Volume 46 — Texas Criminal Reports

Tried below before Hon. Lee Hawkins. Appeal from a conviction of aggravated assault; penalty, a fine of $1000 and two years confinement in the county jail. The opinion states the case.

<p>Charge of the Court—Principals.</p> <p>In order to_ constitute one a principal, he must be actually, bodily present when the offense is committed, and a charge which instructs the jury that all persons are principals who are guilty of acting together in the commission of an offense, etc., whether all were present or not, is error.</p>

Appellant was indicted for the murder of his wife, Josephine, about the 12th day of June, 1903, in Kaufman County, Texas. Defendant and Beulah Crosby, his stepdaughter, were charged with the murder and the-latter was used as a State’s witness, and was the only witness placed on the stand who directly implicated defendant. She first refused to tell anything further than to state that she knew something of the killing, but was afraid to tell it.

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

<p>The testimony for the State shows that defendant gave a valid mortgage on two certain mules to Ike Davis, who afterwards assigned the same to B. B. Thomas. The disposition of the mules by defendant was shown inferentially by the purchaser, T. B. Youngblood, who testified ' that defendant and his son had stopped at his house in passing and that defendant had offered to trade his mules and surreyffor some mules . and a buggy, but that no trade was consummated, and defendant stated on leaving that if he did not make a certain land trade, he would return and make the mule trade. Defendant did not return, but his son and brother-in-law did. That defendant’s son said his father had sent him with the mules and surrey to make the trade; that the trade was made and the purchaser gave $35 difference to the son. The defendant’s son, whom the State used as a witness, denied that his father gave him authority to make the trade and that he made it because he needed the money and that $15 of the $35 was sent to defendant by his brother-in-law, who acted on the suggestion of defendant’s son. That his father told him to take the mules and surrey to Delta, to defendant’s home.</p> <p>The other facts which are material are stated in the opinion.</p>

<p>,1.—Incest—Accomplice, What Constitutes—Charge of Court.</p> <p>The court having left to the jury the question as to whether prosecutrix •'was an accomplice in the crime of incest with defendant, should have charged .that if she did not.oppose the act of carnal intercourse, she would be an ac- ‘ complice, and not that she must enter into it with the same desire defendant did.</p> <p>'2.—Charge of Court—Practice.</p> <p>: It ig safer practice, where the facts are unquestioned as to the relation of the witness to the crime as an accomplice, to so inform the jury, so as 'to avoid that question before the jury.</p> <p>'3.—Evidence—Other Acts of Intercourse.</p> <p>It is error to permit in evidence other acts of intercourse in incest cases, ,as well as rape cases; they are not continuous offenses, and each act of in- • cestuous intercourse constitutes a different offense. Overruling Burnett v. . State, 32 Texas Crim. Rep., 86. Following Ball v. State, 72 S. W. Rep., 384; Smith v. State, 72 S. W. Rep., 401; Barnett v. State, Id., 399.</p> <p>' 4.—Evidence—Act of Others Not Admissible.</p> <p>•' It was error to permit the State to show by the sheriff that he had , process issued for the sister of the prosecutrix, who could not be found, and who, the record shows, the prosecutrix said.was in bed with her at the ' time of the: incestuous intercourse with defendant.</p> <p>. 5,—Same—Defendant Not Required to Issue Process.</p> <p>It was error to permit the State to show that defendant had not made " application for process for prosecutrix’s sister, who, the evidence discloses, 'was in bed with the former at the time of the alleged incestuous inter- , course; she .being a necessary State’s witness and the State having applied for process. Nor was it a criminative act for defendant not to ask for process for such witnesses.</p>

<p>Appeal from the County Court of Floyd. Tried below before Hon. A. B. Duncan.</p> <p>Appeal from a conviction of obstructing a public road; penalty, a fine of one cent.'</p> <p>The following statement of facts is taken from appellant’s brief and is substantially correct:</p> <p>The State read in evidence the order of the commissioners court upon the hearing of the application of W. M. Chandler and twenty-seven others for a new road to be known as the Sand Hill and Loclmey road and appointing a jury of view. The report of the jury of view and an order of court approving the same and establishing the road, assessing damages and ordering the said road to be opened up and worked.</p> <p>F. H. Ford testified for the State: "I live about three-fourths of a mile south of defendant. The Sand Hill and Lockney road runs a few hundred yards east of my house and thirty or forty steps east of the defendant’s house. There is fence and gate across said road at the southeast corner of section 56, the place on which the defendant lives. There is also some fence and a gate across said road at the northeast corner of same section. I passed along said road at these points with my freight team on my way to the railroad a few days prior to the 3d day of March, 1902. The south gate was closed but the north gate had not been built at that time. I returned on same route between sundown and dark on the 3d day of March, 1902, and the north gap in said fence was closed by a gate and some fence being erected across same. I don’t know who closed it. This was in Floyd County, -Texas, on or about the 3d day of March, 1902. The defendant and I are not on good terms. We don’t speak. I spoke to him until he quit speaking and then I quit. I have no hard feelings against defendant. I never told at any time that if the county did not break Kelley I would finish him. I never told any one that I intended to make this trouble break Kelley up. I never told Roy Bruner that when the county got through with Kelley that I would finish him. I never told Roy Bruner to hitch on that gate with his freight team and pull it out.”</p> <p>M. F. Mickey testified for the State: “I live about ten miles west of here. I know the defendant. I live southwest of the defendant’s place. The Sand Hill and Lockney road runs along the east side of the defendant’s home place and something like 100 feet east of his residence. On Sunday, March 2, 1902, I went from home to Lockney and traveled said road. The gate at the southeast corner of defendant’s section 56 was closed, but there was no gate or other obstruction on said road at or near the northeast corner of said section on that date. The road at this place runs north and south. There was a wire fence which was built from the east up to within about thirty or forty feet of said road leaving a space between the end of said fence and defendant’s field fence of something like about sixty or seventy feet, I suppose. The "road was entirely unobstructed at said point on said date. I returned from Lockney going home over said road on Monday, March 3, 1902, passing the point where said road passes the northeast corner of defendant’s home section 56, about 9 o’clock a. m. on said day. A man was at work building a gate on said road. I did not know who he was. I was along there afterwards and said road was obstructed by a gate and fence and the opening in the fence at said point was entirely closed with wire fence and plank gate. When I returned home on March 3, 1902, the gate posts of said gate were up, leaving a space for a gate about ten or twelve feet wide or something about sixteen feet of space from the west gate post to defendant’s field fence. Was open when I went up on Sunday, was closed with a wire fence when I came back on Monday, and the space from the east gate post to the fence line on the east which was open when I went up was closed when I came back and the man was malting the gate as I came along. I don’t know who it was that put up the gate and fence. The defendant lives about the middle, north and south, and near the east line of section 56. Said road was obstructed at or near the northeast corner of defendant’s section 56 subsequent to March 2, 1902.”</p> <p>J. S. Picket testified for the State: “1 live in Floyd County, Texas. I know the defendant, W. H. Kelley. I am acquainted with the Sand Hill and Lockney public road. I was one of the jury who viewed and laid out said road. We aimed to view and lay out said road to run on east line of section 56 owned by defendant. We intended to place said road on said line sixty feet wide—thirty feet on each side of said line. We viewed and laid out said road on a line running east of defendant’s private residence, something like forty yards east of said house I suppose. We thought we were laying out said road on section lines at the time. The road as actually laid out by us did not run inside of defendant’s field nor yard. I do not know of my own knowledge whether or not the east line of defendant’s field fence is on his section line, but a-survey made by Mr. Foard subsequent to laying out-said road places the section lines a little east of the road as laid out by us. The road as actually laid out by us is on the outside of his field fence and the out-, side of his orchard. The defendant was a member of said jury of view and we notified him to meet us to view out said road but he failed to come.</p> <p>“I don’t know where á correct survey would place the dividing line, between sections 55 and 56, but at the time we viewed out the said, road we supposed the fence on the east side of defendant’s section 56 to-be set back so as to leave sufficient space for the road. I don’t like, Kelley. I don’t speak to him. I don’t know of my own knowledge who placed the obstructions on said road.</p> <p>“I heard the defendant say during the session of the commissioners court in November, 1901, that he was going to fence the Sand Hill and Lockney road. He was considerably worked up. I understood he was going to fence up said road because he thought it to be an illegal road. I supposed that from his talk.”</p> <p>John Wilson testified for the State: “I live ten miles west of here. I know the defendant. . I heard him say he was going to fence the road. This was during a term of the commissioners court in November, 1901. He was talking about the Sand Hill and Lockney road and was considerably worked up over the matter.</p> <p>“He did not say in that conversation that he was talking about the Sand Hill and Lockney road but was with a petition to change said road and I thought that was the road he was talking about. He said that he, defendant, was going to fence said road because he believed same to be illegal or something to that effect.”</p> <p>W. H. Burrows testified for the State: “I worked for the defendant in the year of 1901 and 1902. I began about April, 1901, and worked about one year for him. I helped build a fence for the defendant beginning -on the south line of section 56, running east to southeast corner of same. Thence north to northeast corner of same. Thence west to northeast corner defendant’s field fence in the northeast comer defendant’s home section, 56. We commenced this fencing in the early part of the year 1902 and built on around until we got in a short distance, something like fifty or sixty feet perhaps, of the northeast corner of defendant’s field fence. Then we stopped a few days, something like two or three weeks I suppose. There is a road running along a short distance east of defendant’s house. We stopped building* the fence before we reached said road and waited some two or three weeks before fencing across said road. The defendant helped me on the fence most of the time until we got where we stopped near the road. I afterwards, at the instructions of defendant, built the fence and gate across the road for which he paid my regular wages. I put the gate right in the center of the road and built the fence up to and attached it to each side of the gate. On the west side of gate, some fifteen feet from, the gate, the defendant’s field fence begins and contimies on west about a half mile without any opening whatever. The fence on east side of the gate attaches to the gate and continues on east about one mile without any opening. I put this fence and gate across said road some time in the early part 1902 at the instance and under directions of defendant. I do not remember the exact date. I can not even approximate it.”</p> <p>The State then introduced an entry of school land record of Floyd County of an award to defendant of section 56, block G, Cert. 19, A. B.. and M., date October 8, 1898, and a deed from deed records of said county from C. M. Martin to defendant of section 55, block G, A. B. and M., dated June 3, 1900. The State then read in evidence petition of W. M. Kelley and seven others for change in Sand Hill and Lockney road, date November 11, 1901.</p> <p>The State rested and defendant read in evidence original petition of W. M. Chandler and twenty-seven others for the Sand Hill and Lockney road, date June 6, 1899.</p> <p>Defendant then offered commission to himself as a juror of view and also notice to him as land owner to put in his claim for damages.</p> <p>Koy Bruner, for defendant, testified: “I am acquainted with witness F. H. Ford. We have freighted some together. He has talked to me a great deal about Kelley fencing the Sand Hill and Loclmey road. Ford told me that when the county got through with Kelley in the injunction suit, if they did not break him that he, Ford, intended to try him a round. That he, Ford, intended to make it cost Kelley everything he had, or some such talk He said something about like, that some one ought to hitch onto that gate in the Sand Hill and Lockney road and pull it off the road. I don’t remember distinctly just what he did say. I said about as much about it as he did.”</p> <p>W. N. Kelley for himself testified: “I am the defendant in this case. I own sections 55 and 56 along proposed route of the Sand Hill and Lockney road. I instructed the witness Will Burrows to place a gate on the north string of fence at the northeast corner of section 56 about the 3d day of March, 1902. There is a fence between sections 55 and 56 the full length of said sections running north and south. The fence is near the line between said sections. In fact the line is about six feet east of the fence. My private residence is about half way of sction 56 north and south, and about eighty-five or ninety feet from the east line of the said section. The Sand Hill and Lockney road was viewed out and run along the dividing line between section 55 and 56 and to be thirty feet on each side of said line. The gate that I had put in at the northeast corner of section 56 is about ten feet wide and is about twenty-five feet east of the divided fence between section 55 and 56 and is about nineteen feet east of land line between said two sections. I received a notice from the jury of view to put in my claim for damages by reason of the road running across section 56, through mail, two or three days before the 28th of October, 1899, which date was set for said jury to meet at the art studio at Loclmey. I never put in my claim for damages before said jury because I did not know from the notice how much of my land was wanted for the road, and because I did not have time to get up my claim properly, and would have to get a lawyer to get my claim for me. I thought the jury of view had to lay out the road as petitioned for along the west line of section 56 and did not think it would amount to anything. The notice which I state I received through the mail from the jury of view is the one I have introduced as evidence.</p> <p>“In January, 1902, when I .commenced fencing section 55 only a part of section 56 was fenced and there were roads running across my land up to the time I commenced fencing in 1902, to wit:</p> <p> </p> <p>“No road overseer has ever warned out any hands to work the Lockney and Sand Hill road since it was viewed out and no work has been done on said road. It has needed work in several places very bad, but has never had any. No road overseer or any other person ever notified me to remove my obstructions from said road. I got up a petition to change said road before I fenced it, because I was afraid I would be prosecuted if I fenced it without first getting it changed. I took said petition and went around to see the land owners and' got eight signers; stuck up proper notices and presented said petition to the Commissioners Court of Floyd County, Texas, and they refused to grant said petition.”</p>

<p>1. —Judge—Should Be Present at All Times of Trial.</p> <p>It is necessary that the district judge he present and presiding during the trial of a felony in his court throughout the entire progress thereof, otherwise a conviction can not he sustained. i</p> <p>2. —Same—Matters Presented by Affidavit.</p> <p>The question of the conduct of the judge can be presented by affidavit, and the mere unsworn statements of the judge are not sufficient upon the matter contested.</p> <p>3:—Same—Judge Must Keep Control of Case.</p> <p>Where, during the argument of counsel, the trial judge absented himself for some time and retired to an adjoining room to write his charge, closing the door at times and not being so situated as to determine and know of his own eye and his own ear that the trial was being legally conducted, a conviction of murder will be set aside.</p> <p>4.—Evidence—Res Gestae.</p> <p>Where a witness was permitted to repeat a part of the statement of the defendant made by him to -witness five or six minutes after the difficulty "between him and deceased which resulted in the latter’s death, the witness should have been permitted to state the whole of such statement, although, the latter part of it was made a minute or such matter after the first, the whole of the statement being closely connected and part of the res gestae.</p> <p>5. —Same—Matters of Opinion.</p> <p>A witness can only state matter involved in a dying declaration to which deceased could testify if alive and a witness on- the stand and could not give in evidence matters of opinion, and witness should not have been permitted to state that deceased told him, “Tell my wife good-bye;” and "They murdered me without cause.”</p> <p>6. —Same—Impeaching and Direct Evidence.</p> <p>It was competent for the State to prove defendant’s declarations that he would hold deceased to the proposition to go with him before the constable and settle a matter of dispute, both as impeaching testimony and direct evidence to show animus of defendant toward deceased.</p> <p>7. —Charge of the Court—Provoking the Difficulty.</p> <p>There was no error to charge on provoking the difficulty, where the evidence showed that the conduct and language of defendant toward the •deceased was sufficient to have provoked an assault, although there was a conflict in the evidence on this point.</p>

The principal State’s witness and half brother of deceased testified that they were on their way to a religious meeting and happened to meet defendant; all parties were horseback.

<p>Original application from Dallas for the writ of habeas corpus, upon an arrest on a copias pro fine.</p>

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

The testimony of the principal State’s witnesses showed that appeL lant procured a gun and shells a short time before the homicide, saying he was going on a hunting trip.

<p>A witness for the State, who was shown to have been previously convicted of two felonies, and who was pardoned in one and restored to full citizenship, but who had not been expressly pardoned in the other felony case by the terms of the Governor’s certificate of pardon, although the sentence in each case had expired, when the said pardon was issued was not competent to testify, the pardon relating to the particular case mentioned in the Governor’s certificate only, and did not cover the qther case. Brooks, J., dissenting.</p>

<p>. The opinion sufficiently states the facts of the case.</p>

Tried below before Hon. Ben H. Denton. Appeal from a conviction of burglary; penalty, nine years imprisonment in the.penitentiary. Ho statement is necessary.

<p>Embezzlement—Evidence.</p> <p>See opinion for evidence held insufficient to support a conviction for embezzlement.</p>

<p>1. —Bail Bond—Dormant Judgment. t</p> <p>In a proceeding to revive a dormant judgment against a principal and his sureties on a bail bond in a criminal case, it is not necessary that a copy of the petition accompany the writ, and where the original petition was not signed, it was not such error that could not have been amended on motion to quash and, therefore, could not be urged for first time in a motion in arrest of judgment.</p> <p>2. —Same—Return on Writ,</p> <p>Where the return shows that service was made on three different days on the parties, it will not be presumed that such service was made on each day on the same person; but that service was made on each of said parties^ there being three dates of service and three named defendants.</p>

<p>1. —Severance—Parties Affected Must Be Under Court’s Control.</p> <p>Where joint defendants invoke the right of severance under the statute, all those who are to be affected must be within the jurisdiction and control or the authority qf the court, and where at the time defendant’s case was called his co-defendant was in another county and had forfeited his bond and the severance would have operated a continuance, there was no error to set aside an order for a severance, made in the absence of said’ co-defendant, and to place defendant upon trial.</p> <p>2. —Charge of the Court—Harmless Error.</p> <p>While the evidence would have supported a conviction of robbery, it was not error of which appellant could complain that the court instructed, the jury upon an assault, with intent to commit robbery, of which offensfr he was convicted.</p>

Tried below before Hon. J. A. Habers. '' Appeal from a conviction, of violating the local option law; penalty, a fine of $75 and confinement for forty-seven days in county jail. No statement necessary.

Tried below before the Hon. E. A. Stevens. • Appeal from a conviction of perjury; penalty, imprisonment for five years in the penitentiary. No statement necessary.

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

Tried below before Hon. H. E. J ones. Appeal from a conviction of aggravated assault; penalty, a fine of $250. The opinion sufficiently states the case.

<p>Appeal from the County Court of Parker. Tried below before Hon. D. M. Alexander. \ \</p> <p>Appeal from a conyietipn for obstructing a public road; penalty, a •fine of $5.</p> <p>Ho statement is necessary.</p>

Tried below before Hon. E. B. Muse. Appeal from a conviction of murder in the second degree; penalty, fifty years imprisonment in the penitentiary. Mary Smith, the principal State’s witness, testified substantially that her first statement about the homicide, to the effect that defendant came to her rescue to prevent deceased from perpetrating a rape upon her, was untrue, and induced by threats of the defendant to kill her if she did not make such statement.

Tried below before Hon. G. B. Landrum. Appeal from a conviction of pursuing the occupation of selling medicated bitters without license; penalty, ten days confinement in the county jail. No statement is necessary.

<p>1. —Rape—Evidence—Different Transactions.</p> <p>It is the recognized doctrine in this State that other acts of intercourse are not admissible in a rape case, unless such acts are made pertinent by some issue raised by the defense; or that such other acts of intercourse tend tb demonstrate or shed light upon the offense charged.</p> <p>2. —Same—Withdrawal of Evidence Illegally Admitted.</p> <p>Where the court erroneously permitted the State to prove different acts of intercourse in a rape case, and at the conclusion of the introduction of all the evidence withdrew such testimony, it did not cure the eri’or.</p>

<p>1. —Charge of the Court—Breaking Fence of Another.</p> <p>Where the evidence does not show actual, quiet and peaceable possession of the land on which the fence stood which was alleged to have been broken and pulled down by the appellant, there was no error in refusing a charge to the effect that the jury must acquit in the event they found such state of facts.</p> <p>2. —Evidence—Possession by Renters.</p> <p>There was no error to permit the State by different witnesses who had knowledge of the facts, that they had rented from the owner of the fence, "built it, and cultivated the land which it inclosed as his tenants, etc., to show the possession and ownership of the fence alleged to have been broken down.</p> <p>3. —Same—Title Not Involved.</p> <p>The question of title can not be investigated in a trial for unlawfully injuring the fence of another, but only the fact of possession, and the court dd not err in excluding testimony as to where the boundary lirie between appellant and the alleged injured party was situated, in order to show upon whose land the fence stood.</p>

Tried below before Hon. J. M. Morgan. , Appeal from a conviction of theft of cattle; penalty, two years imprisonment in the penitentiary. The owner of the property testified substantially as follows: “Hodges and I went up to the defendant’s house, and when about one hundred yards of the house we saw him come to the door, and go back in the house. We rode up and Hodges hallooed ‘Hello!’ and defendant came to the door.

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

<p>1. —Theft—Variance.</p> <p>Where the indictment charged the theft of eighty-five cents lawful current money of the United States of America and the evidence showed the money was nickels, there was no variance between the allegations and the proof.</p> <p>2. —Same—Legal Tender.</p> <p>Where, in a charge of theft, the allegation is general that the money taken was lawful current money of the United States, the evidence must show that it was legal tender, but the mere fact that it is not acceptable as a legal tender beyond the amount of twenty-five cents does not alter or change its. capacity as a legal tender coin.</p> <p>3. —Same—Fraudulent Taking—Evidence Insufficient.</p> <p>Appellant, a boy, in the presence of other boys, went to the cash drawer of H„ remarking that he was going to play a joke on him, taking eighty-five cents therefrom. H. being out of the room, and on his return appellant handed H. the money and asked him to give appellant credit for it, which was done, the other boys laughing at the time; other circumstances also showed the absence of a fraudulent intent at the .time of the taking. Held that the evidence is insufficient to sustain the conviction.</p>

<p>Forgery—Insufficiency of Indictment—Variance.</p> <p>The purport clause in an indictment for forgery alleged the false instrument to be the act of H. G. Haynes, and in the tenor clause it is alleged to be the act of H. G. Haygens. Held the variance is fatal.</p>

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

Tried below before Hon. L. C. Hill. Appeal from a conviction of exhibiting a banking game; penalty, a fine of $25. Appellant occupied the second story of a two story brick building on the public square in the town of Hillsboro. Persons had access by means of a staircase ascending from the sidewalk which runs east and west in front of the place, which fronts south. The sidewalk is traveled by a great many people.

<p>The facts in so far as they are necessary to an understanding of the case are stated in the opinion.</p>

The. testimony in the case is wholly circumstantial. On the day deceased was supposed to have been killed, he and defendant we?-e seen together quarreling. It seems defendant was inside of his field and the deceased just outside, driving a cow and charging defendant with injuring his cattle or live stock, threatening to report him to the authorities.

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

Tried below before Hon-G. P. Webb. Appeal from a conviction of violating the local option law; penally» a fine of $25 and twenty days confinement in the county jail. The principal facts are stated in the opinion.

<p>1. —Bail Bond—Examining Court.</p> <p>Where on one day a justice of the peace sitting as an examining court fixed the amount of bail and in default of giving such bail defendant was placed in jail and upon the following day entered Into bond with his surer ties, the constable who had the defendant in custody accepting same, and the justice filing and approving it also on said day. Held, that unless it be affirmatively shown that the justice was not sitting as an examining court and had in fact adjourned his court, that it will be presumed that the justice was still sitting as a committing court.</p> <p>2. —Same—Approval Not Necessary.</p> <p>There is no requirement of law, in order that a bail bond be valid, that it be approved by any person; and when the constable who had defendant in custody accepted his bond, released him and placed the bond with the magistrate, such act was tantamount to an approval, and the approval by the justice, while not necessary, did not vitiate the bond. Distinguished: Schrader v. State, 30 Texas, 386; Moore v. State, 37 Texas, 133; Russell v. State, 24 Texas, 505.</p> <p>3. —Same—Non Est Factum.</p> <p>The question of whether a bail bond has been approved after adjournment of court or is void, can be raised in the Court of Criminal Appeals, without a plea of non est factum.</p>

The State witnesses testified that no one had been buried there in fifteen or sixteen years. That the rose bushes were so dense that no one could go into same or be buried there, without first cutting shrubbery away. That a paling fence was built around same thirteen years ago, wire fence five or six years ago.

<p>Appeal from the County Court of Hunt. Tried below before Hon. F. M. Newton.</p> <p>Appeal from a conviction of selling merchandise on Sunday; penalty, a fine of $20.</p>

Tried below before Hon. G. P. Webb. Appeal from a conviction that appellant unlawfully accepted a bet on a horse race; penalty, a fine of $200 and thirty days imprisonment in the county jail. The opinion states the case.

<p>1. —Practice—Examining Trial Testimony—Remarks of Counsel.</p> <p>Where prosecuting attorney, in examining a witness, read from the testimony of another witness, taken in an examining trial, and defendant’s counsel objected to that character of examination that it was an indirect way of getting the written testimony before the jury; whereupon State’s counsel offered to introduce it and a colloquy ensued between counsel as to why the witness was absent and State’s counsel displayed a telegram stating that he had sent for said witness and he refused to come, to which defendant’s counsel objected, but the court overruled his objections and instructed the jury to disregard the remarks of State’s counsel, there was no reversible error.</p> <p>2. —Argument of Counsel—Withdrawal of Evidence.</p> <p>It is doubted whether remarks of State’s counsel, to the effect that he was present and witnessed the killing, not having testified, could be withdrawn from the jury by an oral and also a written charge of the court, although counsel was provoked in a measure to make such remarks.</p> <p>3. —Charge of the Court—Provoking Difficulty.</p> <p>Where the facts show that although the meeting of accused and the deceased was casual, but that defendant accosted deceased with refernce to a previous difficulty and repeated his demand to know why deceased had on that occasion used abusive language towards him, whereupon deceased repeated such language and defendant slapped him and then deceased attacked him with a knife, when defendant fired with a pistol which he had procured shortly before, it was competent for the court to have submitted the issue of provoking the difficulty on a casual meeting.</p> <p>4. —Same—Casual Meeting.</p> <p>In the absence of testimony raising the issue that defendant had sought the deceased, and in the light of the facts that the meeting of them was casual, it was error for the court to charge on that theory.</p> <p>5. —Same—Provoking Difficulty Defined.</p> <p>Where the court charges on the question of provoking the difficulty, it is reversible error not to charge the- jury how a difficulty could be provoked; that is, that a party must do some act, or use some language reasonably calculated to provoke a difficulty with his adversary and with that intent. Following McCandless v. State, 42 Texas Crim. Rep., 58.</p> <p>6. —Same—Apparent Danger—.Self-Defense.</p> <p>Where the facts show that the difficulty had actually begun, that appellant had slapped deceased, who thereupon attacked him with an open knife, when defendant shot him; the court need not have charged on the theory of reasonable apprehension of apparent danger. Distinguishing Phipps v. State, 34 Texas Crim. Rep., 560; Nix v. State, 7 Texas Ct. Rep., 922; Poole v. State, 76 S. W. Rep., 565; Aiken v. State, 64 S. W. Rep., 57.</p> <p>7. —Same—Relative Strength</p> <p>Where there is evidence of the relative strength of the parties and disposition of deceased, it is not error on the part of the court to charge the jury upon this phase of the case.</p> <p>8. —Same—Misleading.</p> <p>Where the evidence clearly shows that the first shot fired was accidental, it was error on part of the court to charge the jury that, if appellant was justified in firing the first shot, he had a right to continue firing, as such an instruction was calculated to mislead the jury as to appellant’s right of self-defense.</p>

<p>1. —Assault with Intent to Rape—Irrelevant Statements.</p> <p>While a State’s witness was testifying, he was permitted over objections of appellant to say that appellant’s mother had come to witness’ house and talked to his mother about the case, and the court explained his ruling on the ground that witness was unwilling to testify and that the court permitted the questions to be asked witness, to see why witness was unwilling to testify. Held, defendant not being responsible for witness’ conduct, he could not be bound by what his mother said or did.</p> <p>2. —Charge of the Court—Abandoned Intention.</p> <p>It was error on part of the court to charge that if appellant was frightened away from accomplishing his evil intention that he was nevertheless guilty of an assault with intent to commit rape, when the evidence did not indicate that he was frightened away.</p>

Tried below before Hon. J. 1C. P. Gillaspie. Appeal from a conviction of burglary; penalty, three years imprisonment in the penitentiary. No statement necessary.

<p>1. —Murder—Charge of Court—Self-Defense.</p> <p>Where the evidence showed that defendant and his wife had separated, the latter going to her mother, taking with her their child, and that while defendant called there for his child a difficulty arose about the possession of the child in which the defendant’s mother-in-law was killed and his brother-in-law wounded by defendant, and there was a conflict of testimony as to whether defendant acted in self-defense, the court should have charged fully upon that phase of the case, as well as apprehension of apparent danger.</p> <p>2. —Same—Perfect Right of Self-Defense.</p> <p>The court should have charged the jury, where the evidence showed that defendant sought to see his child at his mother-in-law’s house, where defendant’s wife had1 gone with the child, that he had a lawful right to do so, and that if while defendant was peaceably carrying out his purpose, he was assaulted by his brother-in-law, defendant’s right of self-defense would be perfect.</p> <p>3. —Same.</p> <p>The court erred in his charge when he informed the jury that defendant would not be justified in provoking a difficulty and shooting two certain persons “or any other person,” when there was no evidence that he had shot any other person.</p> <p>4. —Same—Intent to Provoke Difficulty.</p> <p>The court erred in charging the jury that an intent on the part of defendant to provoke a difficulty in going to his mother-dn-law’s house deprived defendant of the right of self-defense, instead of informing the jury that defendant must do some act to provoke the difficulty before hia right of self-defense is forfeited.</p> <p>5. —Manslaughter.</p> <p>See opinion for facts which do not raise the issue of manslaughter.</p>

The testimony in this case on defendant’s part showed that appellant had previous to the adoption of local option conducted a saloon in the building where the whisky was alleged to have been sold; that he had given up Ms saloon business in Wilbarger County and was engaged in the saloon businéss in Oklahoma, but at times would return to Wilbarger and stay about the former saloon in Wilbarger, which he had rented out and in which a restaurant was then kept.

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

<p>The evidence in this ease substantially shows that T. E. Eiggins got a quart of whisky from appellant and promised to return a quart of whisky for it as soon as defendant could order two quarts of whisky for him and the same arrived in Weatherford. That he handed defendant $1.50 to order the two quarts of whisky by phone from Mineral Wells, and also paid for the phone message; that • defendant ordered four quarts, two for himself and two quarts for Eiggins, and that' the whisky came and Eiggins returned to defendant a quart of it, for the quart he had received before from defendant.</p>

<p>1. —Statement of Facts.</p> <p>In the absence of a statement of facts the action of the court in overruling an application for a continuance can not be considered.</p> <p>2. —Evidence—Irrelevant. 0</p> <p>Where appellant offered copies of a petition for divorce between the deceased and her former husband, to show that she had contracted syphilis from him, and there was no testimony introduced by the State that could render the above testimony pertinent on the trial of defendant charged with the murder of the deceased, there was no error in excluding it.</p> <p>3. —Same.</p> <p>Testimony that the former husband of deceased had debauched her sister was inadmissible, in the absence of testimony by the State, which would render it pertinent on the trial of defendant for the murder of the deceased.</p> <p>4.—Bill of Exception—Must Disclose Purpose—Practice.</p> <p>Where appellant’s council objected to the introduction of his client’s written confession, and prepared a bill of exception and presented it to the court, with the statement that the same be acted on with as little delay as possible, because bystanders who had heard the confession and the court’s ruling might disperse, and also asked that the trial be delayed, there was no error that the court proceeded with the trial, stating that he had ten days in which to sign the bill and where the same gave no reason for this objection and bystanders were accessible to counsel.</p> <p>5.—Confession—Bill of Exception—Practice,</p> <p>Where there is an issue as to whether or not the confession is voluntary, that issue should be submitted to the jury; hut- where the court fails to do so, appellant should save the point by bill or motion for new trial, a mere objection to the introduction of the confession is insufficient.</p> <p>6.—Bill of Exception—Indictment Against Accessory—Purpose.</p> <p>A ruling, excluding a certified copy of an indictment in which another is charged as an accessory to the murder with which appellant stands charged can not be considered where the bill of exception does not disclose the’ purpose or reason for the introduction of such testimony.</p> <p>7.—Indictment—Manner and Means of Death Unknown.</p> <p>The fact that an indictment charging appellant with killing the deceased by ways, means and manner and by instruments to the grand jurors unknown, and returned on the 10lh day of September, is not disproved by another indictment returned on the 9th of said month that appellant and another acting as an accessory charging him with choking the deceased to death; and it does not follow that the grand jurors knew the means and manner of the death of deceased and that the indictment should have so charged.</p>

<p>Appeal from the District Court of Jefferson. Tried below before Hon. A. T. Watts.</p> <p>Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary.</p> <p>Ho statement necessary.</p>

Appeal (from the County Court of Hood. Tried below before Hon. K. H. Paul. Appeal from a conviction of aggravated assault; penalty, a fine of $25. The opinion sufficiently states the facts.

Tried below before Hon. W. J. Oxford. Appeal from a conviction of murder in the second degree; penalty, thirty-two years imprisonment in the penitentiary.

<p>1.—Charge of the Court—Manslaughter—Deadly Weapon.</p> <p>Where the evidence disclosed a sudden quarrel, in which appellant struck deceased with a sealing-weight, or piece of iron, weighing from three to six pounds, fracturing his skull and causing his death, it was error to submit this phase of the case on the theory that a sealing-weight is a deadly weapon, and this error is not cured in a subsequent charge instructing the jury that if they believe said sealing-weight was not in its nature calculated to produce death and was not used with intent to kill, to convict of aggravated assault.</p> <p>3.—Same—Manner of Use and Intent to Kill.</p> <p>Where the evidence disclosed a sudden quarrel in which the instrument used was not per se a deadly weapon, the jury should have been distinctly instructed that, if they believed the instrument used in the homicide was one not likely to produce death, in that event before they could find appellant guilty of any grade of feloneous homicide they must find from the manner of said use of said instrument that it was the evident intention of appellant to take the life of the deceased.</p> <p>3.—Same—Contradictory Instructions.</p> <p>It was error to charge if the jury believed that defendant voluntarily and unlawfully engaged in a combat with deceased, without any intention of killing or inflicting serious bod'lv iniury upon him, he would not be. guilty of any higher grade of offense than manslaughter; and such error rwas not cured by a subsequent charge that if the sealing-weight was not ■a deadly weapon, and defendant did not intend to kill deceased, he would be guilty of an aggravated assault.</p> <p>4.—Same—Negligent Homicide.</p> <p>Where the evidence showed a sudden quarrel in which defendant killed deceased with a piece of iron after he was challenged by deceased to fight, who according to some of the testimony asked for a knife, there is nothing in the case authorizing a charge on negligent homicide.</p>

<p>1. —Rape—Statement of Third Party Not Evidence.</p> <p>"The declarations of a third party made before the arrest of defendant in the presence of the accused and the prosecutrix, in which the conduct of the accused is criticised, but which do not serve to elucidate a conversation with or call for a reply from the defendant, are not admissible in evidence against him on a trial for rape.</p> <p>2. —Same—Evidence—Conduct Admissible When,</p> <p>The act or conduct of a defendant, where they are pertinent to some issue involved in the case, he not being under arrest, are always admissible against him; but not what some other person thought or said in regard to them.</p> <p>3. —Evidence—Declaration of Third Party Inadmissible.</p> <p>A State’s witness who was placed on the stand in rebuttal was asked whether she did not tell defendant, with reference to the conduct of himself toward prosecutrix, which occurred in witness’ tent, before defendant’s arrest, that if he could not behave himself in her tent, not to come in there where prosecutrix was any more. Held error.</p> <p>4. —Same—Opinion of Witness Not Admissible.</p> <p>It was error in a prosecution for rape to admit testimony implying an opinion of a county attorney of defendant’s guilt with reference to the conduct of the prosecutrix, when first called before such officer for a statement; that she then denied having had carnal intercourse with defendant, but admitted it when called a second time before said officer and placed under oath, and that thereupon he referred the case to the proper authorities; although the court instructed the jury that this testimony could not be considered as evidence of defendant’s guilt, but only in rebuttal.</p> <p>5. —Charge of the Court—Quoting Testimony.</p> <p>Whenever the court gives a charge reciting language of a witness, he should quote accurately the language used by the witness, and not interpolate his construction of such language.</p>

<p>The indictment charged that defendant appeared as a witness before the grand jury, was duly sworn as a witness and was interrogated concerning a certain matter then and there being investigated by said grand jury, to wit, the matter of disturbing the peace by one Bud Simons shooting a pistol in the town of Rio Vista at a certain time and place, and of unlawfully carrying said pistol then and there by one Bud Simons; and that thereafter defendant did unlawfully divulge by words to John Smith the matter about which he had been interrogated by the grand jury as a witness, to wit, did state to the said John Smith that he (defendant) had been before the said grand jury as a witness and that the said grand jury bad asked him (defendant) questions about some shooting in the said town of Rio Vista in said county and State, and that he told the said grand jury that he (defendant) knew of said facts, as he (defendant) had fired the first shot, and that the said matters were then and there divulged by the said defendant at a time when he was not required to testify before a judicial tribunal, against the peace and dignity of the State.</p> <p>The allegations were substantially proven as set out above, including dates, place and persons as therein stated. The defendant also introduced several witnesses, who testified that defendant when under the influence of morphine was not responsible for his acts, and that on the day upon which he is charged with having divulged said statement he made before the grand jury to said John Smith, he was crazy from the use of morphine, had fallen from his chair and was lying behind the stove, was picked up and put to bed, and remembered nothing next morning, etc.; that when in such condition he could not distinguish between right and wrong. Defendant testified that he was under the influence of morphine at the time he was charged with divulging the secrets of the grand jury and remembered absolutely nothing that occurred.</p> <p>The opinion states the issues presented.</p>

<p>Statement of Facts—Laches of Judge and District Attorney.</p> <p>Where defendant’s counsel had made out a statement of facts and endeavored to get the district attorney in the presence of the court to agree to it, who refused, and thereupon procured a twenty-day order to file same and repeatedly importuned the district attorney and the judge to prepare and file one, who both promised but failed to do so, and the judge retained appellant’s statement of facts during all that time, the judgment will be reversed and the cause remanded, on account of the failure of the judge to prepare and file statement of facts.</p>

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

<p>1i—Slander—Contemporaneous Statements.</p> <p>A statement made by one charged with criminal slander, if made at the time of the alleged slander, or shortly before or after, although not the same, but similar to the one set out in the indictment, is admissible to show with what intent the alleged slanderous words may have been uttered, but the court should confine the same to such purpose.</p> <p>2. —Same—Privileged Communications.</p> <p>The rule is well settled that a communication which would otherwise be slanderous and actionable is privileged if made in good faith upon a matter involving an interest, or duty of the party making it, though such duty be not strictly legal, but an imperfect obligation to a person having a corresponding interest or duty.</p> <p>3. —Same.</p> <p>Where S. approached his neighbor M. and asked him to take charge of his children, that he was going away, and being questioned by M. why, told him of the infidelity of his wife, there was no interest or duty on the part of S. to make such statement to M., and it was not privileged.</p> <p>4. —Same—Husband and Wife.</p> <p>The statute on the subject of slander is all-embracing and includes slanders perpetrated by the husband against the wife.</p> <p>5. —Same—Malice—Charge of the Court.</p> <p>Malice is a necessary ingredient of the offense of slander as defined under article 750, Penal Codé, and the court should have charged that unless the jury found from the evidence that the imputation was maliciously and wantonly made, notwithstanding it was false, they should acquit the defendant.</p>

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

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

The principal facts are substantially as stated in appellant’s brief, as follows: W. S. Wierman, State witness, testified that on the day of the difficulty he rode on defendant’s wagon with him from the Katy depot to town; that defendant told him that as soon as he delivered the freight on his wagon he was going back to the depot; that this was 'about an hour before the killing.

<p>The appellant in this case claims that he had been informed by his brother and Joe Lindley and others, prior to the shooting of the witness Homer Barrett, that he, Homer Barrett, had been having carnal intercourse with the wife of the appellant, and that the appellant did not believe it, and did not act on the information so received, but watched the parties, and on the night of the shooting the appellant’s wife did not come back from church, as she had promised the appellant to do, when she left him at home sick in bed and went to church, and he believed that something was wrong and went out to look for his wife, and found her in the company of the said Homer Barrett a good distance from home, sauntering along together with their arms locked together, and practically by themselves. That when he came upon them in this manner, and knowing that his wife should have gone home more than an hour before that time, he believed the information that he had previously received concerning their adulterous actions toward each other, and that aroused in his mind a strong passion that rendered it incapable for the time of cool reflection, and that while he was acting under the immediate influence of that passion he shot the witness Homer Barrett.</p>

From Van Zandt County. Original application for habeas corpus for release from an arrest for violating the local option law. The opinion states the case.

Apeal from the County Court of Hunt. Tried below before Hon. F. M. Hewton. Appeal from a conviction of selling intoxicating liquor to a minor; penalty, a fine of $25. The opinion states the case.

<p>1 .—Murder—Severance.</p> <p>Where two persons are separately indicted for the Same offense and one of them believes that his codefendant is not guilty, that he desires his testimony and makes the affidavit required by statute, the State can not continue the case against the party selected to be first tried and deny defendant making the application the benefit of the law. Following Forcey v. State, 29 Texas Crim. App., 410; Manor v. State, 8 Texas Crim. App., 867.</p> <p>~2.—Same—Continuance Does Not Defeat Severance.</p> <p>Where appellant presented to the court affidavit of severance asking that L„ who was separately indicted for the same offense, be first tried, stating the statutory grounds, it was error to refuse the application because the case against L. had been continued on the application of the State.</p>

<p>1. —Indictment—Variance.</p> <p>Where the indictment alleged that the accused appeared before the deputy-county clerk, A. L. K., and made a false affidavit, which affidavit is set out in full, and the jurat is signed A. K. by A. L. K., deputy, it does not import on its face that the affidavit shows that it was made out before a different officer in the purport clause from that in the tenor clause, and there is no variance.</p> <p>2. —Evidence—Official Character.</p> <p>The official character of the deputy county clerk can be shown by his own sworn statement, and resort need not be had to his written appointment and oath of office, although there was no error in admitting same in evidence.</p> <p>3. —Same—Marriage License—Deputy Cl-trk.</p> <p>A deputy county clerk under the law can do any act that the county clerk is authorized to do, and therefore is authorized to issue a marriage license, and the same is evidence of this fact.</p> <p>é4.—Same—License Limited to Identification.</p> <p>The marriage license which was issued to the accused upon his false affidavit may be introduced for the purpose of identifying him as the person to whom it was given by the officer issuing it, as well as by the one-executing it, but the court should have limited its consideration to the question of identity, if the purppse was so limited in its introduction.</p> <p>5. —Same—Comparison of Signatures.</p> <p>Where the genuineness of the signature to the alleged false affidavit was in issue, it was competent to admit in evidence an application for the process of witnesses, signed and sworn to by the accused, to be used as. a standard of comparison, either by the introduction of expert testimony thereon, or by comparison by the jury, as' evidence to identify him as the party who signed the false affidavit. Qualifying Chester v. State, 23 Texas Crim. App., 577.</p> <p>6. —Charge of the Court.</p> <p>In a prosecution for false swearing, the court should define in its charge: the word “deliberately,” as well as the word “willfully.”</p>

<p>1. —Evidence—Statement of Deceased Witness.</p> <p>A statement oí a witness who had died since the commission of the homicide, purporting to have been made in the presence and hearing of defendant, but to which statement the latter did not assent to make it his own, although he did not object to same, is not admissible against him on the trial for said homicide; even had said witness testified to the facts and had since died, unless by defendant’s silence he .made it his own.</p> <p>2. —Same—Contradiction.</p> <p>An unsworn statement of a witness who had died since the commission of the homicide, purporting to have been made in the presence and hearing of the defendant, but to which the latter did not agree, although he did not expressly object thereto, is not admissible against him to contradict him on the trial for said homicide.</p> <p>3. —Bill of Exceptions—Statement Under Arrest.</p> <p>Unless the bill of exception • shows as a fact that appellant was under arrest at the time and had not been properly warned, and this is merely raised by an objection, the ruling of the court will not be reviewed, especially where the court states that appellant was properely warned, and a statement made by appellant although not exactly contemporaneous in point of time with such warning is admissible.</p> <p>4. —Same—Impeachment.</p> <p>The appellant could not show on cross-examination of a witness, that certain of the relatives of the deceased had attempted to bribe witness to poison the wife of deceased to prevent her giving testimony in the case, unless said relatives had been placed on the stand against appellant, and such evidence could have been used to impeach them.</p> <p>5. —Charge of the Court Criticised.</p> <p>The use of the word “reasonably” would have been better than the word “actually” in a charge on the issue of self-defense, which instructed the jury that the appellant must have actually believed a certain state of facts.</p> <p>6. —Same—Perfect and Imperfect Right of Self-Defense.</p> <p>The court should have given a clear charge, setting forth the theories, as to whether defendant had a perfect or .only an inperfect right of self-defense, where the evidence raised the issue whether he called on the wife of the deceased for a lawful or an unlawful purpose and there provoked an assault upon himself by the deceased.</p> <p>7.—Same—Manslaughter—Imperfect Right of Self-Defense.</p> <p>If. the evidence raised the issue of imperfect self-defense, and that appellant went to the house of the deceased to seek a clandestine meeting with the latter’s wife, it would be the duty of the court to charge on manslaughter.</p>

Tried below before Honi. John B. Thomas. Appeal from a conviction of an aggravated assault; penalty, a fine of'$50 and one month confinement in the county jail. Ho' statement necessary.

<p>This case was before this court on a former appeal, which contains a statement of the facts of the case, as they substantially appear in the present record. Connell v. State, 45 Texas Crim. Rep., 142.</p>

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

The evidence of the State showed that defendant, according to his quarterly report, had received and in his possession at that time a balancp of more than $3000 for which he did not account; this was corroborated by the finance ledger kept by the county clerk.

<p>1. —Confession—Murder—Res Gestae.</p> <p>Where the defendant made a statement without warning to the officer who had arrested him, a few minutes after the homicide, while he was still excited from the occurrence, and such statement was freely and voluntarily made to the effect that he was, not sorry he shot the deceased, it Wfas admissible not as a confession but as res gestae.</p> <p>2. —Charge of the Court—Adequate Cause—Manslaughter.</p> <p>Where the court's charge on manslaughter confined adequate cause to provocation which arose at the time of the commission of the homicide and guarded the jury against former provocations, and the evidence showed previous threats by deceased against defendant, and that not a great while before the tragedy the defendant and deceased had a previous unpleasant wordy altercation, and later as defendant was returning, home deceased met him and struck him a lick which caused' pain and bloodshed, and that thereupon they got into a wrangle which ended in the death of deceased, it is herd that said charge was too restrictive.</p> <p>3. —Argument of Counsel.</p> <p>See opinion for criticism of unwarranted statements by counsel which tend to influence the minds of the jury.</p>

<p>The charging part of the indictment is in words and figures as follows, to wit: “That E. G-. Scales, composing one of the members of the company of E. C- Scales & Co., whose other names that composed said company are unknown to the grand jury, after making diligent inquiry in said county and State, on the 1st day of July, A. D. 1903, and before the presentment of this indictment, did then and there unlawfully and on each succeeding day thereafter till the 1st day of Juty, A. D. 1903, conduct, carrjr on, and transact a business commonly known as dealing in futures in cotton, grain, lard, meats, agricultural products and corporation stocks, and did then apd there unlawfully keep a house, and manage, conduct, carry on, and transact a business commonly known as a produce and stock exchange, and as a bucket shop, where future contracts were then and there bought and sold, with no intention of an actual bona fide delivery of the articles and things so bought and sold, against the peace and dignity of the State."</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

The facts are substantially stated in appellant’s brief, as follows: After the difficulty of the previous day, in which Dr. J. R. Cox and Isom Chandler shot at each other several times, and in which the State claimed the appellant participated as a principal, which claim the jury sustained on the trial of that case, both Cox and appellant were arrested and taken from the village of Swift to the town of Nacogdoches, ten miles away. Here they made bond.

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

<p>T.—Practice—State’s Duty to Place Eyewitness on Stand When.</p> <p>Where the proof was positive that appellant killed deceased, and the State introduced his own evidence adduced on a former trial and relied on the circumstances as narrated by him, it was not required on behalf of the State to place the son of defendant on the witness stand because he was an eyewitness to the homicide and not friendly to his father.</p> <p>2. —Evidence—Son’s Animus Towards Father Immaterial.</p> <p>The court did not err in not permitting defendant to show that his son had procured his arrest, to prove the son’s ill will against his father; the son not being a State’s witness, and there being no testimony that he had influenced other witnesses to testify untruthfully against defendant, or any statement in defendant’s bill of exception to that effect.</p> <p>3. —Same—Statement by Nonparticipant Not Res Gestae.</p> <p>A statement by the son of the defendant. shortly after the homicide that Hertie, his sister, was safe, but he, defendant, had killed old Tom Sallee, the deceased, was niot admissible as res gestae, it being made by one not a participant in the homicide, and a statement in narrative form showing in itself a past transaction.</p> <p>4. —Same—Declaration of Outsider Inadmissible.</p> <p>The statement of defendant’s son that he ought to take his gun and kill eld Tom Sallee, the party alleged to have been killed, shortly before the homicide, in the absence of defendant and in the absence of testimony that the son and his father acted together in the homicide, was inadmissible.</p> <p>5. —Evidence—Insanity—Bill of Exception.</p> <p>Where the bill of exception failed to show the acts or conduct of defendant upon wh'ch a nonexpert witness based her opinion that he was insane and beside himself at the time of the homicide and did not know what he was doing, such opinion was correctly excluded as evidence.</p> <p>6. —Same—Issue of insanity Not Raised by the Evidence.</p> <p>Where the witnesses all stated that defendant was very angry when he learned that his daughter had been abducted, but none testified that his frenzy was of that degree which indicated that he did not know the right and wrong of the act he was perpetrating, there was no error in refusing to instruct the jury on insanity of the defendant.</p> <p>7. —Charge of the Court—Manslaughter—Adequate Cause.</p> <p>Where the evidence showed that two years before the homicide deceased had married one of defendant’s daughters against his will, and he had induced another daughter shortly before the homicide to elope, and that defendants’ wife informed defendant that deceased had debauched his younger daughter and induced her to elope and get married, and that thereupon defendant killed his son-in-law, it was error to confine adequate cause to the information thus given him by the wife in a charge on manslaughter.</p>

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

<p>1.—Perjury—Commission to Take Deposition—Waiver.</p> <p>In a prosecution for perjury for making a falsé answer to an interrogatory in a civil suit, it was no valid objection that the officer taking the deposition was not legally authorized to take the same, in the absence of a commission from the court wherein the said suit was pending, it appearing that the depositions were taken under a written agreement of the parties to said suit, waiving such commission.</p> <p>2. —Indictment—Venue. „</p> <p>Where the venue is alleged in stating the facts constituting the offense, it is not necessary that there should he a direct allegation of venue in the indictment.</p> <p>3. —Evidence—Records—Certified Copies.</p> <p>Whenever a statute requires that a record should be kept by law, then the record itself and not certified copies is the best evidence, although certified copies of such records shall be deemed as evidence in all causes where the records themselves would be admissible; the record and original papers of the district court of any county and not certified copies thereof is the best evidence. Following Rainey v. State, 20 Texas Crim. App., 455.</p> <p>4. —Evidence—Filing of Depositions.</p> <p>Papers are filed within the meaning of the law when they are delivered to the clerk for the purpose of being filed, and it was therefore not necessary in an agreement waiving the issuance of a commission to take deposition, that the filing of same should he waived.</p> <p>5. —Same.</p> <p>The offense of perjury was complete when the deposition containing the alleged false answers were taken, and the filing of same were not required to complete the offense.</p> <p>6. —Charge of the Court—Assignment of Perjury—General Verdict.</p> <p>Where either of the assignments of perjury was material and the proof is sufficient to sustain either of the material assignments and a general , verdict of guilty is rendered, the conviction will not he disturbed, although immaterial assignments may have been submitted to the jury.</p> <p>7. —Practice—Punishment Under Repealed Statute.</p> <p>Where appellant does not avail himself by proper bill of exception or motion for new trial of an error of the court in charging the jury to assess the punishment for perjury under the repealed law, which was not less than five nor more than ten years, whereas the existing law fixes the penalty at not less than two, nor more than ten years, and the jury fixed the penalty at seven years in the penitentiary, the verdict will not be disturbed. j Davidson, P. J., dissenting.</p>

The shooting occurred at a Mexican dance on the night of December 24, 1903, at Inez, in Victoria County. Defendant first got into a quarrel with Dr. Ledford, and was drinking. Jack Birmingham, the party alleged to have been injured, was in the house when the defendant and the doctor were having some trouble out in the yard near a fire where a Mexican woman was cooking tamales.

<p>Information—Name of County Attorney.</p> <p>Where an information states a different name in the beginning of the information to the one at its close, and it appears to all reasonable intendment and certainty, when construed with the affidavit, that this was an inadvertence and the correct name appears at the concluding part of the information, the same is good on motion to quash.</p>

The testimony is very voluminous, being largely circumstantial, except as to the testimony of the wife of the deceased, who from her own testimony shows that she conspired with one A. J. Carbough and appellant to kill her husband, the deceased. Her testimony in chief is set out in the opinion, as also such other facts which illustrate the points at issue.

<p>"L—Accessory After the Fact.</p> <p>No one can be an accessory after the fact in this State, such as disqualifies him as a witness, unless he comes within the letter and spirit of article 86, Penal Code, that is, he must give some aid and assistance to the principal before he can be guilty; he must conceal the offender, or give him some other aid in order that he may evade arrest or trial.</p> <p>2. —Same—Agreement Not to Prosecute.</p> <p>Testimony to the effect that the State’s witnesses had made an agreement to conceal the alleged offense of forgery of a check by defendant, and for a consideration had agreed with defendant’s father not to prosecute his son, was not admissible to show that said witnesses were accessories after the fact to the crime under investigation, but could only be used for the purpose of impeachment. Overrruling Gatlin v. State, 40 Texas Crim. Rep., 116.</p> <p>3. —Same—Independent Criminality Necessary.</p> <p>In order to make one gu'Jty as an accessory after the fact, there must "be some independent criminality, such as furnishing a horse, a weapon, or disguise, or concealment of the offender, to enable the principal to •escape, or evade arrest and trial, after the commission of the crime.</p> <p>•4.—Evidence—Self-Serving Declarations.</p> <p>The declaration of defendant upon being informed that he was accused •of forging a check, to the effect that he had been authorized to sign the •check and draw the money, made several hours after the check had been cashed, is purely hearsay and self-serving and not admissible in evidence.</p> <p>5.—Evidence—Opinion of Witness Not Evidence.</p> <p>The belief of a witness as to the character of the charge against the defendant, that it amounted to nothing, and if he would testify in another case, that witness would go on his bond and help employ counsel for him, •etc., was inadmissible in evidence; a want of belief of witness in the guilt of defendant can not be shown.</p> <p>S.—Charge of the Court—Favorable to Defendant.</p> <p>A charge not calculated to injure the rights of defendant does not constitute reversible error, and there was no error in a charge which instructed the jury to acquit the defendant in the event he had had a certain conversation with the party alleged to have been defrauded and that he had no intent to defraud him in making the check.</p>

<p>1. —Information—Aggravated Assault.</p> <p>Where the information alleges an aggravated assault by an adult male upon a female it is sufficient.</p> <p>2. —Name of Injured Party—Evidence—Variance.</p> <p>Where the information alleged the name of the injured party to be Mrs. G. W. Stokes, and the evidence was that her name was Elisa Comella Stokes, but that her husband’s name was G. W. Stokes and she was sometimes called by her husband’s name, there was no variance between the allegation and the proof.</p> <p>3. —Charge of the Court—Variance—Same.</p> <p>Where a wife is sometimes called by her husband’s name, she is known by that name, and this according to article 444, Code of Criminal Procedure, is sufficient, and it is not necessary that she be commonly known by that name, and a special instruction that unless there was evidence that she was so commonly known to acquit defendant was correctly refused.</p> <p>4. —Charge of the Court—Self-Defense.</p> <p>Where the court charged on self-defense, it was. not necessary to ” give defendant’s special instruction to the effect that if defendant in an effort to prevent the injured party from making a disturbance used no greater force than was necessary, to acquit.</p>

Tried below before Hon. Irby Dunklin. Appeal from a conviction of theft of cattle; penalty, four years imprisonment in the penitentiary. The State proved that four steers were taken out of the pasture of 3. W. Corn; the ranch or pasture was in the care, management and control of his son, W. L. Corn, who was alleged to be the owner of and in possession of the said cattle or beeves.

From Navarro' County. Original application for habeas corpus, for release from arrest by chief of police of city of Corsicana, appointed by a commission appointed by the Governor under special charter; the arrest being for violation of State Sunday law. The opinion states the case.

Tried below before Hon. W. H. Pope. Appeal from a conviction of murder in the first degree; penalty, death.

<p>1. —Assault with Intent to Rape—Evidence—Credibility of Witnesses.</p> <p>It is permissible on part of the State to show that certain witnesses for defendant had not testified at a former trial, as going to the, credibility of said witnesses.</p> <p>2. —Argument of Counsel—Accidental Remarks.</p> <p>Where the State’s attorney in his argument inadvertently used the words “former conviction,” and immediately corrected himself, and the court also instructed the jury to disregard said remarks, there was no error.</p> <p>3. —Same—Special Charge Necessary.</p> <p>Unless the language used by counsel is of such a character as obviously to require a reversal, it is held that the court will not reverse in the absence of a requested charge and a refusal to give same.</p> <p>4. —Charge of the Court—Impeaching Testimony—Caution.</p> <p>The propriety of the court in any case to charge on impeaching testimony and instructing the jury how to weigh it is doubted, unless there be some occasion to limit the purpose of the testimony.</p> <p>5. —Same—On Weight of Evidence.</p> <p>It is error to assume in the court’s charge that certain witnesses have contradicted others, and especially so, when in fact there is no contradiction.</p> <p>6. —Evidence—Intent to Succeed at All Hazards the Test.</p> <p>There must be sufficient evidence to authorize the jury to believe that it was the intention of the accused charged with rape, to have intercourse with the party alleged to have been assaulted, at all hazards, and that he intended to use sufficient force to accomplish his purpose, notwithstanding any resistance the party assaulted might put forth.</p> <p>7. —Same.</p> <p>See opinion for evidence held to be insufficient to sustain a conviction for assault with intent to rape.</p>

Tried below before Hon. Tom C. Davis. Appeal from a conviction of burglary; penalty, thirty years imprisonment in the penitentiary.

<p>1. —Indictment—Forgery—Innuendo.</p> <p>In an indictment for the forgery of a voucher against a telegraph and telephone company by its cashier for wages and salaries, set out in haec verba, the terms “wages and salaries, pay roll December 486/90,” occurring therein should have been explained by innuendo or explanatory averments and not left to inference.</p> <p>2. —Same—Variance.</p> <p>In an indictment for forgery of a voucher, set out in haec verba, against a telegraph and telephone company by its cashier, in which it is shown that his name also appears as auditor on said voucher, the variance should be explained by proper averment.</p> <p>3. —Same—Voucher Set Out Should Be Explained.</p> <p>An indictment alleging the forgery of a voucher against a corporation by its cashier, by simply setting out the voucher in haec verba, should by proper innuendo allege the official capacity of its president, auditor and cashier and not leave this matter to inference.</p> <p>4. —Variance Between Allegata and Probata.</p> <p>The name of the local manager of a corporation against whom a voucher was alleged to have been forged appeared on said voucher 'as set out in haec verba in the indictment, but it was not alleged that he was in flact such manager, which the evidence showed him to be; neither does the receipt set out in the indictment fix its date or allege the signature, which under the evidence it was necessary to show and which should have been explained by proper averments.</p> <p>5. —Evidence—Other Offenses.</p> <p>Where there was no question as to the signature of an alleged forged voucher by defendant, it was error to permit the State to introduce other similar blank vouchers found on his person for the purpose of connecting defendant with the forgery for which he was being tried.</p> <p>6. —Same—Payment of Voucher Immaterial.</p> <p>It was wholly immaterial, to show the payment of a forged voucher, to prove that it had been forged or passed, or to account for its loss, as the cashing of the instrument could not shed light on either question.</p>

Tried below before Hon. Geo. W. Kyser. Appeal from a conviction of an aggravated assault; penalty, a fine of $50 and twenty days confinement in the county jail. The information charged the defendant with committing an aggravated assault upon his son of the age of 17 years, and that he used a quirt and inflicted serious bodily injury upon him.

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

<p>From Fannin County.</p> <p>Original application for habeas corpus for bail.</p>

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

<p>The opinion sufficiently states the facts.</p>

<p>1. —Transcript from District to County Court.</p> <p>When the State has shown that a case bearing a particular number was returned into the district court for the offense of “selling liquor to a minor,” and this particular number charging the same offense was transferred to the county court, the burden cast on the State to show that the particular case was transferred was sufficiently discharged, in the- absence of some further showing of a variance on part of the defendant.</p> <p>2. —Evidence—Previous Sales—Selling Liquor to Minor.</p> <p>Unless previous sales tend to show knowledge of minority of prosecutor on the part of defendant charged with selling liquor to a minor, or some circumstances in connection with such sales which put defendant on inquiry of prosecutor’s minority, they are not admissible in evidence.</p> <p>3. —Same—Appearances Indicating Minority.</p> <p>While it was permissible to show by witness the facts connected with the prosecutor’s personal appearance, as indicating whether he appeared to be a minor, it was not competent to show that from the physical appearance of prosecutor at a certain time he did not seem to be such person as that a prudent man would have taken him to be a minor at that time.</p>

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

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

<p>1. —Habeas Corpus—Practice After Arrest.</p> <p>Whenever a party accused of crime is arrested, it is the duty of the! officer to take him before the proper court, to be dealt with as provided by our statutory law; and any waiver on his part must be either by himself or by counsel representing him.</p> <p>2. —Same—Constable Not Authorized.</p> <p>A constable is not authorized to act as an attorney and enter a plea of guilty for a party accused of crime, or to compromise with him.</p> <p>3. —Same—Void Judgment.</p> <p>Where a constable arrested relator for carrying a pistol, placed him in jail and thereupon entered a plea of guilty for him, before a justice of the peace, the judgment upon such plea is void, whether authorized by the relator or not.</p>

<p>1. —Bribery—Justice of the Peace—Indictment.</p> <p>An indictment for bribing a justice of the peace for not causing the arrest of a person accused of carrying on and about his person a pistol, should allege that it was for unlawfully carrying such pistol.</p> <p>2. —Same—When Guilty of Bribery.</p> <p>Where it is shown that a justice of the peace had good cause to believe that a person was guilty of the offense of unlawfully carrying on and about his person a pistol, while there was no statute authorizing him directly to cause his arrest, he was authorized to summon witnesses, and if it developed that such person was probably guilty of such offense, it became his duty to have him arrested and tried, and if the justice in consideration of a bribe failed to institute proceedings, he would be guilty of bribery regardless of the actual guilt of the person to be arrested and tried.</p> <p>3. —Indictment—What It Should Allege.</p> <p>See opinion for allegations required in an indictment against a justice of the peace for accepting a bribe not to cause the arrest and trial of a person guilty of unlawfully carrying a pistol,</p> <p>4. —Accomplice—Charge of the Court.</p> <p>Where the evidence showed that a deputy sheriff, knowing the facts, received half of the amount of the money with which it was alleged the justice of the peace was bribed, the former was an accomplice and it was error not to so instruct the jury.</p>

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

Tried below before Hon. B. T. Rose. Appeal from a conviction of willfully failing and refusing to work a public road; penalty, a fine of $1.

<p>1. —Confession—Tracks.</p> <p>Where the evidence showed that the sheriff who had arrested appellant took him to the place where the track was and ordered him to take his shoe from his foot, and appellant obeyed, and the sheriff put the shoe in the track and it fitted exactly, the question of confession while under arrest is not involved. Following: Thompson v. State, 8 Texas Ct. Rep., 32.</p> <p>2. —Circumstantial Evidence—Charge of the Court.</p> <p>If the facts are not of sufficient cogency in their nearness and proximity to the immediate transaction, the court is not relieved of the duty of charging the law of circumstantial evidence.</p> <p>3. —Same.</p> <p>See opinion for evidence held to require a charge on circumstantial evidence.</p> <p>4. —Indictment.</p> <p>Where the indictment charged the theft of “one head of hogs,” a motion to qua'sh because of pleading not being grammatical is hypercritical.</p>

<p>1. —Charge of the Court—Provoking the Difficulty.</p> <p>A judge should not give a charge on provoking the difficulty in the absence of facts raising that issue, as such a charge destroys or limits the right of self-defense; and the court in charging on provoking the difficulty should indicate to the jury some definition of what it takes to provoke a difficulty.</p> <p>2. —Same—Reversible Error, Unless Defined.</p> <p>A charge of the court in,' which the court instructs the jury simply that if appellant provoked the difficulty, without defining what it takes to provoke it, that is that some act or language, or both were used, by defendant with intent to produce the occasion and bring on the difficulty, etc., is reversible error.</p>

<p>The opinion sufficiently states the facts.</p>

<p>1. —Charge of the Court—Self-Defense.</p> <p>Where the evidence showed that the prosecutor assaulted defendant first, using his bare hands and fists, a charge limiting the right of self-defense to the reasonable apprehension on part of defendant of serious injury is error.</p> <p>2. —Same—Serious Injury Not Necessary.</p> <p>One has the right to defend himself against any character of unlawful assault, whether it portends serious injury, or less than what might be deemed serious injury. Following: McLendon v. State, 66 S. W. Rep., 553.</p> <p>3. —Same—Provoking the Difficulty.</p> <p>Where the issue is not raised by the evidence, it is error to charge on. provoking the difficulty.</p> <p>4. —Same—Mutual Combat.</p> <p>See evidence in opinion for testimony which was held not to raise the issue of mutual combat.</p>

<p>The State showed that cards had been played in a gambling house over the saloon on the front door of which appeared the name of Field & Crippen, and that it was generally understood that the defendant George Crippen was the owner of the business, but witnesses did not know; but that it was known by reputation as being Crippen’s saloon. Beer was sold to Field & Crippen and checks signed by them in payment thereof. Liquor dealer’s bond was also signed by them- and defendant admitted that he had plead guilty to gaining in two cases.</p>

<p>No statement necessary.</p>

The information charged defendant with adultery. The court instructed the jury to acquit him of that offense and to proceed and determine from the evidence whether he was guilty of fornication and then defined that offense, etc. The State proved by several witnesses that for the last three or four months previous to the charge, one Rosa Sanches lived with defendant; that they lived as man and wife and that they had intercourse with each other and slept together as man and…

The indictment charged defendant with the theft of two twenty-dollar bills and one ten-dollar bill, properly describing same and alleging value, from M. W. Taylor, the owner, etc., in the usual form. The opinion states the substance of the testimony as applicable to the points at issue.

The evidence is quite voluminous and circumstantial in character. • There were no eyewitnesses to the homicide. The deceased was a young man who on the morning of the killing was taken over to his new home by his father, who went on further to the town of Pittsburg in a wagon. His son got pif near an old vacant house on his place to build a fence.

Tried below before Hon. S. C. Coffee. Appeal from a conviction of violating the local option law; penally, a fine of $25 and twenty days confinement in the county jail.

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

Defendant’s supplemental motion for new trial supported by affidavit of himself and his attorneys, shows that for several hours and during the greater portion of the argument of counsel both for the State and defendant, the presiding judge was in his private room with the door closed and not within sight or hearing of defendant, his attorneys and the jury who tried the case.

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

The following statement taken from appellant’s brief is substantially correct: Appellant was tried in the County Court of Parker County at the December term, 1903, upon an information and complaint charging him with unlawfully gaming, to wit, unlawfully playing at a game with cards, on the 26th day of November, 1903.

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

<p>From Karnes County.</p> <p>Original application for habeas corpus for release from commitment in default of paying a fine of $500 and costs assessed upon a conviction for seduction.</p>

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

Tried below before Hon J. IC. P. Gillaspie. Appeal from a conviction of theft; penalty, three years imprisonment in the penitentiary. No statement necessary.

The testimony for the State establishes an unprovoked killing with a gun. The defense introduced testimony that defendant was very drunk at the time of the homicide; also that defendant was addicted to the use of cocaine, morphine and other narcotics. Defendant testified that deceased struck him on the head with a whip, but the witnesses for the State testified that the deceased was doing nothing at the time.

<p>Charge of the Court.</p> <p>Where defendant was charged with slander of a female, imputing to her a want, of chastity, it was error to refuse the requested charge, that before the jury could find him guilty, that they must believe beyond a reasonable doubt, not only that the alleged false words were uttered by him, but that they were uttered maliciously and wantonly in the legal sense and signification of those terms, defining them.</p>

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

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

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

<p>1. —Charge of the Court—Ownership—Theft.</p> <p>Where the evidence showed that the party alleged to be the owner of the cattle stolen was the superintendent of a corporation and had charge - of all of their interests in Texas, including the cattle, and that the alleged cattle were at the time they were taken by defendant in one of the pastures of said corporation, it was not error to charge that cattle running in their accustomed range were in possession of their owner.</p> <p>2. —Evidence—Ownership—Agent—Range.</p> <p>Where the evidence showed that the superintendent of a corporation had charge and full control of all the company’s interests in the State and that the cattle alleged to have been stolen were taken from one of the company’s pastures, it was sufficient to prove that the superintendent was-the owner of said cattle as alleged and that they were in his possession when taken.</p> <p>3. —Charge of the Court—Confusing Instructions.</p> <p>Where the court charges the jury in one portion of his charge that if they believe certain statements made by defendant to acquit him, and in another portion assumes such statement to be a confession of guilt which requires conviction if corroborated by other evidence, a conviction will be set aside.</p> <p>4. —Same—On Weight of the Evidence.</p> <p>A charge which assumes the statement of defendant made before a grand jury as a witness, as well as other statements by him, to be clon- ' fess’ons of guilt is on the weight of the evidence, and erroneous.</p> <p>5. —Same—Accomplice.</p> <p>Where the evidence shows that the State’s witness assisted defendant, who was charged with theft of certain cattle, in taking, driving and milking the cows and branding the calves alleged to have been stolen, the court should have charged on the corroboration of the testimony of an accomplice.</p>

<p>Practice—Epileptic Fit—Affidavit.</p> <p>Where, upon motion for new trial with affidavits attached, the trial court decided the question as to whether defendant was unconscious during his trial from the effects of an epileptic fit, against him, the question was one in the discretion of the trial court.</p>

<p>1. —Indictment—Selling Liquor to Minor Knowingly.</p> <p>Where the indictment alleged that the defendant did then and there unlawfully and knowingly sell, etc., intoxicating liquor to a minor, it sufficiently charges him with knowledge of minority of the minor.</p> <p>2. —Evidence—Stepfather May Give Permission.</p> <p>Where the evidence showed that the defendant had written permission from the minor’s stepfather to sell him intoxicating liquor, the prosecution for unlawfully and knowingly selling intoxicating liquor to a minor fails, notwithstanding the minor’s mother objected.</p>

Tried below before Hon. 0. A. Mills. Appeal from a conviction of simple assault; penalty, a fine of $5. The following statement is taken from appellant’s brief and is substantially correct: At the December term, 1903, of the District Court of Zavala County, the grand jury appears to have found a true bill of indictment against the defendant in this case, charging him with the offense of aggravated assault.

The opinion sufficiently states the case. It appears from the record that a sudden difficulty arose between the defendant and the deceased in which the former used a knife, inflicting mortal wounds upon the deceased, from the effects of which he immediately died. The voluminous testimony is conflicting, as to who struck the first blow, the deceased or the defendant.

From appellant’s brief is taken the following correct, statement of the case: This is a conviction for bigamy with a punishment assessed at confinement in the penitentiary for a term of three years. The first marriage of defendant was in the city of Hew Orleans in October, 1902. He abandoned this wife and the latter part of January, 1903, located in Greenville, Texas, where on November 30, 1903, he was married to Miss Mattie Jennings.

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

Tried below before Hon. A. T. Watts. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary.

<p>1. —Continuance—Murder.</p> <p>Where the State proved by two or three witnesses that appellant fired one or more shots at deceased, it was material for the defense to show by the absent witnesses that appellant’s pistol had not been fired, and the motion for continuance should have been granted.</p> <p>2. —Threats—Unconnected Statement Inadmissible.</p> <p>An isolated statement by defendant that if he had found the party he ■was looking for he expected he would be in jail, without other evidence showing or tending to show that it had reference to the deceased was inadmissible.</p> <p>3. —Evidence—Res Gestae.</p> <p>There was no error in admitting the testimony of the State’s witness as to a conversation had between B., -the participant on defendant’s side in the homicide, and the defendant, to the effect that immediately after the firing ceased and while B. was still alive on the gallery, appellant approached him and spoke to him, and B. said to him, “Toil are the cause of my getting killed,” to which defendant replied, “Tau ought not to have gotten into it,” as res gestae.</p> <p>4. —Same—Statement Calling for Reply.</p> <p>Where a participant in the homicide on defendant’s side was mortally wounded and defendant approached him and spoke to him, what the participant said and which called for some reply from defendant, and the fact that he did not reply was admissible against defendant as evidence.</p> <p>5. —Charge of the Court—Principals.</p> <p>Where the evidence raised the issue on the law of principals, a charge on that phase is authorized, and the court was not required in that connection to single out the views in defendant’s special instruction to the effect that unless he fired his pistol during the difficulty, or entered the building where deceased was' killed, after it began, to acquit him.</p> <p>6. —Same—Abandoning' Difficulty.</p> <p>Where the evidence authorizes a charge on an abandonment of the difficulty, the court should further instruct the jury that if the accused did not reasonably believe that the deceased had withdrawn from the difficulty, but by his retreating was seeking a vantage ground to renew the attack, then the accused would have the right to follow him up in order to protect himself.</p> <p>7. —Same—Converse Propositions.</p> <p>Where defendant and another are shown to have participated in the homicide, a charge that if one did the killing and defendant aided him by words or acts that defendant would be guilty, is proper; but the jury should have been further instructed that if the one did the killing and defendant did not encourage him by acts or words, or if the one did the killing in self-defense, the defendant would not be guilty of any offense.</p> <p>8. —Same—Provoking the Difficulty.</p> <p>See opinion for the facts which do not raise the issue of provoking the difficulty, and that a charge thereon was not authorized.</p>

<p>Adultery—Evidence.</p> <p>See opinion for evidence held to be insufficient to support a conviction for adultery, by means of habitual sexual intercourse.</p>

<p>Appeal from the District Court of Halmilton. Tried below before Hon. W. R. Lindsey.</p> <p>Appeal from a conviction of rape on a female under the age of 15 years; penalty, seven years in the penitentiary.</p> <p>Ho statement necessary.</p>

<p>Appeal from the County Court of Lavaca. Tried below before Hon. C. J. Gray.</p> <p>Appeal from a conviction of compounding crime; penalty, a fine of $100.</p> <p>Ho statement necessary.</p>

Tried below before Hon. P. A. Turner. Appeal from a conviction of theft of a horse; penalty, two years imprisonment in the penitentiary. Ho statement necessary.

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

Tried below before Hon. George Calhoun. Appeal from an order remanding relator to custody on proceedings by habeas corpus refusing bail. Ho statement necessary.

<p>The State’s testimony showed that a burglary was committed at the time and place alleged in the indictment and that some money and jewelry were stolen. That one bracelet which was said by his sister to have been in defendant’s possession was identified; the other articles,, • while similar in appearance to those which were stolen, could not be identified positively. Witness also testified that defendant traded off and gave away some jewelry which looked like that alleged to have been stolen, and paid off some debts which he owed on his place. Defendant’s mother testified and contradicted the main State’s witness as to the secreting of jewelry on defendant’s premises. The testimony as to the identity of the property and defendant’s connection with the burglary was all circumstantial, except that of his sister.</p> <p>The opinion sufficiently states the case, as applicable to the points at issue.</p>

Tried below before Hon. B. J. Word. Appeal from a conviction of unlawfully injuring and breaking the fence of another, a fine of $10. The opinion states the case.

<p>Habeas Corpus—Dismissal—Appeal.</p> <p>The order of the court sustaining a motion to dismiss an application for habeas corpus is equivalent to a refusal by the lower court to grant the writ in the first instance, and an appeal from said order does not lie.</p>

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

The testimony for the State shows that C. H. McCarty, who was charged as the principal in the indictment, hired a two-horse buggy from Henry Walker, the agent of John Gilbert, who kept a livery stable, saying he wanted to go to take his sister to Granbury, Texas, andi^ would be gone two days. The appellant was not with him at that time, but was seen later riding in the hired buggy with McCarty.

<p>Ho statement necessary.</p>

<p>The opinion sufficiently states the facts as applicable to the issues involved in the case.</p>

From Smith County. Original - application for habeas corpus for release of a commitment ‘ for contempt, for publishing in a newspaper an article reflecting on the proceedings in the county court. TEe opinion states the case.

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

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

<p>Gaming—Private Residence—Dugout.</p> <p>Where on a trial for playing at a game of cards in a dugout not a private residence, it was shown that the same was used occasionally in connection . with the house, the same was an outhouse within the contemplation of the statute where gaming is prohibited.</p>

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

AI. Allsup, the party who was with deceased when he was shot, and who made the arrest, testified that about dusk on the day of the killing the town marshal told the deceased and witness to go and arrest the defendant. Deceased (Jordan), McCoy, the marshal and witness went to where defendant was, near the grain house. The defendant had a gun in his hand and his hat off, swearing and singing. “I told him we had come to arrest him and we did not want any trouble.

About the time alleged in the information prosecuting witness went to defendant’s place of business in Weatherford, Texas, and asked him to order her some alcohol, banding him $1.35 to pay for it, the express charges and money order. Defendant agreed to do so and told witness to return next day for it. He stated next day that orders from Mineral Wells were coming in too slow and that he ordered the alcohol from Port Worth, and that it had not yet arrived.

The deceased had just returned to his home from Milford the day he was killed, about two hours before sundown. Just before night he took two water buckets and went to the spring for water; soon after he was gone several pistol or gunshots were heard by his wife and others, in the direction of the spring.

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