Volume 44 — Texas Criminal Reports

Appellant was charged by the indictment, in three counts, with the murder of John Grimsinger (her husband), on the 16th day of January, 1901, by striking him with an ax handle, with an ax, and with an instrument unknown to the grand jury. This is a companion case to Juan Rocha v. State, 43 Texas Grim. Rep., 169.

<p>1. —Theft of Cattle—Evidence—Defendant’s Statements as to Other Thefts. Charge.</p> <p>On a trial tor theft of one head of cattle, in a pasture in B. County, evidence of defendant’s statement that he had subsequently killed, without authority, another animal in the same pasture in A. County, was admissible to show defendant’s intent and motive. But the charge of the court should limit this evidence to the purpose for which .it was admitted, and where this has been done, defendant has no ground of complaint in the matter.</p> <p>2. —Accomplice Testimony—Corroboration.</p> <p>It is competent to prove by an accomplice witness, that, before he was promised immunity, he had told the sheriff and county attorney about the whole transaction. The fact that he had not been promised immunity would go to strengthen his testimony. But he can not corroborate himself by having witnesses, to whom he has made statements, testify as to his statements to them.</p> <p>3. —Same—Theft of Other Animals—Charge of Court.</p> <p>On a trial for theft, of one head of cattle, where evidence has been admitted as to the theft of other cattle, it is error for the court to instruct the jury that the State has introduced evidence tending to prove the theft of other animals than that alleged in the indictment to have been stolen. Such charge is upon the weight of evidence. Following Hudson v. State, 43 Texas Grim. Rep., 420.</p> <p>4. —Same—Taking Under an Honest Belief—Charge of Court.</p> <p>On a trial for theft of one head of cattle, where one of the issues was, that defendant had taken the animal under an honest belief of a fair claim or right to take the same, on the part of defendant, the court should have charged the jury, that, if they had a reasonable doubt whether or not defendant believed he had the right to take the animal, they should acquit.</p> <p>5. —Same—Ownership—Recorded Brand.</p> <p>On a trial for theft of cattle proof of ownership by a recorded brand can. be made.</p>

<p>1. —Bill of Exceptions Filed After Adjournment—Practice on Appeal.</p> <p>Bills oí exception filed after adjournment of the term of court can not be considered on appeal.</p> <p>2. —Transfer from District to County Court—Transcript.</p> <p>The law does not require that the transcript transferring a case from the district to the county court should show the offense in the return of the indictment nor describe the offense at all.</p> <p>3. —Disorderly House—Charge—Bill of Exceptions.</p> <p>On a trial for keeping a disorderly house, the refusal of the court to charge that the jury must disregard evidence showing that defendant was authorized to sell intoxicating liquor in the house she was keeping, will not be considered in the absence of a bill of exceptions.</p>

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

<p>1. —Election—Making False Return.</p> <p>Under the provisions of article 156, Penal Code, in order i;o establish the false return of an election by the officers holding the same, there must be a return as provided by article 1743, Revised Statutes, and this return must be false and knowingly false.</p> <p>2. —Same.</p> <p>On a trial for making a false return of an election, although it is shown that there were erroneous entries on the poll lists and tallyHists which only were returned, this did not constitute false returns as specified in the civil statutes.</p> <p>3. —Same.</p> <p>A person can not be punished for doing a thing that he did not do, and if an accused has made no false returns of an election coming within the purview of the statute, he is not guilty of that offense.</p>

This is a companion case to Hatcher v. State, 43 Texas Crim. Rep., 237. The indictment, which was similar to that in the Hatcher case, charged appellant alone with the murder of John Johnson, on the 23d day of December, 1900. The statement of facts is most voluminous, but the following, taken from the written argument on file of James G-.

Tried below before Hon. John M. Furman. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. The indictment charged appellant and one Dee Harville jointly with the murder of Henry Harville, on the 11th day of March, 1900, by striking him with an ax.

<p>1. —Theft of Cattle—Plea of Former Acquittal.</p> <p>On a trial for theft of cattle, defendant pleaded former acquittal, in that on a previous trial the court submitted the issues of theft and fraudulently driving from the accustomed range, and the verdict being general, the jury ■ may have convicted of the latter offense, and if so, he could not again be tried for the theft. Held, there was no acquittal of theft in the former conviction; the former judgment was for theft, and the conviction having been set aside on appeal, at the instance of defendant, the court did not err in sustaining the State’s demurrer to said plea of former acquittal.</p> <p>2. —Same—Taking Under Honest Belief—Charge of Court.</p> <p>On a trial for theft of cattle, where the theory of the defendant, supported by the evidence herein introduced, was that he took the animal believing it to be one he had been authorized and requested to take by one R., it was not error for the court to submit to the jury the issue of defendant’s honest belief in assuming control, taking and driving it away.</p>

<p>1. —Forgery—Indictment—Innuendo and Explanatory Averments.</p> <p>In an indictment for forgery, it is permissible to insert explanatory averments as to the name forged to the instrument; and there can be no objections to such averments where the State has assumed the burden and proven them as alleged.</p> <p>2. —Same. '</p> <p>In an indictment for forgery, it is not necessary to allege the name of the person intended to be injured or defrauded.</p> <p>3. —Same.</p> <p>Where a name is wrongly written, but intended for a specific individual, it would be forgery, and it is proper to so aver in the indictment.</p> <p>4. —Same.</p> <p>An instrument is the subject of forgery if not addressed to any one.</p>

<p>Appeal from the District Court of Hopkins. Tried below before Hon. H. C. Connor.</p> <p>Appeal from a conviction of manslaughter; penalty, three years imprisonment in the penitentiary.</p> <p>Appellant was charged by the indictment with the murder of Fayette Wilson, on the 15th day or September, 1899, by shooting him with a pistol.</p> <p>This is a second appeal in this case. See Adams v. State, 42 Texas Crim. Rep., 366, and an examination of that case, in connection with the opinion in this, will disclose the material facts attendant upon the homicide.</p>

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

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

From Grayson County. Original application for habeas corpus to determine the validity of the local option law under and by virtue of which relator was arrested and held in custody for its violation. The opinion states the case.

How comes the State ‘by the Assistant Attorney-General, and would show the court that the appeal in this case was perfected on June 14, 1901, by filing the recognizance in this case, as shown by the transcript.

<p>1.—Murder—Indictment—Name of Deceased—Variance.</p> <p>In an indictment for murder, where the deceased is known as well by one name as another, the indictment can allege either name; and there is no variance.</p> <p>2.—Same.</p> <p>Deceased, about 60 years of age, was universally known as Helen Pendleton. About 11 o’clock of the night of the murder she became Helen Addison, by virtue of her marriage to appellant, and was killed during the same night. The indictment alleged her name as Helen Pendleton. Held, no variance.</p>

<p>1. —Theft of Hogs—Recent Possession—Charge of Court.</p> <p>Where the identical property charged to have been stolen is not found in possession of defendant, it is error to charge upon the recent possession of stolen property.</p> <p>2. —Same—Evidence Insufficient.</p> <p>See opinion for evidence as to the identity of the alleged stolen animals held wholly insufficient to support a conviction of theft of hogs.</p>

<p>1. —Uttering Forged Instrument—Venue of Offense.</p> <p>Our statute, Code of Criminal Procedure, expressly provides that the prosecution for forgery may be in the county where the instrument was forged; but this does not apply to the offense of uttering or passing the instrument unless it was used, passed or attempted to be passed in the county where it was executed.</p> <p>2. —Same—Jurisdiction.</p> <p>On a prosecution for uttering a forged written instrument, where it appeared that said instrument was a draft drawn in Harris County, Texas, upon a bank in Arkansas, and was mailed to said bank and there received and cashed; Held, the draft was not passed or uttered, but was still in the hands of defendant through his innocent agent, the United States mail, until it reached its destination in the State of Arkansas; and it was, for the first time, passed and uttered when it was received and paid in Arkansas, and the District Court of Harris County had no jurisdiction with regard to the passing and uttering of the same.</p> <p>[The State’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>Appeal from the District Court of Grayson. Tried below before Hon. Rice Maxey.</p> <p>Appeal from a conviction of murder in the first degree; penalty, death. Appellant, a negro, was charged by the indictment with the murder of Arria Taylor (a white woman) on the 19th day of January, 1901, by cutting her with a knife.</p> <p>This is the second appeal. Smith v. State, 42 Texas Grim. Rep., 220. On the former appeal the judgment was reversed and prosecution dismissed on account of race prejudice shown in the selection of the grand and petit juries.</p>

<p>1. —Libel—Baptismal Record of a Bastard—Evidence Sufficient.</p> <p>On a trial for libel by a minister for entering a baptismal record in the church register, of the birth and name of a bastard child, where it appeared that the libelee had been tried ahd acquitted of the seduction of the mother of the child, but thereafter, at the baptism of said child, the mother gave the name of the libelee as the father of the child to the minister in April, and libelee having heard of it, protested to the minister against the entry of the same in the church registry a month before said entry was made, but the minister, after being fully apprised of the facts, insisted upon making the entry as given by the mother unless she agreed to the change, which she would not do, whereupon the minister made said entry in the church registry; Held, he was guilty of libel.</p> <p>2. —Same—Statutes Construed.</p> <p>Articles 742, et seq., Penal Code, makes a false statement, entered upon the minutes or records of proceedings of any corporate body or association, a libel if made with a malicious intent or intent to injure.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

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

<p>1—Keeping Open Saloon on Election Day—Information.</p> <p>An information for keeping open a saloon in precinct No. 1, on the day of an election to determine the question of issuance of bonds by a city for school purposes, is valid, and it was not necessary to designate the precinct as justice’s, election or commissioner’s precinct.</p> <p>2. —Same—Amendment to Charter.</p> <p>On a trial for keeping open a saloon on election day, where the defense was that the saloon was not embraced within the limits of the city as defined in an amendment to the original city charter; Held, that the purported amendment being so indefinite, uncertain and meaningless as to its provisions regarding the boundaries therein set forth, was invalid and could not operate to repeal the original charter as to the locus in quo, and that under the original charter, which was still in force and unrepealed, defendant’s saloon was within the city limits and he was liable under the law inhibiting him- from opening his saloon on election day.</p> <p>3. —Same—Election to Levy a Tax—How Ordered—City Ordinance—Evidence.</p> <p>An election to levy a tax for public school purposes, to be valid, must have been ordered, where such is the mode prescribed, under a city ordinance duly passed for that purpose by the city council, and, where the same appeared to have been ordered by a resolution and not by an ordinance, it -was error to admit in evidence the said resolution over defendant’s objection.</p> <p>Following Waco v. Prather, 35 S. W. Rep., 958.</p> <p>4. —Same.</p> <p>Where the mode by which a city is alone authorized to do a certain thing is prescribed, that mode "must be pursued; and where the mode prescribed is by ordinance, in the absence of such ordinance, there could" be no valid election for levying a tax or issuing bonds for public school purposes.</p>

Tried below before Hon. L. W. Moore. Appeal from a conviction of murder in the second degree; penalty, six years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of C. H. Haney, on the 10th day of December, 1901, by striking him with a piece of iron piping. The .opinion states the essential facts attendant upon the killing.

<p>1. —Assault to Murder—Self-Defense—Provoking Difficulty—Charge.</p> <p>On a trial for assault with intent to murder, where the evidence for the State showed that defendant went to the store of prosecutor and made the assault upon him with intent to kill him; and defendant’s evidence was to the effect that he acted 'solely in his self-defense, defendant was entitled to a charge upon self-defense; and a charge upon provoking the difficulty was erroneous and should not have been given under the facts.</p> <p>2. —New Trial—Separation of Jury.</p> <p>Where a separation of the jury is set up as a ground for a new trial, and the affidavits pro and con as to the matter are directly conflicting, the overruling of the motion will not be held erroneous.</p> <p>—Same—Newly Discovered Evidence.</p> <p>A new trial will not be granted for newly discovered evidence which is unimportant and of an impeaching character.</p>

<p>1. —Accessory—What Constitutes.</p> <p>In order to constitute one an accessory after the fact, there must be some aid rendered to the principal direct.</p> <p>2. —Same—Rape—Inducing Prosecutrix to Leave the Country.</p> <p>On a trial as an accessory after the fact to a rape, evidence is insufficient to support the conviction which merely shows that defendant induced the prosecutrix to leave the State in order that she might not be had as a witness before the grand jury to testify as to the rape upon her by the alleged principal. Distinguishing Blakeley v. State, 24 Texas Grim. App., 617.</p>

Tried below before Hon. L. W. Moore. 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 Dee Meeks, on the 14th day of July, 1901, by shooting him with a pistol.

<p>Appellant was charged by the indictment with the murder of Will Griffin, in Smith Count}', on the 24th day of June, 1901, by shooting him with a pistol.</p> <p>The essential facts which brought about and were attendant upon the killing are fully stated in the opinion.</p>

Tried below before Hon. Sam R. Scott. Appeal from a conviction of rape; penalty, seventy-five years imprisonment in the penitentiary. • . Appellant was charged by the indictment with the rape of Elma Walker, in Falls County, on the 30th day. of July, 1901, she, the said Elma, being under the age of 15 years. The facts, in so far as they are necessary to an understanding of the case, are stated in the opinion.

<p>The parties to the homicide were negroes. Appellant was a preacher. According to the testimony of Henrietta Edwards, the wife of deceased, she and appellant, Sam Stiles, had been criminally intimate, and she testified that Sam Stiles did the killing. Sheriff Tully and Sam Pridgen went to defendant’s house on the next day after the killing and examined his gun. They testified that the gun had been recently cleaned, and Sam Pridgen testified that he ran his finger into the muzzle and was satisfied it had been -recently discharged.</p> <p>The questions discussed are fully stated in the opinion in connection with the facts upon which they were based.</p>

The opinion sets out the indictment. Defendant filed a motion in arrest of judgment attacking the sufficiency and validity of the indictment, which motion was overruled.

<p>1. —Evidence—Statements of Defendant While in Arrest.</p> <p>No statement, written or verbal, of a defendant while he is }n jail, and when he has not been properly warned, can under the law be admitted in evidence against him.</p> <p>2, —Same—Letters Written by Defendant—Corroboration of Accomplice.</p> <p>The above rule excludes statements of acts or conduct from which the guilt of defendant might be inferred, and embraces letters of an incriminatory character written by a defendant in jail, even though such letters might tend to corroborate the testimony of an accomplice.</p>

<p>I. —Attempt to Rape—Indictment.</p> <p>By the terms of article 640, Penal Code, the definition of an attempt to rape excludes the question of assault; and where the indictment for that offense charges that it was made by assault and by means of this assault an attempt was made to ravish and have carnal knowledge of the female, it charges an assault with intent, and not an attempt to commit rape.</p> <p>. 2.—Same.</p> <p>Under an indictment charging an assault to rape, the accused can not be convicted of an attempt to rape.</p> <p>3.—Same.</p> <p>On a trial for attempt to rape, if the evidence shows a rape, or an assault with intent to commit rape, a conviction for attempt to rape is not sustained. See evidence held insufficient.</p>

<p>1. —Public Road—Authority to Establish.</p> <p>The commissioners court, as such, is alone authorized and can exercise jurisdiction to establish and designate the beginning, "ending and boundaries oí a public road before it can become such.</p> <p>2. —Same.</p> <p>A road overseer has no right to make a road a public road, and the county judge is clearly without authority to do so.</p> <p>3. —Obstructing Public Road—Evidence Insufficient,</p> <p>See opinion for facts stated held wholly insufficient to support a conviction for obstructing a public road.</p>

<p>1. —Carrying Pistol—Policeman Not Exempt, When.</p> <p>A policeman of one city has no authority under the law to carry a pistol in a-public assembly on the fair grounds in another city. When in another city he is not a peace officer, but merely a private citizen. Overruling Clayton v. State, 21 Texas Crim. App., 343.</p> <p>2. —Same—Peace Officer.</p> <p>A peace officer is exempt from the operation of the law inhibiting the carrying of a pistol only while in his own bailiwick, except when he goes outside of his immediate jurisdiction to perform some official duty in another section. His official character only pertains where he can perform his official duty. A policeman of one city can not perform the functions of his office in another city; he is not a peace officer in such other city, but merely a private citizen.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>Appeal from the District Court of Hays. Tried below before Hon. L. W. Moore.</p> <p>Appeal from a conviction of attempting to bribe an officer; penalty, two years imprisonment in the penitentiary.</p>

<p>No statement necessary.</p>

<p>1. —Continuance.</p> <p>A continuance will not be granted where the facts expected to be proved are too generally stated, and are conclusions of the witnesses, and not the statement of the facts they would testify to.</p> <p>2. —Same—Insanity—Nonexpert Witness.</p> <p>An application for continuance for absent nonexpert witnesses, to prove insanity of accused, to be sufficient, must show the matters and things upon which the said witnesses predicated their opinion that the accused is insane.</p> <p>3. —Bigamy—Moral Insanity.</p> <p>On a trial for bigamy, where the defense was moral insanity, Held, no perversion of the moral affections and propensities, unless accompanied by such delusion as indicates the subversion of the will and reason, is to be regarded as insanity in law.</p> <p>4. —Insanity No Defense, When.</p> <p>A party who is indicted is not entitled to be acquitted on the ground of insanity if, at the time of the alleged offense, he had capacity and reason sufficient to enable him to distinguish between right and wrong, and understood the nature, character and consequences of his act, and had sufficient mental power to apply that knowledge to his own act. If, at the time of committing the act the party had reason and understanding sufficient to enable him to understand that his act was forbidden by law, and that the law directed that the person who did such act should be punished, he is responsible.</p> <p>Henderson, Judge, dissenting, holds that from the facts in evidence the appellant was insane with delusions at the. time of his second marriage.</p>

<p>This is the second appeal by appellant for killing a sheriff. See Cortez v. State, 43 Texas Grim. Rep., 375. The former case grew out of the attempt of the sheriff of Gonzales County to arrest appellant for the murder of Sheriff Morris, for which he was prosecuted in this case. The important facts attendant upon the homicide can be readily seen from the statement in the opinion, and a detailed statement is not necéssary.</p>

<p>Forgery of Negotiable Instrument—Indorsement—Indictment.</p> <p>Where forgery is not predicated upon the indorsement of a negotiable instrument, the indorsement need not be alleged or proven.</p>

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

Tried below before Hon. J. M. Talbot. Appeal from a conviction of arson; penalty, five years imprisonment in the penitentiary. The opinion sets out the indictment which was attacked in the lower court on motion in arrest of judgment. Defendant had rented the house and was engaged in carrying on an extensive saloon and barroom in connection with which he had expensive goods and bar fixtures and furniture.

The following statement is taken from appellant’s brief, viz: The appellant, Joe Darter, was indicted on the 39th day of March, 1897, in Walker County, Texas, for the murder of Frank Ward, on the 9th day of December, 1896. At the October term, 1901, of the District Court of Madison County, Texas (on change of venue to this county), defendant was found guilty of murder in the second degree by the jury, and his punishment assessed at five years in the penitentiary.

<p>1. —Murder—Furnishing Means by Which Another Commits Suicide—Charge-Construction of Statute.</p> <p>On a trial for murder, where it appeared that deceased took her own life with a pistol, and the court charged the jury, in effect, to convict defendant of the murder if he, with that intent, prepared and with malice placed the pistol where deceased could get and thus use it; said -charge was predicated upon Penal Code, article 77, which makes a party a principal who prepares, with that intent, any means by which a person may injure himself. Held, the statute does not apply to cases of suicide, but is based upon the theory that the victim is not cognizant of the intent of the accused in preparing' the means for the destruction of his or her life.</p> <p>2. —Same—Suicide.</p> <p>In Texas it is not a violation of any law for a person to take his own life, and the punishment of persons connected with the suicide, by furnishing the means or other agencies, does not obtain in Texas. We have no statute denouncing suicide or the punishment of those furnishing means by which a suicide is accomplished.</p> <p>3. —Same—Evidence Insufficient.</p> <p>See opinion for facts stated, which are held insufficient to support a conviction of murder in the second degree upon the theory that defendant was guilty of preparing and furnishing the means by which the deceased took her own life, with intent that she should do so by said means.</p> <p>4. —Same—Evidence—Statements by Deceased.</p> <p>On a trial for murder, statements of deceased, in the absence of defendant, with regard to her intended elopement with defendant, were competent and admissible where it was shown that these statements had been directly brought to the knowledge of defendant and that he had discussed the same with the witness.</p>

<p>1. —Recognizance on Appeal from Dismissal of Appeal from Corporation Court to County Court.</p> <p>A recognizance on appeal from a dismissal of an appeal taken from a corporation court to the county court is sufficient in its recitation, that “said appeal having been dismissed by this court because of defective appeal bond, as also more fully appears from the judgment of this court duly entered in this cause.” This recitation is substantially in conformity with the form for such a recognizance as was approved by this court in Horton v. State, 43 Texas Grim. Rep., 600.</p> <p>2. —Same—Appeal Bond.</p> <p>Under provisions of the eighth section, corporation court act (Gen. Daws 26th Deg., p. 40), ail prosecutions, whether under city ordinance or the provisions of the Penal Code, “shall be commenced in the name of the State of Texas,” etc.; and section 10 of said act provides, that all fines and costs in the city court shall be paid into the city treasury for the use and benefit of said city. Held, that an appeal bond from said corporation court to the county court is properly made payable to the State of Texas, and is not more onerous than the law requires, because it is conditioned that appellant will pay such costs as have been adjudged against him in said corporation court. The bond must follow the judgment and is sufficient if in accordance with article 889, Code of Criminal Procedure. But see infra, paragraph 3.</p> <p>' ON MOTION EOR REHEARING.</p> <p>3. —Appeal Bond from Inferior Courts to County Court—Jurisdiction.</p> <p>Article 889, Code of Criminal Procedure, as amended by act of Twenty-seventh Degislature, provides, as conditions of an appeal bond from an inferior court to the county court, “that the defendant shall well and truly make his personal appearance before the county court of said county at its next regular term, stating the time and place of holding the same, and there remain from day to day and from term to term to answer in said cause on trial in said court.” Held, a bond not complying with said conditions is insufficient to confer jurisdiction upon the county court.</p> <p>4, —Jurisdiction.</p> <p>Where the cóunty court had acquired no jurisdiction because of a defective appeal bond, this court can acquire no jurisdiction of an appeal from the county court dismissing said appeal.</p>

Appellant was charged by the indictment with the murder of Allen Brown, on the 6th day of September, 1901, by shooting him with a pistol. The case is sufficiently stated in the opinion.

Tried below before Hon. Ben H. Denton. 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 Sam Steinlein, on the 5th day of December, 1900, by shooting him with a pistol. The statement of facts is quite voluminous, but the theories upon which the case was tried on the evidence adduced are concisely but sufficiently stated in the opinion below.

<p>Ho statement required.</p>

<p>1. —Assault with Intent to Commit Rape.</p> <p>In order to maintain a conviction for assault with intent to commit rape, the proof must show beyond a reasonable doubt that defendant made the assault upon the prosecutrix with the specific intent to rape her by force, and intended to accomplish his purpose at all hazards, and regardless of whatsoever resistance by his intended victim.</p> <p>2. —Same—Evidence Insufficient.</p> <p>See opinion for facts held insufficient to support a conviction for assault with intent to commit rape.</p>

<p>1. —Keeping Barroom Open on Election Day—Charge.</p> <p>On a trial for keeping a barroom or saloon open on election day, where there is no serious controversy as to defendant’s knowledge that-it was kept open, it was not error to refuse to charge, that before defendant could be convicted “the State must prove that he either opened or kept open the saloon in person, or it was kept opened by his knowledge or consent.”</p> <p>2. —Charge—Copying Statute.</p> <p>Where the court copies the statute in the charge a clause of which does not apply to the facts of the particular case, this does not render the charge erroneous, where the law applicable to the facts proved is correctly charged.</p> <p>3. —Keeping Open Barroom on Election Day—Evidence Sufficient.</p> <p>See opinion for facts stated, held sufficient to support a conviction of keeping open a barroom on election day.</p>

<p>The facts are sufficiently manifested by the opinion.</p>

<p>Embezzlement—What Constitutes.</p> <p>Where defendant, as agent or employe of the prosecutor, was furnished by prosecutor with a watch and $15 in money which he was to give as boot for prosecutor in a horse-swap, and he made an even exchange of the horses and kept the watch and money, concealing the fact from prosecutor; Held, he was guilty of embezzlement of the watch and money.</p>

The indictment charged appellant with robbing Will Chapman, by using and exhibiting a pistol, on the 8th day of December, 1900, and taking from said Chapman one ten-dollar bill, and $9 in silver. Larry Mills was indicted in a separate indictment for the same robbery. Chapman, the prosecutor, testified that they both acted together in robbing him. Ho additional statement required to illustrate the points decided.

<p>Appeal from the District Court of Jackson. Tried below before Hon. Wells Thompson.</p> <p>Appeal from a conviction of horse theft; penalty, five years imprisonment in the penitentiary.</p> <p>Dr. C. B. Phillips testified; “I have been a practicing physician for about forty-five years. I am a general practitioner and am not an expert in mental diseases, but in my practice have had some experience in treating such diseases. I have known defendant, Alfred Lowe, since 1873. He is about 40 years old. He is a moral degenerate and in my opinion a dipsomaniac and a kleptomaniac. I base my opinion professionally on what I know and also on what I have heard of his doing. He would always take things that did not belong to him. On a number of occasions I have known his brother to return to the owner stolen property. He will promise to pay you and never have any idea of doing it. I do not believe he knows right from wrong. I believe if you were to turn him loose to-night he would steal every horse in town if he had the chance and have no idea he had done anything wrong. I have treated him a number of times for diseases growing out of the excessive use of alcohol. He is what is called a dipsomaniac. Knowing defendant as I do, I would not consider him sane. I consider him insane. He has no lucid intervals. Since I have known him I have never known any good of him. All I know or have heard is bad. I will say he is a moral degenerate, a dipsomaniac and a kleptomaniac.”</p> <p>George Pridgen testified: “I know the defendant. We were boys together. My brother married his sister. I am no physician and know nothing of diseases of the mind. I have always regarded defendant morally irresponsible. He seems to be unable to keep from stealing and drinking. I knew him on one occasion to ride to town, take my brother’s horse, and ride him home, leaving his own tied to the rack. From what I know of defendant it is my opinion that he is not responsible for his acts and has never been.”</p>

<p>1. —Adultery—Indictment—Proof.</p> <p>Where an indictment for adultery charged a living together and carnal intercourse, to warrant a conviction, the proof must show that the parties abided together in the same habitation as a common or joint residing place.</p> <p>2. —Same.</p> <p>See opinion for facts stated, held insufficient to warrant a conviction for adultery, it being charged that the parties lived together and had carnal intercourse with each other.</p>

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

Tried below before Hon. L. B. Cobb. 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 Tom Bowen on the 7th of October, 1901, by shooting him with a pistol. A very concise statement of the essential facts of the case will be found in the latter portion of the opinion below.

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

<p>1. —Information—Name of County Attorney—Variance—Motion In Arrest.</p> <p>It is not necessary that the name of the county attorney be set out in the beginning of an information; and where the' information stated that it was presented by J. S., but was signed by Geo. S. K., county attorney, it was not subject to motion in arrest of judgment for said variance.</p> <p>2. —Same—Local Option Election.</p> <p>Where an information for violation of local option charges that defendant did sell intoxicants in a subdivision of the county after the qualified voters had voted, at an election in said subdivision in favor of prohibition, this is sufficient, and it was not necessary to further allege that said election was held in accordance with law to determine whether intoxicants should be prohibited.</p>

<p>1. —Robbery Committed with Firearms—Special Venire.</p> <p>A robbery charged by the indictment to have been committed with firearms, is a capital felony; and defendant, in such a case, is entitled to a special venire unless he waives it.</p> <p>2. —Same.</p> <p>Defendant’s failure, in a capital case, to call for a special venire prior . to the overruling of his motion for continuance, is not tantamount to a waiver of his right to a special venire.</p> <p>3. —Same.</p> <p>The character of venire in a capital case is specially provided in the Code of Criminal Procedure, articles 642-681, and the obligation is upon the State, in the first - instance, to ask for this special venire; and, if the State fails to act in the matter, it is defendant’s right to object to being tried in any other manner than by a special venire prior to his agreement to be tried by the regular jury for the week, notwithstanding he has not done so until his motion for continuance was overruled.</p>

Tried below before Hón. 1ST. R. Lindsey. Appeal from a conviction of theft of a horse, alleged to belong to an unknown owner; penalty, two years imprisonment in the penitentiary. The opinion states the facts sufficiently.

<p>1. —Swindling—False Representations—Sufficiency.</p> <p>In swindling, the false representations may be sufficient to support a conviction although the party swindled might have avoided imposition by-resorting to means readily at hand.</p> <p>2. —Same.</p> <p>On a trial for swindling, where it appeared that defendant had an approved claim against the county, which he had been paid in full, but called, upon the county judge, and, in answer to questions, told him he had not been paid, and that the account was still due him, whereupon, the judge paid him the amount of said account; Held, defendant was guilty of swindling, although the means were easily accessible by which the judge might have detected and avoided the imposition; defendant’s false representations, in answer to the judge’s questions, being sufficient to constitute swindling. \</p>

<p>1. —Continuance—Diligence.</p> <p>Where the application for continuance showed that, on the _ return of the indictment, November 30th,“ defendant had subpoenas issued for the absent witnesses, who were served on December 7th, and the case was then set for trial on December 18th; but it was not shown that said witnesses were then present or not present. The case was continued and again set for trial the 13th of June. Some time in June defendant, for the first time, applied for attachments for the witnesses, and one of the witnesses was served prior to the trial; but, being absent, her whereabouts was not shown. Held, the diligence was insufficient and the continuance properly-refused.</p> <p>2. —Same—On Motion for New Trial.</p> <p>The rule to test, and which governs, in the consideration of an application for continuance, on the motion for new trial, is, conceding the materiality and probable truth of the proposed testimony, would said testimony, if produced, have redounded to the benefit of defendant and secured a more favorable verdict. Where the testimony would be as to facts proved by other witnesses on the trial, and not controverted, the new trial was properly overruled in this regard.</p> <p>3. —Murder—Indictment—Bad Spelling.</p> <p>In an indictment for murder, the spelling of the word “shooting,’* “shorting," does not render the indictment bad where the context clearly indicates the intention of the pleader and his meaning. Indictments are not bad for lack of proper spelling or grammar.</p> <p>4. —Same—Self-Defense—Appearances of Danger—Charge.</p> <p>On a trial for murder, where the court, upon the issue of self-defense, in its charge upon threats and ap'pearances of danger, told the jury that the question was, whether defendant had “just and reasonable grounds for believing himself to be in danger.” Held, the word “just” was synonymous with reasonable, and did not qualify, limit or contradict the terms, “reasonable grounds,” as used in - said charge, and the jury could not have been misled by the use of the word “just” in connection with the words, “reasonable grounds for believing.” Distinguishing Reeves v. State, 34 Texas Grim. Rep., 487.</p> <p>5. —Same—Murder in Second Degree—Charge of Reasonable Doubt.</p> <p>On a trial for murder, where the court, in its charge, has prescribed the rule of reasonable doubt as to the different degrees, a charge as to murder in the second degree was correct which instructed the jury that they must be satisfied that defendant formed the design to take the life of de--ceased, and that when the design was formed his mind was calm, deliberate and capable of cool reflection; and that he took the life of deceased in pursuance of such design, before he could be guilty of murder in the second degree.</p>

<p>1. —Right of Counsel to Consult with Witness.</p> <p>On a trial for murder, where it appeared that defendant’s wife, who was a witness, was in the town where the trial was had for a week before the trial, and that during the trial counsel could have consulted with her while the court was adjourned; Held, no error is shown in the court’s allowing five minutes for further consultation with said witness. Such matters are within the sound discretion of the trial judge.</p> <p>2. —Murder—Malice—Declarations of Defendant.</p> <p>On a trial for murder, a declaration of defendant going to show malice is not rendered inadmissible by his subsequent declaration, in the same conversation, showing a lack of malice. Both statements are admissible to be considered by the jury in passing upon the question of defendant’s malice.</p> <p>3. —Same.</p> <p>On a trial for murder it is competent, as going to show defendant’s malice or animus towards deceased, to show that he was not satisfied with a settlement had with deceased, and that he proposed to hold the mules of deceased in his possession as security for the balance due him.</p> <p>4. —Same—Threats.</p> <p>On a trial for murder, where it appeared that defendant had been fore.man of deceased’s mills, which he had shut down, it was competent to prove, on the question of his malice, that in talking about deceased’s indebtedness to him he had said that he did not know whether the mill would run again or not; that he and his family could use pistols and shotguns, and that they were good marksmen. It is always permissible to prove previous threats as independent evidence in homicide cases.</p> <p>5. —Argument of Counsel.</p> <p>No error can be predicated upon the argument of counsel which merely enunciates propositions of well established principles of law. It is proper that the jury should be fully instructed as to their province in applying the facts to the law as charged them by the court.</p> <p>6. —Murder—Defense of Property.</p> <p>On a trial for murder, where defendant testified, “I shot deceased because I was afraid he was going to shoot me, and because of the insult to my wife”—this did not require a charge of court on the law of defense-of property, defendant having forbidden deceased to come into a house jointly occupied by the parties.</p> <p>7. —Exception to Charge.</p> <p>An exception to a charge of court which merely says, “the court erred in charging the law of manslaughter,” is too general to be considered. Such an exception will not raise, the question of the sufficiency of the charge, but only the correctness of the charges given. Such exception can only be treated as in the nature of a general demurrer.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>Appeal from the District Court of Bexar. Tried below before Hon. John H. Clark.</p> <p>Appeal from a conviction of embezzlement; penalty, five years imprisonment in the penitentiary.</p> <p>The statement of the essential facts in the opinion is so full as to obviate a further statement.</p>

The main facts in the ease are as follows: Robert Lunsford, a witness for the State, testified that he was working for Waggoner in his pasture; that Waggoner’s pasture was north of the town of Seymour; that the pasture is twenty miles long east and west and about ten miles north and south. “In the month of May last I saw the defendant in the Waggoner pasture hunting horses; said he was looking for a sorrel mare branded —(-H-j—.

<p>No statement necessary.</p>

<p>Appeal from the Criminal District Court of Galveston. Tried below before Hon. J. II. P. Gillaspie.</p> <p>Appeal from a judgment forfeiting a bail bond in the sum of $80.</p>

Tried below before Hon. Irby Dunklin. Appeal from a conviction of theft by obtaining money, etc., by false pretenses; penalty, three years imprisonment in the… Held: and he said yes, it beat anything except a flush; and on account of some cards already being out, to which defendant called my attention, he said it was impossible for a better hand than mine to be out. I was then satisfied and let him have $50. Defendant said he would return the same $50 to me in a few minutes.

<p>Bond on Appeal frota Justice Court.</p> <p>The statute requires that the appeal bond from a justice court should obligate the appellant to appear at “the next term” of the court appealed to. When the condition was, that appellant should appear at “the present regular term,” this was not a compliance with the statute, and the appeal was properly dismissed. Following Fentress v. State, 16 Texas Grim. App., 79.</p>

<p>Appeal from the District Court of Fannin. Tried below before Hon. Ben H. Denton.</p> <p>Appeal from a conviction of murder in the second degree; penalty, eleven years imprisonment in the penitentiary.</p> <p>The indictment charged appellant separately with the murder of her husband, I. J. Martin, by shooting him with a pistol.</p> <p>R. D. Hudson, the father of appellant, had also been separately indicted for said murder, and upon trial was convicted. He appealed, and the case of Hudson v. State, 43 Texas Grim. Rep., 420, is the companion case to this case, and the essential facts pertaining to the murder will be found contained in that case. .</p> <p>The opinion fully illustrates the questions raised by bills of exception.</p>

<p>Appeal from the District Court of Rusk. Tried below before Hon. Richard B. Levy.</p> <p>Appeal from a conviction of rape; penalty, death.</p> <p>Appellant was indicted for rape upon Thaddie Hart, a female so mentally diseased as to have no will to oppose the carnal act, he, appellant, knowing her to be so mentally diseased.</p> <p>Appellant is a negro about 70 years old, the prosecutrix is white and about 17 years of age. It was proved that the prosecutrix was very weak minded and did not know right from wrong, and that appellant knew that fact. That she was three months gone in pregnancy at the trial.</p> <p>Appellant made confession to the sheriff, after his arrest, that he had had carnal intercourse with prosecutrix three times.</p>

<p>1.1—Continuance—Diligence.</p> <p>An application for continuance for an absent witness whose whereabouts is stated to be unknown, must show that defendant had used diligence to discover where she had gone, the witness being defendant’s sister.</p> <p>2. —Same—On Motion for New Trial.</p> <p>Where defendant complains, in his motion for new trial, that the continuance for his sister should have been granted, which said application for continuance did not state what he expected to prove by her, but he refers to his own testimony in the statement of facts to show her materiality, this is not a sufficient presentation of the matter to require consideration.</p> <p>3. —Same.</p> <p>An application for continuance for a sick witness will not be granted where the materiality of the witness is not shown.</p> <p>4. —Theft of Money—Proof of Want of Consent.</p> <p>On a trial for theft of money, where the owner of the stolen property was not a witness, his nonconsent to the taking was sufficiently proved by circumstances as to what occurred between the owner and defendant with regard to the recovery and surrender of the money to him by defendant after the theft. And where defendant had testified, that the owner’s whereabouts was not known, the court properly refused, under the testimony above stated, to instruct an acquittal for failure to prove the owner’s want of consent.</p> <p>5. —Corpus Delicti—Confession—Charge.</p> <p>On a trial for theft, it was not error to refuse to charge that defendant’s confession alone was not sufficient to establish the corpus delicti when there was other testimony abundantly establishing the theft.</p> <p>' €.—Theft—Proof of Name of Alleged Owner.</p> <p>On a trial for theft of money, the alleged property of T. F. Thassler, proof t-hat it was stolen from Thassler was not sufficient to prove that he was T. F. Thassler. The initials, as alleged, should have been proved.</p>

<p>No statement is required.</p>

<p>Misconduct of Jury in Discussing Previous Verdicts.</p> <p>On the third trial of defendant, the jury, before agreeing upon a verdict of manslaughter, discussed the two previous verdicts of conviction of defendant in ’ another county. Held, the statute is imperative in inhibiting jurors from discussing previous convictions as a predicate for their verdict, and such misconduct constitutes reversible error.</p>

<p>1. —Murder—Evidence—Threats.</p> <p>On the trial of a wife for the murder of her husband, it was competent to prove threats by deceased against the life of defendant, although no actual demonstration had been shown on the part of deceased to execute the threats.</p> <p>2. —Same—Remarks by Judge.</p> <p>On the trial of a wife for the murder of her husband, after defendant had testified that deceased attempted to strike her, it was clearly competent to prove that deceased had threatened to kill her before the week was out, and it was error for the judge to remark that he was doubtful if the evidence was admissible, but would give her the benefit of the doubt and admit it. Such remarks were in violation of the statute and prejudicial to defendant.</p> <p>3.—Same—Brutal Treatment by Deceased.</p> <p>On the trial of a wife for the murder of her husband, it was error to exclude testimony of previous acts of cruelty and brutality committed by him upon her, where the evidence tended to show self-defense from apparent danger. These occurrences between the husband and wife were admissible as tending to explain the action of the parties at the time of the difficulty.</p>

Tried below before Hon. J. C. Scott. Appeal from a conviction of a rape of a female under the age of 15 years; penalty, death. Appellant was charged by the indictment with the rape of Lilly Price, a female under the age of 15 years. He was also charged in the second count of the indictment with incest, the said Lilly Price being his daughter. The opinion gives a concise summary of the essential facts proved.

Tried below before Hon. W. Poindexter. Appeal from a conviction of theft of property of over $50 in value; penalty, two years imprisonment in the penitentiary. The testimony shows, that the stolen field glasses were left by A. Murck, the owner, in his grip, which he deposited in the office of the hotel at Meridian. Defendant was the only person in the office at the time, he being a guest in the hotel.

Tried below before Hon. M. Kennon. Appeal from a conviction of robbery; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with robbing P. Medina of a purse and $1,75 in money. The testimony showed that Medina’s companion, B. Lopez, was robbed at the same time of 75 cents. The robbery was committed by appellant and three other negroes.

Tried below before Hon. W. J. Oxford. Appeal from a conviction of assault with intent to rape a female under 15 years of age; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with assault witíi intent to rape Maude Loyd, a female under the age of 15 years, on the 4th day of February, 1900. The essential facts are stated in the opinion as well as the facts pertaining to appellant’s bills of exception.

<p>• 1.—Aggravated Assault—Two Transactions—Election by State.</p> <p>On a trial for aggravated assault by defendant upon a female schoolteacher, where defendant was charged' with acting together with his two daughters in making the assault, and it appeared that there were two assaults, one by each of his two daughters, occurring at an interval between them of about fifteen minutes, defendant not being present at the first assault, it was error to refuse defendant's motion to have the State elect as to the assault upon which the conviction would be sought.</p> <p>2. —Same—Defense of Another—Charge,</p> <p>On a trial for aggravated assault upon a schoolteacher by defendant and his’daughters, where it appeared that when defendant approached the scene his daughters were surrounded in angry altercation by the teacher and her other scholars, one of whom, a youth of 17 years, was flourishing a club in a threatening manner; Held, defendant! had the right to protect his daughters, as he viewed the situation, although his daughters may have been originally in the wrong, and the court erred in not submitting this phase of the case in the charge to the jury.</p> <p>3. —Same—Verdict. ^</p> <p>On a trial for aggravated assault, where both: degrees were submitted in the charge, and the verdict was a general one assessing a fine of $25, which is the minimum punishment for aggravated and the maximum punishment for simple assault; Held, the verdict should have specified the offense.</p>

<p>Appeal from the District Court of Marion. Tried below before Hon. J. M. Talbot.</p> <p>Appeal from a refusal of motion for new trial and in arrest of judgment on a conviction, which was rendered the 29th day of June, 1889, of murder in the first degree; penalty, death.</p> <p>■ Appellant was indicted for the murder of Ike Bailey, a negro, on the ■28th day of March, 1888.</p> <p>Defendant made a motion for new trial, which was overruled at the •term when he was convicted, and he appealed, and his appeal was dismissed on account of his escape from custody.</p> <p>The facts pertaining to this attempted second appeal are fully stated in the opinion.</p> <p>Davidson, Presiding Judge, being disqualified, he having been Assistant Attorney-General at the time of the former appeal in the case, Governor Sayers appointed G. W. Allen, of Austin, Special Presiding Judge.</p>

Tried below before Hon. W. Poindexter. Appeal from a conviction of rape of a female under 15 years of age; penalty, five years ^imprisonment in the penitentiary. The indictment charged appellant with the rape of Ethel Stoval, a female under the age of 15 years, on the 25th day of December, 1900.

Tried below before Hon. H. H. Wallace. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with assault with intent to murder John Lindley, on the 12th day of July, 1902. The essential facts are stated in the opinion.

<p>1. —Continuance.</p> <p>Where a motion for continuance has been" controverted by contesting affidavits which show that the absent witness would not have testified as stated in the application, or if he had done so his testimony would not be probably true, and that the same would not have had any effect upon the jury, the continuance was properly refused.</p> <p>2. —Examination of Juror on Voir Dire—Conscientious Scruples.</p> <p>In the examination of jurors on their voir dire, in a murder case, it is proper • to ask them if they have any conscientious scruples in regard to inflicting the death penalty in cases depending wholly upon circumstantial evidence.</p> <p>3. —Murder—Confession.</p> <p>On a trial for murder where it appeared that, after defendant had been duly warned by the sheriff, he made a confession to the sheriff and two other parties a short time after his arrest, in a stable to which they had taken him, in which confession he gave a detailed account of how he-committed the homicide; told them where deceased’s clothing and pistol would be found; and it was objected that the confession was not free and voluntary, because defendant was afraid of a mob, and because one of the parties to Whom the confession was made told him he would be better off if he told the truth, and that it would save his neck if he would plead guilty; all of which occurred after the warning; Held, the confession was admissible in view of the fact that the clothing, etc., of deceased were found in pursuance of said confession.</p> <p>4. —Same.</p> <p>A confession is admissible in evidence regardless of any warning, where the facts and circumstances going to establish defendant’s guilt were found to be true by virtue of his confession and statements.</p> <p>5. —Murder—Evidence—Clothing of Deceased.</p> <p>On a trial for murder it is admissible to put in evidence articles of clothing worn by deceased at the time of the homicide.</p> <p>6. —Same—Express Malice.</p> <p>On a trial for murder charged by the indictment to have been committed with malice aforethought, a charge on express malice is responsive and authorized.</p> <p>7. —Murder in Perpetration of Robbery—Charge.</p> <p>On a trial for murder, where the proof authorized it, the court did not err in instructing the jury that a murder committed in the perpetration of robbery was murder in the first degree. This is statutory.</p> <p>8. —Same—Murder in Second Degree.</p> <p>On a trial for murder committed in the perpetration of robbery, a charge of court upon murder in the second degree is to the benefit and advantage of defendant, and he can not be heard to complain of such charge.</p> <p>9.—Murder in First Degree—Evidence Sufficient.</p> <p>See opinion for evidence concisely summed up, held amply sufficient to support a judgment of conviction of murder in the first degree inflicting the death penalty.</p>

The indictment charged appellant, in two counts, with a rape upon Hattie Heads, on the 28th day of May, 1902. The first count charged a rape upon a female under the age of 15 years; the second, a rape committed by force, threats and fraud. Both counts were submitted to the jury, and the verdict of guilty was a general verdict. Hattie Meads, the prosecutrix, was defendant’s stepdaughter.

<p>1. —Assault with Intent to Murder—Evidence—Res Gestae.</p> <p>On. a trial for assault with intent to murder evidence of what occurred between defendant and another party, a short time before the difficulty with prosecutor, .when the prosecutor was not present, was admissible as part of the res gestae, and- to show the animus of defendant. The difficulty being a continuous one, it was competent for the State to show how it began.</p> <p>2. —Same—Deadly Weapon—Charge.</p> <p>On a trial for assault with intent to murder, the court properly submitted that issue although the deadly character of the knife with which the assault was made was not directly proven, it being shown that the wounds inflicted were aimed at a vital part of prosecutor and were so severe that prosecutor was laid up from them for three weeks.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter. ]</p>

Tried below before Hon. Charles F. Clint. Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary. The indictment charged appellant with the murder of Sallie Walker, on the 9th day of August, 1901, by shooting her with a pistol. The opinion states the essential facts sufficiently.

<p>1. —Murder—Evidence—Confession.</p> <p>On a trial for murder, statements made by defendant while in arrest and after he had been duly warned, are -not inadmissible because not in terms a confession. Any statement made under such circumstances, which may be shown to be an inculpatory or incriminative fact, may be Introduced In evidence.</p> <p>2. —Same—Confession—Submission of to Jury.</p> <p>On a trial for murder, if there be a question as to whether the statement or confession of defendant was freely and voluntarily made, the court should submit that question to the jury to be determined by them.</p> <p>3. —Defendant as Witness—Cross-Examination.</p> <p>Where defendant was a witness on his trial for murder, it was competent on his cross-examination to ask him his reasons for denying and concealing the alleged offense, but it was incompetent to show that he was requested to go before the grand jury and testify to the matter, and that he declined to do so.</p> <p>4. —Murder of White Man by Negro—Reputation of Deceased.</p> <p>On the trial of a negro for the murder of a white man, where the murder occurred over a gambling transaction between the parties, it was competent to prove that deceased had. the reputation, in the community in which he lived, of gambling with negroes. The evidence was corroborative of the testimony of defendant and was a circumstance tending to shed light on the transaction.</p> <p>5. —Same—Defendant as a Witness—Cross-Examination.</p> <p>On a trial for murder, where defendant, as a witness in his own behalf, did not testify as to h'is failure to tell Mr. McKellar about the killing, he can not be asked, on cross-examination, why he did not tell him.</p> <p>6. —Murder in the First Degree—Evidence of Express Malice Insufficient.</p> <p>See opinion for facts which the court hold are insufficient to establish 'express malice and murder in the first degree.</p>

Tried below before Hon. Charles F. Clint. Appeal from a conviction of rape; penalty, twenty years imprisonment in the penitentiary. All the essential facts can be fully seen from the two opinions below, and no other statement is required.

<p>1. —Embezzlement by Secretary of a Lodge—Fiduciary Relation.</p> <p>Where, by the rules of an Odd Fellows lodge, the duty of receiving moneys due the lodge is devolved upon a "permanent secretary," and the testimony showed the defendant was “recording and financial secretary," but failed to show that he was the "permanent secretary”; Held, the fiduciary relation constituted by the statute of embezzlement is not sufficiently shown.</p> <p>2. —Same—Minor Degree—Charge.</p> <p>On a trial for embezzlement of money, where it appeared that the money came into the hands of defendant in small amounts, at various times; Held, it was error for the court to fail to submit, in the charge, the issue of petty embezzlement of money of less amount than $50.</p> <p>3. —Degrees of Offense.</p> <p>Where there is a doubt of the grade of the offense, the jury should be instructed appropriately in regard to the minor degrees, as the presumption is that defendant is innocent of the greater offense.</p>

From Smith County. Original application for habeas corpus for discharge from custody for a violation of a municipal ordinance against obstructing streets. The opinion states the case.

<p>Violating Sunday Law—Municipal Ordinance.</p> <p>The charter and ordinances of a city authorizing the opening of a saloon and the selling of liquor on Sunday, except during certain hours, are invalid and in contravention of the State law on the subject.</p>

<p>Ho statement required.</p>

<p>Appeal from the District Court of Trinity. Tried below before Hon. J. M. Smither.</p> <p>Appeal from an order denying a writ of habeas corpus.</p>

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

Tried below before Hon. Charles E. Clint. Appeal from a conviction of theft of money over the value of $50; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with the theft of $230, on the 31st day of May, 1902, from-a person to the grand jurors unknown. Briefly stated, the facts proved by the accomplices were, that defendant was running an establishment known as the “Blue Goose,” a saloon.

Tried below before Hon. W. P. Hicks. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The indictment charged appellant with assault with intent to murder Marian Kelley, on the 24th day of December, 1900. Marian Kelly was appellant’s brother, and he swore positively that it was defendant, his brother, who shot him. The record does not disclose the motive of defendant in shooting his brother.

<p>The facts attendant upon the killing are stated in the opinion. ■</p>

<p>1. —Continuance—Diligence.</p> <p>On an application for continuance, where it was made to appear that the absent witness was in the town where the trial was held, and was frequently about the courthouse from the 16th to the 24th of November, and that during said time he camped with defendant, and that he left the town on the 24th, and the verdict was rendered thereafter on November 26th; Held, no diligence was shown, and the application for continuance was properly overruled.</p> <p>2. —Assault with Intent to Rape—Declarations of Prosecutrix.</p> <p>On a trial for assault with intent to rape, the statements of prosecutrix were properly admitted in evidence, as res gestae, where it appeared that she had run three-quarters of a mile to escape her assailant, and immediately upon reaching home, in a prostrated condition, told her mother that defendant was the party who assaulted her, and described how he was dressed and the kind of horse he was riding.</p> <p>3. —Same—Evidence Sufficient.</p> <p>See opinion for evidence summarized which is held sufficient to support a conviction for assault with intent to commit rape.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>“Richard Kittrell, the prisoner whom appellant is alleged to have aided in making his escape, plead guilty» at the May term, 1902, of the County Court of Hill County, Texas, in three misdemeanor cases, upon information charging him with the violation of the local option law in precinct Ho. 2, Hill County, Texas. In each of which cases the defendant pleaded guilty and his punishment was assessed in each case at a fine of $25 and twenty days in jail, the judgments so entered becoming cumulative. Upon these pleas of guilty and judgments of conviction, the court remanded said prisoner into the custody of W. I. Satterfield, sheriff of Hill County. A commitment issued by the clerk of said court directed to the sheriff or any constable of Hill County, on the 20th day of May, 1902, directing him to take the body of said prisoner and deliver him to the superintendent of the poor farm of Hill County, to be confined and put to hard labor until said judgments were fully satisfied, and that said sheriff in accordance with said commitments deliver said prisoner to the superintendent of the poor farm. The said superintendent then placed said prisoner.with others into the custody of said George Parrott, a guard employed by said superintendent, who was then and there working the public roads of Hill County with said Richard Kittrell and other prisoners; and while said prisoners were at work on said public road in custody of said guard near Itasca, Texas, said prisoner, Richard Kittrell, escaped from said guard and came to the field where appellant and his brother, Mark Brannan, were at work about three-quarters of a mile from appellant’s home, and about one and three-quarters mile from where said prisoner, Richard Kittrell, escaped from said guard; that said prisoner and appellant then went from said field to appellant’s said home, and appellant procured a horse, and prisoner and appellant mounted and rode off through appellant’s said field in a northeasterly direction to a public road where appellant’s brother, Mark Brannan, was sitting in a buggy. Prisoner then - got off the horse, got in said buggy, and said prisoner and Mark Brannan then drove off.”</p>

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

Tried below before Hon. L. W. Moore. Appeal from a conviction of murder in the second degree; penalty, seven years imprisonment in the penitentiary. The indictment charged appellant with the murder of Dan, Roberts, on the 13th day of July, 1902, by shooting him with a gun. Dan Roberts, the deceased, was a white man; defendant, Charlie Jones, is a negro.

<p>Ho statement necessary.</p>

<p>Appeal from the County Court of Rockwall. - Tried below before Hon. E. D. Foree, County Judge.</p> <p>Appeal from a conviction of violating local option; penalty, a fine of $50 and twenty days imprisonment in the county jail.</p> <p>R. Z. Dyer testified that he and the alleged purchaser, G. E. West, each bought a bottle of what was called malt tonic from the defendant, which they drank, and that the liquor was intoxicating. West testified to the same facts.</p>

<p>1. —Lottery—Indictment,</p> <p>An indictment for the establishment of a lottery is defective which alleges the disposition of a single prize to be distributed, not to the winner, but among the purchasers of tickets therein. A single prize could not be distributed or parceled out among the various purchasers of tickets, but would go to the lucky winner.</p> <p>2. —Lottery—Raffle—Distinction Between.</p> <p>In a lottery there is a keeper or exhibitor who has the real fund against which the bettors stake their money and win, as evidenced by tickets. It is a game of chance on the part of the ticket-holders, and, on the part of the keeper, a game of both chance and skill. A raffle is a game of perfect chance in which every participant is equal. The successful party takes the whole prize, and all the rest lose. It has no keeper, dealer or exhibitor. The element of one against the many is not in it. Another distinction is, that in a raffle all the tickets are disposed of and some one is bound, to win the prize.</p> <p>3. —Same.</p> <p>Where the method of disposing of a horse and buggy valued at 3200 was the issuance of 200 tickets, numbered from 1 to 200, the person drawing the ticket paying the amount represented by its number, and the common fund went to the owner of the horse and buggy, while the ticket-holders were to throw dice, the one throwing the highest dice being entitled to the horse and buggy—the sole prize. Held, this constituted a raffle and not a lottery, and the indictment for establishing a lottery should have been quashed.</p>

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

According to Justess’ testimony, the house was burglarized between 1 and 2 o’clock at night. The storehouse had been burglarized before,. an¡l Justess, on the night in question, had concealed himself in the store to try and catch the parties committing the burglary. He heard a buggy approaching, which stopped near the store, and in a few minutes two persons entered from the window, which they had raised.

Tried below before Hon. J. J. Mansfield, County Judge. Appeal from an order remanding relator, who was a county convict, to custody on proceeding by habeas corpus.

<p>From Harris County.</p> <p>Original application for habeas corpus for release from a commitment .for contempt for publishing, in a newspaper, the evidence in a murder case, in disobedience of the verbal order of the trial judge. .</p> <p>The opinion states the case.</p>

The indictment charged appellant with the rape of Maud Foust, a female so mentally diseased as to have no will to oppose the act of carnal knowledge, add who was also under 15 years of age at the time of the commission of the offense. No statement necessary.

Tried below before Hon. L. B. Cobb. Appeal from a conviction of cattle theft; penalty, two years imprisonment in the penitentiary.

<p>Embezzlement—Partner.</p> <p>The prosecutor turned over a sum of money to defendant to be used by defendant in the purchase of a saloon in which-they were to be partners, the money to be paid back from proceeds of the business, and then the profits to be divided between them. Held, defendant was not guilty of embezzlement of the money, he having failed to purchase the saloon.</p>

<p>No statement required.</p>

Tried below before Hon. Charles F. Clint. Appeal from a conviction of murder in the second degree; penalty, eight years imprisonment in the penitentiary. This is the second appeal in this case. See Giles v. State, 43 Texas Crim. Rep., 561, for statement of the facts.

<p>1. —Postponement—Bill of Exceptions.</p> <p>A bill of exceptions should be reserved to the refusal of the court to postpone the trial for defendant’s counsel, who is engaged in the trial of a case in another court.</p> <p>2. —Absence of Statement of Facts—Charge.</p> <p>Errors in the charge of the court can not be revised in the absence of a statement of facts.</p> <p>3. —Same—Insufficiency of Evidence.</p> <p>Error predicated upon the insufficiency of evidence can not be considered in the absence of a statement of facts.</p>

<p>1. —Complaint—Signature by Making Mark.</p> <p>On a motion for new trial, the complaint was attacked, the objection being that it did not appear to have been signed by the affiant. The purhis</p> <p>ported signature being John Steele, there being no mark in the blank mark</p> <p>space. The record shows it was made and sworn to before the county attorney and filed by the justice of the peace. Held, on a motion for new trial regularity is presumed, and it devolved upon the attacking party to show that affiant did not in fact sign his name.</p> <p>2. —Same—Failure to File by County Clerk.</p> <p>The failure of the county clerk to place his file mark upon the complaint and information must be urged in limine; it can not be availed of after conviction on a motion in arrest or for new trial.</p> <p>3. —Local Option—Evidence Sufficient.</p> <p>See opinion for facts held sufficient to support a conviction for violating local option in the sale of a liquid shown to be intoxicating.</p>

<p>Appeal from the District Court of Cooke. Tried below before Hon. D. E. Barrett.</p> <p>Appeal from a conviction of theft from the person; penalty, four years imprisonment in the penitentiary.</p> <p>The indictment is set out in the opinion. Ho statement of facts in the record.</p>

Tried below before Hon. W. J. Oxford. Appeal from a conviction of rape; penalty, fifteen years imprisonment in the penitentiary. The judgment being reversed solely on account of the misconduct of the jury, the facts” concerning which are fully set out in the opinion, it is néedless to make any other statement.

<p>1. —Permitting Gaming in a Hotel—Indictment—Negativing Exception.</p> <p>Article 379, Penal Code, as amended, prohibits playing at cards in any house for retailing spirituous liquors, storehouse, tavern, inn, etc., * * * or at any place, “except a private residence occupied by a family.” Held, it is not necessary to negative this exception in an indictment for playing or permitting cards to be played in any of those houses which are enumerated as public houses, it not being descriptive of the offenses played in such public houses. The allegation of one of the public houses .named negatives the idea that it was a private residence.</p> <p>2. —Same.</p> <p>On a trial for permitting gaming in a hotel, the indictment is sufficient which alleges in general terms, that the playing was at a hotel; and it is not necessary that it should designate any particular room. That the room was a private room, is defensive matter which may be shown by defendant.</p> <p>3. —Same.</p> <p>On a trial for permitting gaming in a hotel, where it was objected that the proof did not show this offense, but if any offense, that defendant rented a room for purposes of gaming; Held, defendant should have requested a charge on this subject, if he believed the evidence authorized it; and not having done so, the only question on appeal was whether there’ was sufficient evidence to support the allegation that the game was permitted in a room of a hotel under defendant’s control.</p> <p>4. —Same.</p> <p>See opinion for evidence summarized, which is held sufficient to support a conviction of permitting gaming in a hotel under defendant’s control.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>1.—Local Option—Evidence—Hearsay.</p> <p>On a trial for violating local option, it was error to permit a witness to testify as to what a third party told him about his buying whisky from de- . fendant at a certain time. The evidence was hearsay, defendant not being present when the statement was made.</p> <p>.2.—Same.</p> <p>On a trial for violating local option, it was error to permit a witness to testify that he got the whisky from the prosecuting witness, at defendant’s store, and that he got drunk on said whisky, it not being shown that the • prosecuting witness bought the whisky from defendant.</p> <p>3. —Same—Sales to Other Parties—System.</p> <p>On a trial for violating local option, it is competent to prove sales to other parties than the prosecuting witness, where the sale in question was in accordance with the system of doing business pursued by defendant.</p> <p>4. —Same.</p> <p>On a trial for violating local option, it is not competent to prove that whisky was seen in other stores in the town unless defendant was in some way connected with the possession of said whisky.</p> <p>5. —Same—Charge as to Other Sales.</p> <p>On a trial for violating local option, where proof of other sales is admitted, the court should charge the jury that defendant could not be convicted for any other sale than that alleged in the indictment; and the court should also tell the jury that such other sales could only be considered as a circumstance to show the system under which defendant was acting.</p> <p>6. —Same—Orders of Court as to the Election—Variance.</p> <p>Where the commissioners court ordered the local option election for “election precinct number twenty-six, and Princeton voting box,” and the order' declaring the result of the election omitted any mention of the “Princeton voting box,” this did not create a variance or invalidate the election, since “Princeton voting box” was surplusage.</p>

Tried below before Hon. Charles F. Clint. Appeal from a conviction of murder in the second degree; penalty, fifty years imprisonment in the penitentiary. The indictment charged appellant with the murder of Joe Gwinn, on the 7th day of July, 1900, by stabbing him with a knife, and by stabbing and cutting him with some sharp instrument.

<p>1.—Playing Cards in a Hotel—Indictment.</p> <p>An indictment brought under article 379, White’s Annotated Penal Code, for playing cards in a room inf a hotel, is sufficient although it does not negative that the cards were played at a private residence. Following Hodges v. State, ante, p. 444.</p> <p>ON REHEARING.</p> <p>2. —Indictment—Pleading Statutory Exceptions.</p> <p>If a statutory exception is so incorporated with the clause describing the offense that it becomes in fact a part of the description, then the exception must be pleaded; but if it is not so incorporated with the. clause defining the offense, then it is a matter of defense that must be proved by defendant, though it be in the .same section, or even in the succeeding section.</p> <p>3. —Gaming—Article 379, Penal Code.</p> <p>Under the amended article 379, White’s Annotated Penal Code, as to gaming, the latter clause, “or at any place except a private residence occupied by a family,” does not enter into the definition of any of the previous clauses of said article, but was simply intended to cover all places not previously prohibited; and it is not necessary to negative it in an indictment charging the playing in any of the previously enumerated public houses or places.</p>

<p>1. —Murder—Indictment—Deadly Weapon, etc.</p> <p>An indictment for the murder of a child, by striking it with a leather belt, is sufficient although it does not allege that the leather belt was a deadly weapon, or that death was calculated to result from the use of the same, or that the striking was done in a cruel, brutal, inhuman or unmerciful manner.</p> <p>2. —Impeachment of Witnesses—Supporting Them.</p> <p>Where defendant has impeached the State’s witnesses by, proof of their statements contradictory of their testimony on the trial, it is" permissible to prove by the county attorney that said witnesses had testified before the grand jury substantially as they did at the trial, and to permit him to repeat their testimony given before the grand jury.</p> <p>3. —Murder of Child with a Leather Belt—Charge.</p> <p>The fact that the indictment for the murder of a child by striking it with a leather belt did not allege that the belt was a deadly weapon, or that it became such from the manner of its use, did not render a charge erroneous which instructed the jury to find defendant guilty of murder in the second degree if he did, as charged in the indictment, of his malice aforethought, strike and kill deceased with a leather belt, being a deadly weapon, etc., in a sudden passion, without adequate cause.</p> <p>4. —Same—Charge as to Neglect and Improper Treatment.</p> <p>On a trial for murder, where there was no evidence of death from neglect, or improper treatment, after the wounds were inflicted, it was error for the court to charge upon that issue.</p> <p>'5.—Charge—Undue Prominence by Repetition.</p> <p>A charge of court upon a particular issue should not be given undue prominence by repetition.</p> <p>6.—Murder—Charge.</p> <p>On a trial for the murder of a child, by striking it with a leather belt, where the court submitted article 653, Penal Code, as to a failure of defendant to call aid in preserving the life of the child after the injury was inflicted, it was error to fail to submit, in connection therewith, articles 717 and 720, Penal Code, with reference to the character of and presumption arising from the use of such an instrument; and the court, in connection with said articles 717 and 720, should have charged upon manslaughter and aggravated assault.</p>

Tried below before Hon. D. M. Alexander, County Judge. Appeal from a conviction of aggravated assault upon Grace Dunn, a female; penalty, a fine of $25. The prosecutrix, Grace Dunn, testified: “The defendant came to the door and stood there talking for a few minutes; he asked where pa and ma were, and then walked over to where I was by the table. The table stood in the northeast corner of the room and was about four feet long and three feet wide.

<p>No statement required.</p>

<p>1. —Selling Liquor to Minor—Opinion Evidence.</p> <p>On a trial for selling liquor to a minor, it is competent for witnesses to slate their opinion as to the age of the prosecutor from his appearance, etc.</p> <p>2. —Special Instructions.</p> <p>Where the court has already given a sufficient charge upon an issue, it is not necessary , to give a requested charge upon the same subject.</p>

<p>1. —Resisting Officer Executing Sequestration Writ—Evidence.</p> <p>On a trial for resisting an officer attempting to execute a writ of sequestration issued from a court of competent authority, it was not necessary to -introduce in evidence a valid affidavit upon which the writ was based.</p> <p>2. —Same.</p> <p>A writ of sequestration issued by a court of competent jurisdiction, and valid upon its face, is not vitiated because the reasons upon which it was based are stated in the alternative.</p> <p>3. —Same.</p> <p>Process issued from a court of competent jurisdiction, and fair upon its face, will protect the officer executing it; and he is not concerned with any illegalities that may be back of it.</p>

<p>1.—Selling Liquor to Minor—Evidence.</p> <p>On a trial for selling- intoxicating liquor to a minor, it is competent to prove that at the same time and place two other minors were present and drank the intoxicants with the prosecuting witness. The evidence was res gestae, and bore upon defendant’s good faith in selling the liquor.</p> <p>3.—Same. ■</p> <p>Before a defendant can be legally convicted of selling intoxicants to a minor, it must be proved that he knew the purchaser was under 21 years of age.</p>

<p>Ho statement necessary.</p>

<p>1. —Occupation Tax—Levy of by Commissioners Court.</p> <p>On a trial for pursuing an occupation without paying the tax imposed, it must be shown from the minutes of the commissioners court not only that a tax upon such occupation was ordered, but what was the amount of the tax so levied by said court.</p> <p>2. —Same.</p> <p>See opinion for evidence held insufficient to support a conviction of pursuing the occupation of selling spirituous, etc., liquors without license.</p>

Tried below before Hon. J. K. P. Gillaspie. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with the burglary of a house, the private residence of A. R. Eailey.

<p>1. —Forgery—Indictment—Innuendo Averments.</p> <p>See opinion for an instrument declared on as the subject of forgery, which did not require innuendo averments to explain it.</p> <p>2. —Confession—Warning—Lapse of Time After.</p> <p>While it is the rule that, where a confession is made, the previous warning should be operative upon the mind of the party confessing, this rule has no application where the confession immediately follows the warning.</p> <p>3. —Same—Corpus Delicti.</p> <p>See facts stated in the opinion held sufficient to establish the corpus delicti without the aid of defendant’s confession.</p> <p>4. —Same.</p> <p>While the corpus delicti can not be proved alone by the defendant’s confession, the confession may be looked to in aid of the proof of the corpus delicti.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Beporter.]</p>

The indictment charged appellant with assault with intent to murder John Allen, on the 5th day of November, 1901. John Dodd, appellant, was a motorman on one of the electrical street cars of the city of Austin. John Allen, the prosecutor, was a gambler and ran a gambling establishment in the city. It seems that Dodd had frequented this place and indulged in gaming there, and was generally a loser.

The charging part of the indictment is as follows, viz: “That D. O. Luna on or ábout the 5th day of June, one thousand nine hundred and one, and anterior to the presentment of this indictment in the •county of Titus and State of Texas, did then and there personally appear before D. W. Ellis the legal qualified and acting justice of the peace in and for precinct number one in and for Titus County Texas, and the said D. C. Luna did then and there take his corporal oath which…

<p>Assault with Intent to Commit Rape—Evidence Insufficient.</p> <p>See opinion for evidence held insufficient to support a conviction of assault with intent to commit rape.</p>

<p>1. —Rape—Continuance—New Trial.</p> <p>On a trial for rape by a father upon his 14-year-old daughter, where it appeared on the trial that his absent wife, for whom he sought a continuance, was a most important and material witness, inasmuch as the prosecutrix testified that nearly all the ill-treatment she had received from defendant occurred in the presence of said absent wife, a new trial should, under the circumstances of the case, have been granted to secure her attendance or her deposition, notwithstanding there was an utter lack of diligence by defendant to secure her testimony by issuing process for her or attempting to take her deposition. She had promised defendant that she would return to his trial, but it was shown she was too ill to travel at that time.</p> <p>2. —Same—Evidence—Subsequent Acts of Cruelty by Defendant.</p> <p>On a trial for' rape by a father upon his daughter, subsequent acts of cruelty towards the daughter, to the act complained of, which were not attempts to repeat the crime, are not admissible in evidence against defendant.</p>

<p>1. —Sunday Law—Selling Liquor as Agent of a Firm—Evidence.</p> <p>On a trial where defendant was charged as the agent of a firm composed of H. & F. with selling liquor on Sunday, it is inadmissible to prove that it was generally understood that H. & F. owned the saloon. The fact that they were the owners, should have been proved by their license and bond required by the law to run such business. ,</p> <p>2. —Same.</p> <p>On a trial for selling liquor on Sunday, it was inadmissible to prove by the county clerk, and read in evidence from a stub book kept by him with regard to the liquor license issued by him to H. & F. There is no law requiring a county clerk to keep such stub book.</p>

<p>1. —Carrying Pistol—Traveler—Railroad Porter.</p> <p>A railroad passenger porter, who daily goes on his train 150 miles, is a traveler, and exempt from liability for carrying a pistol.</p> <p>2. —Same.</p> <p>A porter on a railroad passenger train, while engaged in his business as such in connection with said train, is at his place of business and has a right to carry a pistol at his place"of business.</p> <p>3. —Same—Imminent Danger.</p> <p>See opinion for facts stated upon which it is held the jury should have found for defendant upon his issue of fear of such imminent danger of attack upon his person, as not to admit of the arrest of his assailant, and which justified him in carrying a pistol.-</p>

Tried below before Hon. W. J. Oxford. Appeal from a conviction of perjury; penalty two years imprisonment in the penitentiary. This is the second appeal in this case. See Freeman v. State, 43 Texas Grim. Rep., 580. No additional statement to the one in that case, and the facts stated in the opinion in this case, is required.

<p>1. —Local Option—Evidence Sufficient.</p> <p>'See opinion for evidence stated which is held amply sufficient to support a conviction of violating the local option law.</p> <p>2. —Same—Charge of Court.</p> <p>On a trial for violating local option, a charge of court does not compel defendant to assume the burden of proof and does not change the reasonable doubt from its proper mission which instructed the jury to the effect that, if they believed from the evidence beyond a reasonable doubt that in pursuance of an agreement between defendant and prosecutor defendant accepted money from prosecutor for which he was to furnish whisky to prosecutor, and did place the whisky where prosecutor could get it, he would be guilty unless he acted as agent for prosecutor and had no interest in the sale; in which latter case he would not be guilty. This charge did not require defendant to prove his innocence beyond a reasonable doubt.</p>

<p>The indictment charged the defendants jointly with being the tenants of a house which they kept for purposes of prostitution, and where prostitutes were permitted to resort and reside for the purpose of plying their vocation, from the 2d, and on each succeeding day, to the 10th day of December, 1901.</p> <p>The evidence showed that L. H. Peacock was running a saloon in the village of Rogersville. That he rented a house, which was some twenty or thirty feet from his saloon; and that, after he rented said house, two Mexican women occupied it and frequented his saloon. That these women were disorderly characters. The evidence was positive as to the fact that Herman Marx, the other defendant, had nothing to do with the renting and tenancy of said house, or with the-saloon run by Peacock, though he had sold Peacock the liquors, etc., he was using in the saloon.</p> <p>No further statement necessary.</p>

<p>1. —Local Option Election.</p> <p>The commissioners court may, of its own volition, order a local option - election; and in declaring the result it is not necessary to incorporate exceptional sales nor the manner in which the law excepts such sales; and it becomes established as a law by entry of the county judge certifying that result, and that it was published, as required by law, the proper length of time.</p> <p>2. —Same—Charge of Court.</p> <p>Where the local option law had been put into operation in a county by the orders of the commissioners court declaring the result of the election, and the proper publication has been made of the result, it was proper for the court to charge the jury that the law was in force in said county.</p> <p>3. —Same—Evidence.</p> <p>On a trial for violating local option, where it appeared that the liquor sold by defendant to one M. was identified, and that M. carried it immediately to one H., and they drank it, it was competent to prove by H., though not an expert, that the liquor was alcohol, and was intoxicating.</p> <p>4. —Same—Alcohol—Charge.</p> <p>On a trial for violating local option, where it was proved that the liquor sold by defendant was alcohol, it was not error for the court to instruct the jury that alcohol was an intoxicant; and such charge was not upon the weight of evidence.</p> <p>5. —Same.</p> <p>On a trial for violating local option, where “there is no evidence that defendant was the agent of another in the purchase of the liquor, it is not error for the court to fail or refuse to charge upon such issue.</p> <p>6. —Same—Evidence Sufficient.</p> <p>See opinion for facts, held sufficient to support a conviction of violating local option.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

Tried below before Hon. J. G. Adams, County Judge. Appeal from a conviction of theft of a pair of blacksmith’s tongs and a hammer; penalty, a fine of $5 and ten hours imprisonment in the county jail. The stolen property was alleged to belong to J. S. Sanders. J. S. Sanders, for the State, testified: “I purchased from A. Mantooth, some time in the summer of 1901, a blacksmith shop and tools; some time in the fall following said shop and tools burned.

Tried below before Hon. W. Poindexter. Appeal from a conviction of horse theft; penalty, three years imprisonment in the penitentiary. The essential facts are sufficiently stated in the two opinions of the court.

<p>1. —Disinterring a Human Body—Information.</p> <p>An information, brought under article 367, Penal Code, for disinterring a human body, to be sufficient, must allege the name of the deceased person whose body was disinterred, in order to apprise defendant of the nature of the particular accusation upon which he is to be tried.</p> <p>2. —Same—Suggestion to Legislature as to the Law.</p> <p>See opinion for a discussion of the statute, article 367, holding it indefinite and uncertain in its terms, and suggesting to the Legislature that a comprehensive and definite statute upon the subject is required.</p>

<p>This is a companion case to Williamson v. State, ante, p. 520.</p> <p>The opinion sets out the charging parts of the information.</p>

<p>The opinion states the case fully upon the questions decided.</p>

The proof showed that both appellant and deceased were negroes and resided in Hillsboro, and that the homicide occurred on Sunday night. That on the night in question Susie Jones, colored, and her sister Mary Roberts had left the servant room of 0. Gr. Bowman, where they were living, and went to church, which was situated in what is known as Freetown, in the city of Hillsboro.

<p>No statement is required.</p>

<p>1. —Recognizance on Appeal—Sufficiency.</p> <p>A recognizance on appeal which omits to conclude with the phrase, "in this case,” as is required by the statute, article 887, Code of Criminal Procedure, is fatally defective.</p> <p>2. —Same—Name of Appellate Court.</p> <p>A recognizance on appeal which binds appellant to appear and abide the judgment of the “Criminal Court of Appeals,” instead of “the Court of Criminal Appeals,” is fatally defective. There is no such court as the “Criminal Court of Appeals.”</p>

<p>Recognizance on Appeal—Sufficiency.</p> <p>A recognizance on appeal, to be sufficient, must, as required by statute, bind appellant to abide the judgment on appeal “in this case.”</p>

<p>No statement is required.</p>

Tried below before Hon. H. C. Conner. Appeal from a conviction of theft of money over $50 in value; penalty, two years imprisonment' in the penitentiary. The indictment alleged ownership of the money ($150) in John Tennison, who was the real owner. Tennison testified that he drove to the cotton yard to unload three bales of cotton from his wagon. That the defendant and another negro unloaded the wagon.

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

<p>Local Option—Evidence of Other Sales.</p> <p>On a trial for violation of local option, evidence of other sales than the one prosecuted for is inadmissible where they do not serve to identify the transaction, are not res gestae, and which do not prove a system under which the law was being violated. '</p>

<p>The essential facts as to the difficulty are sufficiently stated in the opinion.</p>

<p>1. —Local Option—Evidence as to Other Sales.</p> <p>On a prosecution for violating local option, where the evidence of the. prosecuting witness was positive, direct and unquivocal as to the purchase by him of the whisky from defendant, and his payment therefor, evidence of other sales by defendant was inadmissible.</p> <p>2. —Same.</p> <p>In prosecutions for violating local option, evidence of other sales than the one charged is admissible only when tending to develop the res gestae, or connect the defendant with the sale charged or to show system.</p>

<p>1.—Juror—Disqualification—Formed Opinion.</p> <p>Where a juror was challenged by defendant upon the ground that he stated that he had formed an opinion as to the guilt or innocence of defendant which would require evidence to remove, whereupon he peremptorily challenged him and the challenge was overruled upon his statement that, notwithstanding his opinion, he could try the case fairly upon the evidence, ■etc.; Held, inasmuch as he was not thoroughly examined as to the grounds upon which his opinion was based, and inasmuch as defendant did not exhaust his peremptory challenges, nor show that he was compelled to take an unfair or partial juror, no reversible error is shown.</p> <p>2. —Murder—Evidence of Threats by Defendant.</p> <p>On a trial for murder, where it appeared that defendant was jealous of deceased's intimacy with his paramour, his declarations made four days before the killing that. “I am going to do some devilment and get my name in the papers,” was admissible as evidence against him although the name of the deceased v/as not mentioned, the threat' being of such a malignant character as to embrace deceased, and the circumstances of the killing being such as would indicate that deceased must have been referred to by him. (See infra, paragraph 4.)</p> <p>3. —Same—Indictment—Allegation as to Weapon—Variance.</p> <p>Where an indictment for murder alleged that it was committed with a gun, proof can be made that it was done with a pistol or any firearm, and there is no variance.</p> <p>ON REHEARING.</p> <p>4. —Same—Threats by Defendant.</p> <p>On a trial for murder, where it was proved that defendant said, “Abe [the deceased] thinks he can run it over me, but I am going to kill him and leave town,” there can be no question that his remark, made the same night to another witness, to the effect that he was going to do some devilment and get his name in the papers, had reference to deceased, and was lgally admitted in evidence as a threat against deceased.</p>

<p>1. —Malicious Mischief—Shooting Dog—Defenses.</p> <p>On a trial for maliciously shooting a dog, where the defense was an alibi, defendant can not set up, as a defense, either actual or apparent danger from the dog or his vicious habits.</p> <p>2. —Same—Self-Defense.</p> <p>Where, on a trial for maliciously shooting a dog,. it appeared that the dog was twenty-five or thirty yards from defendant, inside the yard, with his. nose stuck under the lower strand of a barbed wire fence, barking, this did not suggest an assault by the dog and the corresponding right of self-defense by defendant from either actual or apparent danger.</p> <p>3. —Same.</p> <p>Upon the facts above stated the court did not err in excluding evidence of the vicious character of the dog. Such vicious and bad character would not justify defendant in shooting upon the ground of self-defense, there being no attack by the dog upon defendant.</p> <p>4. —Same—Evidence of Threats by Other Parties—Bill of Exceptions.</p> <p>A bill of exceptions to the exclusion of testimony that other parties had threatened to kill the dog, is insufficient if it fails or omits the names of such other parties.</p> <p>5. —Same.</p> <p>Where, at the time and place of the shooting, no one but defendant was present, evidence that others had threatened to shoot the dog was inadmissible.</p> <p>6. —Same—Evidence Sufficient.</p> <p>See opinion for evidence held sufficient to support a conviction of maliciously shooting a dog.</p>

<p>1. —Forgery—Instrument Subject of.</p> <p>The instrument, as set out in the indictment for forgery, was “October 20, Mr. W. J. Claybrook pleas pay to Joe Plemons eight dollars and fifty cents $8.50 fore I. A. Butler.” Held, the instrument was a proper basis of forgery with innuendo averments, as made. Following Hendricks v. State,</p> <p>26 Texas Grim. App., 176.</p> <p>2. —Same—Charge of Court.</p> <p>-On a trial for forgery, where the court has called the attention of the jury to that phase of the law which requires the intent to injure and defraud, it was not error to omit such instruction in connection with another portion of the charge which instructed that defendant would foe guilty if he forged the instrument .with intent to obtain the amount of money therein specified.</p> <p>3. —Same—Defense—Collection of Debt.</p> <p>In forgery, where C., a third party, is the one liable to injury by the forgery, defendant can not be heard to defend upon the ground, that by forging the name of B. (his debtor) he could collect his debt on an order for money upon G.</p>

The indictment charged appellant with the murder of Malinda Alexander, on the 12th. day of May, 1902, by shooting, and beating her with a stick and club, and choking her with his hands. The opinion states the essential facts.

<p>Local Option—Physician’s Certificate—Construction of Statute.</p> <p>Article 405, Penal Code, which prohibits a practicing physician from' giving a certificate for liquor, in a local option territory, to a person not actually sick, etc., does not apply in a case where a physician writes a prescription for himself. It is not unlawful for anyone to write a prescription for himself.</p>

<p>1. —Bribery of Officer—Illegal Arrest.</p> <p>An offer to bribe an officer for release from arrest is no violation of the statute unless it be shown that the arrest was a legal one. Following Moore v. State, ante, p. 159.</p> <p>2. —Same—Practice.</p> <p>On a charge of offering to bribe an officer to release him from arrest, where it was doubtful whether the bribe was offered before or after a legal arrest or detention, the party should be held by the examining court to await the action of the grand jury as to the matter for which he was legally arrested.</p>

From Harris County. Original application for habeas corpus, and, upon hearing, for relief „ from an order of the county court adjudging relator in contempt for disobedience to its orders. The opinion states the case.

Deceased was a hot tamale vendor, defendant a keeper of a whisky and beer saloon called a “hop joint.” Deceased was in the joint and was very, drunk and abusive to defendant. They had a misunderstanding about 50 or 60 cents, which deceased offered defendant and defendant refused to accept. Deceased’s conduct was most violent, abusive and threatening. Defendant tried to get him to go home and leave him alone.

<p>1.—Murder—Charge—Manslaughter.</p> <p>On a trial for murder, where it appeared that the parties had not known each other, that deceased and another party both assailed defendant, caught hold of him and had him bent and pushed down on the sidewalk so he could not secure his release, when defendant drew his pistol and fired. Held, the court erred in refusing to charge upon manslaughter.</p> <p>.2.—Same—Homicide from Disease and Not the Wound—Charge.</p> <p>On a trial for murder, where it appeared that after deceased was shot by appellant, and his arm amputated, it was ascertained by the attending physicians that he was in the last stages of Bright’s diseage, and that his death was caused by paralysis of the kidneys, inducing blood poison, through the use of chloroform administered at the time his arm was amputated; Held, if deceased would shortly have died from Bright’s disease, an incurable malady, and defendant’s shot assisted in bringing about the death, defendant would be guilty of the homicide, and' it was not error to refuse to instruct the jury to acquit if such disease produced the death.</p>

From Grayson County. . Original application for habeas corpus for discharge from arrest for violating local option. The opinion states the case.

<p>1. —Continuance.</p> <p>On an application for continuance, considered on motion for new trial, where it appeared that the facts sought to be proved by the absent witness had been proved by two other witnesses on the trial, and said facts were not controverted, held, the continuance will be considered properly overruled.</p> <p>2. —Murder—Expert Testimony as to Distance.</p> <p>On a trial for murder, an expert, who has qualified himself as to the use and range and scattering of shots fired from a shotgun, may give his opinion, from the extent to which the shot scattered, as to the distance the parties were from each other at the time the shot, which were squirrel shot, were fired from a muzzle loading shotgun.</p> <p>3. —Same.</p> <p>It is admissible to prove by an expert to what extent shot will scatter, fired at various distances, from a muzzle-loading shotgun.</p> <p>4. —Same—Defendant as a Witness—Impeachment of.</p> <p>On a trial for murder, the credibility of defendant, who testified in his own behalf, may be attacked by showing that at one time he had been indicted for cattle theft.</p> <p>5. —Same—Evidence—Reputation of Deceased as a Man of Peace.</p> <p>On a trial for murder, where the State had proved by a witness that deceased’s reputation was good; and v/hile it was competent to prove, on cross-examination of said witness, that he had heard of numerous difficulties deceased had had, it was not permissible to prove by the witness that deceased had been prosecuted for those difficulties.</p> <p>6. —Same—Manslaughter—Assault and Battery—Charge.</p> <p>On a trial for murder, where the court, in charging upon manslaughter, instructed the jury that an assault and battery was adequate cause to reduce the offense to manslaughter, it was not error to fail, in said charge, to define assault and battery.</p> <p>7. —Same—Charge as to Threats, etc.</p> <p>On a trial for murder, a charge that certain threats and overt acts of deceased would be adequate cause to reduce the offense from murder to manslaughter, was favorable to defendant and could not be complained of, because defendant had not relied on these threats and acts as a defense.</p> <p>8. —Same—Defense of Property—Self-Defense.</p> <p>On a trial for murder, where it appeared that deceased continued to invade defendant’s premises against his consent, and in spite of his remonstrances; and on the occasion of the killing went on said premises and approached defendant with words and acts causing defendant to apprehend danger of serious bodily injury imminent and pending, at the hands of deceased, whereupon defendant shot and killed him, defendant should be acquitted on self-defense.</p> <p>9. —Same—Charge.</p> <p>If deceased invaded defendant’s premises against his consent and in spite of his remonstrances, and was endeavoring forcibly to eject defendant from said premises, and defendant, having exhausted all other means except retreating to prevent deceased from forcibly driving him from said premises, shot and killed deceased, he was justifiable in so doing, and should be acquitted, and the court did not err in so instructing the jury.</p> <p>10. —Same—Requested Instructions.</p> <p>On a trial for murder, where it appeared that defendant fired two shots, the second being the fatal one, and defendant requested the court to instruct that, if defendant was suffering such bodily injury, or mental anguish caused by deceased, as rendered him incapable of cool reflection, and he fired the second shot under such conditions, he should be acquitted, even though at the time deceased had desisted from any further attack upon him; which instruction the court refused to give, but in lieu thereof told the jury that if said shot was fired in sudden transport of passion, aroused by adequate cause, then defendant would be guilty only of manslaughter. Held, the charge was sufficient and defendant could not complain.</p> <p>11. —Same.</p> <p>On a trial for murder, where it appeared that defendant fired two shots, the second of which was fatal, his guilt depends not upon the number of shots fired, but upon his motive and criminal intent at the time of shooting; hence, it is immaterial whether he resolved to fire both shots before firing either.</p> <p>12. —Improper Conversation by Deputy Sheriff with Juror.</p> <p>While it is improper for deputy sheriffs to converse with jurors, a presumption that such conversation was injurious to defendant will not be indulged in the absence of proof as to the nature of said conversation.</p>

Dan Berry, a witness for the State, testified as follows: That on or about the 15th day of April, 1902, he (witness) received on the mail hack from Guthrie a box marked dog poison, addressed to him (witness) from the defendant. In the box were two jugs of whisky, one of which, a two-gallon jug, had a card upon it addressed to Dan Eoberts, in care of Dan Berry, and marked $6.

<p>The opinion sets out the indictment.</p>

<p>1. —Rape of a Stepdaughter Under Fifteen Years of Age—Evidence as to Prior Rapes, etc.</p> <p>On a trial for rape of his stepdaughter, under the age of 15 years, committed with her consent, where the testimony of the prosecutrix was positive, and defendant’s confession of the offense, as charged, was proved, it was error to admit in evidence testimony as to other prior rapes committed by defendant on prosecutrix. Hamilton v. State, 36 Texas Grim. Rep., 372; Manning v. State, 43 Texas Grim. Rep., 302, and Cooksey v. State, 58 S. W. Rep., 103, overruled so far as they conflict with the above rule.</p> <p>2. —Same.</p> <p>On a trial for rape, where the prosecutrix is under the age of consent, testimony of former acts of intercourse is not admissible, unless it has some unmistakable bearing on the case, and tends to solve some issue in the case.</p> <p>3. —Same—Evidence.</p> <p>On a trial for rape of his stepdaughter, under the age of consent, evidence as to prior assaults and batteries by defendant upon prosecutrix is inadmissible.</p>

<p>1. —Scire Facias—Bail Bond—Plea of Non Est Factum.</p> <p>On a scire facias to forfeit a hail bond, where the signatures of the principal and sureties were not attached to the bond, a plea of non est factum, on the part of defendants, was not required to test its validity.</p> <p>2. —Same—Signature of Parties.</p> <p>A bail bond not signed by the parties in any portion of the bond, but whose signatures were only attached to their affidavit of responsibility for ' the amount of said bond, is absolutely void, and did not bind the parties, as obligors, in the bond.</p> <p>3. —Same—Evidence—Judgment Nisi.</p> <p>On a scire facias proceeding, it is essential that the judgment nisi should be introduced in evidence.</p>

<p>1. —Indictment—Motion to Quash—Disqualification of Grand Jurors for Nonpayment of Poll Tax.</p> <p>On motion to quash an indictment because of disqualification of the grand jurors for nonpayment of poll tax; Held, if conceded that the motion was allowable, the indictment having been presented sixteen days before the constitutional amendment as to payment of a poll tax became operative,, the grand jurors were not disqualified.</p> <p>2. —Same.</p> <p>Disqualification of grand jurors can not be raised on a motion to quash the indictments.</p> <p>3. —Disqualification of Petit Jurors—New Trial.</p> <p>Disqualification of petit jurors can not be raised on motion for new trial.</p> <p>4. —Continuance—Bill of Exceptions.</p> <p>A refusal to grant a continuance will not be revised where a proper bill of exceptions was not reserved in the lower court.</p> <p>5.—Assault to Murder—Charge—Aggravated Assault and Battery.</p> <p>On a trial for assault with intent to murder, where it was doubtful under the facts if defendant shot at prosecutor with specific intent to kill, a charge upon aggravated assault should have been given.</p>

Tried below before Hon. H. B. Lindsey. Appeal from a conviction of horse theft by conversion by a bailee; penalty, two years imprisonment in the penitentiary. The opinion sufficiently states the case.

<p>1. —Burglary—Testimony as to Another Similar Crime by Defendant.</p> <p>On a trial for burglary, it is not permissible to prove that on the same night, but at a different time and place, defendant and his confederate had burglarized another house.</p> <p>2. —Same.</p> <p>Proof of other distinct crimes than the one on trial is not admissible, unless it is res gestae, or serves to identify defendant, or to prove system.</p>

<p>Appeal from the District Court of Blanco. Tried below before Hon. Clarence Martin.</p> <p>Appeal from a conviction of abortion; penalty, two years imprisonment in the penitentiary.</p> <p>The indictment charged appellant with the commission of an abortion upon Clemantha Stanley, a pregnant woman, on the 4th day of October, 1903, by administering to her, with her consent, a certain drug and medicine calculated to produce an abortion. Clemantha Stanley was appellant’s daughter. The record does not disclose who was the cause of her pregnancy. It does show that defendant and his son, Jackson Stanley, made a tea of cotton roots and caused her to take it. The medical experts did not think tea made of cotton roots was an abortifacient, but knew that it was thought to be so, and especially by negroes, who used it for that purpose. The woman was dangerously sick after she took the tea, was delivered by the doctor of a dead foetus, and died from the miscarriage.</p>