Volume 45 — Texas Criminal Reports

<p>1. —City Charter—Municipal Ordinance—Habeas Corpus—Quo Warranto.</p> <p>A party restrained of his liberty by virtue of an ordinance passed, under an unconstitutional charter, by a board of commissioners partly appointed by the Governor to act in lieu of the city council, is properly entitled to, and his remedy is, habeas corpus to test the constitutionality of the ordinance; and it is not necessary that he should resort to quo warranto proceedings to test the authority of the board of commissioners to act officially in the premises. It has never been held, that where a pretended officer is acting by virtue of a commission which is absolutely void his acts can not be questioned in a collateral proceeding.</p> <p>2. —Corporation Officers—Right to Office.</p> <p>It is elementary that corporation officers must derive office from the corporation. This has been settled law from time immemorial.</p> <p>3. —Constitutional Law—Local Self-Government.</p> <p>Our Constitution can not be understood or carried out at all, except on the theory of local self-government, and the intention to preserve it is quite apparent. The Legislature has no right, under the guise of its lawmaking authority, to overturn the principles of local self-government. They have the right to create offices and prescribe the duties incident to the office, but the filling of the offices belongs to the people of the locality.</p> <p>4. —City Charter and Ordinance—Constitutional Law—Appointment of a Board of Commissioners by the Governor in Lieu of City Council Elected by the People.</p> <p>By the Act of Twenty-seventh Legislature, April 19, 1901, the "charter of the city of Galveston was so amended as to do away with the city council and' create a board of five commissioners, two to be elected and three to be appointed by the Governor, one of whom he was to designate as president. This board was, to all intents and purposes, a board of aldermen, and its president, who also had the right to vote with the board, was virtually the mayor. Their successors were, where there were vacancies on the board, to be appointed by the Governor. Held, the charter was violative of local self-government and violative of the Constitution, Bill of Rights, sections 1 and 2, and article 6, sections 2 and 3, which gave to city electors “the right to vote for mayor and all other elective officers; ” and hence an ordinance passed by such board of commissioners' was absolutely void. Brooks, Judge, dissents.</p>

The court erred in refusing to sustain defendant’s motion in arrest of judgment, because the complaint and information in this case is insufficient in that it does not negative the exceptions contained in the section of' the law under which said complaint and information is filed, Appeal from a conviction of peddling without payment of the occupation tax and obtaining license to pursue such occupation; penalty, a fine of $500. The facts are fully stated in the opinion.

<p>1. —Local Option—Evidence of Prior Prosecution.</p> <p>On a trial for violating local option, it is inadmissible to prove by defendant, on his cross-examination, that several months prior to this proseention he had pleaded guilty to a similar offense.</p> <p>2. —Impeachment of Witness—Evidence.</p> <p>On the impeachment of the credibility of a witness who, on his cross-examination, admitted that he was at the time .in jail on criminal charges, but refused to state the nature of such charges, it was competent to admit and read in evidence the indictments which charged the crimes against him. Henderson, Judge, dissents to this proposition.</p>

Tried below before Hon. N. A. Rector. Appeal from a conviction of receiving stolen property; penalty, two years imprisonment in the penitentiary. The indictment charges the receiving by defendant, knowing it to have been stolen, the following, the property of Carlo Franzetti, viz: First—Ten caddies Schnapps chewing tobacco, of 10 pounds each, of the value of 38 cents per pound. Second—Forty pounds Bull Durham smoking tobacco of the value of 50 cents per pound.

<p>1. —Continuance—Nonexpert as to Insanity.</p> <p>An application for continuance was properly overruled for a nonexpert as to insanity to prove, that for two or three days prior to the commission of the offense (assault to murder) defendant had been taking, as a medicine, large doses of tanic acid and other substances, from the effects of which defendant was temporarily insane, it not being shown, otherwise, that the witness could testify as to the acts and conduct of defendant upon which he might predicate testimony as a nonexpert on the question of defendant’s insanity.</p> <p>2. —Assault to Murdei—Charge as to Aggravated Assault.</p> <p>On a trial for assault to murder, by a husband on his wife, a charge upon aggravated assault was not called for where the evidence showed that the parties had quarreled; that the wife had left home because ordered to do so by the husband; that he subsequently went after her and endeavored to get her to return home, which she refused to do, whereupon he shot her and left her for dead.</p> <p>3. —Same—Charge as to Insanity.</p> <p>On a trial for assault to murder, a charge upon insanity, although uncalled for, was beneficial under the facts and defendant can not be heard to complain on this account.</p>

<p>Ho statement of facts which could be considered, because not properly authenticated by the judge’s approval.</p>

<p>No statement necessary.</p>

<p>No statement required.</p>

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

Error from the County Court of McLennan. Tried below before Hon. G. B. Gerald, County Judge. Writ of error from final judgment on forfeited recognizance. Ho statement required.

<p>1. —Local Option Election—Orders of Commissioners Court.</p> <p>The orders of the commissioners court with regard to a local option election should be placed upon the minutes of the court sitting in regular session; they can not be recorded by the clerk of his own motion after adjournment of the court in vacation. But the court may, at a subsequent term, amend the record and have their orders entered at said subsequent term.</p> <p>2. —Same.</p> <p>Where a local option election was for precinct No. 7, the election is not invalid by reason of the fact that the field notes of said precinct referred, in one of its calls, to another precinct whose field notes had been destroyed by fire, where the latter are known and thoroughly ascertained and proved by witnesses.</p> <p>ON MOTION FOR REHEARING.</p> <p>3.—Jurisdiction.</p> <p>The release of an appellant from custody on his bond pending the appeal ousts this court of jurisdiction to hear his motion for rehearing.</p>

<p>County Convict—Right to Discharge on Account of Imprisonment—Affidavit in Forma Pauperis.</p> <p>A party convicted and imprisoned for nonpayment of a fine and costs adjudged in a misdemeanor is not entitled to discharge from imprisonment because he has been in jail more than ten days and a sufficient length of time to satisfy the judgment, at the rate of $3 per day, where he has failed to make the required affidavit, in forma pauperis, as provided by article 856, Code of Criminal Procedure. Articles 856 and 980, Code of Criminal Procedure, must be considered in-pari materia; the former article must be complied with before the latter becomes available.</p>

Lonnie Henderson testified: “I saw the old man Henry Williams and the defendant, Dave Thomas, on the night of December 8, 1902, at the ‘Big 4/ I went with them from the Dig 4’ to the ‘Crooked Shack.’ On the way to the ‘Crooked Shack’ defendant told old man Williams to let’s go to the ‘Crooked Shack.’ On the way down there to the ‘Crooked Shack’ Dave Thomas pnt his arms around the old man and tried to get his money,- and I told him to let the old man’s money alone; he said he…

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

Tried below before Hon. Chas. A. Wilcox, County Judge. Appeal from a conviction of aggravated assault; penalty, a fine of $25. Appellant was charged, by information, with aggravated assault upon Jim Lamb on the 18th day of September, 1901, with a pistol, a deadly weapon.

Tried below before Hon. J. E. Dillard. Appeal from a conviction of rape; penalty, ten years imprisonment in the penitentiary. The indictment charged appellant with the rape of Annie Henry, a female under the age of 15 years, on the 15th day of October, 1902. The evidence showed many acts of illicit intercourse between.the parties; and, upon motion of defendant, the State was required to elect as to the transaction upon which the conviction would be asked.

The information charged appellant and four other parties jointly with resisting a constable who had told them to consider themselves under arrest for gaming in the presence of said constable; the resistance consisting in the act of defendants in throwing said constable down and taking his pistol from him. A motion was made to quash the complaint and information, as follows : 1.

Appellant and Josephine Mathis, a woman, were jointly charged, by information, with adultery, in that they unlawfully lived together und had carnal intercourse with each other. The evidence is summarized in the opinion.

Appellant was charged by indictment with the murder of William Johnson, on the 17th day of July, 1902, by shooting him with a gun. The indictment charged a murder on implied malice and of the second degree.

<p>1. —Recognizance on Appeal.</p> <p>Under article 887, Code of Criminal Procedure, a recognizance on appeal is not defective because it recites that 'it was taken "before the court in session,” instead of, in "open court,” as expressed in the statute,</p> <p>2. —Same.</p> <p>A recognizance on appeal which states that the principal is bound in the sum of $200 and that each surety is bound in the sum of $200, is in substantial compliance with article 887, Code of Criminal Procedure.</p> <p>3. —New Trial—Newly Discovered Evidence.</p> <p>A new trial will not be granted for “undiscovered evidence” which the most casual diligence would have discovered.</p>

The indictment charged appellant with assault to murder one Will Heal, on the 15th day of July, 1902. The following is the substance of the important facts in evidence: The witness Will Heal testified that defendant ran up behind me and shot me. I was going to the house when he fired. When I got into the house I got my Winchester °and came out there. I never saw defendant any more. I got my Winchester as quick as I could after he fired the first shot.

The indictment charged appellant with assault with intent to murder D. A. Price. This is a companion case to Cubine v. State, 44 Texas Crim. Rep., 596. The opinion states the facts.

Deceased with several others, including the brothers of defendant, all negroes, were returning late at night from a festival at .Jim Bledsoe’s. Deceased raised a racket or fuss, but about what is not shown. Defendant was at home and in bed, and hearing the fuss ran to his father-in-law’s house, and getting his shotgun ran down to the scene of the difficulty.

<p>1. —Sunday Law—Indictment.</p> <p>An indictment for a violation of the Sunday law is not invalid because it charges that, as liquor dealer or keeper of a barroom, the defendant permitted his saloon to be opened on Sunday for traffic. The use of the disjunctive “or” between “dealer” and “keeper” is not in the alternative, since the words, as used, are synonymous.</p> <p>2. —Charge on Weight of Evidence.</p> <p>A charge, in a misdemeanor case, upon the weight of evidence will not be ground for reversal under article 723, Code of Criminal Procedure, where it is apparent from the evidence that such charge was not calculated to injure the rights of defendant.</p> <p>3. —Erroneous Charge as to Date of Offense.</p> <p>Where an indictment for a violation of the Sunday law fixed the date of the offense specifically on the 23d of November, 1902, a charge authorizing a conviction for any Sunday within two years before said date, instead of two years prior to the filing of the indictment, though erroneous, is not cause for reversal where the evidence showed sales made only in the fall of the year 1902.</p> <p>[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter. ]</p>

Tried below before Hon. H. B. Daviss, County Judge. Appeal from a conviction of aggravated assault; penalty, a fine of $25. The indictment charged appellant with an aggravated assault upon Grant McCreary with a gun, a deadly weapon, on the 15th day of April, 1902, and that he shot McCreary with said gun. Defendant, who was a negro boy 14 years of age, shot Dave McCreary in his mother’s yard, with a shotgun, on the night of the 15th of April, 1902.

Appellant was charged by the indictment with the murder of Spencer Davis, on the 19th day of February, 1901, by .shooting him with a gun. The facts attendant upon the homicide are summarized in the opinion.

<p>Appellant ivas charged by the indictment with the murder of Benjamin Brondo, on the 26th day of October, 1902, by shooting him with a gun.</p> <p>The important facts are stated in the opinion.</p>

<p>1. —Theft of Cattle—Circumstantial Evidence—Charge.</p> <p>On a trial for the theft of a cow, where it appeared that three days after she was missed by her owner, defendant was seen in broad daylight, within a block of and in plain view of the owner’s residence, leading her with a rope around her neck, did not place defendant in such juxtaposition as to the original taking of the cow as not to require a charge upon circumstantial evidence; ánd it was error for the court to fail to so charge. The case was one of purely circumstantial evidence.</p> <p>2. —Same.</p> <p>Where" from the evidence it appeared that, if defendant took the cow with and felonious intent, it was evidently for the purpose of securing a reward for returning her to the owner, the court should have instructed upon that issue.</p> <p>3. —Same.</p> <p>If defendant was offered a reward to find the cow, and he sought and found her, the court fully protected his defense in instructing that, in such event, he should he acquitted.</p>

<p>1. —Assault to Murder Wife—Aggravated Assault—Charge.</p> <p>Defendant being on trial for assault to murder his wife, when it appeared that he was of weak mind; that they had separated and he had taken the children; that the wife went with an officer to get them, and was taking them away, whereupon defendant ran between them, and, placing his gun between them, fired it; Held, this suggested that the shot was fired to frighten and not with specific intent to kill her; and the court should have charged the law of aggravated assault with reference to this state of facts.</p> <p>2. —Same—Deadly Weapon.</p> <p>If a gun is fired for the purpose of frightening another, it is not necessarily a deadly weapon, and the court should not assume, as a matter of law, that it was a deadly weapon.</p> <p>3. -—Insanity—Charge.</p> <p>On an issue of insanity, where the evidence, and one of the strongest unquestioned fact relied on, was that defendant was a man of very weak mind, a charge of court which told the jury, that, “the question for your determination is not whether defendant is a man of weak or strong mind,” etc., was upon the weight of evidence, and withdrew from the jury the consideration of the important fact upon which the defense of insanity rested, and, moreover, a question which was to be decided alone by the jury.</p>

The case in brief is this: Brown suspected deceased was intimate with his wife. Brown’s wife went to her home from a gathering one night with deceased, and Brown came a little later and found his wife and deceased on the floor together. Brown raised a row and assaulted deceased with an ax, but deceased by his superior strength prevented any battery. Brown then ordered deceased to keep away from his house and ordered his wife not to go with deceased.

The following general statement is taken from the brief of appellant: Defendant was son' and oldest child of the deceased. He was 30 years of age, unmarried, and had all his life lived in his father’s family. He had no particular business or occupation, and his wants were freely provided for by his father. He was weak physically, and in this respect was inferior to his father, who, although 70 years of age, was a strong and robust man.

<p>1. —Burglary—Evidence in Support of.</p> <p>It is no reason that a conviction for burglary can not be sustained on circumstantial evidence, and the further fact that defendant was found in possession of the stolen property recently after it was stolen.</p> <p>2. —Same—Alibi.</p> <p>Evidence of defendant’s alibi affords no sufficient reason for reversal where it is apparent that the jury did not believe the witnesses as to the alibi.</p> <p>3. —Same—Charge as to Alibi.</p> <p>Where a portion of the charge of the court required the jury to find the essential facts constituting burglary before finding defendant guilty, a clause submitting alibi, which assumed that the house had been burglarized, did not affect defendant’s rights injuriously.</p> <p>[Appellant’s motion for rehearing was overruled without written opinion.—Bep orter. ]</p>

<p>Burning Personal Property of Another—Construction of Statute.</p> <p>A prosecution under article 791, Penal Code; for willfully destroying, by burning, the personal property of another, is not warranted if the injury averred is denounced by any other provision of the Code. Article 777 denounces a punishment for the burning of the personal property of another, hence a prosecution and conviction for that offense under article 791 is not authorized.</p>

<p>Speedy Trial—Right To.</p> <p>The constitutional right of a defendant to a speedy trial is a valuable one; and where defendant had waived a special venire, in a rape case, it was error for the court to continue the case for a special venire, over defendant’s protest and demand for a trial, there being no other sufficient reason for the continuance.</p>

<p>1. —Burglary—Private Residence—Room in Hotel—Variance.</p> <p>Where the indictment alleged the burglary of a private residence, and the proof showed a room in a hotel rented and used by prosecutor as a private residence, there was no variance. The room was a private residence in contemplation of law..</p> <p>2. —Same—Punishment.</p> <p>If a burglary is committed in a private residence, in the daytime, the penalty is not less than two nor more than twelve years. If it was in the nighttime, the penalty would be not less than five years.</p> <p>3. —Same—Circumstantial Evidence.</p> <p>See opinion for facts stated, upon which the court did not err in refusing to charge upon circumstantial evidence.</p>

<p>1. —Murder—Evidence—Inquest, etc.</p> <p>On a trial for murder, proceedings on an inquest, or to discover the murderer, under articles 941, 942, Code of Criminal Procedure, where the testimony of-the witnesses is taken down, becomes a public document; and, on proper motion, defendant has the right to inspect it and use it as evidence if he deems it necessary.</p> <p>2. —Same—Accomplice.</p> <p>On a trial for murder, it is competent for the State to show the move-" ments of an avowed accomplice in connection with the homicide, and up to and including the time of his arrest.</p> <p>3. —Same—Coconspirators.</p> <p>On a trial for murder the State is authorized to show the movements of the alleged conspirators before the homicide and during the morning of the homicide, both before and immediately after its commission.</p> <p>4. —Same—Charge.</p> <p>After the homicide, the acts and declarations of a conspirator would not bind 'his coconspirators; and, when admitted properly in evidence, the court should, in its charge, limit such testimony to the purposes of its admission.</p> <p>5. —Impeachment of Wife as a Witness.</p> <p>On a trial for murder, where the wife of one of the principals, in testifying for defendant on trial, disproved the alleged conspiracy by testifying to an alibi for her husband, it was competent for the State to impeach and contradict her, inasmuch as her alibi testimony was upon a material issue! where a proper predicate has, on her cross-examination, been laid for such impeachment.</p> <p>6. —Same.</p> <p>Where the wife of an alleged confederate to the murder had testified that when she left the home of deceased, at daylight, deceased was still in bed, it was competent to impeach her, as to this fact, by her contradictory statements to a witness.</p> <p>7. —Same.</p> <p>Where the wife of a coconspirator had testified that on the night before the killing she had seen the accomplice witness B. Q., whom she knew well, lurking about the deceased’s house, it was competent to contradict and impeach her, as to this matter, by proof of her contradictory statements to the sheriff and others, the effort of defendant being to fasten the killing solely upon the said B. Q.</p> <p>8. —Same—Impeachment of Defendant as a Witness.</p> <p>A defendant, as a witness, can not be impeached by proof of his connection with thefts, where no charge of theft has ever been preferred against him.</p> <p>9. —Evidence—Footprints.</p> <p>It is always proper to show any peculiarity in footprints at the locus in quo, and show that defendant wore shoes corresponding with the peculiarities in said tracks.</p> <p>10. —Impeachment of Witness as to His Opinion.</p> <p>The statement of a witness as to his opinion that Mexicans committed the murder, not being legitimate evidence, because simply his opinion, was a matter upon which he could not be impeached.</p> <p>11. —Alibi—Charge.</p> <p>On a trial for murder, where the defense was qn alibi, and that was an issue, the court should instruct the jury that, if they had a reasonable doubt of the presence of defendant at the scene of the homicide, either from the testimony or the want of testimony, to give the defendant the benefit of such doubt, and acquit him.</p> <p>[The State’s motion for rehearing was overruled without a written opinion.—Reporter.]</p>

<p>1. —Local Option—Change of Boundary of Territory.</p> <p>The commissioners court can not change the boundaries of the local option territory so as to render inoperative the law put into operation, while it is in operation, in the particular territory.</p> <p>2. —Same.</p> <p>The fact that a justice precinct was changed, for judicial purposes, by cutting off a'strip, but which did not affect the territory in which the law was violated, would not affect the local option law in the territory not cut off.</p>

<p>No statement is necessary to illustrate the points decided.</p>

<p>1. —Hunting on Posted Lands—Information.</p> <p>An information for hunting with firearms upon inclosel lands of another, brought under - section 1 of the Acts of 1899, page 173, is sufficient without negativing the exceptions contained in section 2 of said act. The proviso in the second section does not apply to the first section.</p> <p>2. —Continuance—Convicted Witness’.</p> <p>A continuance was properly refused for an absent witness who had been convicted for the same misdemeanor, and who had not paid the fine imposed upon him.</p> <p>3. —Sanie.</p> <p>On a trial for hunting on posted lands, a continuance was properly refused where the statement was that the witness would testify that all the gates were not posted. If it was expected to prove that a gate was not posted, it should have been particularized in the application to continue.</p>

<p>Appeal from the County Court of Coleman. Tried below before Hon. B. F. Bose, County Judge.</p> <p>Appeal from a conviction of slander; penalty, a fine of $500 and twelve months imprisonment in the county jail.</p> <p>The information charged appellant with the slander of Willie Conner, an unmarried female, by saying, in the presence of W. C. Erwin and divers others, that he, defendant, had had illicit sexual intercourse with said Willie Conner.</p>

<p>1. —Race Prejudice and Discrimination—Motion to Quash.</p> <p>Defendant, a negro, moved to quash the indictment because of race discrimination in the appointment of the commissioners to select the grand and petit juries; and because no negroes were selected on the grand and petit juries. See facts stated, upon which it was held that the motion was not sustained and was properly overruled.</p> <p>2. —Rape—Evidence—Foot Tracks.</p> <p>After defendant was arrested for rape, the officer caused him to pull off his shoes and took the measure of his bare foot, and testified it corresponded with the measurement of foot tracks they had measured at the locus in quo. Held, the evidence was not incompetent because defendant had not been warned. Such evidence is not infringement of the statutes as to unwarned confessions.</p> <p>3. —Same—Age of Defendant—Charge.</p> <p>Upon a trial for rape, where the age of defendant became an important issue, it was error for the court to instruct the jury to convict with the death penalty if they did “not believe, from the evidence, that defendant, at the time of the commission of the offense, had arrived at the age of 17 years.” If defendant was under the age of 17 years, he was not subject, under express provisions of the statute, to capital punishment.</p> <p>4. —Same.</p> <p>See opinion for evidence held insufficient to show that defendant was 17 years of age when the alleged crime was committed.</p>

Tried belpw before Hon. W. Poindexter. Appeal from a conviction of rape by fraud; penalty, five years imprisonment in the penitentiary. The indictment charged appellant with the rape of Tavie Shelley, on the 21st day of July, 1901, by force, threats and fraud; the proof being that it was accomplished by administering candy poisoned with a drug producing unnatural sexual desire. The case is sufficiently stated in the opinion.

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

<p>1. —Gaming—Private Residence.</p> <p>Card playing at a private residence is not a violation of law unless such residence is commonly .resorted to for the purpose of gaming.</p> <p>2. —Same.</p> <p>“Residence,” as used in the statute, means the domicile occupied as a habitation for the time being.</p> <p>3. —Same.</p> <p>See opinion for description of a tent or structure held to be a private residence and exempt from the operation of- the statute against gaming at a private residence.</p>

Tried below before Hon. J. C. Scott. Appeal from a conviction of theft; penalty, six years imprisonment in the penitentiary. The appellant was jointly indicted with J. W. Dunlap, in Grimes County, in two cases, one for burglary and one for theft in the same transaction, committed in Grimes County. He agreed with the District Attorney, for his personal immunity from prosecution, to turn' State’s evidence against Dunlap.

Tried below before Hon. F. J. Johnson, County Judge. Appeal from a conviction of gathering pecans upon the inclosed land of another; penalty, a fine of $5. The charging part of the information is set out in the opinion. Defendant’s motion to quash was overruled.

<p>1. —Forgery by Altering Teacher’s Certificate—Uttering—Indictment.</p> <p>See opinion lor counts in an indictment for changing and altering a teacher’s certificate, and for attempting to pass and utter the same, which are held good and sufficient.</p> <p>2. —Same.</p> <p>It is by our statute expressly made an offense to forge or attempt to utter or pass a forged teacher’s certificate or diploma. Penal Code, arts. 540a. 542.</p> <p>■3.—Same—Verdict—Judgment.</p> <p>Where the indictment charged both forgery and an attempt to pass a forged teacher’s certificate, and the court in its charge only submitted the issue of attempt to pass the forged instrument, and the verdict was a general one, the court properly rendered judgment for “knowingly attempting to pass as true a forged instrument in writing, as found by the jury.”</p> <p>4. —Exclusion of Testimony—Practice on Appeal.</p> <p>Complaint as to the exclusion of testimony can not be reviewed on appeal where there is no bill of exceptions verifying the matter.</p> <p>5. —Absence of Statement of Facts—Charge.</p> <p>Complaint that the court failed in the charge, to submit certain issues can not be reviewed on appeal in the absence of the evidence adduced.</p>

<p>The facts immediately attendant upon the killing, as testified to by defendant when upon the stand as a witness, will be found reproduced in the opinion.</p> <p>No further statement necessary.</p>

<p>1. —Practice—Withdrawal of Counsel from Case.</p> <p>Appellant moved to withdraw his announcement of ready for trial because his leading counsel had withdrawn from the case, which was refused by the court because his remaining counsel had assisted at a former trial of the case and was the one who had announced ready for trial. Held, no error. •</p> <p>2. —M urder—Threats.</p> <p>A threat made by defendant some fifteen or twenty minutes before the shooting, “I’ll kill him in ten minutes,” was admissible in evidence, although. deceased’s name was not mentioned, where it was apparent that the threat alluded to deceased and could not relate to anyone else.</p> <p>3.—Attempt to Suborn Witness.</p> <p>On a trial for murder it was not error to refuse to permit the State to prove that the mother of deceased had attempted to get a witness for defendant to testify falsify, where it was not shown that the witness was influenced by anything said to him.</p>

Ho statement required. Defendant filed a motion to quash the indictment and in arrest of judgment, which were overruled.

<p>1. —Jury Commissioners—Qualifications of.</p> <p>It is not a valid objection to the qualification of jury commissioners who are to select the grand and petit juries, first, that they all live in different portions of a city containing two-thirds of the population of the county; second, that they were summoned orally and not by citation issued from the court.</p> <p>2. —Same—Petit Jurors.</p> <p>It is no objection 'to the qualification of a jury that the jurors all reside in the same city, where they are otherwise qualified according to law.</p> <p>3. —Continuance.</p> <p>A second application for continuance is properly overruled, even conceding that diligence is shown, where it appears that the testimony sought would be only cumulative.</p> <p>4. —Negligent Homicide.</p> <p>If defendant was attempting to shoot deceased, and in a struggle over the pistol it was discharged and deceased shot, it was not a case of negligent homicide but of murder, or manslaughter, as the facts might warrant.</p> <p>5. —Accidental Homicide.</p> <p>If defendant was not attempting to shoot deceased, and the pistol was discharged, it would simply be an accident.</p>

Tried below before Hon. John S. Goodwin. Appeal from a conviction of murder in the second degree; penalty, eight years imprisonment in the penitentiary. Appellant was charged by the indictment with the murder of C. C. Hudson, on the 29th day of June, 1902, by shooting him with a gun. Deceased was the father-in-law of appellant. The record is very voluminous, but the important' facts connected with the killing are sufficiently stated in the opinion.

Tried below before Hon. William Poindexter. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. The indictment charged appellant with the murder of Mat Hunt, on the 31st day of August, 1902, by shooting him with a pistol. This is the second appeal in this case. Moore v. State, 44 Texas Crim. Rep., 526. The important facts are shown in this first appeal.

<p>1. —Misconduct of Jury.</p> <p>See opinion for several matters stated, held to be such misconduct of the jury as required a reversal of the judgment.</p> <p>2. —Conspiracy—Declarations of Parties.</p> <p>Declarations and statements of any of the parties to a conspiracy to commit crime are admissible in evidence against any of the coconspirators on trial, if made pending the conspiracy, or in the presence of the defendant now on trial.</p> <p>3. —Theft of Horses—Defendant’s Explanation of His Possession.</p> <p>Defendant’s declaration explanatory of his possession of stolen horses, made two of three days after his possession had been first questioned, in another county, were properly excluded.</p> <p>4. —Receiving Stolen Property—Evidence.</p> <p>On a trial for receiving a stolen horse, where the theory of the State was that a sale of the horse was a sham and fraud, a bill of sale and a note executed to cover up the fraudulent transaction was competent testimony to go to the jury for what it was worth.</p>

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

<p>Appeal from the District Court of Denton. Tried below before Hon. D. E. Barrett.</p> <p>Appeal from a conviction of theft of two head of cattle; penalty, two years imprisonment in the penitentiary.</p> <p>The evidence showed that Mrs. Rayborne, the owner, loaned a red cow to defendant to milk, and this cow had a calf. The defendant sold the cow and calf to one Hamilton, from whom they were recovered by the owner.</p>

<p>1. —Swindling.</p> <p>Defendant and a confederate had two locks, one of which could be opened and the other could not. They induced the prosecutor to bet that he could open the one shown him, which was the one that could be unlocked. After the bet was made they, without the knowledge , of prosecutor, exchanged the locks, and he failed to open the one handed him,"which could not be unlocked. Held, a clear case of swindling.</p> <p>2. —Flight After Arrest.</p> <p>On a trial for swindling it was competent to prove that defendant, after his arrest, jumped out of a window and fled. The evidence was not inadmissible because defendant was in arrest and unwarned.</p> <p>3. —Evidence—Fruits of Crime.</p> <p>Where a"party in arrest is found in possession of the fruits of his crime, it is a physical fact, and admissible in evidence against him and those who acted with him in the crime; and the question of warning is not in such a case, it not being a confession or admission.</p>

• The appellant, Robert Smith, ivas charged by indictment, under article 877, Penal Code, with the theft of a certain horse intrusted to him as bailee, he having sold the same and converted the proceeds of said sale to his own use. The opinion states the case.

<p>This appeal was taken from a judgment on habeas corpus for release from custody upon the original bail bond given by appellant, the amount of his bail having been, on showing made by the State in the court below, increased from $500 to $2000 after the reversal of a former appeal in the case by the Court of Criminal Appeals.</p>

<p>This is a habeas corpus appeal from a refusal of bail before indictment found. Pending this appeal relator has been indicted for the same homicide as that for which he was refused bail in this case.</p> <p>The Assistant Attorney-General moved to dismiss the appeal for the reason that indictment had‘been found in the district court pending this appeal. This motion was granted.</p> <p>No further statement is necessary.</p>

<p>The opinion gives a full and sufficient statement of the case.</p>

Tried below before Hon. W. J. Oxford. Appeal from a conviction of theft of two mules; penalty, two years imprisonment in the penitentiary. The indictment contained two counts, one for theft and one for conversion by bailee. The mules were the property of Isaac Jackson, and were placed in. defendant’s pasture by Jackson—Jackson having in fact purchasd the pasture—but defendant was still in possession.

The following statement is taken from th'e brief of appellant. On the 22d day of December, 1902, a bill of indictment was returned into the District Court of Cherokee County, Texas, charging appellant with burglarizing a house in said county belonging to A. Martin and I. Martin.

The indictment charged appellant and Howard Magee and. Otho Oldacre jointly with the murder of J. M. Gary, in Trinity County, on the 17th day of July, 1902, by shooting him with a gun. The killing occurred in the town of Groveton, and after midnight. Gary, the deceased, was a practicing physician, and at the time he was killed was in company with one L. B. Eagle, who had gone for him to come and attend a man who had been shot at the Sylvan Hotel.

The indictment charged appellant with assault with intent to murder one Oscar Dennis, on the 19th day of December, 1902, by cutting him with a knife. Thé difficulty occurred at a dance. The opinion gives a spfficient statement of the facts attendant at the time of the trouble, and no further statement is required.

Tried below before Hon. J. E. Dillard. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. The indictment charged appellant with the murder of Harrison Lewis, on the 16th day of January, 1902, by shooting him with a pistol. Appellant and deceased, Harrison Lewis, had become mortal enemies from some cause not developed in the record,, and they had been threatening and avoiding each other for some time.

<p>The record shows that the statement of facts which was filed under the old law allowing ten days after adjournment of the term under, order granting that time, appears to have been filed one day too late, viz., on the eleventh day. Appellant filéd his motion in this court praying that said statement be considered although not filed in the time authorized by law, setting up the diligence used to procure same, etc.</p> <p>This matter is fully stated in the opinion and no further statement is required.</p>

<p>From Bexar County.</p> <p>Original application for habeas corpus directed to Hon. W. L. Davidson, presiding judge of the Court of Criminal Appeals, and which was granted by him in vacation and made returnable before the court in October.</p> <p>Relator McRae was fined by Hon. J. L. Camp, judge of the Forty-fifth Judicial District Court, in the sum of $100, and was ordered confined in jail for contempt of court. Relator sued out his writ of habeas corpus which was granted by Presiding Judge Davidson in vacation and made returnable at the next October term of the court where the same was heard and determined.</p> <p>The opinion states the facts so fully as to need no additional statement.</p>

<p>1. —Local Option—Sale—Consideration—Charge.</p> <p>Where appellant was shown to have sold several bottles of whisky to the alleged .purchaser, taking in exchange therefor checks of the Kirby Land Company, which said checks were redeemable at said company’s store in goods, but not in money without discount; Held, the contention of appellant, which the court refused to give in its charge, that this was not a sale founded on a money consideration, was without merit.</p> <p>2. —Continuance—Process—Diligence.</p> <p>A motion for continuance was asked for testimony of an absent witness who resided in H. County, for whom process had been issued to that county on October 12, 1903 (the indictment having been returned on May 26 and appellant tried on October 21, 1903), and which said process was not executed because the witness could not be found; Held not to be diligence, no process having been called for until months after return of the indictment-</p> <p>3.—Same—Evidence—General Statement.</p> <p>, Where defendant expected to prove by the absent, witness that he was living with defendant at the time of the alleged offense, and was intimately connected with his business and actions during the time alleged in the indictment, and that he never sold, nor was he interested in the sale of intoxicating liquor during said time; Held, the evidence was entirely too general to entitle defendant to a continuance.</p>

<p>1. —Seduction—Promise of Marriage—Evidence—Corroboration.</p> <p>Where the parties are engaged to be married, and the injured female, relying upon the promise of marriage, yields to the wiles and artifices of appellant, who, under such circumstances, procured carnal intercourse with such female, then the crime of seduction is complete although the promise of marriage be not repeated at the time of such intercourse. The fact that prosecutrix was engaged to appellant for about six months, and that he had continuous opportunities to have had such intercourse, and the further fact that one witness saw them in the act on one occasion, is abundant corroboration as to the intercourse.</p> <p>2. —Same—Engagement to Marry.</p> <p>Where the testimony tends to show that the parties continuously associated together for two years, is a very slight circumstance tending to prove an engagement to marry, as such intercourse might be accounted for on the theory that such parties were having carnal intercourse with each other; and such continuous intercourse would serve to destroy the idea that the parties intended to marry or that prosecutrix was relying on the promise of marriage when she surrendered her virtue; Held, such evidence is not sufficient to corroborate prosecutrix as to the fact of her engagement to marry appellant.</p> <p>3. —Misconduct of Jury—Failure of Defendant to Testify.</p> <p>Where it is clearly shown by testimony and affidavits of nearly all the jurors that the failure of defendant to testify was discussed and commented on in the jury room, this court will not speculate as to whether injury was done, but will reverse the case.</p> <p>4. —Same—Charge of Court.</p> <p>Where the court charges on the subject of defendant’s failure to testify at all, it should certainly be coupled with an instruction not to discuss or consider such failure of appellant to testify.</p>

Trouble had existed for some time between appellant and the deceased, who was his father-in-law.

<p>Appeal from the District Court of Haskell. Tried before Hon. H. E. Jones.</p> <p>Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary.</p> <p>Appellant was charged by indictment, presented in the District Court of Haskell County, on the 29th day of May, 1903, with the murder of Tom Dixon, by shooting him with a pistol.</p> <p>Under his plea of not guilty, he was tried and convicted and his punishment assessed a.t a life term in the penitentiary.</p> <p>There were no eyewitnesses to the tragedy and the evidence of appellant is the only testimony showing what occurred between the parties at the time. This evidence is sufficiently stated in the opinion.</p> <p>It is disclosed by the evidence that deceased and his wife had separated a short time prior to the killing, and at this time a division of the property was to be had. That Hickey (appellant) who had formerly lived with deceased’s family and himself, had been sent for to represent the wife in the division and, in pursuance of that purpose, the two, appellant and deceased, had gone out to the lot, where the killing occurred.</p> <p>Tom Dixon, son of deceased, testified in this connection: “Ma wanted to go down to town, and had West, my brother, to go and get a team so that she could go down to town and see Mr. McConnell. She wanted to see Mr. McConnell about getting her part of the property. Pa wanted to take all the property. Hickey (appellant) told her not to go. He just advised her not to go to town, and he said that he thought pa was reasonable, and that it could be settled without going into a lawsuit, and letting the lawyers get all of it; and said he would talk to pa.” The meeting and subsequent trouble which culminated in the killing of deceased, was the result.</p> <p>The above, together with the facts stated in the opinion, sufficiently recites the main features of the case.</p>

Tried below before Hon. Sam R. Scott. Appeal from a conviction of manslaughter; penalty, three years imprisonment in the penitentiary. Appellant wa's .tried in the District Court of Falls County upon indictment filed January 22, 1903, charging him with the murder of one Robert Goolsby, by shooting him with a pistol.

The indictment charged appellant with murder in the first degree, committed on the person of one Franz Borning, in Galveston County, Texas, of the 20th of December, 1902. This is the second appeal in this case; the former appealed case will be found reported in 44 Texas Criminal Reports, 572. That case is hereby referred to for a statement of the facts, which are substantially the same as on this appeal.

<p>1. —Incest—Contradictory Statements of Prosecutrix.</p> <p>Where prosecutrix testified in behalf of defendant, “that she had never had intercourse with appellant, and that he was not the father of her child; that the only person who had ever had intercourse with her was one B. D.;” Held, that it was not error, after predicate laid, to allow the State on cross-examination to interrogate her as to her statements before the grand jury, which, she having denied, were proven by various members of the grand jury and the district attorney, the same being upon a material issue.</p> <p>2. —Objection to Testimony—Limiting Same.</p> <p>Where no objection was made at the time to the admission of impeaching testimony, and the court properly limited the same to the purpose for which it could be considered, the same can not be complained of.</p> <p>3. —Same—Charge.</p> <p>Where the evidence is ppsitive of the incestuous intercourse, it is error for the court to present to the jury the law of circumstantial evidence, even though such charge be not injurious to appellant.</p>

Appellant Henry Fugett was tried in the District Court of Johnson County at the term beginning on the 37th day of April, 1903, upon indictment charging him with the murder of Laura Fugett (his wife), by “then and there cutting and stabbing the said Laura Fugett with a knife.” To this indictment, when arraigned, the defendant pleaded “not guilty.” The jury found him guilty of murder in the first degree, assessing his punishment at death. ■ Appellant made a motion to quash the…

Tried below before Hon. N. E. Lindsey. Appeal from a conviction of rape of a female under the age of 15 years; penalty, fifteen years confinement in the penitentiary. The following facts in addition to those stated’ in the opinion were introduced: Y. A. Roberts, father of prosecutrix, after having fully identified the Bible offered in evidence, ’testified: “She is 14 years old now. She has' been 14 years old from the 18th day of last January.

Appellant was tried on indictment presented in the» District Court of Red River County, charging him with swindling one Sylvy Watson, a minor, he the said (W. S. Walls) appellant being then and there the guardian of the said Sylvy Watson.

<p>1. —Local Option—Information—Sale—Variance.</p> <p>In T. County, where the local option law was in force, the proof showed that one M. and several other parties joined together for the purpose of buying a cask of whisky from a distillery located and operated in that county, each contributing a part of the money and getting a part of the whisky; the information alleged the sale to one of the parties only. Held no variance between allegation and proof, each having purchased his portion.</p> <p>2. —Disqualification of Juror—Established Opinion.</p> <p>The mere fact that a juror had formed an opinion as to the guilt or innocence of defendant from reading newspapers or hearsay would not per se disqualify him. It must be such an opinion as would influence him in finding a-verdict. Held, under subdivision 13, article 673, Code of Criminal Procedure, such conclusion must be “established," and the test is, can the juror give a fair and impartial verdict from the law and facts; if so, he is competent; if not, incompetent. See dissenting opinion, of Presiding Judge Davidson on this proposition.</p>

Tried below before Hon. M. Kennon. Appeal from a conviction of theft of one head of' cattle; penalty, imprisonment in the penitentiary for a term of two years. The facts are sufficiently stated in the opinion.

<p>From Bexar County.</p> <p>This -is an original application for habeas corpus to Presiding "Judge Davidson of the Court of Criminal Appeals, which was granted and made returnable before the court.</p> <p>The only question in the case is the constitutionality of the act of the Twenty-eighth Legislature (Gen. Laws, p. 68) ordinarily known as the “anti pool room law.” The opinion below states the case, giving the statute in full. The following is the agreed statement of facts presented, together with the application to this court, viz.: “That Mike Hernan, in Bexar County, Texas, on the 4th day of July, A. D. 1903, leased from the duly authorized representatives of the San Antonio International Fair Association a house and building, and had the same under his control on said 4th day of July, A. D. 1903; that said building was situated in Bexar County, Texas, at the race track of said fair association; that in said building he made a list of the horses entered in a certain race in Chicago, as follows: Fore and Aft, Santon, Postmaster Wright, Flo Carlin, Flying Ship, Monsieur Beaucaire, and Sioux Chief, and posted the same conspicuously and placed the odds* opposite each horse, indicating at what price he would accept bets on said horses; that said horses were entered in a race to take place in the city of Chicago, in the State of Illinois, on the 4th day of July, A. D. 1903; that said horses, with the odds placed opposite them, were posted before said race took place, and after said odds were posted said race actually took place in said city of Chicago, in the State of Illinois; that at the same time and place Hike Hernan made and posted the names of the horses entered in a certain three-quarter mile race to be run in San Antonio, Texas, on the track of the San Antonio International Fair Association, in Bexar County, Texas, as follows: Lillie W., Uneeda Boy, Lively Jim, and Gray Eagle, and placed opposite the name of each horse the odds at which he would accept bets on said horses; that the names of said horses last mentionéd were posted on said 4th day of July, A. D. 1903, and before said race was run, and thereafter on the same day said race was run between said horses; that on the same day Theodore Banks went to the race track of said fair association, and went to said building, and found opposite Flying Ship, one of the horses entered in said Chicago race, odds of one to three, and posted opposite the horse Lively Jim, entered in said San Antonin race, odds of one to two, and then and there bet and wagered with Mike Hernan ten (10) dollars that both of said horses Would win both of said races, and received a ticket indicating the amount paid and the horses that he bet on from said Mike Hernán; that said bet was made between said Mike Hernán and said Théodore Banks after the names of said horses were posted as aforesaid,and before either of said races had been run; that thereafter said races were run and said Flying Ship and Lively Jim did not win both of said races, and said Mike Hernan won, kept and received the ten (10) dollars so paid and wagered to him by the said Theodore Banks on said races, and the said Mike Hernan did then and there, on both of said races, make books, sell pools, take and receive a bet, and did bet and wager something of value on each of said races at one and the same 'time, in Bexar County, Texas. That Mike Hernan is now confined in the county jail of Bexar County, Texas, by virtue of said prosecution.”</p>

Appellant, George H. Poole, was indicted by the grand jury of Orange County, on the 24th day of September, 1902, by separate indictment (there being two other parties also separately indicted for the same murder) for the murder of James A. Jett, who was, at the time of his death, city marshal of the city of Orange, by shooting him with a pistol.

Appellant was indicted in the District Court of Guadalupe County for the murder of Russell Eclcols, on or about the 15th day of November, 1901, tcby striking and beating him with a piece of iron pipe, and by then and there striking and beating the said Russell Eckols with an instrument which is to the grand jurors unknown, and which could not after careful investigation be ascertained.” Upon Ms plea of not gMlty the jury returned a verdict of guilty of murder in the second…

The indictment charged appellant, Jim Manor, jointly with Whitfield Jackson and Sarah Cain, with the murder of B. Cain,, husband of Sarah Cain, %v then and there striking, beating and wounding said B. Cain with a stick of wood, a club, a bludgeon, an ax, and some blunt instrument, and by cutting and wounding said E. Cain with an ax and some sharp instrument,” etc. Owing to the disposition made of the casé no statement is required.

Tried below before Hon. J. C. Scott. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. Appellant was indicted in. the District Court of Grimes County for the murder of one Joe Hall, committed on the 15th day of April, 1898, by shooting him with a pistol. This is a second appeal in this case, the former appeal from Grimes County having been reversed and remanded by the Court of Criminal Appeals.

On change of venue from El Paso County. Tried below before Hon. Charles E. Clint. Appeal from a conviction of murder in the first degree; penalty, imprisonment for life in the penitentiary. This is the second appeal in this case.

<p>1. —Assault with Intent to Murder—Deadly Weapon—Charge.</p> <p>Where the court, in defining a deadly weapon, told the jury a deadly weapon was “such as a gun used as a firearm within carrying distance,” Held, as applied to the facts of this case, no error.</p> <p>2. —Same—Evidence.</p> <p>A charge is not called for on a phase of the case not authorized by the evidence.</p> <p>3. —New Trial—Newly Discovered Evidence.</p> <p>Where an application for new trial is neither sworn to by defendant nor by the alleged newly discovered witness, the same is without merit and will not be considered.</p>

The appellant, Hat Baker, was indicted in the District Court of Polk County, Texas, on the 7th day of December, 1900, for the murder of Cabe Copeland, alleged to have been committed on the 19th day of August, 1900.

Tried below before Hon. John H. Clark. Appeal from a conviction of rape; penalty, death.

There was testimony that a State’s witness' who appeared as one of the principal witnesses for the State came to the office of the Sun Life Insurance Company on the day the dead body of the deceased was found and inquired about insurance on his own life, and if his life insurance would be paid if he was hanged or mobbed. He also stated at another time and place that he had helped deceased make some of the payments on her life insurance.

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

<p>1. —Local Option—Insufficiency of Evidence.</p> <p>See opinion for evidence stated which is held insufficient to support a conviction for violating the local option law, or to authorize a charge on the doctrine of principals.</p> <p>2. —Evidence—Hearsay.</p> <p>A conversation between the prosecuting witness and" another person, in the absence of defendant, is hearsay.</p>

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

The material facts are substantially as stated in appellant’s brief, to wit: The shooting of Kierst occurred shortly after sunup in the room occupied by Kierst and appellant as their joint bedroom; they had been roommates and bedfellows for months in this room of a residence owned and occupied by the Kierst famity, consisting of Joe Kierst’s mother, his two single sisters and himself. Joe Kierst and appellant were each single men, and each about 30 years old.

<p>Disorderly House—Ownership—Tenancy.</p> <p>One charged with keeping a disorderly house, who does not own the house, who is not holding i.t adversely to the owner, and who has no right-of tenancy thereof by contract, either express -or implied, no privity existing between -him and the owner or the latter’s agent, and who is a naked trespasser by temporary entry of said house with others and a prostitute with whom they have carnal intercourse, is neither the owner nor the tenant of said house and not guilty of keeping a disorderly house.</p>

[Appellant’s motion for rehearing overruled without a written opinion.—Reporter.] Appeal from a conviction of the offense of disturbing the peace; penalty, a fine of $1.

<p>Ho statement required.</p>

The evidence is conflicting and largely circumstantial as to whether defendant and others were acting together and with a common purpose and in pursuance of a previously formed design with the intention on the part of defendant and others to provoke a personal conflict or difficulty between them and the deceased. Defendant insisted that there was no evidence of such design. The questions raised are stated in the opinion.

<p>No statement necessary.</p>

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

<p>1. —Statutes Construed.</p> <p>Article 647, Penal Code, which provides that if any person shall mingle or cause to be mingled any other noxious potion or substance with any drink, food or medicine, with intent to kill or injure any other person, or shall willfully poison any spring, etc., he shall be punished, etc., defines an offense.</p> <p>2. —Evidence—Objection to Question.</p> <p>When, pending an objection to a question by the district attorney asking the witness whether, when he went to a store for syrup and things, he found it necessary to prowl around in their back room, the Witness answered in the negative before the court could rule on the objection, it was error not to exclude such question and answer on the court’s own motion.</p> <p>3. —Same—Suspicion.</p> <p>An incident which occurred shortly before the commission of the alleged offense, hut which fails to connect defendant with or is a part of the transaction which constitutes the offense and is calculated to cast suspicion on him, is inadmissible in evidence.</p> <p>4<—Same—Isolated Circumstance.</p> <p>Before an isolated circumstance is admissible against one accused of crime, there must be some evidence of a tangible character connecting him with it.</p> <p>5. —Same—Character of Witnesses.</p> <p>After the State’s witnesses had been attacked, on the ground that their testimony differed from that on the examining trial, it was permissible to prove their character for truth and veracity.</p> <p>6. —Charge of the Court1—Intent.</p> <p>The appellant objected to the- court’s charge because it did not advise the jury that the defendant must mingle enough of the noxious potion or substance with the drink to kill or injure any person. Held not error, as the intent to injure is the gist of the offense, if the potion or substance used is noxious or poisonous.</p> <p>7. —Same—Drink.</p> <p>Simple syrup which was being prepared to be used with other ingredients as a drink was in such state under the terms of the statute a drink, and one mingling a poisonous or noxious substance with it would be guilty of an offense.</p> <p>8. —Same—Circumstantial Evidence.</p> <p>Where the evidence showed that the defendant threw something toward the vessel containing the simple syrup and some of the substance about this vessel was found to be strychnine, hut the substance found in the vessel, although similar to that found outside, was not analyzed and no witness testified that the substance was thrown into the vessel, there was no direct testimony that defendant mingled a noxious or poisonous substance with the syrup, but at most only attempted to do so, which in itself is no offense, and a charge on circumstantial evidence should have been given.</p>

<p>1. —Recognizance—Sufficiency.</p> <p>See form of recognizance as it appears in the statement of this case which is held to' he in accord with article 887, Code Criminal Procedure.</p> <p>2. —Indictment—Allegation of Ownership.</p> <p>The indictment alleged the ownership of the stolen property in J. E. B.; the proof showed it to be the property of the Houston East &- West Texas Railway Company, but that the said J. E. B. had the actual care, management and control of said property as agent, of said company. Held, that it was proper for the indictment to allege the property in J. E. B.</p> <p>3. —Same—Proof of Ownership—Temporary Employe.</p> <p>Where the evidence shows that P. was the mere servant and temporary employe of B., it would not be necessary for the indictment to allege the possession in P.</p> <p>4.—Same—Variance in Proof.</p> <p>There is no variance where the indictment describes the property as “six tickets of the value of five cents each,” and the proof shows that five tickets of the value of one-fourth of a cent each were stolen.</p>

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

Tried below before Hon. M. Kennon. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. Domingo Perez, one of the principal witnesses for the State, testified that he was an eye witness to the homicide; that it occurred at or near a little wire gap, which gap was in the field fence of the deceased where it corners with the Sellers place.

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

<p>No statement necessary.</p>

<p>1. —Indictment—Idem Sonons.</p> <p>The indictment charged that the offense was committed in “Guadlupe” and not “Guadalupe” County. Held that the names are idem sonans.</p> <p>2. —Same—Term of Court.</p> <p>An indictment which shows that it was presented by the grand jury oí Gonzales County, at the August term of the district court, may, on application of the State, be amended to show that it was presented at the July term of said court.</p> <p>3. —Bill of Exception—Competency of Witness.</p> <p>When a bill of exception fails to show the materiality of the testimony of the witness, the question as to whether the witness was subject to the penalties of perjury on account of being under age and therefore not competent to testify, can not be raised, and the action of the lower court in permitting such witness to testify can not be revised on appeal; the statement of facts can not be looked to to help out a defective bill of exception.</p>

<p>Sodomy—Insufficiency of Evidence.</p> <p>See opinion for evidence summarized which is held insufficient to support a conviction for sodomy and does not exclude every reasonable hypothesis except that of guilt.</p>

<p>Bill of Exceptions.</p> <p>Appellant filed his motion for new trial the next day after his conviction and a day before the court adjourned, and therein assigned error that the court failed to charge the jury on the question of an alibi, as shown in defendant’s bill of exceptions; the exceptions were not filed during the term and no order for filing thereafter appears, the judge certifying that the exceptions were not presented until after the verdict was returned, the affidavit of defendant’s counsel showing that the bill of exceptions were presented to the judge during the term; that the judge, without consent of appellant, kept them until after adjournment and some time after filed them. Held, that the court can look • to the refused bills of exceptions in order to determine the character of appellant’s objections to the court’s charge as presented in his motion for new trial.</p>

Tried below before Hon. John Y. Gooch. Appeal from a conviction of murder in the second degree; penalty, five years imprisonment in the penitentiary. Appellant was charged by indictment with the murder of Victoria Culberson, on or about the 22d day of January, A. D. 1903, in the county of Henderson, by shooting her with a gun. All the parties are negroes.

<p>No statement necessary.</p>

<p>1. —Local Option—Mistake of Fact—Intent.</p> <p>The sale of intoxicating liquor in a local option district, except upon prescription or for sacramental purposes, is a violation of the law, regardless of the intent or purpose for which it was sold, which is immaterial, and articles 46 and 47, Penal Code, áre not applicable.</p> <p>2. —Same—What' Constitutes a Sale—Charge in Misdemeanor.</p> <p>Unless the sale under an indictment for violating the local option law becomes an issue under the facts, it is not necessary that the court should define a sale, and even then in misdemeanor eases such charge must be requested by the defendant.</p> <p>3. —Same—Charge of the Court—Unlawful Sale.</p> <p>A charge is not erroneous because it does not make defendant’s guilt depend upon his having unlawfully sold intoxicating liquors, when it declares that defendant is charged with selling intoxicating liquors as charged in the indictment, as this makes such allegation.</p> <p>4. —Same—Weight of Evidence—Definition of Offense.</p> <p>See charge of the court recited in opinion held not to be on the weight of the evidence and not erroneous because it fails to define to the jury what constitutes a violation of "the local option law.</p>

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

<p>11.—Local Option—Publication.</p> <p>The fact that the order of the commissioners court authorizing the publication in some newspaper did not specify any particular newspaper did not invalidate the order.</p> <p>2. —Same—Opening the Polls.</p> <p>Where the order of the commissioners court sufficiently shows that the commissioners counted and tabulated the votes, it need not show that they opened the polls, as that may be inferred. *</p> <p>3. —Evidence—Phone Calls.</p> <p>The court did not err in admitting in evidence the memoranda kept by a telephone company of calls made and paid for by the defendant at the time the calls were placed.</p> <p>4. —Same—Custom.</p> <p>The court did not err in refusing to admit testimony as to the custom of others in respect to phone orders for whisky, where the defendant and the person for whom he placed phone calls were not shown to have had knowledge of such custom, but appeared to have acted upon business principles of their own.</p> <p>5. —Charge of the Court—Additional Instructions—Law and Fact.</p> <p>After the jury had retired for some time, they returned into court and propounded the following question. “Is it necessary under the law for one to solicit orders or use his influence in the sale of an article to become an agent?” To which the court responded in a charge: . “It is not necessary for one to solicit orders for any article of merchandise to become the agent of any party selling the same. On the question of agency in this case it is one of fact, and you will be governed by the rules heretofore given in determining the fact.” Held not error, inasmuch as the general charge meets the objection that the jury were erroneously informed that the question of agency was one of fact alone and not one of law and fact.</p> <p>6. —Same—Agency.</p> <p>See .charge of the court held objectionable in collecting testimony concerning agency, with reference to other sales of intoxicating liquors, and excepting the one with which defendant is charged.</p> <p>7. —Same—Sale.</p> <p>A charge which collates the testimony with reference to other sales, by other parties, excepting the one with which defendant is charged, is not only upon the weight of the evidence, but is erroneous in excluding from the jury the factum probandum involved in the case, which was whether defendant as agent sold the intoxicating liquor in the county where such sale was prohibited.</p> <p>8. —Same—Sale—Delivery.</p> <p>A charge which in effect instructs the jury that if defendant acted as the agent of another and took and accepted an order in the prohibited county for intoxicating liquors and the same were shipped and received by the purchaser in said county, that then defendant was guilty, while in accord with the act of the Twenty-seventh Legislature, page 262, is erroneous in ignoring the rule of law that the place of sale must be determined by actual delivery. Brooks, J., dissenting.</p> <p>ON REHEARING.</p> <p>9. —Same—Legislative Act.</p> <p>While the act of the Twenty-seventh Legislature, page 262, could not apply to the facts of this case, the sale being neither a C. O. D. sale or upon solicitation, yet on a motion for rehearing, held that the court in its charge appears to have treated the sale as one or the other or possibly of both, without instructing the jury how they were to determine the place of the sale, which must be by delivery to the purchaser in the prohibited territory to constitute a violation of the local option law.</p> <p>10. —Same—Constitution.</p> <p>See opinion for discussion of act of Twenty-seventh Legislature, page 262, in the light of the constitutional amendment on local option, with reference to the place of sale of the prohibited liquors.</p>

<p>The opinion sufficiently states the evidence, on the points at issue.</p>

<p>1.—Indictment—Increased Punishment.</p> <p>In a prosecution under article 1014, Penal Code, authorizing an increase in punishment where appellant had previously been convicted of the same offense, the authorities all appear to hold that the matter of punishment pertains to the remedy and is no part of the definition of the offense.</p> <p>ON REHEARING.</p> <p>March 25, 1904.</p> <p>2. —Same—Similar Offense.</p> <p>Article 1014 of the Penal Code, 1895, is reformatory, and means that before a case can be used in a subsequent case to enhance the punishment, 'there must have been a former conviction in a case for a similar offense, and that after such conviction appellant must have committed another offense of like character.</p> <p>3. —Same—Same Offense—Former Jeopardy.</p> <p>An indictment is not sufficient which alleges' in the language of the statute that appellant had been previously convicted of the “same offense,’’ but it must aver that he had been previously convicted of an offense of like character to that for which he was being tried; otherwise the indictment would appear to be defective as undertaking to put. appellant in jeopardy for an offense of which he had previously been tried and convicted.</p> <p>4. —Same.</p> <p>An indictment which alleges three preceding offenses all on the same day, without priority between them, could only be considered as an indictment for the second and not for the fourth offense, with reference to article 1014, Penal Code, enhancing the punishment of offenses of like character.</p> <p>5. —Same—Prior Cases Can Only Be Used Once.</p> <p>Prior cases for offenses of a like character can not be used to enhance the punishment of a subsequent offense of a'like character more than once, as a person can not be tried and convicted more than once for the same offense.</p>

<p>1. —Charge of the Court—Reasonable Apprehension of Danger.</p> <p>It is error in a case of manslaughter to charge the jury that if they believed from the acts, if any, of the deceased, or from his words, if any, coupled with his acts, there was created in the mind of the defendant a reasonable apprehension that he, the defendant, was in danger of death or serious bodily injury at the hands of the deceased, said charge reciting certain expressions and acts alleged to have- been made or done by the deceased; as it required the jury to believe that deceased used such expressions and to couple them with acts of the deceased before they could acquit.</p> <p>2. —Same—Self-Defense.</p> <p>See facts stated in tlje opinion under which the appellant was entitled to a clear charge affirmatively setting forth his theory of the difficulty, without coupling the expressions and the acts of the deceased together and making appellant’s right of self-defense depend upon the conjunction of both.</p> <p>3. —Same—Offensive and Defensive Act.</p> <p>A charge which instructs the jury that the law of self-defense applies to a defensive and not an offensive act has a tendency to impress the jury with the fact that the court did not believe the defensive theory, and that the defendant brought about the difficulty or produced the occasion.</p> <p>4.—Same—Hostile Intention—Self-Defense—Carrying Pistol.</p> <p>A person may carry a pistol for the purpose of defending himself against an anticipated attack, and with the further intention, if the attack comes upon him in such shape that it becomes necessary to use the pistol in a deadly manner, to so use it without being guilty of a criminal hostile intention, and a charge of the court which qualifies this right is erroneous.</p>

<p>No statement necessary.</p>

From Navarro County. Original application for habeas corpus for release from custody of sheriff, who held relator under a capias pro fine.

Tried below before Hon. U. M. Newton. Appeal from a conviction of compounding and retailing medicines without being a qualified pharmacist; penalty, a fine of $50. No statement is necessary.

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

<p>1. —Scire Facias—Judgment Nisi—Statement of Facts,</p> <p>In an appeal from a judgment against the principal and sureties in a scire facias case, the statement of facts must contain the judgment nisi.</p> <p>2. —Same—Altering Complaint and Information,</p> <p>The alteration of the original complaint by the insertion of an additional count does not affect the scire facias proceeding, inasmuch as there was no alteration of the count in the information or complaint on which the judgment nisi was taken, and the complaint or information need not be introduced in evidence.</p> <p>3. —Same—Civil Procedure—Instruction.</p> <p>While a scire facias proceeding-is of a criminal character, to give the Court of Criminal Appeals jurisdiction, the trial thereof is regulated by the civil procedure, and the trial court may in a proper case instruct a verdict for the State.</p>

<p>Recognizance on Appeal.</p> <p>A recognizance is defective which does not state that appellant was convicted of a misdemeanor “in this cause,” and in which it is not made to appear in what cause he was convicted; it also is more onerous than the statute provides, in that it requires him to make his “personal” appearance, and is further defective in not complying with article 887, Code Crim. Proc., in not stipulating that appellant “do not depart without leave of this court.”</p>

<p>Defendant as a Witness—Testimony in Examining Trial.</p> <p>It is improper for State’s counsel to discuss the fact that the appellant had testified in the examining trial and that said testimony had not been introduced in evidence, when such testimony was not before the jury and appellant had not taken the stand.</p>

<p>Verdict by Lot.</p> <p>Where each juror put down the number of years he wanted to give defendant, ranging from five to twenty-five years, which was added up and then divided by twelve, the result being eighteen years and one month, and the one month was left off and eighteen years was adopted as the verdict of the jury, it was a verdict by lot and contrary to law.</p>

<p>1. —Verdict—Indictment.</p> <p>A general verdict rendered upon an indictment which charged in one count the sale of goods, wares and merchandise, and in another the opening and keeping open of his store on Sunday contrary to law, is supported by evidence that defendant sold twenty-six pints of beer, although the evidence is conflicting.</p> <p>2. —Witness—Impeachment.</p> <p>Unless the witness actually testifies to something injurious to the party offering him, he can not be impeached as his own witness on the ground of surprise, although he may refuse to testify as to a statement made to the county attorney before the trial.</p>

M. B. Briggs, County Judge of Upshur County. The appellant was arrested on the 5th day of January, 1904, in two cases on warrants issued on same day by the mayor of the town of Gilmer, Upshur County, Texas, charging appellant with unlawfully shooting guns in said town. On the same day relator sued out a writ of habeas corpus before the Hon. M. B. Briggs, county judge of said county.

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

<p>1.—'Judge—Legal Authority-Change of District.</p> <p>L. was duly elected judge of the Forty-second Judicial District, com’ posed of the county of C. and others; thereafter the Legislature created the Fifty-second Judicial District, composed of said county of C. and two more not contained in the said Forty-second District and provided in the act creating the Fifty-second District, that the said L. should continue to be the judge of the last named district; no' judge was elected in said Fifty-second District and said L. has not taken the path of office since said last named district was formed. Held, that the Legislature did not attempt to appoint said L. as judge of said Fifty-second District, but simply changed the district for which he was elected, and his title to the office or his duties as judge are not affected.</p> <p>2. —Evidence—Perjury.</p> <p>Under an indictment for perjury, the accused may be convicted upon circumstantial evidence.</p> <p>ON REHEARING.</p> <p>February 14, 1904.</p> <p>3. —Same—Materiality of Issue—Indictment—Proof.</p> <p>In an indictment for perjury it was alleged that it was material in a certain civil suit whether or not the transfer of a certain fire insurance policy to the accused, and upon which the suit was based, was made for a valuable consideration, and that in truth and fact it was not made for a valuable consideration, but was made with the intent to hinder, delay and defraud the creditors of the assignor of said policy, and that the accused swore as a witness in said suit that the said transfer was made for a valuable consideration, well knowing that it was not so made. Held, that it was necessary under said allegations to prove that the testimony in said civil suit showed the fact that said assignor was indebted and that said transfer by him was with the intent to defraud his creditors, otherwise it became immaterial whether the said transfer was for a valuable consideration.</p> <p>4. —Same—Allegata and Probata.</p> <p>Under the allegation of want of consideration and to defraud creditors in the transfer of a fire insurance policy as the material issue in an indictment for perjury, the prosecution can not shift its proof and be permitted to show that the insured who assigned the policy to the accused burned the insured property, and that the alleged false testimony of the accused with reference to the valuable consideration of said transfer tended to show such burning and thereby became material, the indictment not being predicated upon a general assignment of perjury.</p>

<p>1. —Constitutional Law—Local Option.</p> <p>It is a rule of universal construction, applicable to constitutions as well as laws, where the instrument gives the Legislature the power to do a thing and prescribes the mode of doing it, the method prescribed measures the limit of the power granted.</p> <p>2. —Same—Mode Provided Must Be Followed.</p> <p>The Constitution has provided the mode in which local option can be voted upon; and in providing this mode it ex vi termini prohibited any othei mode, and the attempt to create other ’localities than those named is not only without constitutional warrant, but is in direct violation of the provision in question. .The Constitution locates the right to vote upon local option; it is given to the localities named, and nowhere does it authorize two or more of the localities to be combined.</p> <p>3. —Same—Subdivision of Like Character,</p> <p>When the Constitution named certain known subdivisions of counties, and then authorized the Legislature to empower the commissioners court to designate such other subdivision of a county for local option purposes, obviously the power conferred was to name some other existing subdivision such as those already mentioned; the word “such” meaning political subdivisions of the county of like character.</p> <p>4. —Same—Status Fixed Not Affected.</p> <p>The fact that the Legislature may alter the provisions of the local option law can not affect territories in which the law is then in force, and it is not competent for the commissioners court in a local option election to include in a subdivision precincts in a county or parts thereof whose status as to local option had already been fixed upon them.</p> <p>5. —Same—Local Option Territory.</p> <p>An election was held for local option in seven out of eight justice precincts in a county, and the commissioners court combined said seven precincts into one local option divis’on for the purposes of said election; .some of said precincts had within less than two years before said election adopted local option and others had rejected it, and the precinct excepted from such subdivision had also within said time adopted local option; prohibition was adopted in said seven precincts, but the precinct in which it is alleged the violation of the local option law occurred defeated prohibition when considered separately. Held that said election was void and that the commissioners court had no authority under section 20 of article 16 of the Constitution, as amended in 1891, to combine said seven precincts into one local option division of said county.</p> <p>6. —Same—Commissioners Precincts—School Districts.</p> <p>At the time of the adoption of both the original and subsequent amendment to the Constitution on the subject of local option, there were other known political subdivisions of a county besides justice precincts, towns and cities, to wit, commissioners precincts and school districts, and the latter, if still unaffected by local option, are meant to be designated by the commissioners court under a correct construction of said constitutional amendment.</p> <p>7. —Same—Act of Legislature Unauthorized. ■</p> <p>The amendment to section 20 of article 16 of the Constitution did not warrant the Legislature to so amend article 3384, Revised Statutes, as to authorize the commissioners court to combine any two or more of the existing political subdivisions of a county into a local option precinct, and thus create arbitrarily new subdivisions of a county for local option purposes.</p> <p>8. —Cases Qualified and Distinguished.</p> <p>See opinion in which the following cases are discussed, qualified and distinguished: Williams v. State, 31 S. W. Rep., 654; Ex parte Brown, 34 Id., 131; Ex parte Rippey, 68 Id., 687; Medford v. State, 71 Id., 768, and other cases.</p>

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

Tried below before Hon. W. H. Pope. Appeal from a conviction of murder in the second degree; penalty, imprisonment for fifteen years in the \ enitentiary. No-statement necessary.

Tried below before Hon. W. E. McConnell. Appeal from a conviction for unlawfully carrying a pistol; penalty, a fine of $25. This is a prosecution under article 338, Penal Code, and the defendant interposed the defense under article 339, Penal Code, that he had reasonable grounds for fearing an unlawful attack upon his person, and that the danger was so imminent and threatening as not to admit of the arrest of the party about to make such attack, upon legal process.

<p>Ho statement necessary.</p>

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

<p>Carrying Pistol.</p> <p>See opinion for facts held not to be sufficient to justify a conviction for unlawfully carrying a pistol.</p>

<p>Appeal'from the District Court of Navarro. Tried below before Hon. L. B. Cobb.</p> <p>Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary.</p>

<p>Occupation Tax—Medical Specialist.</p> <p>Where the evidence shows that appellant maintained offices in different counties and divided his time between them and treated patients at stated intervals, he does not come within the scope of article 5049, Revised Civil Statutes, as a traveling physician or other specialist subject to an occupation tax as such.</p>

<p>No statement necessary.</p>

<p>1. —indictment—Uncertain Date.</p> <p>The indictment charging a violation of the local option law alleged in the first portion of same that the defendant “on or about the - day of -A. D. 190— and anterior to the presentment of this indictment,” committed the offense, and further on that “he did then and there unlawfully on October 15, 1901, an election in accordance with the laws of this State was held,” etc. Held too uncertain to fix a date.</p> <p>2. —Evidence—Local Option—Book Entries.</p> <p>The true copies of the books or records from the office of the internal revenue collector may be admitted in evidence, but not the statements as to what the witness swears he saw recorded in these books, or the conclusion or understanding of witness as to what he saw with reference to such entries.</p>

Tried before Hon. J. E. Dillard. Appeal from a conviction of manslaughter; penalty, five years imprisonment in the penitentiary. The following statement taken from appellant’s brief is substantially correct: Appellant was foreman of a county convict gang working on the public roads twenty miles south of Waxahachie; the gang consisted of several negroes and two or three white men.

<p>1. —Continuance—Second Application.</p> <p>Where, on application for a second continuance for the same witness, the record disclosed that the court had postponed the trial for several days until process was returned that the witness could not be found, when defendant was forced to trial, and in the motion for new trial it appeared that the sworn statement of said absent witness was controverted by the affidavits of the district attorney and others rendering such statement improbable in the light of the record, there was no error in overruling such application and refusing the motion for new trial.</p> <p>2. —Charge of the Court.</p> <p>Where a requested charge is substantially embraced in the general charge, there is. mo error in refusing it.</p> <p>3.—Argument of Counsel.</p> <p>Unless a special charge is requested informing the jury not to consider objectionable language of counsel or excluding it, the same will not be reviewed; furthermore, such language must have injured the rights of appellant.</p>

<p>There is an agreement in this case that the facts proven upon the trial will warrant a conviction, provided the instrument upon which the forgery is alleged is the subject of forgery; the appellant contending that the said instrument being a will was written during the lifetime of the testator or declarant, and’ further that the law providing for the execution of wills requires that the will must be duly admitted to probate, etc., before it can have any legal effect.</p>

Tried below before Hon. Lee Hawkins. Appeal from a conviction for violating the local option law; penalty, a fine of $25 and confinement in the county jail for twenty days. The opinion states the case.

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

Tried below before Hon. Tom C. Bradley. Appeal from a conviction for violating the local option law; penalty, a fine of $50, and confinement in the county jail for twenty days. The opinion states the case.

<p>Indictment—Bribery at Election.</p> <p>In an indictment charging the accused with corruptly offering to bribe a qualified voter at a primary election for the purpose of influencing his vote for a candidate for the office' of Congress, it should be alleged that the election was held to elect a nominee for representative to the Congress of the United States, as in law there is no such office as "Congress.”</p>

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

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

<p>1. —Evidence—Counterfeiting Coin.</p> <p>Under an indictment charging defendant with knowingly passing as true a counterfeit coin, if the evidence shows that the imitation or resemblance of the coin is such as is capable of imposing on persons of ordinary observation, and is calculated to deceive an honest, sensible and unsuspecting person of ordinary care dealing with men supposed to be honest, it is sufficient to sustain a conviction.</p> <p>2. —Same—Sufficient Deception.</p> <p>Where defendant in the early part of night, in exchange for two nickels, handed a person what purported to be a dime, but which in fa,ct was a one-eent copper piece colored with a substance that made it appear like a dime, although upon closer inspection the fraud could be detected, the deception was sufficient to constitute the offense defined by the statutes of this State, the intent to defraud being proved sufficiently by other circumstances.</p>