Volume 43 — Texas Criminal Reports

The indictment was against Tom Stanfield and Budolph Smith jointly, and charged them jointly with willfully placing an obstruction, a large piece of timber, upon the track of the Fort Worth & Denver City Bail-way Company, whereby the lives of persons were endangered, on the 16th day of January, 1900. The charging part of the indictment is set out in the opinion below.

At the November term of the District Court of Haskell County Lou Casner was indicted by the grand jury charging him with the murder of Tom Pitner in Haskell County on the 5th day of September, 1899. The venue was changed to Stonewall County, and at the October term, 1900, the case was tried in Stonewall County, resulting in a verdict of guilty of murder in the first degree and assessing his punishment at confinement in the penitentiary for life.

Tried below before Hon. J. G. Bussell. Appeal from a conviction of murder in the second degree; penalty, twelve years imprisonment in the penitentiary. The appellant was charged by indictment with the murder of Jose Boberson, on the 19th day of October, 1900, by shooting him with a pistol. The evidence, as recorded in the statement of facts, is most voluminous. The essential facts immediately attendant upon the killing may be stated very briefly.

<p>The only questions discussed in the opinion on this appeal relate to the confessions of appellant; and these questions are so clearly and fully stated in the opinion as to render any further statement unnecessary.</p>

The indictment charged that on the 25th day of May, 1900, one John Lindley did, of his malice aforethought, kill Pomp Trammel, by shooting him with a gun; and further charged this appellant as an accom-' plice to said murder, in that he, though not present at the time of the killing, had previously advised and encouraged the said John Lindley to commit said murder.

Tried below before Hon. W. J. Oxford. Appeal from a conviction of white-capping; penalty, two years imprisonment in the penitentiary. The opinion sets out the indictment. Defendant made a motion to quash the indictment, as follows, viz: “1. Because the indictment charges no offense against the penal laws of this State. 2.

<p>Appeal from the District Court of Falls. Tried below before Hon. Sam R. Scott.</p> <p>Appeal from a conviction of aggravated assault, under a charge of assault with intent to murder; penalty, a fine of $250.</p> <p>The indictment charged appellant with assault with intent to murder L. B. De Walt (Boise De Walt), on the 22d day of February, 1898.</p> <p>The opinion states the case. The valentine, which caused the difficulty, was addressed to one Elias Smith, and was read at a valentine party given at Burt Brown’s on the night of February 14, 1898.,</p>

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

<p>1. —Embezzlement—Defendant as Witness—Cross-Examination.</p> <p>On a trial for embezzlement of money belonging to a railroad corporation, defendant being a witness on the stand in his own behalf, was on cross-examination asked by the State’s attorney “if, some sixteen years before, he had not been discharged by a railroad company in the State of Illinois,” to which he was forced over his objections, to answer and state that he had been so discharged. Held, he was entitled to explain, as he proposed to do, the cause of his discharge, and it was error to refuse him permission to do so.</p> <p>2. —Same—Accomplice Testimony—Charge of Court.</p> <p>On a trial for embezzlement where the principal State’s witness Davis, who was the agent of the railway company at the station where the embezzlement is alleged to have occurred, was connected by the evidence with the commission of the offense in such manner as tended to show him to be a particeps criminis, it was the duty of the court tó charge the law of accomplice testimony with reference to his testimony; and it was error to fail to do so and to refuse defendant’s requested instructions upon that phase of the law.</p> <p>3. —Same—Evidence Insufficient.</p> <p>See the opinion for facts stated which are held too indefinite, uncertain, and insufficient to support a conviction for embezzlement.</p>

<p>1. —Dying Declarations—Bill of Exceptions.</p> <p>A bill of exceptions to the admission of dying declarations, to be sufficient, must set forth the entire declaration, so that the connection of the portions objected to may be fully seen.</p> <p>2. —Same.</p> <p>A dying declaration is admissible to show all the facts immediately connected with the homicide to which a witness, if present in court, could testify; and this embraces not only facts going to establish the venue of the prosecution, but also the facts going to identify the locus of the homicide by its surroundings.</p> <p>3. —Same.</p> <p>It is competent in a dying declaration, as part of the res gestae of the homicide, for the declarant to state, as the immediate cause therefor, that he came up to defendant and others while they were skinning a stolen beef; and that when defendant assaulted him with a gun he told him, if he would not kill him, he would say nothing about it; to which defendant replied, “No; you are always finding us doing this kind of thing, and I will kill you,” whereupon he immediately shot him.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

Defendant filed a motion to quash, and also a motion in arrest of judgment, both based upon the alleged insufficiency • of the indictment. The exceptions to the sufficiency of the indictment are set forth in the opinion. Both motions were overruled.

Tried below before Hon. A. S. Walker, County Judge. Appeal from a conviction of libel; penalty, a fine of $250.

Tried below before Hon. A. M. Walthall. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. The indictment charged appellant with the murder of Robert L. Hall, on the 4th day of November, 1900, by shooting him with a pistol. On the 3d of November, 1900, defendant went to the camp of deceased for the purpose of getting a horse that deceased’s brother, T. K. Hall, had given him.

<p>Defendant, in Delta County, pointed out the animal to Paris Prim, claiming that it was his property, and Prim afterwards purchased the animal from defendant in Delta County, but subsequently took the animal into his posssession in Hopkins County.</p>

Tried below before Hon. W. J. Oxford. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with the murder of W. M. Anderson on the 20th day of January, 1901, by shooting him with a pistol. A concise but very lucid statement of the important facts of the case is given in the opinion below, and no additional statement is necessary.

<p>1.—County and District Courts—Jurisdiction.</p> <p>By Act of Seventeenth Legislature (Laws 1881, page 13, which is still in force) criminal jurisdiction was taken away from the County Court of Brio and transferred to the District Court of said county, and gave to the District Court the same criminal jurisdiction as theretofore appertained to" the County Court. Held, under said law, the District Court had concurrent original jurisdiction with justice courts of said county finally to try misdemeanors wherein the punishment is by fine not exceeding $200, without imprisonment.</p> <p>Ü.—Constitutional Law—Justice Courts.</p> <p>Under the Constitution, the Legislature may dimmish the jurisdiction of the ■county court and confer its criminal jurisdiction upon other courts. But it is beyond the power of the Legislature to diminish the jurisdiction of other justice courts of a county and confer such jurisdiction alone upon the justice court of any particular precinct. Such an act would most clearly be .unconstitutional and void.</p>

<p>1. —Theft of Money—Evidence Insufficient.</p> <p>See opinion for facts stated, which are held wholly insufficient to support a judgment of conviction for theft of money.</p> <p>2. —Same—Joint Ownership—Evidence Insufficient.</p> <p>See opinion for facts stated, which are held wholly insufficient, on a trial for theft of money, to support the allegation in the indictment that the money stolen was the joint property of two named owners.</p>

<p>1. —Seduction—Charge of Court.</p> <p>On a trial for seduction it is essential that the court, in the charge to the jury should define the term “seduction;” and especially so in a case where the evidence tends to show that the prosecutrix was not a chaste woman who had consented to the carnal intercourse only on account of defendant’s promise to marry her, and the confidence she reposed in his promise.</p> <p>2. —Same—Carnal Intercourse—Corroboration of Prosecutrix.</p> <p>On a trial for seduction, the fact that the defendant had carnal intercourse with the prosecutrix is a vital issue in the case; and to obtain a legal conviction she must be corroborated upon this point.</p> <p>3. —Same—Evidence Insufficient.</p> <p>See the opinion for facts stated which are held wholly insufficient to support a conviction of seduction.</p>

<p>1. —Jury Law—New Trial—Misconduct of Jury.</p> <p>Where it appeared that, during their retirement to consider of their verdict, a question, arose amongst the jurymen as to certain important testimony with regard to tracks found at the locus in quo, whereupon two of the jurors, who. were familiar with the locus, drew a plat of the surroundings which they submitted and explained to the jury; Held, such misconduct and the receiving of new testimony by the jury as invalidated their verdict, and necessitated a reversal because the court below refused a motion for new trial based upon such misconduct.</p> <p>2. —Same.</p> <p>Where the jury, before finding their verdict, allude to and discuss defendant’s failure to testify as a witness in his own behalf, this invalidates their verdict and necessitates a reversal of the judgment of conviction.</p>

Tried below before Hon. A. H. Carrigan. Appeal from a conviction of theft of one head of cattle; penalty, two years imprisonment in the penitentiary.

<p>1. —Occupation Tax—Peddler—Constitutional Law—Interstate Commerce.</p> <p>The statute of a State by which peddlers of goods going from place to place to sell them are required, under a penalty, to take out and pay for license, and which makes no discrimination between residents of the State and those of other States, is not, as to peddlers of goods previously sent them by manufacturers, in other States, repugnant to the grant by the Constitution to Congress to regulate commerce among the States. It is wholly an internal commerce which the States have the right to regulate. Following, Bmert v. Missouri, 156 United States, 296, and overruling French v. State, 42 Texas Criminal Reports, 222, and Kirkpatrick v. State, 42 Texas Criminal Reports, 459.</p> <p>2. —Same—Drummer and Peddler—Distinction.</p> <p>While the authorities hold that there is a distinction between a drummer and a peddler in their relation to interstate commerce, still a party may be both a drummer and also a peddler as to the different methods of conducting his business; and the fact that his methods occasionally would bring him within the category of a drummer would not exempt him from liability under the law where the facts clearly show that as to his other methods he was a peddler and not a drummer.</p> <p>3. —Same—Peddler of Buggies—Facts Sufficient to Constitute an Offense Under the Law.</p> <p>Under the provisions of our statutes, Acts 1899, article 5055, Revised Statutes, and article 112, Penal Code, where, on a trial for peddling buggies without, payment of the occupation tax and taking out a license, it appeared that defendant had the goods shipped to him in B. County, Texas, from his employers in the original packages, and same were taken by him out of the original packages ánd placed together in proper shape as complete buggies which defendant traveled with over the country and sold, he was guilty of violating the law and properly convicted therefor.</p>

<p>1. —Wife as Witness—Impeachment of.</p> <p>Where the wife is a witness on the trial of her husband, she may be impeached by showing her contradictory statements to her testimony given on the trial; but witnesses can not be permitted further to prove her statements as to other independent matters about which she has not testified.</p> <p>2. —Same—Charge of Court.</p> <p>Where the wife has testified on the trial of her husband, and evidence tending to contradict her has been adduced, a charge of the court is not on the weight of evidence which instructs the jury that the testimony of the witnesses as to her contradictory statements was introduced solely as going to her credibility as a witness, and should be considered only for that purpose and not as evidence of defendant’s guilt.</p> <p>3. —Murder—Insulting Conduct to Wife—Manslaughter—Charge.</p> <p>On a trial for murder, where insulting conduct towards the wife has been adduced for the purpose of reducing the offence to manslaughter, the jury are to consider the statements of the wife to the husband about such insults, which he believed to be true and to have actually occurred as detailed by her; though in fact they may or may not have occurred. To his mind such conduct was a reality and the charge of the court should be so framed as to submit this immediate issue to the jury.</p> <p>4. —Same.</p> <p>As to insults to the wife, the jury are to consider them from the standpoint of the defendant, and whether he believed them as told him by his wife, and though the jury may believe her statements as to such insults are not true, yet they are to consider them in connection with the statements and acts of the deceased at the time of the homicide; and if from such insults and acts of deceased at the time of the homicide defendant slew deceased in uncontrollable passion, he would be guilty of manslaughter and not murder; and the court should' so instruct the jury. Simply because the deceased, at the time of the homicide, may have offered an insult to defendant, sufficient to create adequate cause independent of the previous insults to his wife, would not warrant the court to ignore such previous insults in charging upon manslaughter, but a fortiori the present adequate cause should be considered with such previous insults.</p> <p>5. —Murder—Self-Defense—Defendant’s Knowledge of Deceased’s Character— Charge.</p> <p>On a trial for murder, a charge of the court is correct, and not upon the weight of evidence, which instructs the jury, that “if they believed from the evidence that, at the time defendant killed deceased, deceased made an attack .upon him, which, from the manner and character of it, and the relative strength of the parties, and defendant’s knowledge of the character and disposition of the ■ deceased, caused him to have reasonable expectation or fear of death, * * * then you will acquit.”</p> <p>6. —Same—Evidence—Corroboration of Wife’s Testimony.</p> <p>On a trial for murder, where defendant’s wife had testified to insulting conduct by deceased toward her, it was competent, as corroborative of her testimony, to prove that about the time she testified that deceased began his insulting conduct he asked a witness “how he liked his little widow?” referring to defendant’s wife before her marriage to defendant, and on being reprimanded by witness, replied that witness “knew his weakness along that line.”</p> <p>7. —Impeachment of Wife as a Witness—Rebutting Testimony.</p> <p>Where the wife, on the trial of her husband for murder, testified as to insults by deceased which she and defendant both testified she had communicated to defendant, and the State had attacked her testimony as false and fabricated, it was competent, in rebuttal, to prove by a witness, that prior to the homicide the defendant (the husband) had related to witness the circumstances as previously told him by his wife. This testimony was admissible to corroborate and strengthen the testimony of both the husband and wife as to this matter and to rebut the contention of the State that the defense was fabricated.</p> <p>[Note.—The State’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

Tried below before Hon. J. L. Goodman, Special Judge. Appeal from a conviction of murder in the second degree; penalty, thirty-five years imprisonment in the penitentiary. The indictment charged appellant with the murder of A. L. Boswell, on the 16th day of March, 1900, by shooting him with a gun.

Tried below before Hon. W. J. Oxford. Appeal from a conviction of perjury; penalty, two years imprisonment in the penitentiary. The opinion sets out the indictment. There is no statement, of facts in the record.

The defendant, Frank Fossett, was arrested on the charge of murder. He had an examining trial béfore a justice of the peace of Precinct No. 1 of Tarrant County, Texas, who remanded him to jail without bond. Subsequent to this time, and on to wit, the 1st day of June, 1899, the defendant was indicted by the grand jury of Tarrant County, charged with the offense of murder.

The following statement of the case is taken from appellant’s brief: The appellant, W. J. Dent, was indicted at the May term, 1900, of the District Court of Cherokee County, as accessory to murder. _ In order that the court may correctly understand the points made in the brief, we desire to make a statement a little more complete than the .record of this case presents. In November, 1894, in Hemphill County, Texas, one Tom T. McGee was killed.

<p>Murder—Special Venire—Motion to Postpone Trial.</p> <p>On a trial for murder, where a special venire of seventy-two jurymen had been ordered and served, and it appeared that when the case was called for trial twelve of these veniremen were impaneled in and were considering another case, whereupon defendant moved for a postponement until these twelve veniremen could be obtained, which being overruled, he moved for an attachment to compel their attendance, which was refused; Held, error, for which the judgment must be reversed.</p>

Tried below before Hon. John H. Clark. The, indictment charged appellant with the murder of John Grim-singer, on the 16th day of January, 1901. It contained three counts, the first charging that the crime was committed with an ax handle; the second, that it was committed with an ax, and the third, that it was committed with some instrument to the grand jurors unknown. Defendant’s confession, as made to Deputy Sheriff Chas.

<p>1. —Perjury—Indictment—Allegation of Materiality.</p> <p>In an indictment for perjury, the matter on which the perjury is predicated can simply be alleged as material without stating the environments showing on the face of the indictment how the same came to be material; or it may state the false testimony, and, alleging its materiality, traverse the truth of the same.</p> <p>2. —Same—Principals in Assault to Murder.</p> <p>An indictment for perjury predicated upon the fact that defendant, as a witness in his own behalf, in a case of assault with intent to murder, had sworn falsely that he did not give a stick to the principal making the assault, does allege a material matter; since, if he was present, aiding and abetting such principal in the assault, he became himself a principal in the assault, and the indictment properly charged him in the assault to murder case with having done the act himself, and the court under the indictment in the perjury case was authorized to admit proof of the environments in the case of assault to murder in determining the materiality of the alleged false testimony, and instruct the jury accordingly as to its materiality.</p>

Tried below before Hon. ,W. Poindexter. Appeal below from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of Jesse Watson, on the first day of October, 1898, by striking him with a rock.

<p>Appellant was charged by the indictment with the murder of T. G. Hargrove, on the 5th day of February, 1901, by shooting him with a pistol. Defendant’s plea of acquittal and former jeopardy was on motion of the county attorney stricken out by the court and not submitted' to the jury.</p> <p>The evidence adduced on the trial of this case as to how and why appellant shot deceased, presented two theories. The State’s evidence tended to show that appellant fired the fatal shot at the deceased with the intention to kill him. Appellant’s evidence tended to show that he fired the shot at George Goodman, with the intention to kill said Goodman, and that the appellant missed him in his aim, and shot the deceased accidentally, with no intention of shooting or killing him. Both theories were strongly supported by evidence. The State contended that-under the evidence appellant was guilty of murder upon either theory; that if he fired the fatal shot at the deceased intentionally, he was guilty of murder either in the first or second degree; that if he fired said shot at George Goodman with intent to kill him, and missed him and shot the deceased, accidentally or unintentionally, he was guilty of murder in the second degree. Appellant contended that he did not fire the fatal shot at deceased with the intention to kill him, but that he fired the same at George Goodman in self-defense, that he missed him and shot the deceased accidentally and unintentionally, and with no intent to hit or kill him.</p> <p>The court in its charge submitted both theories to the jury and authorized them to convict appellant of murder in the second degree under either theory or aspect of the evidence, unless they should believe that appellant shot at George Goodman under circumstances showing manslaughter or self-defense.</p>

The indictment charged appellant with the murder of Ed Tusker, in Brown County, on the 5th day of December, 1900, by shooting him with a gun and pistol.

<p>1. —Grand Jury—Race Discrimination—Equal Protection of the Law.</p> <p>If a negro, upon the trial, attacks the selection of the grand jury, which indicted him, upon the ground that in its selection and formation unjust discrimination was exercised against his race, and that he was thereby deprived of equal protection of the law, the burden is upon him to show such discrimination.</p> <p>2. —Same.</p> <p>On the issue of race discrimination, a negro on trial is not entitled, under the law, to such representation on the grand jury as the pro rata of the negro race of the county bears to the pro rata of the white race in said county. '</p> <p>3. —Same—Constitutional Law—The Fourteenth Amendment to United States Constitution.</p> <p>It was never intended by the fourteenth amendment to the Constitution of the United States to guarantee a negro defendant a full negro grand jury nor any particular number of grand jurors; but the intention was to prevent the intentional exclusion of negroes from the grand jury solely because of their race or color and thus deny an equal protection of law, in a criminal prosecution, of a person of the African race.</p> <p>4. —Petit Jury—Race Discrimination.</p> <p>Where a negro is upon trial it is no discrimination against his race that three negroes, who were upon the panel to try defendant, were peremptorily challenged by the State.</p>

<p>1. —Insanity of Witness.</p> <p>The statute, article 768, Code of Criminal Procedure, which declares as incompetent to testify as a witness one who is insane when the events happened of which he is called to testify, does not apply to one who has been drugged and stupefied to the extent that he did not at the time realize that he was being victimized, and only afterwards became fully conscious of the villainy which had been practiced upon him, of which he gave a detailed and very clear account in his testimony.</p> <p>2. —Theft of Money—Charge as to False Pretenses.</p> <p>On a trial for theft of money, the court was not required to charge upon the law of theft by false pretext where it did not appear that prosecutor parted with the possession of the money by means of the false representations of defendants. Such is not the case where the defendant’s false pretenses only afforded him an opportunity to get the money, which he did, without the prosecutor’s consent.</p> <p>3. —Evidence—Identification of Stolen Money.</p> <p>On a trial for theft of money, it is competent to prove the identification of a part of the money found on and taken from the possession of defendant.</p> <p>4. —Same—Charge.</p> <p>On a trial for theft of money, it is not necessary that the court should specifically instruct the jury as to what it took to constitute the identification of money.</p> <p>.5.—Same—Variance.</p> <p>On a trial for theft of money, there is no variance where the evidence did not show that all the money alleged to have been stolen was stolen, or that it was all of the character charged in the indictment.</p>

<p>During the progress of the trial, defendant placed Adam Files upon the stand as a witness, who testified as follows: “I am the bailiff, and have had charge of the prisoner during the trial, conveying him to jail and back to court. From defendant’s acts and conversations, I am of opinion that he is of unsound mind.” Being asked by defendant to state upon what he based such opinion, the witness said: “As I was bringing him back from jail to-night he seemed to think he was convicted. Asked me if there was no way he could get a new hearing. Said he did not want to go to the penitentiary, and said, if they had just put me on the witness stand I could have told all about how it was.”</p> <p>The State did not cross-examine this witness. The circumstances attendant upon the discussion by the jury of defendant’s failure to testify are fully stated in the opinion.</p>

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

The indictment charged appellant with the murder of Allen Sams, on the 4th day of March, 1881, by shooting him with a pistol and a gun, and by setting fire to his clothing and burning him. This is the second time appellant' has appealed from a conviction for this murder. The former appeal will be found in Ogle v. State, 16 Texas Criminal Appeals, 361.

<p>1. —Arson—Joint Defendants—Accessory—Severance—Practice.</p> <p>Under an indictment charging defendant and another jointly, defendant moved for a severance from his codefendant, whereupon the prosecution stated that the State would only rely upon the charge against the codefendant as an accessory in the crime; and thereupon the court refused the severance. Held, the ruling was correct. An accessory does not come within the purview of the article 707, Code of Criminal Procedure, nor article 90, Penal Code, and under the law he could only be tried after the trial of his principal, except where the principal has escaped.</p> <p>2. —Same—Evidence—Statements and Acts of Defendant’s Wife.</p> <p>On a trial for arson, it was error and inadmissible to prove the conversations, statements, and acts of defendant’s wife, she not being a witness on the part of defendant. She could not be used as a witness against defendant, nor could her actions, etc., be so used.</p> <p>3. —Same—Evidence.</p> <p>On a trial for arson, it is not competent or admissible to prove that one charged as an accessory was seen to leave the defendant’s house with- a pair of pants upon his arm, and afterwards return without the pants, in the absence of testimony showing that the pants were taken from the burned house, or that defendant had any connection with or possession of said pants.</p> <p>[Note.—The State’s motion for a rehearing was overruled without a . written opinion.—Reporter.]</p>

<p>1. —Continuance—Bill of Exceptions—Practice on Appeal.</p> <p>The overruling of an application for continuance will not be considered on appeal where no bill of exceptions to the ruling was taken in the trial court.</p> <p>2. —Admission of Illegal Testimony—Withdrawal by Court.</p> <p>When the testimony of a fellow prisoner, to show that defendant attempted to fabricate testimony of an alibi by said witness, had been admitted, ■ but was subsequently withdrawn from the consideration of the jury orally and by the charge of the court, Held, that the testimony, not being a confession by defendant, nor of so damaging a character as likely to influence the jury, the error of its admission was cured by its withdrawal.</p> <p>3. —Same.</p> <p>On a trial for murder, the admission in evidence of a threat by a conspirator against deceased was not error where it was shown that the defendant afterwards entered into the conspiracy. And, if error was committed, the subsequent exclusion of the. testimony by the court, and charge to the jury not to consider it, cured the error.</p> <p>4. —Murder—Malice Aforethought—Charge.</p> <p>On a trial for murder, it is not necessary for the court in its charge to define “malice aforethought,” where the charge adequately defines malice and express and implied malice.</p> <p>5. —Murder—Accomplice Testimony—Charge.</p> <p>On a trial for murder, where the testimony clearly shows that a witness is' an accomplice, it is competent for the court to so instruct the jury; and such a charge is not tantamount to the effect that defendant is guilty.</p> <p>6. —Murder—Charge—Manslaughter.</p> <p>On a trial for murder, where the testimony shows that defendant and his confederates beat deceased into insensibility, robbed him, continued their beating until he was dead, and to make sure of their victim, set "fire, to him, a charge on manslaughter was evidently not called for.</p> <p>[Bote.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>Appeal from the District Court of Hill. Tried below before Hon. W- Poindexter.</p> <p>Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary.</p> <p>The indictment charged appellant with the murder of Mary Jenkins, on the 27th of December, 1896, by shooting her with a pistol.</p> <p>This is a second appeal in this case. The case, on the first appeal, will be found, Bennett v. State, 39 Texas Criminal Reports, 639. The facts as to the two cases are substantially the same, and it is only necessary to refer to the former 'appeal for a statement of the case.</p>

Tried below before Hon. A. S. Walker, County Judge. Appeal from a conviction of aggravated assault; penalty, a fine of $25. The essential facts of the case are fully stated in the opinion of Judge Henderson on the motion for rehearing.

Tried below before Hon. A. H. Carrigan. Appeal from a conviction of horse theft; penalty, two years imprisonment in the penitentiary. The opinion states the evidence fully, and no further statement is required.

Tried below before Hon. J. B. Dillard. Appeal from a conviction of assault with intent to murder; penalty, seven years imprisonment in the penitentiary. This is a second appeal in this ease (Hall v. State, 42 Texas Criminal Reports, 444'), and the facts in the two cases being substantially the same, it is only necessary to refer to the former appeal for a statement.

<p>Burglary—Domestic Servant—Charge of Court.</p> <p>On a trial for burglary, where it appeared that the burglarized premises was a saloon, in and under the management of the Tremont Hotel, but kept separate from the hotel; that defendant was employed to scour the corridors and clean up the spittoons of the hotel, but was in no manner connected with the saloon or its business; Held, the court properly refused to submit to the jury the law as to burglary committed by a domestic servant. Defendant, though a servant as to the hotel, wa.s not a servant of the saloon, which had its own employes to do its separate work.</p> <p>[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>1. —Murder—Evidence—Dying Declarations</p> <p>On a trial for murder, where it appeared that deceased had made a dying declaration which had been reduced to writing, and had also made another declaration to another person at another time which had not been reduced to writing, the fact that one of the declarations/had been reduced to writing, would furnish no reason why the parol declarations made under the sense of impending death, at a different time, would not be admissible in evidence. Following Krebs v. State, 8 Texas Criminal Appeals, 1.</p> <p>2. —Same—Postponement— Surprise.</p> <p>Where defendant had the opportunity to use, but had excluded a certified copy, on file in the trial court, of deceased’s dying declaration as contained in the certified copy of the opinion of the Court of Criminal Appeals, upon a former appeal (which was admissible under the statute, Revised Statutes, article 2306), he can not claim a postponement upon the ground of surprise that the court admitted proof of another parol declaration by deceased to another person.</p> <p>3. —Same.</p> <p>A motion to postpone the trial to obtain a written dying declaration upon the ground that there was a conflict between it and the parol declaration as proven, was properly refused where the written declaration contained the substance of the declaration only, and the witness testifying to the parol declaration had neither read nor heard the written dying declarations read.</p> <p>4.—Same.</p> <p>A motion to postpone the trial to obtain a written dying declaration, was properly refused where an opportunity to have it in court was afforded defendant and he was lacking in diligence to secure it.</p> <p>[Hote.—Appellant’s motion for rehearing was overruled without a written opinion.—Eeporter.]</p>

The indictment charged appellant and Jim Carson jointly with the murder of Sip. Boss, on the 25th. day of December, 1900, by sho'oting him with a gun. At the trial Jim Carson was acquitted. It appears from the evidence that the parties had had previous difficulties and perhaps a law suit. They had made serious threats against each other. Deceased was drunk the day before he was killed.

<p>I. —Magistrate—Examining Court—Practice as to Binding Over Accused.</p> <p>A magistrate sitting as an examining court in felony eases is authorized to hold an accused to bail to the next "ensuing term of the district court if no court is in session, or for his appearance before the district court then in session, if said court be in session. Quaere, as to his authority, to bind him over to the next ensuing term of the district court when such court was then in session.</p> <p>3.—Habeas Corpus—Practice.</p> <p>On habeas corpus, where an accused had been bound over by the examining court to the next ensuing term of the district court, which court was at the time in session, two courses were open to the trial judge, either to recall the grand jury or to hold accused to bail for his appearance at the next ensuing term of the district court, and in adopting the latter course, his action is justified under our statutes and decisions.</p>

<p>Local Option—Sale, What Is.</p> <p>The exchange and delivery of a pint of peach brandy by a distiller to a customer for each bushel of peaches furnished by the latter, constituted a sale of the liquor in violation of local option in a prohibited district where the law is in force.</p>

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

<p>No statement necessary.</p>

<p>The indictment charged Joe T. Cleavinger, Apps Davis, J. B. Rogers, Hamilton Davis, and Rolan Ragsdale, jointly with defacing a public building, to wit, the Alazan school building.</p> <p>Ho statement necessary.</p>

The indictment charged appellant, R. M. Anderson, and Cain Anderson, his son, jointly with the murder of C. E. Rishell, on the 25th day of June, 1900, by shooting him with a pistol. They were jointly tried and Cain Anderson was convicted of manslaughter, with penalty' assessed at two years imprisonment in the penitentiary, and he declined to prosecute his appeal and withdrew it. The opinion states the case.

Tried below before Hon. L. B. Cobb. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. The indictment charged defendant with the murder of John H. Burleson, on the 39th day of October, 1900, by shooting him with a pistol.

<p>1.—Extradition—Void Affidavit.</p> <p>A party accused of crime in this state, and who has been extradited from another State to answer to said crime, is not entitled to be released from custody upon the ground that the extradition proceedings are void because the affidavit charging him with the crime is not in conformity with the requirements of the Federal statute. He should have availed of this matter in the State from which he was extradited, and it is too late to undertake to avail himself of this matter in this State.</p> <p>i$.—Failure of Grand Jury to Indict—Rearrest.</p> <p>The failure of the first grand jury to indict does not prevent the rearrest of defendant and his being held to await the action of another grand jury upon new evidence tending to connect him with the crime.</p>

Tried below before .Hon. Marvin Turney, Special Judge. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. This is the second appeal in this case. See Johnson v. State, 42 Texas Criminal Reports, 377, where the facts are stated.

<p>1. —Rape of a Female Mentally Diseased—Prosecutrix Incompetent as a Witness.</p> <p>On a trial for rape of a female charged by the indictment to have been at the time so mentally diseased as to have no will to oppose the act of carnal knowledge, the prosecutrix is incompetent to testify as a witness and prove the corpus delicti; because the allegation in the indictment apprehends her insanity at the time charged as to the particular act, and the statute, article 768, Code of Criminal Procedure declares such person incompetent to testify.</p> <p>2. —Nonexpert Testimony as to Insanity.</p> <p>Nonexpert witnesses are not permitted to testify as to the condition of the mind of the prosecutrix on a trial for rape, where such witnesses have not qualified themselves by stating sufficient facts showing their knowledge and familiarity with prosecutrix to enable them to give an opinion.</p> <p>3. —Rape of a Mentally Diseased Female—Evidence Insufficient.</p> <p>See opinion for facts held insufficient to support a conviction of rape of a female so mentally diseased as to have no will to oppose the carnal act.</p>

<p>Appeal from the District Court of Havarro. Tried below before Hon. L. B. Cobb.</p> <p>Appeal from a conviction of murder in the first degree; penalty, death.</p> <p>The indictment charged appellant with the murder of W. G-. Broom, on the 7th day of June, 1900, by means unknown to the grand jury.</p> <p>The record is voluminous, especially the statement of facts. It was a case purely of circumstantial evidence, but the essential facts may be briefly stated as follows, viz: Appellant Morris and deceased Broom appear to have been friends of long standing. Appellant moved from Arkansas to Corsicana in the spring of 1900; and at Corsicana was engaged in working upon boilers and oil tanks, he being a blacksmith by trade. Deceased came from Weatherford, arriving at Corsicana shortly after defendant. He came in a wagon drawn by two mules, and had with him in the wagon his carpenter box and tools and a trunk, lot of bedding and camping outfit. After reaching Corsicana he boarded with defendant and they engaged in several jobs of work together. On the 6th of June defendant’s wife moved to Jacksonville. Defendant and Broom were seen frequently together after her departure. On the evening of June 7th they were on the road with the wagon and mules some five miles from Corsicana, looking for a man named Diffey, to whom they expected to sell the wagon and mules. Diffey met them there, but did not buy the property. George Leonard testified that he saw the parties, defendant and deceased, in front of Mrs. Patrick’s home about 8 o’clock on the evening of June 7th; they were talking; defendant was sitting in deceased’s wagon and deceased standing on- the ground. This witness also testified that he heard a wagon leave Mrs. Patrick’s house that night between 10 and 12 o’clock, and saw a buggy leave shortly afterwards, and they went in the direction of the tank where deceased’s body was afterwards found. This was the last time deceased was seen alive by any of the witnesses. A few days thereafter, some little boys who were in swimming, discovered the body in the Cy West water tank, about two miles south of Corsicana. Grantham, a justice of the peace, who held the inquest, fished the body from the tank and he describes the condition in which he found it as "follows: “A quilt was wrapped around the lower part of the body and tied with a rope. Over the head was a gunnysack that was pulled down over him and his' hands were down and a rope was tied around his body holding his hands, and another rope around his body outside the sack. Inside this gunnysack was another gunnysack which had something like a hatful of rivets made of iron, and such as are used in building oil tanks. * * * Altogether these rivets in the gunnysack tied around the head would weigh about forty or fifty pounds. They were tied around his neck with a string. There was no house near the tank. * * * There were two very ugly wounds on the back part of' the head; in fact the skull was crushed, and you could see through the hole. The body was fully identified as that of W. G. Broom.</p> <p>On the 8th day of June defendant sold Broom’s team of mules and wagon to Anderson & Johnson, in Corsicana, for $110. He stated he “had bought the property of Broom, and that Broom had gone south,” and said he was going to Jacksonville, where his wife was. He shipped a box containing Broom’s bedclothing addressed to Broom at Sabine Pass. He carried Broom’s trunk with him. He was next seen in Texarkana and was arrested there after the dead body of Broom was found as above stated. Defendant did not testify in his own behalf at the trial.</p>

Tried below before Hon. Gordon Russell. 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 Houston Mayfield, on the first day of August, 1901, by shooting him with a Winchester rifle. The opinion gives a concise statement of the essential facts attendant upon the killing.

This is the third appeal in this case. See Lankster v. State, 41 Texas Criminal Reports, 603, and Lankster v. State, 42 Texas Criminal Reports, 360. A reference to those cases will show the facts of the ease. No statement necessary in this case.

<p>1. —Change of Venue—Unsuccessful Effort to Secure a Jury.</p> <p>Under provisions of article 616, Code of Criminal Procedure, where there has been an unsuccessful effort to secure a jury in the county of the prosecution, the venue may be changed upon the affidavit of any credible person. Held, a written affidavit is essential in such ease, and the sworn testimony of the sheriff as to the facts is not tantamount to such written affidavit and will not suffice.</p> <p>2. —Same.</p> <p>Where an unsuccesful effort has been made to secure a jury in the county of the prosecution, the court may of its own motion change the venue under provisions of article 613, Code of Criminal Procedure; and where this has been done, the ruling will not be reviewed on appeal unless some prejudice or injury to defendant be shown.</p> <p>3. —Rape—Evidence—Permitting Child of Prosecutrix to be Exhibited to Jury.</p> <p>On the trial for rape of a female under the age of 15 years, it is errijr to permit the infant child of the prosecutrix to be exhibited to the jury.</p> <p>4. —Rape of a Female Under Fifteen Years of Age—Indictment,</p> <p>An indictment for rape of a female under the age of 15 years is sufficient which alleges that defendant “did then and there, in and upon R. G., a female under the age of 15 years, 'make an assault, and * * * did then and there ravish and have carnal knowledge of the said R G., the said R G. not being the wife of defendant.” Such indictment is not duplicitous.</p>

<p>1. —Rape—Evidence.</p> <p>On a trial for rape of a female under 15 years of age, it is competent to prove sexual intercourse between the parties committed in another county and State as tending to show illegal intimacy between the parties.</p> <p>2. —Same.</p> <p>On a trial for rape, it is incompetent to prove that the mother of prosecutrix was keeping a house of ill fame at the time of the alleged offense.</p> <p>3. —Same.</p> <p>On a trial for rape of a female under 15 years of age, it is no defense that defendant was ignorant of the age of prosecutrix and that he exercised reasonable care to ascertain her age.</p> <p>4. —Same—Charge.</p> <p>On a trial for rape, where evidence was introduced of illegal acts of. intercourse in other counties, it was proper for the court to instruct the jury that they could not convict defendant of offenses committed in such other counties.</p>

<p>Arrest Without Warrant—Duty of Officer—Right of Resistance—Charge.</p> <p>Where an officer seeks to arrest a party without warrant for a disturbance-of the peace.or for carrying a pistol, it is his duty to do so within the spirit of article 278, Code of Criminal Procedure; that is, he must make known to the person accused under what authority the arrest is made; and where the officer does not do this, but seized defendant without notifying him that he arrested him and of the capacity in which he was acting, defendant would have the right, to resist such unlawful arrest and use whatever force was necessary to accomplish such resistance, viewed from his standpoint at the time. See opinion for charge of court upon the subject held erroneous and not warranted by the-evidence.</p>

<p>Ho statement necessary.</p>

<p>Appeal Bond from Corporation Courts—Sufficiency of.</p> <p>Appeal bonds from corporation courts are governed by provisions of article 889, Code of Criminal Procedure, with regard to appeal bonds from justice courts, and that article prescribes no particular form for such bonds. Where such bond from the corporation court shows the date of the judgment, the parties and title of the court, and the amount of the fine adjudged, it is sufficient although it does not contain the file number of the case.</p>

<p>1. —Change of Venue..</p> <p>On the hearing of defendant’s motion to change the venue, on a prosecution for murder, it was error for the court to refuse to hear further testimony on the ground that no prejudice existed, where it was shown that on previous separate trials two of defendant’s codefendants had been each convicted and that the testimony .elicited on their trials had been published'in the county papers and thus extensively circulated throughout the county; and forty-three witnesses of almost every vocation had testified that, in the opinion of citizens with whom they had conferred, defendant was guilty; some thinking that he ought to be hanged and others that he "ought to be burned; and when the State introduced no evidence controverting this testimony. What the court may have heard, on motion for change of venue in the previous trials of defendant’s two codefendants, could afford no reason for the action of the court in the case.</p> <p>2. —Same—“Prejudice”—Prejudgment.</p> <p>On a motion for change of venue, “prejudice” and “prejudgment” of the case mean the same thing; that is, when one has prejudged a person’s guilt of the accusation against him, he has a prejudice against such person, and especially may this be so in a case of startling atrocity so horrible as to engender a personal prejudice against the person accused of its perpetration.</p> <p>3. —Murder—Experiment—Spectacular Evidence.</p> <p>On a trial for murder by pouring turpentine over deceased and then setting fire to his clothing, it was error to permit a piece of woolen goods to be soaked with turpentine and then set on fire, and in the presence of the jury attempt to put it out. This was not experiment evidence testified to by witnesses, but a spectacular exhibition before the jury, and as such was not admissible.</p> <p>4. —Same—Impeachment of Witness—Contract of Two Defendants to Turn State’s Evidence—Charge.</p> <p>On a trial for murder, where two codefendants had made a contract to turn State’s evidence, and one of them had testified and the other had not, and defendant introduced said contract for the purpose of impeaching the one who had testified, it was error for the court to assume that defendant had introduced the contract as the original testimony of both- parties against himself.</p> <p>5. —Same—Hearsay Evidence—Withdrawal of.</p> <p>On a trial for murder by a saloon keeper for purposes of robbery, the testimony of a police officer to the effect that when a man is robbed in one of the dives in “the south end,” and the proprietor is indicted for robbing him, “they always prove the man had no money,” was purely hearsay, and its withdrawal by the court could not cure the error of its admission.</p> <p>6. —Same—Declarations of Deceased.</p> <p>On a trial for murder, the declarations by deceased several hours after he had been burned, in answer to questions calculated to elicit his statement, to the effect that one of the pieces of money taken from him was a nickel with a hole in it, was inadmissible as part of the res gestae.</p> <p>,7.—Same—Evidence—Disguise of Codefendant.</p> <p>On a trial for murder it was inadmissible to prove that a codefendant had, for purposes of disguising himself, changed the color of Ms mustache from a brown color, on the night of the homicide, to that of black at the trial, it being testimony as to a matter transpiring long after any conspiracy may have existed between the parties.</p> <p>8. —Same—Evidence.</p> <p>On a trial for murder, it was incompetent and inadmissible to prove by the wife of deceased the number and ages of her children by deceased.</p> <p>9. —Same.</p> <p>On a trial for murder it is not competent to prove by the county attorney that, at the time he made a contract with one of defendants to turn State’s evidence, he told such defendant that the contract would be forfeited if he implicated or brought in any innocent man.</p> <p>10. —Declaration of Bystander.</p> <p>On a trial for murder, it is not competent to prove by a witness that as he ran over to the saloon he heard some one, he does not know who, saying, “There is a man burning up in there, and they set him afire, too.” It was hearsay, and not res gestae nor a declaration by participants.</p> <p>11. —Same—Declarations and Statements of Codefendant.</p> <p>It is incompetent to prove against defendant the declarations and statements of a codefendant, and statements of a codefendant made in the absence of defendant and long after the alleged conspiracy between the parties had transpired.</p> <p>12. —Same—Principals—Charge of Court.</p> <p>On a trial for murder where several parties were implicated, and which occurred in saloon of defendant, it was error for the court, in the charge as to principals, to so interpolate defendants ownership of the saloon as to cause the jury to regard as evidence, or presumptive evidence on the part of appellant, that some one had committed the crime (setting deceased on fire); and it was further error, contradictory and misleading, to instruct the jury to convict defendant as a principal if he participated in the act, and to convict him whether he participated or not.</p> <p>13.—Same.</p> <p>If defendant conspired with others to pour the turpentine on deceased and then set fire to and burn him, he would be guilty though he was in the front part of the saloon at the time; or if he did not so conspire with others to burn •deceased, but was present and knew that others were engaged in the crime, and he aided by acts, words, or gestures in anywise, he would be equally guilty with those who set fire to deceased. On the contrary, if he only engaged with others to turpentine deceased, and without his knowledge or consent some one else set fire to and burned deceased to death, then he would not be guilty. And these principles of law should have been presented in the charge to the jury in clear and distinct phraseology.</p> <p>[Note.—The State’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

Tried below before Hon. Chas. F. Clint. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. The indictment, in the first count, charged appellant with the murder of C. P. Bane, on the 3d day of December, 1900, by burning him to death, and causing him to be burnt to death with fire.

<p>1. —Murder—Evidence to Show Motive.</p> <p>On a trial for murder, it is competent for the State to prove, as going to show motive and intent on the part of defendant, that he, defendant, had for about two years before her marriage to deceased had illicit' intercourse with deceased’s wife; that she was pregnant by defendant at the time of her marriage to deceased, and that defendant was instrumental in bringing about such marriage.</p> <p>2. —Same—Remote Testimony.</p> <p>The fact that evidence tending to show motive on the part of defendant may be remote is no legal objection to its admissibility. Remoteness of acts may go to the probative force of, but is no reason for the exclusion per se of testimony.</p> <p>3. —Same—Evidence as to Motive.</p> <p>On a trial for murder it is competent, as going to show motive on the part of defendant, to prove, in connection with proof of defendant’s illicit relations with the wife of deceased and her pregnancy by defendant prior to her marriage to deceased, that defendant had attempted to procure medicine of a physician that would produce an abortion.</p> <p>4—Murder—Tracks as Evidence.</p> <p>On a trial for murder it is admissible to prove by a witness that, in his opinion, certain shoe tracks examined by him, and which were trailed by him from the place of the killing, corresponded with the boot of defendant which witness exhibited before and described to the jury.</p> <p>5. —Same.</p> <p>On a trial for murder it is permissible to prove by a witness that several days alter he had examined and tracked the shoe tracks from the place of the killing he went over the ground with other parties, one of whom was making a map of the locus in quo, and pointed out to said parties where the tracks were leading to and from the dead body.</p> <p>6. —Same.</p> <p>Where the sheriff had testified to the peculiarity, etc., of certain shoe tracks examined and trailed by him from the place of the killing, and he had stated that he did not remember testifying as to the peculiarity of the tracks on a former trial, it was competent, in answer to a question by State’s counsel, for him to state, “I don’t know that that question was asked me, but my evidence was, that the track that led across the field was the same track at the tree at the body, that went up to the killing and back to the tree,—was the same track all the way through.”</p> <p>7. —Murder—Evidence.</p> <p>On a trial for murder where defendant had, on cross-examination of the sheriff, proved by him that he, the sheriff, knew that defendant had been or was going to be arrested before he, witness, had reached the place of the homicide, it was competent on re-examination to prove by said sheriff that before he went to the place he ordered defendant to be arrested on information he had received as to the conditions there.</p> <p>8. —Same.</p> <p>On a trial for murder, it is error to permit the sheriff to testify that after he had arrested defendant and had warned him as to any statement he might make, he took defendant to the house where deceased’s dead body was, and that defendant refused to go into the house and look at the dead body, although witness invited and demanded that he should do so.</p>

Tried below before Hon. Chas. F. Clint. 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 C. P. Bane, and was gi-milur in its allegations to the indictment in the cases of Faulkner v. State¡ and Chapman v. State, ante, pages 311 and 328, this case being a companion case to those cases.

<p>1. —Special Instructions—Practice.</p> <p>It is not error for the court to refuse to give a special requested instruction where the same is not an issue raised by the evidence.</p> <p>2. —Theft of Mule—Driving Stock from Accustomed Range.</p> <p>On a trial for receiving stolen property, where it appeared from the evidence that the thief took the mule and rode it to the home of defendant and placed it in his possession and custody, this was theft of the animal by_ the thief, and was not driving stock from its accustomed range in the contemplation of artielé 884, Penal Code.</p> <p>3. —Special Instruction—Signing by Judge.</p> <p>Where the court read defendant’s special instructions to the jury, stating that he gave the same as law applicable to the case, but failed to sign the same, this would not constitute reversible error.</p> <p>4. —Newly Discovered Evidence—New Trial.</p> <p>A new trial will not be granted for newly discovered evidence which might have been secured by the use of ordinary diligence.</p> <p>[Hote.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

The indictment alleged the ownership of the two bales of cotton in one L. F. Hurt. Hurt testified that one Turner and one Edrington each owned one of the stolen bales. That he was a cotton Weigher, and had leased the cotton yard. That farmers brought their cotton to the yard to have it weighed; and that when it was left in the yard he took general oversight over it and issued a receipt for it simply to identify it.

From Coleman. Original application to Court of Criminal Appeals for writ of habeas corpus, to be relieved from a commitment on a judgment and fine of $50 for contempt of court. The case is stated in the opinion.

<p>Ho statement required.</p>

The indictment charged appellant with the theft of money of the aggregate value of $73.75, from the possession of Giacomo Duplech, and. without his consent, etc. Defendant testified that she was the kept woman of Duplech and that he had given her the money. The evidence as to Duplech’s want of consent to the taking was the following testimony of Mike Niland, city marshal, viz.: “The defendant had an examining trial before Justice Dunn.

<p>Appeal from Hopkins, from a hearing, in vacation, of a writ of habeas corpus. Tried below before Hon. H. C. Connor.</p>

<p>The opinion states the material facts shown in evidence on the trial.</p>

<p>Ho statement of facts or bill of exceptions in the record.</p>

From Jefferson County. Original application for habeas corpus to be relieved from arrest by the city marshal for a violation of a city ordinance against pool-selling on horse-racing.

Tried below before Hon. SI. Newton. Appeal from a. conviction of cattle theft; penalty, two years imprisonment in the penitentiary. The following is the testimony of the State as adduced on the trial: J. H. Rambo testified: “I was working for George Brigman during the months of October and November, 1900, and Jesse Clements was working there, too, at said time.

<p>Ho statement required.</p>

Tried below before Hon. Ben H. Denton. Appeal from a conviction of negligent homicide in the second degree; penalty, a fine of $2500. Appellant was charged by the indictment with the murder of Richard Pepper, on the 24th of August, 1901, by shooting him with a pistol. Defendant owned a saloon and left it about 4 o’clock a. m. to go by on his way home to see a friend who was quite sick. He had a sack of money with him which he was taking home.

<p>1. —Tenpin Alley—Exhibiting—Charge.</p> <p>On an information charging only the exhibiting a tenpin alley, brought under the Act of 1901 (General Laws, Twenty-seventh Legislature, page 267) a charge to convict, if the jury believed that defendant was “keeping” or exhibiting said alley for betting, etc., was not erroneous where the proof showed that defendant was both the keeper and exhibitor and the same was an act continuous in its nature.</p> <p>2. —Same—What Is.</p> <p>"If a tenpin alley is kept or exhibited for the purpose of gaming, that is, if the table fees, or alley fees, or money, or anything of value is bet thereon, it comes within the prohibition of the law. And where the exhibitor sold betters a chance in a knife,—the best roller to get the knife, or its money value,— and the proprietor got his money out of the profits on the knives, this was a violation of the law and punishable thereunder.</p>

<p>1. —Deputy Sheriff—De Facto Officer.</p> <p>A party who has been appointed deputy sheriff, but who absolutely refused to take oath of office and file the same in the office of the county clerk, in connection with his appointment; who has never exercised the duties of the office nor "had the reputation in the community of being a deputy sheriff, is not a de facto officer. Such action' is tantamount to a refusal to accept the appointment.</p> <p>2. —Aggravated Assault—Unlawful Arrest—Simple Assault.</p> <p>On a trial for aggravated assault upon an officer while making an arrest, where the evidence showed that the assaulted party was neither a de jure nor a de facto officer, and the jury found defendant guilty- of simple assault, this was equivalent to finding, that the alleged assaulted party was not an officer in the discharge of his duties; and if defendant resisted an illegal arrest attempted by such pretended officer, he could not be convicted of simple assault, because he had the right to resist such unlawful arrest.</p>

<p>Murder—Evidence.</p> <p>On a trial for murder, where the defense was that deceased had committed rape upon defendant’s wife, and where the State had proved that deceased was impotent on account of age and decrepitude, and incapable of committing rape, it was not error to exclude, as rebutting the State’s theory, evidence to the effect that about two years before deceased had proposd marriage to a female witness; and that shortly before the homicide he had told a witness he (deceased) wanted to get a woman to sleep with.</p>

<p>1. —Sentence—Entry of at Subsequent Term.</p> <p>A sentence, when not pronounced during the term, may, under the statute, be pronounced at any subsequent term either by simply pronouncing sentence upon defendant, or by proper motion entering the same nunc pro tunc.</p> <p>2. —Same—Mandamus.</p> <p>A mandamus will not be issued by the Court of Criminal Appeals commanding the clerk of the court below to enter the sentence upon his record where he' has failed or omitted to do so.</p> <p>3. —Same—Jurisdiction on Appeal.</p> <p>In noncapital felonies, the jurisdiction of the court on appeal does not attach unless it be made to appear that sentence was properly passed and entered upon the minutes of the court below.</p>

Tried below before Hon. Ben H. Denton. Appeal from a conviction of murder in the first degree; penalty, imprisonment in the penitentiary for life. The indictment charged appellant with the murder of I. J. Martin (his son-in-law), on the first day of May, 1901, by shooting him with a pistol.

Tried below before Hon. Phil Jackson. Appeal from a conviction for betting at crack-loo; penalty, a fine of $10. Ho statement necessary.

<p>1. —Gaming—Indictment.</p> <p>An indictment for gaming is sufficient which charges that defendant “did then and there unlawfully play at a game with cards in a public place, to wit, a gaming house.”</p> <p>2. —Same—Witness Testifying as to—Evidence Before Grand Jury.</p> <p>On a trial for gaming, where defendant claimed exemption from prosecution under provisions of Penal Code, article 391, upon the ground that he had been summoned and had testified as a witness to violations of the gaming laws, and especially as to this occurrence, before the grand jury, he was entitled to prove that he had been summoned and had so testified before the grand jury.</p> <p>3. —Witness Giving Information as to Gaming—His Exemption.</p> <p>Under provisions of Penal Code, article 391, if the' testimony of any one of the participants to gaming is used in behalf of the State by any of the tribunals, courts, or officers mentioned, tKis exonerates him from prosecution; and it matters not, at the time he so testified, whether he had been indicted or arrested or knew there was an indictment against him for the transaction.</p> <p>4.—:Same.</p> <p>Article 391, Penal Code, was enacted for the purpose of forcing witnesses to testify in behalf of the State, and a witness can not incriminate himself in such cases, but is exonerated from punishment, and his testimony can not be used against him.</p>

Appellant was charged by the indictment, in two counts, with adultery by unlawfully living together and habitual carnal intercourse; and by habitual carnal intercourse, without living together, with one Hell Bass; each party being then and there lawfully married to another person then living. No statement necessary.

Tried below before Hon. J. M. Smither. Appeal from a conviction of murder in the second degree; penalty, seven years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of John Baxter, on the 6th day of July, 1899, by shooting him with a gun. The parties' had worked together as partners in raising a corn crop. They got into trouble over the fodder, and this was the cause of the killing.

<p>No statement required.</p>

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

Tried below before Hon. A. H. Carrigan. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. Ho statement is required to further illustrate the questions so fore-fully presented and discussed in the opinion.

<p>1. —Rape—Evidence—Impeachment of Witness.</p> <p>On a trial for rape it is not admissible to prove by a witness what a third party had told the witness that defendant, who was not present at this conversation, had told said third party about his intention to have carnal intercourse with the prosecutrix. When the third party, as a witness, denied he had made such statement, that was an end of the matter, and he could not be impeached concerning it. And defendant not being in any way responsible for such statement, if made by a third party, it could not be introduced directly or indirectly against him.</p> <p>2. —Samé—Evidence.</p> <p>On a trial for rape, it was" not competent to prove that shortly after the outrage the husband of prosecutrix made an assault upon defendant, believing him to be the man who had raped his wife.</p> <p>3. —Same—Statements and Conduct of Prosecutrix.</p> <p>On a trial for rape, the statements and conduct of prosecutrix, a very few moments after defendant had left the scene of the alleged rape, was admissible in evidence.</p> <p>ON MOTION FOR REHEARING.</p> <p>4. —Evidence—Act and Declaration of Third Party.</p> <p>Any act or declaration of a third party can not incriminate or be used in evidence to the prejudice of defendant unless defendant was so connected with it as to make it admissible as evidence against him.</p> <p>5. —Bill of Exceptions.</p> <p>A bill of exceptions must be approved by the trial judge.</p>

<p>1. —Cattle Theft—Mistake in Charge as to Penalty Not Ground for Reversal, When.</p> <p>On a trial for cattle theft, where the court charged the jury that the penalty was “not less than two nor more than five years” in the penitentiary, whereas the statutory penalty is “not less than two nor more than four years,” and the verdict of the jury assessed the punishment at two years, the minimum penalty; Held, under article 723, Code of Criminal Procedure, as amended in 1897, such error, not being calculated to injure defendant’s rights, did not constitute reversible error.</p> <p>2. —Circumstantial Evidence—Charge—Omission In.</p> <p>A charge on circumstantial evidence, otherwise sufficient, is not fatally defective because it omits to instruct the jury that defendant “and no other person” committed the offense.</p> <p>3. —Same—Charge as to Reasonable Doubt.</p> <p>Where the'charge of the court has sufficiently instructed the jury as to the presumption of innocence and reasonable doubt, it is not fatally defective because it omitted the reasonable doubt as to one particular phase or paragraph. The charge must be considered as a whole.</p>

• Appeal from the District Court of Hunt. Tried below before Hon. H. C. Conner. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of Alex •Jones, on the 16th day of December, 1900, by shooting him with a pistol.

Tried below before Hon. R. D. Thompson, County Judge. Appeal from a conviction of aggravated assault; penalty, a fine of $25. The information charged appellant with an aggravated assault with a stick, a deadly weapon, and the infliction of serious bodily injury upon one Charley Flanders, on the 26th day of August, 1901. The case is sufficiently stated in the opinion.

Tried below in chambers, before Hon. Sam E. Scott, appointed by the Governor as special judge to try said case, the Hon. J. C. Scott, Judge of the District Court of Eobertson County, being disqualified. Appeal from a judgment on habeas corpus refusing relator bail in a case of murder. Appellant was indicted for the murder of Allie Boswell.

<p>1. —Fence—Pulling Down, etc.—Construction of Statute.</p> <p>Article 794, Penal Code, with regard to pulling down, etc., the fence of another without his consent, protects not only inclosed lands upon which agricultural products are raised, but other lands as well; and whenever a party breaks, pulls down, or injures the fence of another, he comes within the denunciation of the statute.</p> <p>2. —Same—Joint Fence—Right to Withdraw From.</p> <p>Under provisions of Penal Code, article 797, the joint owner of a fence, that is, owner of a fence connected with any fence owned by another person, may, after giving six months’ notice in writing to such other person, withdraw and. cut loose his fence from such other person’s fence; and in doing so, after the expiration of such notice, he would not be guilty of a violation of article 794, prohibiting the breaking or injuring the fence of another.</p>

<p>No statement required.</p>

The gravamen of the offense, as shown by the allegations in the indictment, was that one Dollie Trimble had reserved a vendor’s lien note for $87.50 upon a tract of land sold by her to one M. R. Gower, and that appellant fraudulently indorsed the said vendor’s lien note with the forged name of Dollie Trimble for the purpose of negotiating said note.

Tried below before Hon. J. M. Smither. Appeal from a conviction of manslaughter; penalty, four years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of Gus Fuqua, on the 30th day of November, 1897. The parties were negroes and friends up to the difficulty which occasioned the homicide. They attended a festival at the house of a woman named Seymour. This woman got defendant to act as her clerk in the sale of soda water.

Tried below before Hon. J. E. Dillard. Appeal from a conviction of assault with intent to murder; penalty, seven years imprisonment in the penitentiary. This is the third appeal in this case (See Hall v. State, 42 Texas Criminal Reports, 444, and Hall v. State, ante, p. 257), and the essential facts are readily seen from these appeals. Ho statement necessary.

<p>1. —Disqualification of Judge.</p> <p>The fact that the trial judge, before his elevation to the bench, had been asked what fee he would charge to prosecute defendant, and he simply stated the amount of the fee he would take, which was never arranged or agreed to be paid, and he gave no advice as to the case and had nothing further to do with it, this did not constitute him an employed attorney in the ease and did not disqualify him from afterwards trying the case as a judge.</p> <p>2. —Assault with Intent to Murder—Remote Evidence.</p> <p>On a trial for assault with intent to murder, where it appeared that defendant had some considerable time prior thereto been attempting to seduce the injured female, evidence tending to show his motive, though remote, if connected or manifesting any bearing upon the issue being tried, was admissible, its weight being matter for the jury. '</p> <p>3. —Same—Evidence.</p> <p>On a trial for assault with intent to murder, it was admissible to prove by the prosecutrix that she found oil poured upon some of her clothing, when the defendant was the only person at the house at the time, and the circumstances tended strongly to show that he did it.</p> <p>4. —Animus of Witness Towards Defendant.</p> <p>Where a witness is asked as to her feeling towards defendant, and her testimony on the matter is noncommittal, no injury is shown.</p> <p>5. —Bill of Exceptions to Admitted Testimony.</p> <p>A bill of exceptions to testimony showing that the prosecutrix was brought twice before the grand jury, which does not show what she testified to on either occasion, will not be reviewed.-</p> <p>6. —Assault to Murder—Evidence.</p> <p>On a trial for assault with intent to murder, which was committed by shooting at night, it was competent to show that the ground near the house appeared on the next morning to have been disturbed as if some one had been there, and it was not necessary to the admission of this evidence that testimony identifying defendant’s tracks at the place should have first been adduced.</p> <p>7. —Same—Evidence—Conduct of Defendant.</p> <p>On a trial for assault with intent to murder, it was material and competent to prove that, on the. morning after the shooting, defendant failed and refused to assist the neighbors in searching for tracks and other incriminating evidence which might lead to the detection of the guilty party.</p> <p>8. —Same—Evidence as to Tracks.</p> <p>It is not essential to the admission of evidence of similarity of shoe tracks, that the tracks should have been measured by the witnesses; it is competent for the witnesses to state that they appeared to be similar and looked to be the same size as those made by defendant.</p> <p>9. —Same—Evidence.</p> <p>On a trial for assault with intent to murder, it was competent to show the character of shot found in and taken from the pocket of the pants of defendant at his house.</p> <p>10. —Same.</p> <p>On a trial for assault with intent to murder, where a piece of paper, which was identified as the same that had been turned over to the district attorney, was exhibited in court to a witness, it was competent for the witness to state that it looked like the same piece of paper, and he believed it was, and took it to be the same piece of paper that was taken from defendant’s pants pocket at his residence on the morning after the shooting.</p> <p>11. —Same—Evidence as to Defendant’s Motive.</p> <p>On a trial for assault with intent to murder, where defendant had attempted to show by the witness, who was his father-in-law, and also father of the prosecutrix, that there was no motive for his shooting the latter, because the best of feeling had always prevailed between the witness and his family and defendant, it was competent to prove by the witness that he and defendant had previously had some differences.</p> <p>12. —Same—Evidence as Tending to Identify Defendant.</p> <p>On a trial for assault with intent to murder, which was committed on a warm, dry, midsummer night, it was competent, as a circumstance tending to show that defendant committed the deed, to prove by a witness that on the morning after the shooting, and at defendant’s house, which was three miles from the scene of the shooting, the witness found defendant’s shirt hanging in his room, and it was damp. This evidence tended to show that defendant must have walked rapidly from the scene of the shooting to his house.</p> <p>13. —Same—Evidence of the Feelings of Prosecutrix Towards Defendant.</p> <p>On a trial for assault with intent to murder, where the State had introduced a number of circumstances tending to show defendant’s attempt to seduce the prosecutrix, it was competent to show that the state of feeling was not good on her*part towards him, especially as the prosecutrix showed herself to be a reluctant witness.</p> <p>14. —Same—Statements of Defendant.</p> <p>On a trial for assault with intent to murder, where the defense was an alibi, and where, after defendant’s arrest and he had been properly warned by the officers as to any statement he might make, his statement that .“on the night of the shooting he was at home by himself, and how could he prove out of this business, that he did not shoot the girl, but who can he prove it by, when there was nobody at home but himself,” was relevant, pertinent, and admissible in evidence to meet the defense of alibi and show that it was fabricated.</p> <p>15. —Same—Identification of Defendant.</p> <p>On a trial for assault with intent to murder, it was competent to prove by prosecutrix and another female that some . time before the shooting defendant came into the room where they were sleeping, and that one of them identified him by his broken arm, which he was carrying in a sling.</p> <p>16. —Argument of Counsel—Allusion to Former Conviction.</p> <p>While the statute, Code of Criminal Procedure, article 823, would appear to prohibit the barest allusion to a former conviction, yet where it is evident there was no intention to allude to it, and the matter connected with such former conviction was referred to incidentally and for no ulterior purpose, it ought not to afford ground for reversal. In this instance the attorney was referring to the affidavit of a witness attached to the motion for new trial on the former trial.</p>

Tried below before Hon. Stanley Welch. Appeal from a conviction of cattle theft; penalty, three years imprisonment in the penitentiary. The indictment charged Alejos Garza, Manuel Dominguez, and Mauricio Garzia jointly with the theft of the cattle. They were jointly tried, and the verdict of the jury was: “We the jury find the defendants guilty as charged in the indictment and assess their punishment at three years confinement in the State penitentiary.”

Appellant was charged by the information with an attempt to produce an abortion upon Lucy Godsey, a pregnant woman, with her consent, by then and there administering to her a certain drug and medicine well calculated to produce that result.

<p>Appellant was charged by the indictment with the murder of George Frompton, on the 12th day of June, 1899. There were five counts in the indictment as to the means used in committing the murder, viz: The first, that it was done by striking with a hand ax; second, with some hard instrument to the grand jurors unknown; third, by drowning him in water; fourth, by striking him with a hand ax and hard instrument and then drowning him; and fifth, by ways, instruments, weapons, and means to the grand jurors unknown.</p> <p>On the 15th of June, 1899, the dead body of George Frompton was found in a waterhole by some parties who were fishing in Milam Creek. ■The body was under the water. A rope around the neck was tied down to the root of a tree, which was also under the water. When taken out of the water it was found that his hands and feet were also tied and a rock, weighing from forty to sixty pounds, was found tied to the end of a rope which was tied to his feet. There was a wound above one of his eyes about an inch long. The Gainesville and Denton public road crosses the creek a short distance below where the body was found. Upon the ban'k of this creek, at this crossing, was a place commonly used as a camping ground by parties traveling in vehicles. Frompton and defendant had left the city of Houston some months before in a hack drawn by two ponies, and containing their camping outfit and set of tools used in repairing stoves, the business they were engaged in. The hack and ponies, etc., belonged to Frompton, and defendant was perhaps to gain an interest in them as they prosecuted their work. They traveled and pursued their avocation along their route as opportunity offered. On the evening of the Í2th of June, 1899, they encamped at this crossing on Milam Creek, and within about thirty yards of where Frompton’s body was afterwards found. Defendant, with the hack and outfit, was seen at a number of places afterwards, going north. After Frompton’s body was found, as above stated, it was identified as that of the man who was defendant’s companion; and as soon as this was ascertained, the sheriff of the county commenced telegraphing for the arrest of defendant. He was arrested in the city of Sherman, in possession of the property of deceased, as above described. After being warned, he stated to the officers that he and deceased had camped on Milam Creek the Monday night before; that his partner had left him and gone to Houston. That he, defendant, had gone away from the camp to fulfill an engagement with a woman he had met that evening, and while he was gone the old man Frompton left. That he did not hunt for him. He said he had bought Frompton’s interest in the hack and ponies, etc. Quite a number of articles that had belonged to Frompton were found among the effects in defendant’s possession.</p> <p>This is a very brief general statement of the essential facts shown by a most voluminous record.</p>

Tried below before the Hon. J. K. P. Gillaspie. Appeal from a conviction of robbery; penalty, five years imprisonment in the penitentiary.

Tried below before Hon. Ben H. Denton. Appeal from a conviction of murder in the second degree; penalty, five years imprisonmnt in the penitentiary. Appellant was charged by the indictment, with the murder of Ernest Hunter, on the 11th day of July, 1901, by shooting him with a pistol. The opinion states the essential facts in the case.

<p>1. —Continuance—Absence of Statement of Facts—Practice on Appeal.</p> <p>The relevancy of an application for continuance can not be considered on appeal in the absence of a statement of facts.</p> <p>2. —Theft of Money—Evidence.</p> <p>On the trial for theft of money, where it appeared that the money stolen was in a purse, and that after defendant’s arrest he handed the purse with the money in it back to the prosecutor, the owner; Held, the evidence was admissible, though the act of handing the purse to prosecutor was in connection with defendant’s confession which had been excluded by the court.</p> <p>3. —Same.</p> <p>On a trial for theft of money, where it appeared that defendant had been arrested on suspicion of the theft and when charged with the theft by the prosecutor returned the money, with the request that the owner would not prosecute him, it was competent to prove by a witness that notwithstanding he did not hear what was said, he saw the prosecutor have money in his hand which he counted at the time.</p>

Tried below before Hon. A. H. Carrigan. Appeal from a conviction of cattle theft; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with the theft of two head of cattle from the possession of Trice Farmer, the alleged owner. The State proved defendant’s confession of the theft by one W. G-. Hooks, who had charge of the pasture and was looking after the cattle of Walter Parker, the defendant’s father.

From Jefferson. County. Original application for discharge, under writ of habeas corpus, from arrest and prosecution for violating city ordinance against selling pools on horse-races.

Tried below before Hon. IN. E. Lindsey. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. . Appellant was charged by the indictment with murder of Ernest Thompson, on the 2d day of April, 1901, by shooting him with a gun and pistol.

Tried below before Hon. J. A. P. Dickson. Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary. The facts disclose that appellant, with I. H. Steed and I. N. Thomas, went out turkey hunting in a wagon with camping outfit and camped at the mouth of Godwin Creek, twenty-two miles from Seymour, in Archer County, within Webb’s pasture. Next morning before day Steed and Thomas strolled down the creek six or seven miles hunting turkeys.

<p>The opinion states substantially the facts in the case.</p>

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

Henry Nelson, Alma Crowson, Cressie Crowson and Ellis Nelson were also charged in separate indictments with the murder. It appears that certain slanderous statements and charges of a most vulgar character had been circulated about these young men and certain young ladies of the neighborhoood.

<p>1. —Postponement—Continuance—Practice.</p> <p>A court is not authorized to refuse a postponement or continuance properly and legally applied for upon promise to the defendant that, if the verdict should go against him, he could procure and the court would consider the absent testimony on a motion for new trial. This was taking away from the jury defendant’s right to have that body pass upon the facts in determining defendant’s responsibility under the charge against him.</p> <p>2. —Same—Right of Trial by Jury.</p> <p>Under the state of case above indicated, the statute, with regard to defendant’s right of trial by jury, would be nullified; and under such practice the jury would try the case on the facts presented by the State, and on motion for new trial the court would try defendant’s side of the case, whereas a party accused of crime is guaranteed the right to have the facts of his case and his side of the case passed upon by the jury exclusively.</p>

Tried below before Hon. Chas. F. Clint. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary. Appellant was charged by indictment with burglary, with intent to commit theft, of the house of one L. 0. Prue. One of the gold rings taken from the burglarized house was given by defendant as a present to his niece. Prue found her in possession of this ring, identified and claimed it, and recovered it from 'her.

Tried below before Hon. Chas. F. Clint. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of Henrietta Giles (his wife), on April 6, 1901, by shooting her with a gun. Defendant and his wife had separated, and he had frequently threatened that he would kill her if she did not return and live with him.

The parties to the homicide were negroes, and had been criminally intimate for some time. Defendant claimed that he had given $35 to deceased to keep for him. That he had been quite ill, and when he was able to get up that he went to the place where deceased and her mother were washing clothes to get his money to pay the doctors who had attended upon him during his illness.

• Appeal from the District Court of Baylor. Tried below before Hon. J. A. P. Dickson. Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with the theft of one head of cattle, the property of Sidney Webb, on the 5th day of December, 1901. This is a companion case to Eeese v. State, ante, page 539. The facts are stated in the opinion.

<p>1. —Keeping Open Saloon on Election Day—Information.</p> <p>An information for keeping open a saloon on election day, which alleged that the election was for the entire county and was held in the first ward of the city to determine whether hogs, sheep, or goats should be permitted to run at large in said county, is bad. An election for the entire county could not be legally held in a ward of the city.</p> <p>2. —Same.</p> <p>An information which charges the keeping open a saloon on the day when an election was held to determine whether hogs, sheep or goats should run at large, is bad, because it alleges the election alternatively, and the statute authorizes no such election.</p> <p>3. —Same—Election in City.</p> <p>An information for keeping open a saloon at an election held in a city to determine whether stock shall run at large within the county, is unauthorized and charges no offense where the city charter gives the exclusive control over the streets and alleys within its limits to the city council, and confers upon said council the authority to control the running at large of cattle and stock within the city limits.</p> <p>4. —Same—Order for Election.</p> <p>Where the commissioners court ordered an election for the purpose of determining whether hogs, sheep, and goats should be permitted to run at large; and the county judge ordered the election to prohibit the running at large of hogs, sheep, or goats, such an order was in the alternative and therefore illegal.</p>

Tried below before Hon. W. Poindexter. Appeal from a conviction of manslaughter; penalty, four years imprisonment in the penitentiary. Appellant was charged by the indictment with murder of George Farabee, on the 30th day of May, 1901, by shooting him with a pistol. The following statement is taken from the brief of appellant: Appellant and deceased quarreled in the town of Meridian in Bosque County, on the 30th day of May, 1901, over a small account, and a settlement had.

The indictment charged substantially that defendant was a witness on the trial of one Dock Baines for an assault'with intent to murder one Minnie Freeman. That on said trial it became a material question whether a piece of paper shown the witness (this defendant), while he was on the stand testifying, was picked up by him (defendant) in the yard of J. 0.

Tried below before Hon. G. A. Brown. Appeal from a conviction of aggravated assault; penalty, a fine of $460 and six months imprisonment in the county jail. Appellant was charged by the indictment with assault with intent to murder J. A. Crain. The parties had had previous trouble about the possession of the land upon which they lived, and Grain’s horses had been turned out of the pasture. He believed defendant had done this and had made threats against defendant.

<p>Ho statement required.</p>

<p>1. —Special Venire—Talesmen.</p> <p>Under provisions of article 649, Code of Criminal Procedure, where there has been a failure to select a jury from the special venire summoned, the court is required to order the sheriff to summons “any number of persons deemed advisable for the formation of the jury;” and in view of this provision it was error for the court to force defendant to use the jury for the week after exhausting the special venire. Following Weathersby v. State, 29 Texas Criminal Appeals, 307.</p> <p>2. —Leading Questions to Witnesses—Practice.</p> <p>Under no contingency should leading questions be asked witnesses unless they come within the rules authorizing the same.</p>

<p>Appeal from the District Court of Callahan, on a change of venue from Scurry County. Tried below before Hon. H.-R. Lindsey.</p> <p>Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary.</p> <p>Appellant was charged by the indictment with the murder of W. C. Haley, in Scurry County, on the 16th day of August, 1901, by shooting him with a pistol.</p> <p>The parties were living upon and occupying parts of the same section of land, and the difficulty, which finally culminated in the homicide, originated with regard to the fences dividing their respective tracts; and especially with regard to the access of defendant’s stock for water to a waterhole in. a branch or creek near the dividing line of fence, which waterhole was inside the inclosure of deceased. There had been a partial agreement as to the use by defendant of this waterhole, but deceased finally refused to let defendant have further access to it, and closed up the opening in the fence through which defendant’s stock went to the water. Defendant tore down this portion of the fence and his stock went into the deceased’s inclosure. Deceased and Burt Burford went to drive out the stock arid put up the fence.</p> <p>Burt Burford was the only eyewitness present at the killing, and his testimony, fully and as far as it developed the State’s case, is as follows: “The defendant, R. W. Scott, shot and killed Mr. Haley about 8 o’clock a. m., August 16, 1901, in said county and State. The place of the killing is situated about 150 yards south of east from the defendant’s house, at the west line of the Haley pasture. On the day before the killing, Mr. Haley (the deceased) came to me and told me that he was going to put up some fence and wanted me to help him, saying that he had gotten the Baldridge boys to help him also. On the morning of the killing I went over to Mr. Haley’s house to help him build the fence, and as soon as we got ready Mr. Haley told me to take the crowbar and hammer, which I did, and started over to where the fence was down at the place of the killing. Mr. Haley got on his mare and went south of the house and rounded up the defendant’s horses and mules and drove them back by the house and on around the north point of the thicket, and came on rather in front of me and called to me to wait and let the stock get ahead. I did so, and when they got in front of me I came in behind them and helped Mr. Haley drive them up to the fence. The fence was down at this place for about fifty yards; two posts had been pulled up, I guess, and the stock all went across the wire where it was down except one mule, which turned rather south up the fence. Mr. Haley rode around it and turned it back and it crossed over the wire; and Mr. Scott, having come down from his house, at this time was standing just outside of the fence. Mr. Haley, when this last mule went over the wire, was riding in a northwest direction and towards where Mr. Scott was standing. As the mule went over the wire, Mr. Haley said, ‘Howdy, Mr. Scott?’ and Mr. Scott said ‘Howdy, Mr. Haley?’ I said ‘Howdy, Mr. Scott?’ and he said, ‘Howdy?’ all about the same time. Then Mr. Scott said to Mr. Haley, T wish you would let my stock alone.’ Mr. Haley answered, T wish you would let my fence alone.’ Mr. Scott then drew his pistol and fired at Mr. Haley, who had gotten off his horse, and I • thought the shot had struck him in the face. I did not see Mr. Scott take the pistol out; the first I saw of it, it was in his hands and he cocked it, presented it at Mr. Haley, and fired. Just before he fired, Mr. Haley said, ‘Give me some show.’ After he fired the first shot he immediately fired a second shot át Mr. Haley, and Mr. Haley said, ‘I am dead,’ and fell to the ground. After the first shot and before the second shot, Mr. Haley said again to Mr. Scott, ‘Oh, give me some show.’ Mr. Haley-was not armed at the time; he was in his shirt sleeves, and had no gun or weapon of any kind that I knew anything about. He did not offer to use any weapon at all. When Mr. Haley fell, I ran as fast as I could in an easterly direction towards Mr. Haley’s house. As I ran I looked back and saw Ben Scott running after me with a shotgun, and Mr. Scott had gotten on Mr. Haley’s horse and was pursuing me also. They ran me about 150 yards, I guess; saw them when I looked back. I ran on over to Mr. Haley’s house and told of the trouble.”</p> <p>This witness testified that after he got to the house, he got a Winchester gun belonging to Mr. Birdwell, a son-in-law of Haley, and about this time, Birdwell having come up, he gave the gun to him and he carried it to the place where Haley’s dead body was lying. All the State’s witnesses testified that Haley was unarmed when he was killed.</p> <p>Birdwell testified that after he reached the dead body he laid the Winchester gun down near the body, and that when he left to assist in taking Mrs. Haley (who was at the dead body) back to her house, he left the Winchester at the spot where he had left it, near the body.</p> <p>Defendant’s witnesses testified that the Winchester gun was lying near the body of deceased before any of his family or Birdwell reached there. Defendant, as a witness in his own behalf, testified that Haley had the Winchester at the time of the difficulty, and that he fired the same at him before he shot, and that he had grabbed and had hold of the Winchester gun when he killed Haley.</p> <p>The questions discussed in the opinion need no further statement.</p>

<p>1. —Recognizance on Appeal from a Dismissal in County Court.</p> <p>A recognizance on appeal to this court from a judgment of dismissal of appeal in the county court, to be sufficient', must comply with the requirements of article 887, Code of Criminal Procedure. It must show that appellant was charged with, and convicted of, a misdemeanor, and what punishment was assessed against him by the judgment of the court a quo, and that his appeal to the county court was dismissed in‘the latter court.</p> <p>2. —Same—Approved Form for Such Recognizance.</p> <p>See opinion for a form for recognizance on appeal from a judgment of dismissal of an appeal in the county court, which is approved and adopted by this court.</p> <p>3. —Same—“Abusive Language.”</p> <p>Where the recognizance on appeal recites the offense against defendant as “using abusive language,” it states no offense; the use of abusive language not being the allegation of a misdemeanor.</p>

Tried below before Hon.' G. A. Brown. Appeal from a conviction of false swearing; penalty, two years imprisonment in the penitentiary. The case is sufficiently stated in the opinion.

<p>1. —Forgery—Verdict.</p> <p>On a trial for uttering a forged instrument, a verdict is sufficient which reads, “We the jury find the defendant guilty of attempting to pass a false and fprged instrument in writing, and assess his punishment at five years in the penitentiary.” .</p> <p>2. —Verdict.</p> <p>Verdicts are to be considered in the light of the charge and the indictment, and are sufficient when responsive thereto.</p> <p>3. —Same.</p> <p>A verdict is neither bad or insufficient which omits the word “State” before the word “penitentiary.”</p>

<p>1. —Perjury on Evidence to Prove Alibi—Indictment—Materiality.</p> <p>An indictment for perjury predicated upon the testimony of a witness to prove an alibi in a criminal case for assault with intent to murder, is fatally defective which only alleged that the defendant testified that B., the party prosecuted for the assault to murder, was at his, B.’s residence all the time between the hours of 6 o’clock p. m. and 9 o’clock p. m., on the night of August 9, 1900; and that this testimony was false and material. It should have alleged that it was a material question whether B. was at the place of the assault to murder when the assault occurred, or at his residence; and also that the assault with intent to murder occurred between the hours of 6 and 9 o’clock p. m., on August 9, 1900.</p> <p>2. —Indictment—Defective in Stating Time.</p> <p>An indictment is fatally defective in stating the time of the commission of the offense, which alleged that the grand jury “present, that on or about the 10th day of May, one thousand nine and one, and anterior to the presentment of this indictment,” etc. This does not charge that the offense was committed in 1901.</p> <p>3. —Perjury—Reproducing Testimony.</p> <p>Where perjury was assigned upon the testimony of defendant given on the trial for assault to murder, the testimony of the witnesses who gave testimony on the trial for assault to murder, can not be reproduced and used as original testimony on the trial for perjury to show that the testimony of defendant assigned as perjury was material. Besides, to permit a witness to reproduce such testimony would be hearsay.</p> <p>[Hote.—The State’s motion for rehearing was overruled without a written opinion.-—Reporter.]</p>

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

<p>Right to Representation by Counsel—Postponement—Practice.</p> <p>On a trial for assault with intent to rape, where defendant had employed an attorney who, alone, was familiar with the case and had prepared himself for the trial, and said attorney had been arrested and was placed in jail, after the jury was impaneled, as an accomplice to a murder committed on the day of the trial; and the court appointed an attorney to represent defendant and, over defendant’s protest, refused to postpone the trial; Held, the trial should have been postponed until defendant’s attorney had been discharged or admitted to bail.</p>

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

Tried below before Hon. Ed. E. Sinks. Appeal from a conviction of murder in the first degree; penalty, death. Appellant was charged by the indictment with the murder of Haney Mikel (his wife) on the 12th day of April, 1901, by striking her with a grubbing hoe and by shooting her with a pistol. The parties to the killing were negroes. The important facts which brought about and were attendant upon the killing are concisely but lucidly stated with sufficiency in the opinion.