction to the effect that he had been convicted, at the same term of court, for selling intoxicating liquors without first procuring a license under the law of 1897 regulating the sale of intoxicating liquors in local option districts.

Tried below before Hon. Muneord Kennon. Appeal from a conviction for perjury; penalty, four years imprisonment in the penitentiary. The opinion states the case.

<p>Appeal from the District Court of Morris. Tried below before Hon. J. M. Talbot.</p> <p>' Appeal from a conviction of murder in the first degree; penalty, a life term imprisonment in the penitentiary.</p> <p>The indictment charged appellant with the murder of J. W. High on the 3d day of December, 1898, by shooting him with a pistol.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>1. Local Option—Sale, What Constitutes.</p> <p>Where the agent, in a local option district, for a brewing company manufacturing beer in another county, took an order from a purchaser at a stipulated price, including the freight, for certain casks of beer to be shipped from the brewery by rail and delivered to the purchaser in said local option district, and it was so shipped and delivered, this constituted a sale in the local option district and not in the county where the beer was manufactured and shipped.</p> <p>2. Same—Evidence—Contract by Agent.</p> <p>On a trial for violation of local option by an agent, the fact that the agent’s contracts of sale were subject to the ratification of the company he represented, was wholly immaterial and irrelevant, especially where it appeared that the company had ratified and completed his contract by shipping and delivering, the beer as contracted by him with the purchaser.</p> <p>3. Same—Principals.</p> <p>In misdemeanor cases, all parties involved in the offense are principals; and, where an agent of a brewing company contracts for the sale of beer by his company and his contract becomes completed, he is a principal in the offense, if an offense, notwithstanding the members of the company were partieeps crimmis in completing the contract.</p> <p>[ Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter. ]</p>

Appellant was charged by the indictment with the murder of M. M. Williams on the 3d day of February, 1899, by shooting him with a pistol. The facts leading up to, and attendant upon, the killing may be briefly summed up as follows: Defendant, Renfro, had been paying his attentions to Miss Hora Williams, a daughter of deceased, for about one and a half years prior to the filing of a complaint ugainst him by one.

Tried below before Hon. B. F. Mitchell, County Judge. Appeal from a conviction for permitting gaming in a house under appellant’s control; penalty, a fine of $25. The case is sufficiently stated in the opinion.

<p>Defendant made a motion to quash the indictment, which was overruled.</p>

<p>No statement necessary.</p>

Appeal 'from the County Court of Eastland. Tried below before Hon. G. W. Daban, County Judge. Appeal from a conviction in a corporation court for disturbance of the peace; penalty, a fine of $5. The opinion states the case.

<p>1. De Facto Officer—Assault Upon.</p> <p>Article 601, subdivision 1, denouncing the offense of assaulting an officer in the discharge of his duty, is intended to embrace, and does embrace, de facto as well as de jure officers.</p> <p>2. Same—What Constitutes.</p> <p>Where a person receives a valid appointment from the sheriff as his deputy, enters upon the discharge of his duties and has performed duties pertaining to his office under color of his appointment, this constitutes him a deputy sheriff de facto notwithstanding he has failed to comply with the statutory requirements of talcing the oath of office and filing his commission for record.</p> <p>3. Same—Charge of Court.</p> <p>On a trial for assaulting an officer in the discharge of his official duties, where the facts are made to appear as stated in paragraph 2, supra, the court may properly and correctly assume, in its charge to the jury, that the assaulted party was a de facto officer.</p> <p>4. Assaults—Intent to Injure—Charge of Court.</p> <p>In prosecutions for assaults, the intent to injure is the gist of the offense, and where the violence used is of slight character, or there is any suggestion that it was unintentional or accidental, the court should give the jury a charge to the effect that such violence must have been with intent to injure. See opinion for facts' requiring such a charge.</p>

Tried below before Hon. E. S. Chambers. Appeal from a conviction of seduction; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with the seduction of Katie Hervey, an unmarried female under the age of 25 years, under a promise of marriage. The seduction is alleged to have occurred on or about the 15th day of July, 1899. The prosecutrix was delivered of a child -in February, 1900.

Tried below before. Hon. J. M. Chism, County Judge. Appeal from a conviction of playing cards in a gaming house; penalty, a fine of $10. The opinion states the case.

Tried below before Hon. A. C. Alleh. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion sufficiently states the case.

Tried below before Hon. J. E. Dillard. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The Assistant Attorney-General moved to strike out the statement of facts, because not legally filed in the court below; which motion, it will be seen, the court sustained and refused to consider said statement. The other questions involved on the appeal are fully illustrated in the opinion.

<p>Appeal from the County Court of Tarrant. Tried below before Hon. M. B. Harris, County Judge.</p> <p>Appeal from a conviction of theft of property under the value of $50; penalty, a fine of $350, and sixty days imprisonment in the county jail.</p> <p>The indictment charged appellant with the theft of nine rings of the value of $30, and one pistol of the value of $5, belonging to, and from the possession of, H. Brodky.</p> <p>Brodky was a pawnbroker and defendant worked for him as his clerk a month or so and then notified him that he was going to Dallas, where he had a job. On the night before defendant left for Dallas, Brodky went into defendant’s room at his (Brodky’s) house, and, while defendant was asleep, took from defendant’s clothing over $200 and nine gold rings. . Defendant missed these articles on his way over to Dallas. He returned to Fort Worth and. charged Brodky with stealing the property. Brodky told him, in effect, that it would be all right; and, that night, when defendant was asleep, Brodky again went into his room and replaced the money and rings with defendant’s clothing. Defendant returned to Dallas, and Brodky, missing a number of articles from his pawnshop, went over there and got from defendant the nine gold rings and the pistol alleged to have been stolen.</p> <p>The State was permitted to prove Brodky’s good reputation for truth and veracity.</p> <p>The opinion sufficiently illustrates the other questions discussed.</p>

<p>Appeal from the County Court of Jones. Tried below before Hon. J. C. Philips, County Judge. /</p> <p>Appeal from a conviction of obstructing a public road; penalty, a fine of $1.</p> <p>The case is stated in the opinion.</p>

Tried below before Hon. Kenneth Foree, County Judge. Appeal from a conviction of receiving stolen property, knowing the same to have been stolen; penaltj', one day’s imprisonment in the county jail. The cause is sufficiently stated in the opinion.

Tried below before Hon. W. D. McKoy, County Judge. Appeal from a conviction of fornication; penalty, a fine of $500. The indictment was for fornication jointly against T. M. Boatright and Tennie Looper, by unlawfully living together and having carnal intercourse with each other. Tennie Looper was the niece of defendant’s deceased wife, and, when his wife died, defendant got Tennie to come and live at his house and take 'care of his children.

<p>The indictment charged the appellant with an assault with intent to kill Susan Hall, on the 20th day of June, 1900. Susan Hall was defendant’s wife.</p> <p>The opinion states the salient features of the evidence.</p>

<p>This is the second appeal in this case. See Gay v. State, 40 Texas Crim. Rep., 242.</p> <p>The essential facts in evidence are fully stated in the opinion, and no further statement is required.</p>

<p>Occupation Tax—Interstate Commerce—Peddling Buggies.</p> <p>A peddler of buggies in Texas who, as employe of a manufacturing company of another State, sells the buggies on order or for cash and the buggy sold is shipped directly from the factory to the purchaser, or is shipped to the order of the company and thus delivered to the purchaser by the employe or agent, is protected from the payment of the occupation tax imposed by the laws of Texas under the interstate provision of the Constitution of the United States. Following French v. State, ante, p. 222.</p>

Tried below before Hon. Sam B. Scott. Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary. In view of the disposition of the appeal, as shown by the opinion, a statement of the facts adduced in evidence is not required.

Tried below before Hon. Charles F. Clint. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The opinion sufficiently illustrates the questions discussed, and no further statement is necessary.

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

Tried below before Hon. Kenneth Poree, County Judge. Appeal from a conviction of being a vagrant; penalty, a fine of $5. No statement necessary. The opinion on rehearing states the facts.

<p>1. Assault to Murder—View by Jury of the Locus in Quo—Statutes Construed.</p> <p>Article 1451, Revised Civil Statutes, provides, “that all vouchers, views', etc., shall stand repealed.” This article is not affected by article 22 Code of Criminal Procedure, which provides that “a defendant in a criminal case may waive any right secured to him except the right of trial by jury in a felony case.” The two articles must be construed together so as to uphold the validity of both. Where the prosecuting attorney proposed, in the presence of the jury, to take the prisoner, attorneys, judge, officers of the court, and the jury to the place where the assault was committed, that they might examine the grounds; to which counsel for defendant and the defendant himself finally agreed, and the court, jury, defendant, attorneys, and officers did go upon and examine the premises; Held, reversible error. The fact that defendant consented to such action would not and could not render legal an act which the statute positively inhibits. Following Smith v. State, 42 Texas, 444. Henderson, J., dissents and distinguishes this case from the Smith case.</p> <p>2. Same—Receiving Other Evidence by the Jury.</p> <p>The above construction of article 1451, Revised Civil Statutes, is fortified by article 81, section 7, Code of Criminal Procedure, which makes it reversible error for the jury to receive other testimony than that of the sworn witnesses under the sanction of the court adduced on the trial under the rules of evidence.</p> <p>3. Same—Evidence of Another Distinct Offense.</p> <p>On a trial for assault with intent to murder, it was error to permit testimony to the effect, that on the evening after the alleged offense, the officer who arrested defendant found that he was carrying a pistol on his person. The evidence was not admissible, because it proved a separate and distinct crime against defendant.</p>

The indictment charged appellant with the murder of A. T. Randall on the 13th day of September, 1898, by administering to him poisons, to wit, morphine and chloral, and that said poisons were administered in order to enable defendant to steal money from the person of the said A. T. Randall.

Wise. Tried below before Hon. S. G. Tankersley, County Judge. Appeal from a conviction for keeping a disorderly house; penalty, a fine of $200. The case is stated in the opinion.

<p>Appeal from the County Court of Erath. Tried below before Hon. L. N. Prank, County Judge.</p> <p>Appeal from a conviction for selling liquor to a minor; penalty, a fine of $50. •</p> <p>The opinion states the case.</p>

<p>Slander—Evidence—Slander by Other Parties.</p> <p>On a trial for slander, evidence that other slanders uttered against prosecutrix by other parties long subsequent to that charged against defendant, and that they had been indicted for the same, is inadmissible.</p>

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

Tried below before Hon. L. N. Frank, County Judge. Appeal from a conviction for violating local option; penalty, a fine of $25 and twenty days imprisonment in the county jail.

Tried below before Hon. Charles F. Clint. Appeal from a conviction of forgery; penalty, three years imprisonment In the penitentiary. No statement necessary.

Tried below before Hon. E. D. Thompson, County Judge. Appeal from a conviction for violating local option; penalty, a fine of $25 and twenty days imprisomnent in the county jail. No statement necessary.

Tried below before Hon. Sam R. Scott. Appeal from a conviction of theft by conversion by bailee; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>Local Option—Indictment.</p> <p>An indictment for a violation of local option, to be sufficient, must charge that defendant sold the liquor within the local option territory.</p> <p>Appeal from the County Court of Brath. Tried below before Hon. L. N. Frank, County Judge.</p> <p>Appeal from a conviction for violating local option; penalty, a fine of $25 and twenty days imprisonment in the county jail.</p> <p>Defendant made a motion in arrest of judgment based upon the insufficiency of the indictment.</p> <p>No statement necessary.</p>

Tried below before Hon. J. S. Steaughan. Appeal from a conviction of assault with intent to murder; penalty, six ji-ears imprisonment in the penitentiary. The indictment charged appellant with assault with intent to murder Minnie Freeman, on the 9th of August, 1900. Minnie Freeman was defendant’s wife’s sixteen-year-old sister. From her testimony as a witness in the case, defendant seems to have fallen in love with her.

Tried below before Hon. I. N. Roach, County Judge. Appeal from a conviction of aggravated assault; penalty, a fine of $50. The information charged appellant with an assault upon Harve Dick, on the 15th day of January, 1900, by beating and bruising him with his fist and inflicting serious bodily injury upon him with some hard, unknown instrument. No statement is required to further illustrate the questions discussed in the opinion of the court below.

The indictment contained three counts: the first alleging ownership of the stolen animal in Mon Garrison; the second alleging ownership in Jack Robertson; and the third. alleging ownership in some unknown person. The evidence showed that J. S. Robertson owned the animal, but that he had placed the same in actual care, management and control of Mon Garrison.

Tried below before Hon. M. B. Harris, County Judge. Appeal from a conviction of pursuing the occupation of a photographer without having first paid the tax and procured a license therefor; penalty, a fine of $15. The opinion states the case.

Tried below before Hon. James C. Wilson. Appeal from a conviction of cattle-theft; penalty, two years imprisonment in the penitentiary. The opinion states the essential facts in evidence. The charge of the court as to recent possession and reasonable explanation is copied in the second paragraph of the syllabus, supra.

Tried below before Hon. J. E. Lancaster, County Judge. Appeal from a conviction for resisting an officer in the execution of legal process; penalty, a fine of $1. The opinion states the case.

Tried below before Hon. D. M. Alexander, County Judge. Appeal from a conviction for keeping a disorderly house; penalty, a fine of $200. The opinion states the case.

Tried below before Hon. J. F. Stout, County Judge. Appeal from a conviction of theft of money under the value of $50; penalty, sixty days confinement in the county jail. The money charged to have been stolen was taken from the possession, and was the property of, Horace Perry. Horace Perry was a brother of Ben Perry, the defendant. Ben Perry was a boy 15 years of age, who lived with his father.

Tried below before Hon. Charles F. Clint. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. Ho statement of the facts of the case is necessary.

<p>Ho statement necessary.</p>

Tried below before Hon. J. S. Stradghan. Appeal from a conviction of official misconduct by a justice of the peace; penalty, a fine of $75. No statement necessary.

Tried below before Hon. Sam R. Scott. Appeal from a conviction for assault with intent to murder; penalty, three years imprisonment in the penitentiary. The indictment charged appellant with assault with intent to murder one J. E. Harwell, on the 6th day of October, 1900. Appellant and Harwell, the prosecutor, lived in the little village of Rosenthal, some ten or twelve miles from the city of Waco. Harwell was a white man and was engaged in the mercantile business.

Tried below before Hon. W. D. Harris. Appeal from a conviction of murder in the first degree; penalty, death. The indictment charged appellant with the murder of Earl Pierce, on the 7th day of February, 1900, by striking him with a rock. The evidence shows that deceased and one Johnnie Johnson had been drinking, and between 7 and 8 o’clock in the evening they started to go to the depot, where deceased intended to take the train for 'his home, which was in Dallas.

Tried below before Hon. A. H. Carrigan. Appeal from a conviction of burglary; penalty, two years' imprisonment in the penitentiary. No statement necessary.

Tried below before Hon. G. A. Brown. Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary. The appellant was charged by indictment with the murder of Ed Brewer, on the 8th day of July, 1900 by shooting him with a gun.

Tried below before Hon. W. J. Graham 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 Mark Wyatt, on the 6th day of January, 1901. Appellant, White, kept a drinking saloon in the village of Tatum. Deceased, Wyatt, was one of his customers and had run up an account at his bar.

<p>1. Substitution Nunc Pro Tunc of Lost Information.</p> <p>Where an information was substituted without a motion having been made alleging the loss of the original and asking permission to substitute, and the accused was tried and convicted upon such illegally substituted information, and had perfected an appeal from said judgment of conviction, Held, his appeal, under the provisions of article 884, Code of Criminal Procedure, suspended and arrested all further proceedings in the trial court; and the information could not be substituted in said court nunc pro tunc, it having been lost prior to his trial.</p> <p>2. Aggravated Assault Upon a Woman—Impeachment of Witness.</p> <p>On a trial for aggravated assault upon a woman, it is not competent, on cross-examination of a witness of defendant, used for the purose of impeaching him, to prove by him that at a different time and place he was in a wine room drinking beer with a prostitute when a certain killing took place.</p> <p>3. Same.</p> <p>On cross-examination of defendant as a witness, it is not competent to prove by him that a certain party told him (defendant) that the prosecutrix, the assaulted woman, was a bitch and a whore, and that he (defendant) believed it, and that on that account he went and took her in his buggy to a musical.</p>

Tried below before. Hon. A. M. Walthall. Appeal from a conviction of perjury; penalty, two years imprison-, ment in the penitentiary. The grand jury of El Paso County were investigating the -ease of Edelberto Garcia, accused of the murder of one Ed O’Connor, at the Cafe saloon, at 7:30 p. m. on the 1st day of October, 1899, by shooting him with a pistol. Appellant, who is a woman, appeared and was sworn and testified as a witness in the investigation before said grand jury.

Tried below before Hon. L. A. Clark. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. Ho detailed statement of the case is necessary.

<p>Appeal from the District Court of McLennan. Tried below before Hon. Sam R Scott.</p> <p>Appeal from a conviction of forgery by alteration of a receipt; penalty, two years imprisonment in the penitentiary.</p> <p>Defendant’s motion to quash the indictment, because it charged no offense against the laws of the State, was overruled.</p> <p>No further statement required.</p>

Tried, below before Hon. A. C. Allen. . Appeal from an order of court, under habeas corpus proceedings, refusing to reduce bail. - ■ This case grows out of a bill of complaint filed in the corporation court of the city of Galveston on the 25th day of February, 1901, charging relators, Joseph B. Choynski and Jack Johnson, with the commission of prize fighting—a felony under the laws of Texas.

<p>Appeal from the District Court of Caldwell. Tried below before Hon. H. Teichmueller.</p> <p>Appeal from a conviction of murder in the second degree; penalty, eight years imprisonment in the penitentiary.</p> <p>Appellant was charged by the indictment with the murder of John Monkhouse, on the 25th day of September, 1897, by cutting him with a knife.</p> <p>The salient features of the evidence, showing the circumstances immediately attendant upon the homicide, may be gathered readily from the two opinions below, and no further detailed statement is required. The questions discussed in the opinions need no further illustration from the record.</p>

Tried below before Hon. B. D. Thompson, County Judge. Appeal from a conviction for selling whisky on Sunday; penalty, a fine of $25. The opinion states the ease.

Tried below before Hon. W. D. Harris. Appeal from a conviction of burglary; penalty, twelve years imprisonment in the penitentiary. The indictment was in the ordinary form for burglary of a house owned and occupied by John Wurnet, on the 34th of July, 1900, with intent on the part of appellant to commit theft of property in said house.

Tried below before Hon. J. H. Gallagheb, County Judge. Appeal from a conviction of aggravated assault; penalty, a fine of $25. Appellant was charged by information with an aggravated assault upon Ernest Alexander by cutting him with a razor, a deadly weapon. Ho statement necessary.

We copy the following statement of the case, which is substantially correct, from the brief of appellant on file with the record, to wit: In and around Cooper, Delta County, Texas, several years prior ‘to the time of the return of this indictment, the appellant and one R M. Duncan, the prosecuting witness (as will hereafter appear), had lived, principally, and been engaged in the business of gambling and sports generally.

Appellant was charged by the indictment with the murder of Newton Stewart, on the 17th of February, 1900, by shooting him with a gun and pistol. The third count in the indictment charged that the murder was committed in the perpetration of burglary, and that the entry was made for the purpose of effecting the rescue and escape of one Samuel Dyson, a prisoner confined in the city jail, which was broken into.

Tried below before Hon. W. F. Robertson, County Judge. Appeal from a conviction for violating local option; penalty, a fine of $25 and twenty days imprisonment in the county jail. The defendant, Dr. Johnson, a druggist, testified that he had never sold the prosecuting witness, Andy Sauls, any alcohol at any time as testified by said prosecuting witness; and the defendant Johnson’s reputation for truth and veracity in the community in which he resided was proven to be good.

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

Tried below before Hon. M. D. Slator. Appeal from a conviction for unlawfully causing cattle to go into the enclosed lands of another; penalty, a fine of $25. The following statement of the case, which is substantially correct, is taken from the appellant’s brief on file with the record, viz.: . In the spring of 1900 J. M. Kuykendall bought what was known as the Burroughs pasture, in which there was about 10,000 acres of land, in San Saba County, Texas.

<p>Selling Liquor by Agent, etc., on Sunday—Information.</p> <p>An information for selling liquor on Sunday is wholly insufficient which simply charges, that defendant was barkeeper and clerk for S. Brothers, and did unlawfully sell one W. a drink of liquor on Sunday, but does not allege that defendant was an employe or cleric of S. Brothers, and sold the liquor belonging to S. Brothers as their said employe or clerk.</p>

The matters of fact charged in the indictment were proven, and the only question in the case is the constitutionality of the law upon which the indictment is based. The law which was passed by the Twenty-third Legislature, creating the offense, is as follows: “Section 1.

<p>The facts adduced on the part of the State, in brief, were, that defendant, who had, or claimed, a mortgage lien upon certain rugs in the possession of the assaulted party, entered her house and demanded payment of a balance due him on the rugs; which balance she disputed, and that he assaulted her, took the rugs and left. That she was standing upon the rug when he demanded payment, which, when she refused, he struck her a blow knocking her off the rug, picked up the same and left. The testimony for the defense shows that he obtained possession of the rugs without the use of any force, and then sought to leave the house, when the prosecutrix intercepted him by shutting the door, and that he pushed her aside and made his exit.</p> <p>Defendant’s requested instructions, which were refused by the court, were as follows, to wit: “If you believe from the evidence in this ease that the defendant used only such force as was necessary to allow him to get out of the door, you will acquit the defendant.”</p> <p>“If you believe from the evidence in this case that the defendant took possession of the property without the use of violence, and, after so getting possession, the defendant would be authorized to use force to defend his possession; and if you find from the evidence that defendant used force after he so got possession of said property to defend his possession, you will acquit the defendant.”</p> <p>“The intent with which force is used is the test of an assault and battery, and, if you believe that violence was used, but for other purpose than to injure the complainant, you will acquit.”</p> <p>No further statement necessary.</p>

<p>1. Change of Venue—Practice.</p> <p>Where the judge of his own motion changed the venue, and his right to do so was controverted by defendant, and there was no order in the record save defendant’s controverting motion, Held, there should have been the order embracing the reasons upon which the court predicated his authority to change the venue, but in the face of the controverting motion and bill of exceptions it will be presumed there was such an order, and that there was no abuse of discretion in the court’s changing the venue.</p> <p>2. Cross-Examination of Witness.</p> <p>Where a defendant on direct examination of a witness has adduced testimony which would have been inadmissible had it been elicited in the first instance by the State, he can not be heard to complain that the State on cross-examination of the witness had the witness to repeat what he had stated on his direct examination.</p> <p>3. Assault to Murder—Hearsay Opinion Evidence.</p> <p>On a trial for assault to murder, it was not error to refuse to permit a witness to testify that on the morning of the assault he had stated to his son that, in his opinion, a sister of defendant was insane from grief at the killing of another brother by the alleged assaulted party a short time theretofore and that they were bringing her to town to try her for lunacy. Such testimony was clearly hearsay and was no part of the alleged assault so as to make it admissible as res gestae.</p> <p>4. Same—Provocation—Charge.</p> <p>On a trial for assault to murder, where the court instructed the jury that the provocation must arise at the time of the alleged assault, but they were further instructed that they could look to all the evidence in the case in order to determine the adequacy of the provocation—this was in accord with the decided cases.</p> <p>5. Same—Presumption from Use of Deadly Weapon—Charge.</p> <p>On a trial for assault to murder, a charge is erroneous which, in effect, instructs the jury that if in the assault the defendant used a deadly weapon, they would presume against him that he intended to kill the assaulted party. Such is not the rule. The presumption from the use of a deadly weapon is to be indulged in favor of and not against defendant, that is, the rule is if the assaulted party used a deadly weapon, the presumption is lie intended to take defendant’s life; and in such case defendant would have the right to shoot him. The presumption is intended for the protection of defendant and should never be turned against him.</p> <p>6. Charge—Limiting Impeaching Testimony.</p> <p>On a trial for assault to murder, where testimony has been adduced impeaching a number of witnesses, and the court, in its charge, failed to limit the application of the testimony to two State’s witnesses, whose impeaching testimony made the case against defendant stronger than that of his own winesses; Held, error, these witnesses should also have been embraced in the charge.</p> <p>7. Assault to Murder—Self-Defense—Charge.</p> <p>On a trial for assault to murder, where it appeared that there was a grudge between the parties and each was apprehending that the other would attack him; and the evidence was conflicting as to which of them made the first hostile demonstration when they met, Held, the jury should have been distinctly told, in effect, that if the assaulted party made the first hostile demonstration, causing defendant to believe that he was in danger thereby of life or serious bodily injury, he, defendant, had the right to shoot said party. And, moreover, that if he, defendant, had reason to believe that when he met the assaulted party, the latter would attack him, he, defendant, had the right to prepare himself against such attack and go thus about his lawful business; and, that if, while so doing, he met his antagonist, and reasonably apprehending that the latter was about to attack him, he merely prepared himself against such attack and fired the first shot after his antagonist had done some act which caused him to believe an assault was about to be made upon him with a deadly weapon, he would be justifiable in doing so.</p> <p>8. Same—Charge.</p> <p>On a trial for assault to murder, it should all the time be borne in mind that it is the defendant who is being tried and the issues should be presented by the charge from his standpoint.</p> <p>[Note.—The State’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

Tried below before Hon. Irby Dunklin. Appeal from an order of court remanding relator to custody upon a hearing on habeas corpus for discharge. The opinion states the case.

<p>1. Murder—Placing Eye-Witness Upon the Stand—Motion to Dismiss for Failure to Do So.</p> <p>On a trial for murder, after both sides had introduced their evidence, and during the argument to the jury defendant made a verbal motion to withdraw the evidence from the jury and dismiss the case because the prosecution had not produced the direct and positive testimony of eye-witnesses to the killing who were present in court, but was relying solely upon circumstantial evidence, Held, the motion was no more than a motion to dismiss the case for insufficiency of testimony, and was properly overruled.</p> <p>2. Same—Circumstantial Evidence—Charge of Court.</p> <p>On a trial for murder, where the evidence adduced was entirely circumstantial, and defendant requested the court to instruct the jury as follows: “The burden rests upon the State to establish to your satisfaction beyond a reasonable doubt, by legal and competent evidence, that the defendant and no other person killed deceased; and you are further charged that the State is required under the law to introduce the best evidence which it can obtain, and if it appears from the evidence that it is probable that there are eye-witnesses by whom the State can prove the act of killing, then it is the duty of the State to produce such evidence; and, if you so find, you can not convict the defendant upon circumstantial evidence and you will acquit.” Held, the instruction was properly refused. If the State can establish a strong case of guilt beyond a reasonable doubt against defendant by circumstantial evidence, it is not compelled to place eye-witnesses upon the stand who are unfriendly to the prosecution and friendly to defendant.</p> <p>3. Same—New Trial.</p> <p>A new, trial will not be granted because it appears that defendant was convicted upon circumstantial evidence, where the State had it in its power to produce the direct and positive testimony of eye-witnesses, where the circumstantial evidence| adduced justified his conviction.</p> <p>4. Argument of Counsel—Allusion to Defendant’s Failure to Testify.</p> <p>On a trial for murder, where the case was one purely of circumstantial character, and the crucial point in the case was as to the identity of defendant as the party who did the shooting, it was reversible error for prosecuting counsel to" say, “The details of the homicide will never be known * * * and the defendant can not be compelled, -under the law, to open up and give evidence against himself;” and, “The defendant knows where he was on that day, and if his counsel would ask him, he could tell yon where he was on that day” (the day of the killing). This was clearly a violation of the statute prohibiting allusion to a defendant’s failure to testify; and the wrong was not relieved or cured by the court’s admonishing and instructing the jury, in the charge, not to consider defendant’s failure to testify.</p>

From Smith County. Original application to the Court of Criminal Appeals for habeas corpus, and discharge from custody under a judgment of contémpt. The opinion states the case fully.