Volume 47 — Texas Criminal Reports

<p>1. —New Trial—Amended Motion for New Trial.</p> <p>It- is within the sound discretion of the court to permit amended motions for new trial to be filed after the time of two days allowed by law has expired, and where an amended motion for new trial, filed after the two days had elapsed for the filing for new trial, was upon motion of the State struck out, there was no error.</p> <p>ON REHEARING.</p> <p>2. —Motion for Rehearing—Time of Riling.</p> <p>Where a motion for rehearing was received by the clerk of the Court of Criminal Appeals seventeen days after the rendition of the opinion, it will not be considered, the rule and statutes requiring that such motion shall be filed within fifteen days after the rendition of the opinion.</p>

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

<p>1. —Continuance—Testimony Not Probably True.</p> <p>Where the testimony of the absent witnesses as stated in an application for continuance, if material, was not probably true in thé light of the record, there was no error in overruling the application.</p> <p>2. —Confessions—Warning—Submitting Issue to Jury.</p> <p>Where _ by reason of apparent contradiction as to whether the defendant was properly 'warned before making a statement, there was no error that the Question was submitted to the jury by a charge of the court, to the effect that unless they found from the evidence beyond a reasonable doubt that the witness warned defendant that his statement could be used against him and not “for or against him” they should not consider such confession.</p> <p>3. —Same—"Voluntary Statement—Answer to Statement.</p> <p>The mere fact that the witness informed appellant that his codefendant was laying the killing upon. him, would not render the testimony inadmissible, on the ground that accused was being compelled to testify against himself, or that there was any compulsion growing out of said statement.</p> <p>4. —Evidence—Res Gestae—Other Homicides.</p> <p>Where the testimony as to another homicide by defendant, throws light upon the homicide for which he is being tried, is part of the res gesta; and tends to indicate the intent and purpose of defendant and is properly limited for said purpose in the court’s charge, it was admissible in evidence.</p> <p>5. —Same—Testimony Drawn Out by Defendant.</p> <p>Where part of the circumstances of another homicide were drawn out by appellant and such additional facts other than those drawn out by appellant, could not, in the nature of things, have been prejudicial to the rights of defendant, there was no error.</p> <p>6. —Same.—Cross-Examination—Redirect Examination.</p> <p>Where the State simply introduced the circumstance of another homicide over the objections of defendant, and the defendant on cross-examination of State’s witness brought out the additional fact that he did not fire at the deceased in said other homicide until the said deceased had shot down defendant’s brother and had also fired at him, there was no error to permit the State to prove on redirect examination additional facts and circumstances of said homicide.</p> <p>7. —Evidence—Officer’s Right to Act Without Warrant.</p> <p>Testimony that a homicide had been committed and that the guilty party was made known to the sheriff, who upon such information pursued the accused without a warrant of arrest to prevent his escape, held, conversations between the sheriff and others as to the whereabouts of the offender are admissible in evidence upon trial of defendant for the murder of said sheriff to show that officer’s legal right to act without a warrant and to be at the place where he was killed.</p> <p>8. —Charge of the Court—Principals—Accomplice.</p> <p>Where the testimony demonstrates conclusively that appellant and his codefendant were acting together in the commission of the crime, it was proper that the court charged on the law of principals and refused to submit the issue of accomplice testimony.</p> <p>9. —Charge of the Court—Harmless Error.</p> <p>Where the charge of the court to the effect that the defendant acted so precipitately that the officer had no time to make an announcement to him, then the question of whether the arrest or attempted arrest was lawful was not important, so far as having a warrant by the officer was concerned, could not injure the rights of defendant, in as much as there was no evidence showing an arrest or attempted arrest, it was harmless error.</p> <p>10. —Same.</p> <p>Where the evidence does not raise the issue of unlawful arrest, a charge predicated upon an inaccurate statement of the law of unlawful arrest could not injure the rights of appellant and is harmless error.</p> <p>11. —Same—Self-Defense.</p> <p>See charge quoted in opinion which admirably presents all the law applicable to defense of appellant, to be adduced from the record.</p> <p>12. —Charge of the Court—Unlawful Arrest.</p> <p>Although according to the evidence deceased was legally upon the ground to arrest defendant, there was no evidence that he attempted to do so and there was no error in refusing a special charge on this question.</p> <p>[Motion for rehearing overruled without written opinion.—Reporter.]</p>

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

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

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

<p>Appeal from, the District Court of Tarrant. Tried below before Hon. Irby Dunlcin.</p> <p>Appeal from a conviction of murder in the first degree; penalty, death.</p> <p>In addition to the facts stated in the opinion, and among the many circumstances in evidence, it was shown that defendant and Jordan Thompson had been picking cotton for the deceased, Charles Swackhammer, and on the day before the homicide had a conversation with deceased, in which the latter told them that he intended to take his cotton to market at Arlington the following day; that he would take it that day, if it were not so late; that he feared returning home at night, suggesting the thought that he feared being robbed. It was shown that defendant and Thompson lived a few miles probably from deceased at one Brockman’s, where they went Tuesday, staying there that night, and that defendant left Brockman’s in the forenoon of the next day, saying he was going pecaning, or to Dallas, and carried his pistol, which was afterwards found on him. That deceased started to Arlington with his cotton Wednesday morning, was seen there, sold his cotton and was returning home, when defendant was seen with him in deceased’s wagon, standing or sitting behind him. That they were seen together that way, along the road by several persons and at Culp’s store about dark; that there deceased got out of his wagon, went into the store and bought a few dollars’ worth of groceries, and took some $40 or $50 in money, mostly greenbacks, out of his pocket, in making payment for the groceries, and then put the rest of the money back into his pocket; that defendant was seen looking at deceased when he handled and showed the money, but that defendant remained in the wagon; that deceased handed defendant 45 cents, which was a balance due him for picking cotton; that defendant inquired of deceased when he should drive on, and the latter replied that he would go on in a few moments; that they left together as they had come, in the wagon of deceased; they were seen together in the same way on the road to the home of deceased within a mile or two of said home, and a short time before the wagon and team reached the house of the deceased with the dead body of deceased. Shortly before the team reached the house of deceased, three shots were heard in the direction, where was also heard the rumbling of a wagon on the road over which deceased was going home; also cries of distress and the moving of a wagon and team towards the house of deceased; then the cries of the "wife of deceased as she discovered her husband’s dead body in his wagon when it reached home, which was early on Wednesday night of the killing.</p> <p>The State also introduced in evidence threats of defendant against deceased, his contradictory statements with reference to the murder; his admission that he was in the wagon of deceased; his statement that he saw Thompson fire the shot at deceased out of the cane; that he divided with Thompson the money they took from deceased; also his contradictory statements as to where he got the money found on him; also contradictory statements of defendant as to his pistol, etc.</p>

Mrs. Sallie A. Smith, the main State’s witness and party alleged, to have been injured, testified that she owned the fifty acres of land upon which defendant dug a ditch without her permission and against her consent; that she had ordered him and his hands to desist; that the ditch dug by defendant was within her inclosure; that it injured her land by destroying the sod and also by causing the water to stand on the low places that were dammed up; that the land was worth $30…

<p>1. —Indictment—Name of Accused.</p> <p>Where the name ot' the accused has been properly set out in the indictment, a subsequent reference to that name, using the word “said,” although the name may be spelled differently in subsequent portions of the indictment, is sufficient.</p> <p>2. —Bill of Exceptions—Objection to Testimony.</p> <p>Where there were no bills of exception reserved to the introduction of testimony, the matters objected to can not be considered.</p> <p>3. —Evidence—Circumstantial Evidence.</p> <p>See opinion for facts held sufficient to support a conviction for burglary, and to exclude every reasonable hypothesis except the guilt of the defendant.</p> <p>4. —Same—Possession of Property Recently Stolen.</p> <p>Possession of property recently stolen unexplained, or explained by a statement either unreasonable or untrue, is sufficient to. justify a conviction for the theft of that property, and if defendant committed the theft of the articles taken from the house, he must be guilty of the burglary charged against him.</p>

The testimony of the State, after proving by parol the incorporation of the Tiger Island Oyster Company, was that defendant was seen on October 11, 1902, fishing oysters in Talbot’s Bayou, about 300 yards up the bayou from its mouth or entrance at the bay; Talbot’s Bayou is from sixty to seven yards in width and is one of the bayous leased by said company from I. P. Kibbe.

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

<p>The testimony of the principal State’s witness is substantially as follows: This difficulty took place about 2 o’clock in the afternoon on Sunday at the house of Fannie Evans. When I walked up there, defendant Ben Bennett was sitting on the outside of the house. I believe we had been to church together that day, but don’t know whether we came back together. He was sitting out on the south side of the house in a chair at the time I walked up there, in front of the house, which was a two-room house, sitting east and west and facing south. There were two windows and two doors in the front side of the house. There were only two rooms and no halls to the house. There is a partition dividing the two-room building. There was no gallery in front, but some steps from the ground to the floor of the house. The front doors are about four or five or six or seven feet apart. Defendant’s wife was sitting on the door steps and Dee Evans was sitting, or was back in the house in the west room. I was within four or five feet of Lula Bennett and Dee Evans. When I first walked up there, I think Dee and Joe and Bennett and Lula Bennett were talking about the shoot* ing that had recently occurred at Day’s Lake, near Waco. Dee Evans and Lula Bennett were doing the talking, I think. About the time they ceased talking, a Mexican with candy for sale came along and Dee Evans asked Lula Bennett if she wanted some candy. She replied no, and he said if she did he would get it for her—he would pay for it. She said she wouldn’t eat any candy, or something of that kind. The defendant then said, “Why in the hell don’t you all hush that conversation, throwing your damned hints at me,” or something like that. Dee Evans then asked him if he was talking to him or his wife; defendant said, “I am talking to both of you.” Mo one replied, but Dee Evans arose and started into the east room. He was at that time at the door of the west room. He started into the door of the east room; the door was open at that time and about that time the defendant stepped -in front of the door. Evans passed through the middle door and went into the east room, when defendant shot into the east room door, as he stood in five or six feet of it. He just arose quickly from the chair, stepped in front of the door and fired the shot. Dee Evans went out at the window, and I saw him no more. Joe Evans came from around the east end of the house pulling his gun, and he and Bennett began shooting at each other some four or five shots; they were not more than eight or ten feet apart. During that time Lula Bennett and I ran around on the west end of the house, going to the south corner of the house. Then all went north to the northwest end corner of the house. The defendant and Joe Evans ceased firing about the time we left the south side of the house and we ran. Joe Evans went around the east and Bennett (the defendant) around the west end of the house. We went around on the north side and defendant-on the front side of the house. Defendant came around the same side that we had gone. Joe Evans went east. The first I saw of Joe Evans after the shooting was on the north side of the house. There is a kitchen there, and Joe was just above the kitchen. After we, Lula Bennett and myself, came around to the northwest corner of the house, defendant came around there and Joe had run around the other way. The defendant stopped just above Lula Bennett and me, west of us, passing to a point where he could see Joe Evans at the northwest corner of the house. We went clear around the northwest corner, stopping right at the corner of the house and defendant being about fifteen feet from us; we then turned and ran the way we had come. There was some shooting done about this time; some on the north side of the house. We, Lula Bennett and I, were running doAvn the Avest end of the house, going south; I was on the inside next to the Avail. AYe Avere side by side, and defendant to the right side of us; I Avas looking back in the direction of defendant and then saw him point his pistol towards Lula Bennett and me and saAV him shoot, and immediately thereafter Lula Bennett fell; we were then at the southeast corner of the house. She fell at the southwest corner of the house, partly around each way; that is, she could have been seen from either way, where she was lying. Joe Evans was killed during the last shooting between him and defendant.</p> <p>The testimony showed that defendant used a 38-caliber pistol in the shooting and Joe Evans a 45-caliber pistol. The physician who probed the wound on Lula Bennett, which entered her left side, said it was larger than the wound which killed Joe Evans. The undertaker testified that the bullet in Lula Bennet’s body was a 45-caliber. Defendant contended that he did not fire the bullet that killed Lula Bennett, his wife, but that it was fired by Joe Evans, and that if a bullet from his pistol did strike her, it was an accidental shot, as he did not intend to shoot her.</p> <p>The above statement together Avith that contained in the opinion sufficiently illustrate the points in the case.</p>

<p>1. —Charge of the Court—Concealment—Principal.</p> <p>Where the statement of the defendant showed that he was present at the homicide, but did not participate therein by acts, words or gestures, but that it was committed by another, and the evidence further showed that he concealed the offense for a time, the court should have instructed the jury that they must acquit him regardless of such concealment; if they believe or have a reasonable doubt that he did not aid in the homicide.</p> <p>2. —Same—Self-Defense Hot an Issue—Error to Charge.</p> <p>Where the evidence does not raise the issue of self-defense, it is error to charge on same, as such a charge was calculated to unduly involve appellant and prejudice his rights.</p> <p>3. —Evidence—Hot Sufficient to Convict.</p> <p>Where the only affirmative evidence of the homicide was the statement of the defendant, which exculpates him, and is not overcome by the physical facts, or negatived by other circumstances, a conviction can not be sustained.</p>

<p>Rape—Insanity—Charge of the Court.</p> <p>Where the evidence did not raise the issue o£ insanity, it was error to charge on that subject.</p>

<p>Recognizance—Appeal—Dismissal.</p> <p>Where the recognizance used the word “counseled” instead of the word “convicted,” the appeal will be dismissed, in not showing that the appellant had been convicted.</p>

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

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

<p>Appeal from the County Court of Hunt. Tried below before Hon. F. M. Newton.</p> <p>Appeal from a conviction of a violation-of the local option law; penalty, $25 and twenty days confinement in the county jail.</p>

<p>1. —Local Option,—Different Sales.</p> <p>Where the witness for the State testified to a sale of liquor in a local option territory, which occurred after the time alleged in the information and on another and different occasion, and there was no testimony in the case showing system under which the sale then under consideration was made to show criminal intent, or that such testimony was res gestee, it should have been excluded.</p> <p>2. —Charge of the Court—System—Other Violations.</p> <p>Where there was no testimony showing system, on the trial of defendant for violation of the local option law, but simply straight sales for money by him to various parties at different times, it was error to instruct the jury on the law of system with reference to such other sales than that alleged.</p> <p>3. —Evidence—Character of Witness.</p> <p>There was no error in excluding testimony which did not attack the character of witness for truth and veracity, in order to impeach him.</p>

<p>Appeal from the County Court of Knox. Tried below before Hon. G. B. Landrum.</p> <p>Appeal from a judgment final on forfeiture of bail bond.'</p>

<p>1. —Information—Ownership of Minor.</p> <p>Where the property alleged to have been stolen was shown to have been that of a minor, under his exclusive care, control and management, the ownership could have been alleged in him or his parent, and an information alleging ownership in both was sufficient.</p> <p>2. —Charge of the Court—Receiving Stolen Property.</p> <p>If appellant was not in some way connected with the original taking, so as to constitute him as a principal, he would not be guilty of theft, even though he should have received the property knowing it to have been stolen.</p> <p>3. —Same—Conflicting Theories.</p> <p>Where the evidence conflicted as to whether the State’s theory, that the accomplice committed the theft at appellant’s request, or whether appellant’s theory, that if the accomplice committed the theft it was without his instigation, connivance or knowledge, was true, the court should have charged the jury that if they believed that appellant’s theory was true they could not convict him.</p>

The .State, after introducing in evidence the bond set out in the indictment and judgment of the County Court showing defendant had been convicted of a misdemeanor, introduced two of the alleged sureties on said bond to wit, Brack Hall and Birl Eoley, who testified that they had not signed or authorized anyone to sign said bond. There was also • testimony that in the opinion of the witness the names to said bond were written by the defendant.

Tried below before Hon. M. Kennon. Appeal from a conviction of forgery; penalty, five years imprisonment in the penitentiary. The State proved by the testimony of G. P. Palmer, one of the alleged sureties on the alleged forged note, that he had not signed said instrument or authorized any.one to sign it for him.

Tried below before Hon. M. Kennon. Appeal from a conviction of forgery; penalty, four years imprisonment in the penitentiary. G. P. Palmer, one of the sureties on the alleged forged note, testified that he and defendant had married sisters; that two or three years ago he signed several notes with defendant, to help him out, but had signed none since and never authorized anyone to sign his name to a note.

<p>The following is the second count of the indictment upon which the case was submitted; the first count charged the appellant with the false, willful and fraudulent making of the identical instrument set out in the second count:</p> <p>“And the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to said court, that B. B. Taylor, on or about the 17th day of April, 1901, in the county of Bexar and .State of Texas, did willfully, knowingly and fraudulently pass as true to one Miss Ella Felder, a false and forged instrument in writing, which had theretofore been made without lawful authority and with the intent to defraud, and was then to the tenor following:</p> <p>“ Tío. of Note. 1. $1250.00 -Gold.</p> <p>“ ‘San Antonio, Texas, April 17, 1901. For value received, on April 17th, 1903, without grace, I promise to pay to the order of A. M. Elwell the sum of one thousand two hundred and fifty ($1250.00) dollars (in U. S. gold coin of present standard weight and fineness), with interest at the rate of eight per cent per annum, from date hereof until paid, interest payable annually. Both interest and principal payable at San Antonio, Texas. This note is given in part payment of the purchase money for 600 acres of land in Bandera County, Texas, being 440 acres off the western part of survey No. 317, on the waters of the Sabinal Biver, patent No. 298, issued to Leander Shores, asse. of the G. C. & S. F. By. Co. Also 160 acres, being the N. E. corner of survey 319, by virtue of land scrip No. 2800, issued to Leander Shores, asse. of the G. C. & S. F. By. Co., by Commr. of Gen’l Land Office, January 28, 1881, this day deeded to me by A. M. Elwell,-and for the payment hereof, together with the interest hereon according to the tenor and reading hereof, a vendor’s lien is hereby acknowledged. And in case of legal proceedings on this note, I agree to pay an additional ten per cent on the principal and interest as attorney’s fees. Tf this note is not paid at maturity, or if any installment of interest on the same is not promptly paid, then and either of said events, this note shall, at the option of the holder thereof, at once mature and become due and payable.</p> <p>“‘ Charles Arntz.</p> <p>“‘Cash $1,950.00. Note No. 1, $1,350.00.</p> <p>“ ‘Total consideration, $3,300.00.</p> <p>“ ‘Said note being endorsed on the back as follows:</p> <p>“ ‘Pay to the order of Ella A. Felder without recors.</p> <p>“ ‘A. M. Elwell.’ ■</p> <p>. “And which said instrument in writing the said B. E. Taylor, then and there well knowing to be false and forged, he, the said B. E. Taylor, did pass the same as true, with intent to injure and defraud, contrary to the statute and against the peace and dignity of the State.”</p> <p>The principal State’s witness, Miss Ella Felder, testified substantially that the defendant had sold her the note described in the above count of the indictment and that she gave him her check for $1350 for it, which was paid. Defendant represented himself as the agent of A. M. Elwell, and the check was made payable to that name, and was drawn on the San Antonio National Bank. That when the interest became due witness wrote several letters to Arntz and others, which were all returned by the postoffice; that she called upon defendant to explain, who first allayed her ankiety, but finally evaded her and thus aroused her suspicions, etc., and that upon further inquiry she found that no such persons existed as Arntz and Elwell as far as she could ascertain. That witness relied on defendant’s representations, as defendant showed her a letter which purported to be from her attorney (since deceased), in which he stated that he had looked into the title of the land for which the note was given. That defendant further assured the witness that the land was very valuable; that Charles Arntz, the purchaser, and his brother were living on it and improving it, and had made a large cash payment on the land; that he (defendant) had been on the land and knew it was good security, etc.</p> <p>The State further showed by various witnesses that the defendant had disposed to different persons in San Antonio similar notes purporting to be vendor’s lien notes on land near that sold the main State’s witness, and all situated in Bandera County, Texas, under similar representations and within a few months of the time he disposed of the note to Miss Felder, the State’s witness, and that these representations were found to be essentially not true. That no such persons as defendant claimed to know or represent in the transaction could be found, and that the papers upon which he represented the title to the land described in the note set out in the indictment to vest were fictitious. That the defendant’s signature or writing was compared by a number of experts on handwriting with the handwriting on the note alleged to have been forged and pronounced to be the same.</p> <p>The defendant’s testimony undertook to show that Charles Arntz and William Arntz, A. M, Elwell and other persons whose names figured in the different transactions had been seen by different witnesses in San Antonio and elsewhere.</p>

<p>lío statement necessary.</p>

<p>Appeal from the County Court of Milam. Tried below before Hon. E. B. Pool.</p> <p>Appeal from a dismissal of an appeal from the justice court.</p> <p>Ho statement necessary.</p>

<p>No statement necessary.</p>

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

<p>Charge of the Court—Assault With Intent to Murder.</p> <p>Where the evidence shows that the deceased struck appellant with his fist about the head and the cutting by defendant was done in defense of such attack, the offense would not exceed that of aggravated assault, and if the knife used was not a deadly weapon by the manner and means of its use, the offense would only be a simple assault, and it was error to limit the law to an attack which would involve danger of death or serious bodily injury.</p>

<p>1. —Information—Aggravated Assault—Approved Form.</p> <p>Where the complaint and information for an aggravated assault follow the approved form, they are sufficient.</p> <p>2. —Evidence—Age of Female.</p> <p>Where appellant is charged with making an assault upon a female, the age of the female is admissible in evidence, to throw light upon the transaction.</p> <p>3. —Judge—Remarks.</p> <p>In the absence of a showing in what way the remarks of the trial judge could or did injure appellant, they can not be reviewed.</p> <p>4. —Same.</p> <p>An admonition by the court for the attorneys to adhere to the rules of evidence is not improper.</p> <p>5. —Evidence—Married Man—Punishment.</p> <p>Testimony in a case of aggravated assault upon a female that defendant was a married man at the time was not admissible, but owing to the fact that he received the lowest punishment was not reversible error.</p> <p>6. —Charge of the Court—Intent to Injure.</p> <p>Where defendant was charged with an assault upon a female and the evidence of the State showed that he put' his arm around and attempted to embrace the prosecutrix without her consent, it was not error to charge the language of the statute that where an injury is actually caused by violence to the person or the feelings of a person, the intent to injure is presumed, etc., and does not withhold the fact whether an injury was actually committed from the jury. Overruling Floyd v. State, 29 Texas Crim. App., 341. Approving Young v. State, 31 Texas Grim. Rep., 24.</p> <p>7. —Same—Issue of Consent.</p> <p>In a case of aggravated assault by an adult male upon a female where the issue arose from the evidence whether the defendant attempted to embrace the prosecutrix with, or without her consent, or with evil intent, the court should have submitted this issue to the jury in an appropriate charge applicable to the facts in evidence.</p> <p>8. —Same—Venue.</p> <p>Where the evidence raised the issue of venue, the court should have given a reguested charge of this phase of the case.</p>

<p>1. —Jury and Jury Law—rSheriff Can Not Draw Jury.</p> <p>It was error to permit the deputy sheriff to draw the jury for the trial of appellant from the box and to make lists of the same for the use of the State and defendant; the law provides that this duty shall be performed by the clerk.</p> <p>2. —Charge of the Court—No Betting Necessary.</p> <p>It was proper to charge in a prosecution for exhibiting a gaming table and bank that it was not necessary that any betting was done in order to convict.</p> <p>3. —Jury—Misconduct—New Trial.</p> <p>Where it was shown by the affidavits of two of the jurors who tried defendant that the jury had discussed the failure of defendant to testify before any verdict was rendered, a" new trial should have been granted.</p>

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

<p>Indictment—Name of Deceased.</p> <p>Where the indictment alleged that the name of the deceased, a female baby, was to the grand jurors unknown and the evidence showed the name of the mother to be as alleged in the indictment and the name of the child Priscilla, and that it could have been easily ascertained by the grand jury, the variance is fatal. Following Jorasco v. State, 6 Texas Grim. App., 238.</p>

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

<p>Charge of the Court—Delirium Tremens.</p> <p>Where the evidence tends to show that defendant was laboring under delirium tremens at the time of the homicide, superinduced by long continued dissipation, and was the user of narcotics of different character, which medical experts testified did produce delirium tremens, and that on account of this malady he did not know the difference between right and wrong at the time of the homicide, the court should have charged on this phase of the case, and a charge on intoxication produced by the recent use of ardent spirits was insufficient.</p>

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

Tried below before Tom C. Davis. Appeal from a conviction of perjury; penalty two years - imprisonment in the penitentiary. The opinion states the case.

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

<p>No statement necessary.</p>

<p>No statement necessary.</p>

<p>Local Option—Evidence—Other Offenses—Moral Turpitude.</p> <p>Where the appellant was charged with selling intoxicating liquor in violation of the local option law, it was error to permit the State to ask and compel appellant to answer that he was under indictment in thirteen other cases for a like offense, as such testimonoy could not affect his credibility or show moral turpitude.</p>

<p>1. —local Option—Bill of Exceptions—Jury—Practice on Appeal.</p> <p>Where no facts were stated in the bill of exceptions with reference to the obnoxious jurors whom the bill states defendant was forced to challenge peremptorily, there is nothing in the way of objection that would authorize the Court'- of Criminal Appeals to pass upon the issue involved.</p> <p>2. —Same—Questions Not Answered Not Considered.</p> <p>Where the bill of exceptions does not show that the questions propounded to a witness by the State were answered, there is nothing -to review.</p> <p>3. —Local Option—Sufficiency of Evidence—Blind Tiger—Pact Case.</p> <p>See opinion which states the facts which are held to be sufficient to sustain a conviction for a violation of the local option law, and where the sale took place on a boat on the river, by means of a revolving wheel and automatic device.</p>

<p>Recognizance on Appeal—Corporation Court.</p> <p>Where an appeal has been prosecuted from a corporation court or justice court to the county court and there dismissed, and appeal prosecuted to the Court of Criminal Appeals, it is required among other essentials that the recognizance state the amount of punishment assessed against appellant in the corporation court Following Horton v. State, 4 Texas Ct. Rep., 895.</p>

Tried belotv before Hon. Nelson Phillips. Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary. The State’s testimony showed that a store in the town of Alvorado was burglarized at night and some eight or nine shot guns, knives and other articles taken therefrom.

<p>Rape—Different Acts of Intercourse.</p> <p>Where upon trial of defendant for rape several acts of intercourse were shown and the court refused upon motion of defendant to force the State to elect which one of the different acts of intercourse it would rely upon for conviction, and permitted the State’s counsel to urge a verdict upon all or any of them, there was reversible error, as each act of intercourse was a separate offense.</p>

Tried below before Hon. Sam R. Scott. Appeal from a conviction of burglary in the night-time; penalty, two years imprisonment in the penitentiary. The State proved by defendant’s accomplice that they had broken into the store of prosecuting witness, about midnight and taken from it a number of articles of merchandise, such as tobacco, cologne, cartridges, soap, handkerchiefs, talcum powder, etc. That they hid some of these articles under a church, and took some home.

<p>1. —Emb ezzlement—Indictment—Servant.</p> <p>Where appellant was the servant and employee of C., and as such was sent by him to the village of B. to buy and bring home some medicine for prosecutor; and was entrusted with a mare by prosecutor, to ride for said purpose, the appropriation of said animal under such circumstances would be embezzlement and not theft under the general statute, and the indictment was properly drawn under article 938, Penal Code.</p> <p>2. —Same—Theft of Bailee—Prosecution Under. Either.</p> <p>Although an act may have constituted theft of property acquired by bailment under article 877, Penal Code, that affords no reason why it would not also constitute embezzlement under the general statute.</p> <p>3. —game—Evidence of Conversion Sufficient.</p> <p>Where the evidence showed that appellant endeavored to sell a mare with which his employer had entrusted him and did not go to the place to which he was sent by the prosecutor to get some medicine for him, the conversion and appropriation is sufficient to sustain the conviction for embezzlement, although such sale was not perfected.</p>

The State’s testimony showed that on Tuesday before the killing on Thursday, defendant and deceased had an altercation, in which deceased called defendant a d—d liar and thereupon defendant started towards deceased with a knife; the brother of the latter interfering, saying, “Don’t you strike him, John, if you do, Fll break your neck.” A general fight then ensued in which brick-bats and scantlings were used, but no serious harm was done, and the parties separated, the…

<p>1. —Rape—Evidence—Leading Question—Not Reversible Error.</p> <p>Where the question propounded by State’s counsel was leading, with reference to the occurrence of the rape, but there was no issue made as to the particular date when the case should have occurred and there appeared no injurious result of appellant in permitting the question and answer, there was no reversible error.</p> <p>2. —Same—Third Party—Must be Evidence Tending to Connect Him With Offense.</p> <p>Where defendant charged with rape was not permitted to show that his wife’s brother had been intimate with prosecutrix, on the ground that such testimony was irrelevant, etc., and the bill of exception does not show his purpose in desiring its introduction and that there were facts presenting the theory tending to show that a third party committed the offense, instead of defendant, there was no error.</p> <p>3. —Same—Acquaintanceship and Eamiliarity May Be Shown.</p> <p>Acts showing acquaintanceship and familiarity between the defendant and prosecutrix in case of rape, are admissible as tending to show likelihood and opportunity, to commit the offense: and this doctrine is not in conflict with that, which holds, that proof of other acts of intercourse is not admissible in a case of rape of a female under 15 years of age.</p> <p>4.—Same—Acts of Familiarity Not Going to Extent of Other Acts of Rape Admissible.</p> <p>Where the State was permitted to show that upon an occasion different from the one at which the rape occurred, defendant and the prosecutrix were seen together alone and under circumstances evincing familiarity, and the prosecutrix remarked to the witness, “You liked to scared me to death,” which remark the court excluded and there was no testimony of sexual intercourse between the parties at that time, there was no error.</p>

<p>No statement necessary.</p>

<p>1.—Occupation Tax—Charge of the Court—Partnership.</p> <p>Where appellant was being tried upon a charge of selling spirituous, etc., liquors without having first paid the occupation tax thereon, and there was evidence which showed that he sold it as the partnership property of his firm, an instruction that if he did not sell the liquor as his individual property, to acquit, ' was correctly refused.</p> <p>2. —Same—Want of Knowledge—Mitigating Circumstance.</p> <p>A charge that if defendant, who was charged with selling spirituous, etc., liquors without having first paid the occupation tax, did not know that said liquors were spirituous, vinous or intoxicating, such fact could only be considered in mitigation of his punishment was correct, where there was evidence of a want of such knowledge.</p> <p>3. —Evidence—Levy of Tax Must be Proved.</p> <p>Unless it is affirmatively shown that the State proved that an occupation tax for the sale of spirituous, etc., liquors was levied by the county upon such occupation, a conviction for such offense will be set aside.</p>

<p>Ho statement necessary.</p>

<p>1.—Perjury—Indictment—Time, Place and Parties—Certainty.</p> <p>Where the indictment alleged: “That it was a material inquiry before the justice, whether the said F. had at or near Guinn’s Camp as aforesaid, then and there at any time recent or theretofore during the year 1902, seen M. T., W. S., L. C., and A. K., or any one or more of said persons or any other person bet any money or valuable thing at a game played with dice called craps, at a place that was not then and there a private residence, etc.,” it states time, place and parties with sufficient certainty.</p> <p>3.—Charge of the Court—Time Alleged in the Indictment.</p> <p>Where the time alleged in the indictment was during the year 1902, and the charge submitted the time as in the month of July, or August of that year, these months were clearly covered by the time alleged in the indictment, and the fact that the charge limited the time to these months could not possibly injure the rights of the defendant.</p> <p>3. —Indictment—Election—Different Assignments but One Count.</p> <p>Where the indictment alleges but one act of perjury in different assignments, there is but one count, and the State could not be forced to elect on which count it would prosecute.</p> <p>4. —Evidence—Different Occasions—One Act of Perjury.</p> <p>AVhere the indictment charged that defendant had seen certain persons play craps during the year 1902, which he had denied under oath before a justice of the peace, it was permissible for the State to show, that he had seen craps on three or four different occasions played by said persons occurring about the same time and place, to sustain the assignment of perjury.</p> <p>5. —Same—Defective Assignment—Perjury.</p> <p>AArliere one of the assignments of perjury is defective in an indictment containing different assignments of perjury, it is not error to admit testimony on such defective assignment, to sustain the good assignment.</p> <p>G.—Perjury—Gaming—Private Residence—Form of Question.</p> <p>Where the assignment of perjury was that defendant in answer to a question propounded to him by a justice of the peace, swore that he had not seen certain persons play at a game of craps at a certain time and place, it was not necessary that the justice of the peace should have excepted a private residence in propounding his question, in order to make such inquiry the basis of perjury.</p> <p>7.—Evidence—Perjury—Corroboration.</p> <p>Where the defendant admitted that he had sworn falsely before a justice of the peace with reference to all the parties he denied having seen play craps, and the evidence of one witness on his trial for perjury showed that lie- played with at least one of these parties; together with other circumstantial evidence, the corroboration is sufficient.</p> <p>[Motion for rehearing overruled without written opinion.—Reporter.]</p>

This is the second appeal of the case, Beard v. State, 45 Texas Grim. Eep., 522; 9 Texas Ct. Eep. 151; S. W. Eep. and the indictment appears in full in same appeal. The horse alleged to have been stolen was taken from Oklahoma Territory and brought to Waco Texas. He was missed by the owner in Oklahoma who had left him there at night in an inclosure and could not find him the next morning. The next time he heard of the horse, he was in a livery stable at Waco, Texas.

<p>1. —Rape—Bill of Exceptions—Motion for Continuance.</p> <p>The action of the court overruling motions for continuance before and during trial cannot be reviewed in the absence of a bill of exceptions.</p> <p>2. —Evidence—Sufficiency for Rape.</p> <p>Where there was the testimony of prosecutrix who testified to the act of intercourse by defendant with her and that she was under the age of 15 years, and this testimony as to intercourse is corroborated by another witness, and her age was corroborated by testimony as to her appearance and size as being under 15 years, together with defendant’s admission that he was living in adultery with prosecutrix, the same is sufficient to support the conviction.</p> <p>3. —New Trial—Questions of Fact.</p> <p>Where the ground of the motion for new trial was that certain State’s witnesses were self-confessed liars and thieves and harbored ill will against the defendant, these were matters of fact to be determined by the jury, and are not to be reviewed on appeal. °</p> <p>4. —Practice—Fair and Impartial Trial—Constitutional law.</p> <p>There is nothing in the Constitution that guarantees a fair and impartial trial; but it does provide for a speedy trial by a fair and impartial jury, and the court cannot assume that a defendant has not had a fair and impartial trial, since that is a relative term; but if there has been any partiality or lack of fairness in the trial, this should be evidenced by bill of exceptions or in the motion for new trial, so that the rulings of the trial court may be reviewed under the rules of law.</p> <p>5. —Misconduct of Jury—Bill of Exceptions.</p> <p>In the absence of a bill of exceptions, the question of the separation, or misconduct of the jury cannot be reviewed.</p>

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

The following taken from appellant’s brief is a substantial copy of appellant’s testimony, which taken together with the facts as stated in the opinion will give a full statement of the case: As the testimony of appellant is the recital of a very peculiar homicide, we will set it out at length: “I have known him (deceased) about two and a half or three years. I met him first at Charley Burckell’s saloon here.

From Rockwall County. Original application for habeas corpus for release from commitment for contempt for disobeying judgment of the district court, ordering relator to turn over to a trustee certain community property. The opinion states the case.

Tried below before Hon. James C. Wilson. Appeal from a conviction of murder in the first degree; penalty, death. The deceased, Wm. A. Earle, was the night operator at Yorktown and had only been there a few days. He was shot and killed in the office at the station of the San Antonio Aransas 'Pass Bailway on the morning of June 7th, 1904.

Tried below before the Hon. Jno. M. Furman. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary. The principal State witness, after describing the locality and its surroundings where the homicide occurred, testified that the first he saw of Guess, the deceased, was when he came up from the south of the horse lot and stopped about three feet east of the east corner of the corner post of the south shed.

Tried below before Hon. J. F. Holmes. Appeal from a conviction of violating the local option law; penalty, a fine of $25, and twenty days confinement in the county jail.

Tried below before Hon. E. B. Keasler. Appeal from a conviction for violation of the local option law; penalty, a fine of $25 and twenty days imprisonment in the county jail. Columbus Bindley testified for the State that on the morning of the 26th day of January, 1904, Paris Prim, Will Mathews, Frank Moreland and the defendant and myself were all standing on the Brinker Corner.

<p>Appeal from the County Court of Busk. Tried below before Hon. W. W. Moore.</p> <p>Appeal from a conviction of unlawfully carrying on his person a pistol; penalty, a fine of $25.</p>

<p>No statement required.</p>

<p>1. —Perjury—Wilful, False Statement Sufficient—Rule Before Grand Jury.</p> <p>Where the court has jurisdiction to make the inquiry in general terms, any deliberate and wilfully false statement of a witness in answer to questions concerning the same, would constitute a good assignment for perjury; and this, although the question might be too general to form the basis "for the impeachment of the witness. Overruling Meeks v. State, 32 Texas Grim. Rep., 420; Higgins v. State, 38 Id., 539; McCurtry v. State, Id., 521.</p> <p>2. —Same—Rule in Civil Cases—Deliberate, False, Answer Sufficient.</p> <p>Where in the trial of a civil case, a witness was asked whether he had been previously injured by any railroad, and had ever made any claim therefor, to which he deliberately, willfully and falsely answered in the negative, he cannot afterwards avail himself of the generality of the question to defeat a prosecution for perjury, and an indictment assigning such question and answer as perjury is good upon motion to quash; and this even if the question to witness was not sufficiently definite, as to time, place and persons to afford a basis for his impeachment.</p> <p>3. —Evidence—Statement of Defendant—Relevancy—Exception.</p> <p>It was competent for the State to prove that appellant had stated to the witness about the time he instituted his suit for personal injuries, out of which grew the prosecution for perjury, that he had not been injured on any other railroad. However, the objection to this testimony was not reserved in due time by an exception.</p> <p>4. —Same—legitimate Matter of Inquiry.</p> <p>Where defendant was tried for perjury for having falsely deposed, in a civil case, that he had not been injured by any railroad previously, and had made no claim for such injuries, it was permissible for the State to show that defendant had testified to such former injuries in said civil suit on cross-examination; and this, although defendant had not testified in his trial for perjury.</p> <p>5. —Same—Bill of Exceptions Must Show Testimony Objected to.</p> <p>Where defendant was tried for perjury, for having falsely stated in his deposition in a civil suit for personal injuries, that he had never been previously injured by any railroad, his parol testimony in said suit was admissible, although not assigned as perjury, to shed light upon his intent. However, the bill of exceptions does not disclose what such parol testimony was.</p> <p>6. —Bill of Exceptions—No Ruling Certified.</p> <p>Where the court, in approving a bill of exceptions, certifies that no ruling was had with reference to certain testimony objected to by appellant, with relation to his flight and concealment, the matter is not properly presented for review. Besides such testimony would be admissible.</p>

of Ward. Tried below before Hon. James L. Shepherd. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The testimony of the wife of deceased, the principal State witness, is substantially as follows, to wit: “Defendant and family moved into our house in the latter part of November, 1903, and occupied the two rooms on the east side of the house, and we occupied the other three rooms.

From Mitchell County. Appeal from an order of Hon.- Jas. L. Shepherd, district judge, committing relator upon a charge of murder without bail. The principal State’s witness testified that she was the wife of deceased, that she was not living with him at the time of the killing, but was staying with her brother Wm.

Tried below before Hon. J. M. Pearson. Appeal from a conviction of murder in the second degree; penalty, seventeen years’ imprisonment in the penitentiary. The child alleged to have been murdered was about two months old and was found dead in a well. It was identified as the child of defendant and that of one W. and was an illegitimate offspring of the two.

<p>1. —Murder—Continuance—Second Application.</p> <p>Where upon a contest over a second application for continuance, it is shown that the absent witnesses would not have testified as appellant insisted, had they been present, there was no error in overruling the application.</p> <p>2. —Same—Evidence—Impeaching Witness.</p> <p>Where upon trial, the State’s witness contradicted his testimony taken at the inquest, and upon cross-examination admitted that he did so, there was no error in refusing to admit the written testimony of the witness at said inquest. Following Walker v. State, 17 Texas Grim. App., 16. It is only where there is a denial, direct or qualified by the witness of his former statement that proof of same can be introduced. Following Rodrigues v. State, 23 Texas Grim. Rep., 503; Hyden v. State, 31 Texas Grim. Rep., 401.</p> <p>3. —Same—Party Cannot Corroborate his Witness When Not Attacked.</p> <p>A party cannot corroborate his own witness, by showing that his testimony before the coroner’s inquest and before the grand jury was the same as on the trial, the credibility of the witness not being attacked.</p> <p>4. —Same—Argument of Counsel.</p> <p>Where in a trial for murder, the defendant did not tender to the court a special charge, asking the jury to disregard the objectionable statement of State’s counsel in his address to the jury, the same will not be considered.</p> <p>5. —Same—Charge of the Court—Defense of Property.</p> <p>Where the evidence showed that the deceased was not in the act of taking the horse over which the dispute arose, when defendant shot him, there was no error in failing to charge on defense of property under article 680, Penal Code.</p> <p>6. —Same—Charge of the Court—Manslaughter.</p> <p>Where the evidence did not raise the issue of manslaughter, but rather raised the issue of self-defense, and the court charged both on self-defense and marL slaughter, there was no error even if the latter charge did not instruct the jury directly, but indirectly, that they could look to the facts and circumstances in evidence which might shed light upon the provocation at the time of the homicide producing adequate cause.</p>

<p>1. —Cutting Timber on Land of Another—Charge of the Court.</p> <p>Where the evidence raised the question as to whether the timber, or bushes, alleged to have been cut was on appellant’s or prosecutor’s land and in the absence of an instruction on this phase of the case, it was error to refuse a special charge directing the jury’s attention to this issue.</p> <p>2. —Evidence—Preponderance of Testimony—Verdict.</p> <p>Where the evidence showed by the preponderance of the testimony that the bushes or trees, alleged to have been cut wefe on appellant’s and not on the prosecutor’s land, a verdict convicting appellant of knowingly cutting timber on land of another should have been set aside.</p> <p>3. —Misconduct of Jury—Misdemeanor.</p> <p>Where it was shown that prosecutor accompanied one of the jurors in a misdemeanor case to his home and took dinner with him, and did not return until court had convened, the judgment of conviction will be reversed. Following G. O. & S. F. Ry. Co. v. Schweder, 25 S. W. Rep., 306.</p> <p>4. —Same—Practice in County Court.</p> <p>Where one of the jurors in a misdemeanor case is shown to have told the jury in the jury room about appellant hitting prosecutor on the head with an axe handle on a former occasion, the verdict should be set aside.</p>

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

<p>The testimony of the principal witnesses is substantially as follows: Mrs. Dank Elliott testified that she saw the deceased, Demp Bruce, at her house on the night of the homicide. He lived about 175 steps from witness’ house, and came there with bis wife early that evening to stay all night. It was supper time. While they were there, witness saw defendant and two other boys ride horseback by her place in a lope in the direction of Will Pike’s house, about a mile from witness’ house. The deceased, witness’ husband, and Mr. Hightower were out on the gallery, and witness and the wife of deceased were standing in the door as these boys passed the house and hollowed; they were passing within twenty-five or thirty steps from the gate. After an hour, or such matter, these boys returned to witness’ house; but just before their return, the deceased had started home to turn-his dog loose, to keep him from growling. He Avas somewhere between the door and the gate when these boys got back to the house, and witness heard them hollow. The night was bright and it was about 8 or 9 o’clock and moonlight.</p> <p>The boys all remained on their horses, except the defendant, who dismounted. By this time, deceased had had time to get somewhere about half-way to his home. There was something said about where Bruce, the deceased, was. Jess Creasy, one of the three boys, said something about it, saying Bruce was down the road, addressing the defendant, who then stopped approaching Avitness’ house and said, “Where is Demp,” and Jesse said, “Down the road.” The defendant then hollowed, “Where are you Demp Bruce!” Witness did not hear any reply, but defendant said, “I didn’t know you,” and turned and got his horse and started off leading him, going towards Bruce’s house.</p> <p>■ After the boys left the witness heard some loud talking down there about Bruce’s house, but could not understand what was said, only she heard the word, “damn.” “I heard Bruce hollow and call his wife; he just said, ‘Oh, Lida!’ I told my husband to answer him and he holloAved and asked him what he wanted, and he made no answer. We all went' doAvn there and found him lying at the gate and it looked like he was cut all to pieces. He lived somewhere about an hour. I saw where there had been some trouble. I saw blood all in front of the gate and on the north side of it. He knew everything, I reckon, from the way he talked. When his wife come up to straighten his feet out and asked him if he was dead, he said that he was not dead, but was cut plum to the hollow. His wife said, ‘Who cut you DempsP’ and he said, ‘Johnny Dyer,’ and commenced to tell us he was freezing and wanted to go into the house, and then he said, ‘Lida, I am just about gone; bless the Lord, praise the Lord,’ or something like that. I had been down at Bruce’s that evening about sundovm and he was making a gate. He had his axe and was chopping a piece on a stump. I saw the axe that night. When I saw the axe that night, it was by the side of the fence, on the south side of the gate, about four feet from it. I looked at it closely that night, I thought Bruce had been killed Avitb it, but I could see no blood on it; it was standing straight up against the fence, just like he had come in from his work and set it there. There was no blood on the handle of the axe or on the axe, and none near the axe on the ground. All the blood I saw was mostly in front and north of the gate. The axe was on the outside of the gate, and Bruce was chopping with it that evening on the outside when I was there that evening.”</p> <p>The witness Jesse Creasy testified pretty much the same as the above witness and then described the difficulty as follows: “The defendant walked from Elliott’s on down to Bruce’s and led his horse. He was going to Bruce to give him a drink of liquor, he said that was what he was going for. We all three went down there. When we got there, Bruce was on the outside, right close to the gate, and he and the defendant had a fight. The defendant left the big road and went up towards the gate, up where Mr. Bruce was. He walked right up to him, I reckon, but I never noticed him at first. I was off about twenty feet from him, I reckon, and Dan Carpenter was along there right at me. We were not quite even with Bruce’s gate. Bruce was standing kind of southeast, about four feet from the gate. I did not hear defendant say anything to Bruce when he turned out of the road and went to where he was. He just led his horse on up there and turned it loose. I don’t know whether defendant gave deceased a drink of whisky or not, and I never saw him offer him any. The first I saw of them they were fighting there. As soon as I noticed them I jumped off my horse and went up to them. Carpenter went also. When I got there I caught hold of John Dyer (defendant) to stop him. Carpenter also caught hold of him. When we caught hold of him, he was striking Bruce as we went up. He had hold of Bruce and was striking at him. He had him up here in some way, holding him by the lapel of the coat, and was striking him with his right hand. When I got up to them, Bruce was standing with his arm up this way, and he seemed to be trying to push or knock him back. One of Bruce’s arms was cut in the fight, and I think it was his right one. Bruce did not have anything in Ms hand that I saw. I did not see anything of an axe when I went up there, but when I turned to start off, there was one laying right out by the side where I went up to them. I never saw Bruce with the axe in his hand during the difficulty. I know he did not have it when I went up there.”</p> <p>On cross-examination this witness stated, that he never heard Bruce says that .he did not want Dyer’s damned whisky; did not hear the word, “damn.” Carpenter said to Dyer, “Demps is calling you.” When we pulled John Dyer back I heard him say something about his cutting Bruce, but I can’t tell what he spoke exactly; he said he was sorry he had to do it, but he had to do it, and brought in the axe some way. I think he said that Bruce would have killed him with the axe or hurt him. This witness also stated that the defendant had a bottle of alcohol and that he drank pretty freely out of it, as did the other two.</p> <p>Dan Carpenter, the other person who was an eye witness to the homicide, corroborated the statement of Jesse Creasy, with reference to their being with defendant the night of the homicide, drinking together and riding down to Pikes to attend a dance, which however did not take place; of going back to Elliott’s house, etc. He also stated that when they got there he heard Bruce call defendant, saying, “Johnny,” that defendant did not pay any attention to him, until, witness said, that Bruce had called him, then he listened and said, “Where are you,” and Bruce said, “Here I am;” and that they then went on down there. Witness did not remember whether defendant said anything about treating Bruce to some whisky, but that he heard deceased say when Bruce got there, that he did not want any of his damned whisky. “I looked at them then. Bruce struck at Dyer with an axe, and the axe went right down by his left side. Dyer just stepped to one side and grabbed at the axe. The fight did not last any time. * * * I saw the axe after-wards, it was lying down there where they had the fight.” This witness also stated that defendant said he hated to do it, but that deceased would have killed him with the axe, and he had it to do. This witness was positive that Bruce had the axe and struck with it at Dyer.</p> <p>Defendant testified, stating'that he and the other two boys were together the night of the homicide; that they had a bottle of mixed alcohol with them, of which they drank; that they started together to Pikes to attend a dance, but the dance having been postponed, they returned and stopped at Elliott’s house, and that then matters transpired as Carpenter and Creasy told them; that he went up to Bruce offering him a drink out of his bottle, when Bruce said he did not want his damned whisky, and that he would knock his damned brains out, picking up the axe and striking with it at defendant; that defendant caught at the axe with his left hand and began cutting deceased. Defendant also testified that the deceased and he were on friendly terms, although other witnesses testified that the deceased had said that if defendant did not stop running by his house hollowing, he would stop him or kill him, but this statement it seems, was not communicated to defendant, and he felt quite friendly towards deceased. " A great many witnesses were introduced on both sides, and the testimony is quite voluminous; but the above statement, together with the facts as stated in the opinion, elucidate the issues in the case. ■</p>

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

<p>1. —Manslaughter—Charge oí Court—Insult to Female Relative.</p> <p>Where the opprobrious epithet, “God damn black bastard son of a bitch” was addressed to defendant by deceased, it was held not to be a reflection upon the latter’s mother, so as to require a charge on manslaughter, based upon this language as adequate cause.</p> <p>2. —Same—Self-Defense—Too Restrictive.</p> <p>Where the evidence showed that the deceased was about to attack defendant, at the time of the homicide, with a rock in one hand and an axe in the other, it was error to confine the charge to a threatened attack with an axe.</p> <p>3. —Same—Cooling Time—Question of Fact.</p> <p>Where on a trial for murder, the evidence showed that only a short time before defendant killed deceased, the latter had struck him with a plank three inches wide, an inch thick and three or four feet long, and which was calculated to produce pain, and consequent rage, anger or resentment; the question of whether sufficient time had intervened between this blow and the act of killing to have rendered the defendant’s mind capable of cool reflection was one of fact for the jury under appropriate instructions.</p>

<p>1. —Aggravated Assault—Charge of the Court.</p> <p>Where the allegation was that the aggravated assault was committed with a hoe handle inflicting serious bodily injury, it was error to charge in addition to this allegation, that if the assault was committed with premeditated design, to convict.</p> <p>2. —Verdict—Indefinite in the Light of the Record.</p> <p>Where the court submitted both aggravated- and simple assault, and the verdict assessed the fine at $25, and it did not appear therefrom, or the judgment whether the punishment was assessed for simple or for an aggravated assault, the judgment was reversed.</p>

<p>Assault with Intent to Murder—Charge of the Court—Aggravated Assault— Defense of Brother.</p> <p>Where there was evidence that the alleged injured party made an attack upon defendant and his brother, and struck the latter in the face with his fist, causing pain, whereupon all the parties engaged in a fight, and in the struggle defendant cut the prosecutor with a knife, the court should have charged the jury on aggravated assault, both from defendant’s own standpoint, as well as from that growing out of the assault upon his brother.</p>

The evidence shows that appellant and deceased had rented adjoining farms and the fence that separated the two farms was down at a place near defendant’s house and some of appellant’s cattle had gotten into deceased’s pasture. Deceased made complaint of this to the wife of appellant, and on Thursday before the killing came to fix the fence.

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

From Erath County. Original application for habeas corpus for release from arrest for violating the local option law, which was claimed to be invalid under act of the 28th Legislature, p. 133, known as Terrell election law. The opinion states the case.

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

<p>1. —Assault With Intent to Rob—Intent—Evidence.</p> <p>Where the proof showed that appellant came up with prosecutor and his companion about dark as they were en route to B. and after walking with them a short distance and some general conversation, suddenly stepped out in front of them, threw his gun in their faces and said, “Halt! Throw up your hands!” and thereupon they ran and appellant fired in the direction of prosecutor as the latter ran, appellant in the mean time running away, there was sufficient evidence that the assault was made. with the specific intent to rob.</p> <p>2. —Charge of the Court—Aggravated Assault.</p> <p>Where an assault with intent to rob was alleged with a firearm, but there was no allegation that the same was a deadly weapon, it is doubtful whether the indictment embraced an aggravated assault and it was not error to refuse to charge on this subject.</p>

<p>1. —local Option—Agency—Charge of the Court.</p> <p>Where the defendant merely acted as the agent of the prosecuting witness in procuring the whisky from another party he would not be guilty of a violation of the local option law, and the fact that he advanced part of the money to pay for it would not change this, provided he was acting in good faith as the agent of the party purchasing the whisky, and the court erred in not so charging the jury.</p> <p>2. —Charge of the Court—Advancing Purchase Money.</p> <p>Where the evidence showed that prosecutor requested defendant to order two quarts of whisky for him, but that he had only 75 cents of the money and asked defendant to advance the balance of the cost of the whisky and that he would pay the money back to defendant when the whisky came, whereupon the latter ordered one gallon of whisky and prosecutor paid for his half of it when he got it, it was error to charge the jury that if defendant had ordered said whisky and received pay, or any part of the pay therefor at the time of its delivery tó the prosecutor/ he would be guilty of violating the local option law.</p>

<p>Habeas Corpus—Bond B,educed.</p> <p>Where the State offered no evidence in regard to the alleged crime, on a proceeding on habeas corpus to reduce defendant’s bond, and it was an admitted fact that the State continued the case at the preceding term of the court, it was error not to reduce his bail.</p>

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

Tried below before Hon. B. W. Simpson. Appeal from a conviction of aggravated assault, on an indictment for robbery; penalty, a fine of $250 and twenty days confinement in the county jail. The State’s witnesses, Jim Wright and Joe Bay, testified that they, together with appellant and others, had been at a dance. That after the dance was over, all these parties, about eight in number, left, going in the same direction, until they reached a bridge.

<p>1. —Murder—Jury—Special Venire—Waiver—Agreement.</p> <p>Where the record showed that a special venire was waived by appellant and that he, as well as his attorney, had agreed with the State to take the regularly drawn jury for that week of the court to select the jury from, as the venire for the trial, there was no error in not ordering and drawing a special venire, from which to select a jury.</p> <p>2. —Same—Discharged After Acceptance, hut Before Being Sworn.</p> <p>Where the record showed that a juror was excused after being accepted by both parties, and then stated to the court that on account of sickness, he was unable to sit as a juror, before he was sworn as a juror in the case, and the attorneys agreed to excuse him, there was no error.</p> <p>3. —Continuance—Application—Bill of Exceptions.</p> <p>Where it was stated in the motion for new trial that defendant, when his case was called for trial, stated verbally that he desired the presence of an absent witness, and there is no application for a postponement or continuance, and there was no bill of exceptions, the matter will not be reviewed, even if there had been a formal application for continuance.</p> <p>4.—Evidence—Death Produced by Beating With a Stick.</p> <p>See evidence stated in opinion held to be sufficient to support an allegation that the deceased was killed by being beaten with a stick. Even if in fact it was not a stick of wood, but a blunt instrument, this allegation would be sustained.</p> <p>[Motion for rehearing overruled without written opinion.—Reporter.]</p>

<p>1. —Forgery—Indictment—Variance on Face—Proof Excluded.</p> <p>Where the indictment in the purporting clause alleged the forgery of a check to be the act of “Oz. Smith,” while the tenor clause showed the check to be signed by “O. Smith,” and there were no innuendo or explanatory averments undertaking to explain these allegations, objection to the introduction in evidence of the check on the ground of variance of the instrument described in the indictment and the one offered in evidence should have been sustained.</p> <p>2. —Bill of Exceptions—Not Verified—Will Not be Considered.</p> <p>A bill of exceptions that a witness has not qualified himself to give expert testimony, which is not properly verified can not be considered.</p> <p>3. —Evidence—Payment of Check—Authority Not Shown.</p> <p>Where a witness was permitted to testify that the alleged forged check, as well as another, were partly paid off by appellant’s brother-in-law, after the indictment was found, and it was not shown that appellant was in any way connected with such payment, or authorized it, objection thereto should have been sustained.</p> <p>4. _Same—Husband and Wife, Communications Between Not Admissible.</p> <p>Where upon cross-examination of defendant’s wife, new matter with reference to communications between them was brought out by the State, objection thereto should have been sustained.</p> <p>5. —Witness—Felonies—Misdemeanors—Credibility—Charge of Court.</p> <p>Where witnesses were sought to be impeached, on the ground of having been indicted for felonies, it was error to also admit testimony against their credibility that they were indicted for card playing. Such testimony with reference to the felonies should have been limited by proper instructions to its legitimate office of impeachment.</p> <p>6. —Charge of the Court—Defense Made Should Have Been Submitted.</p> <p>Where in a trial for forgery of a certain check, there was evidence that the same was not a forgery, but was given defendant by the alleged signer, in payment of a gambling debt, the court should have submitted this issue and charged the jury to acquit, if it was true, etc.</p>

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

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

Tried below before Hon. J. C. Wilson. Appeal from a conviction of horse theft; penalty, three years imprisonment in the penitentiary. The opinion states the case.

<p>Aggravated Assault—Fact Case—Insufficient Evidence.</p> <p>See opinion containing facts which do not prove an intent to injure and are insufficient to sustain a conviction for aggravated assault.</p>

Tried below before Hon. C. E. Gustavus. Appeal from a conviction of violating the local option law; penalty, $25 and twenty days in county jail. The State proved the sale of a bottle of whisky by defendant and that the liquor was intoxicating. There was no proof that the Iron Tonic which he sold was intoxicating.

<p>1. —Sale of Liquor on Election—Repeal of Law by Implication—Old and New Law.</p> <p>Where a new law covers the whole subject matter of an old one, and prescribes a different penalty than that provided in the old law, it is held that the former is repealed by implication.</p> <p>2. —Same—Old Law Repealed by Latter on Same Subject.</p> <p>Where a prosecution was under the old law, article 185, Penal Code, defining the offense and providing for the punishment of selling liquor on election day, by a fine of not less than $100, nor more than $500, whereas a later law (Acts 28th Leg. p: 133), section 120, is similar in terms and covers the same subject matter and provides for a fine of not less than $200, nor more than $500, or for hard labor on the public roads, or for both such punishments; although the latter act makes such offenses cumulative as therein defined, the two laws cannot stand together and the latter must be held to repeal the former and the prosecution thereunder is dismissed. Brooks, Judge, dissents.</p> <p>3. —Information—Proviso Must be Negatived.</p> <p>Under the act of the 28th Legislature, section 120, the information should have alleged that the offense was committed in voting precinct, village, city or "town, where such election was held, and the allegation that it was within three miles of any such voting precinct, etc., was not required. But it is necessary under the new law to negative the proviso therein, as the same is contained in the enacting clause. Brooks, Judge, dissents.</p>

The testimony for the State shows substantially that on the evening of the killing that the deceased (who was defendant’s wife) and her mother agreed they would go to a party that night at St. Paul’s church, and that they would meet at a negro woman’s house named Polly, who lived between Alto and the church.

From Kaufman County. Original application for habeas corpus for release from commitment upon an arrest for a violation of the stock-law In said county. The opinion states the case.

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

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

The defendant sought to justify the homicide on the ground of self-defense and introduced in evidence the communicated threats of deceased, made at different times, that he intended to kill defendant. Defendant’s wife testified that about a week, or such matter, before the homicide the deceased had attempted to outrage her and that she told her husband about it, after he had had the altercation with the deceased on the morning of the day of the homicide.

The Commissioners Court of Panola County ordered an election upon the petition of twenty freeholders under article 4978, chapter 5, Revised Civil Statutes, in a subdivision of said county described by metes and bounds whether hogs, sheep and goats should be permitted to run at large in such subdivision, to be held September 20, A. D. 1902. Said election was duly held and the said stock law adopted.

The following statement taken from appellant’s brief is substantially correct:—Appellant was on the west side of the Trinity River, late in the evening of July 30th, 1901, and desired to cross the river, so as to reach Ms home, some four or five miles east of Wallisville.

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

<p>1. —Murder in Second Degree—Charge oí the Court—Manslaughter—Facts Stated.</p> <p>Where the testimony of appellant, who was on trial for the murder of his mother-in-law, was that his brother-in-law and others had given him a beating, pushed him out of the house, and were beating him over the head, shortly before he fired the fatal shot which missed the brother-in-law and killed the mother-in-law, the court should have submitted the issue of manslaughter.</p> <p>2. —Jury and Jury Law—Practice in District Court.</p> <p>Where the jury took into their retirement the indictment upon which the verdict of conviction on a former trial was written, without the knowledge or consent of appellant, who was again on trial for murder upon the same indictment, such practice was contrary to the statute which forbids reference to a former trial and conviction, although as the point is presented, it may not have been reversible error.</p>

<p>1.—Theft of Horse—Argument of Counsel—Defendant as a Witness.</p> <p>Where the bill of exceptions did not show the connection in which State’s counsel may have used the language imputed to him to wit: “ If you have any innocent explanation to make, why don’t you give it,” the court cannot presume that he referred to defendant or to his failure to testify in the case.</p> <p>6.—Charge of the Court—Contemporaneous Crime.</p> <p>While the court is required to limit contemporaneous theft, yet there must be some testimony showing such contemporaneous theft.</p> <p>3. —New Trial—Bill of Exceptions—Objectionable Testimony.</p> <p>Unless there was reserved a bill of exceptions and there is something in the record that objectionable testimony was admitted, it cannot be set up in the motion as a ground for new trial.</p> <p>4. —Charge of the Court—Defendant as a Witness.</p> <p>Where it is not shown that any reference was made to defendant’s failure to testify, a charge on this subject, though not as full as the statute, does not suggest reversible error.</p>

Tried below before Hon. W. W. Moore. Appeal from a conviction of violating the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.

<p>1. —Theft—Indictment—Value—Appropriation—Allegation Sufficient.</p> <p>Where' the indictment alleged that the defendant took said hogs with intent to deprive the owner of the value of the same, and to appropriate the said hogs to his use and benefit, although not using the word “ it ” to refer to the value of the hogs, the allegation was sufficient.</p> <p>2. —Same—Continuance—Diligence Not Sufficient.</p> <p>Where the indictment was pending and arrest made five months before appellant applied for process for his witnesses, and he does not show when process was returned, and the witnesses being temporarily out of the county, as to their whereabouts, there was not sufficient diligence.</p> <p>3. —Same—Materiality of Testimony—Conclusion of Witness.</p> <p>Where the materiality of the testimony set out in the application was that the witnesses would testify that the hogs, alleged to have been stolen, were appellant’s hogs, without setting forth the facts by which they identified them as such, the statement would be a mere conclusion of the witness; and other witnesses having testified to appellant’s ownership, there was no error in overruling the application for continuance.</p> <p>4. —Evidence—Sufficient to Support Verdict.'</p> <p>Where the evidence showed that the property alleged to have been stolen was that of the prosecutor, and that defendant must have known this, the taking was fraudulent and the verdict is sustained.</p>

The testimony of the witness Bill Hampton as to the defendant’s declarations, with reference to the homicide and how it occurred, and which the court ruled out, corroborated defendant’s testimony and was the same in substance as related by the latter on the witness stand. The opinion states the case.

Tried below before Hon. Tom C. Davis. Appeal from a conviction of murder in the second degree; penalty, 'five years imprisonment in the penitentiary. The testimony showed that the defendant and deceased met at the fireplace in Joel Whitfield’s store.

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

The opinion states the case. The charge of the court on the testimony of an accomplice after defining an accomplice, was as follows: “Now if you are satisfied from the evidence that the witness Albert Whitten was an accomplice, or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are further instructed that you cannot find the defendant guilty upon his testimony unless you are satisfied that the same has…

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

Tried below before Hon. John W. Love. Appeal from a conviction of aggravated assault; penalty, two years confinement in the county jail.

<p>Recognizance—Felony—Embezzlement—Statutes Construed.</p> <p>Article 308, Code Criminal Procedure, requires that the recognizance state, “ charged with a felony,” and where the recognizance stated the offense as “ embezzlement over the value of fifty dollars,” it designated an offense which is made a felony by statute, and therefore complied with the above article and was sufficient. Following White v. State, 7 Texas Ct. Rep. 918.</p>

The testimony of Tobe Lane, the principal State’s witness, was that he went into the defendant’s place of business, which is the old “National Bar,” and situated in the National Hotel building, just west of the hotel lobby.

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

<p>1. —Murder in the Second Degree—Evidence—Change of Venue.</p> <p>Where on a motion for change of venue, on an indictment for murder, the defendant proposed to show that the district judge, who had previously granted defendant a continuance, was beaten in the election held thereafter two to one in the county of the trial by his opponent who was private prosecuting attorney in the case, to show what effect the continuance of said case had upon the voters of said county and the feelings which were engendered among them in the campaign towards defendant, it was error to exclude such testimony.</p> <p>2. —Same—Prejudice Against Defendant.</p> <p>See evidence stated in the opinion upon which it is held the venue should have been changed, on the ground that so great a prejudice existed in the county of the trial against defendant, charged with murder, as to render it improbable that he could get a fair and impartial trial.</p> <p>3. —Same—Charge of the Court—Murder in Second Degree—Manslaughter.</p> <p>See opinion for criticism of the court’s charges on murder in the second degree and manslaughter as" somewhat complicated, and the suggestion as to the law applicable to the facts which the court should charge in another trial.</p>

<p>The gist of the State’s testimony was that the defendant had made a sworn written statement before a justice of the peace, who was holding an examining court to inquire into the theft of some cotton seed; that Rastus Davis had rode up to where defendant and one Will Eluting were stopping for lunch and feeding their horses; that Davis was riding one of Eluting’s horses; that Eluting got on the horse and rode toward his home leaving his wagon with Davis and that then the defendant and Davis got the cotton seed as set out in the indictment. That defendant plead guilty to the theft of the cotton seed, and that on the trial of said Will Eluting for the same offence in the county court, defendant as a witness, swore that the party who rode, up to their camp, or stopping place, was Charley Folson, and that he and defendant took the cotton seed. Defendant also made a written sworn statement before the grand jury that it was Charley Folson who rode up to their camp and that he and defendant took the cotton seed. -All of these statements were introduced in evidence by the State. Will Eluting was also introduced and testified that the party who met them in camp was introduced to him by defendant as Charley Folson; that Erastus Davis was his son-in-law and he was positive that this person was not Davis. The State also showed by other testimony that Erastus Davis was at the home of Eluting on the evening and early on the night of the day and night that the cotton seed was alleged to have been stolen; and that this was some ten or twelve miles from the gin where the cotton seed was stolen. The sheriff testified that he did not know Folson or of a man in Fisher County named Charley Folson. It also developed in the testimony that Erastus Davis was charged with the same offense as defendant and Eluting but that he had not been arrested and was still at large. The cotton seed was found in Eluting’s dug-out and turned over to the owner. Eluting had been convicted of the theft of the cotton seed when he testified. The cotton seed was stolen at night.</p>

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

Hon. Jno. W. Goodwin. Tried below before Appeal from a conviction of forgery; penalty, two years confinement in the penitentiary. The following (slightly changed) taken from the brief for the State is a substantial, correct statement of the case: The indictment contains three counts; only the first count, charging forgery, was submitted to the jury. The alleged forged instrument, as set out in the indictment, and shown by the testimony is as follows: “Coleman County, Tex.

<p>The owner of the hog testified that -he missed the animal on the day it was killed. That he went to the place of Joe Brooks that night and met him and also defendant who first attempted to hide. That Brooks claimed to have bought the hog from defendant. The defendant—after witness had told him, he might just- as well come out, that he was going to see who he was—came to where Brooks and witness were, and witness had a conversation with him, and asked him why he had killed his hog, and defendant said he did not intend to kill him, but intended to kill Jackson’s hog. Witness then went into the house of Brooks and found the head of the hog which had his mark, the balance of the hog was in a pot cooking. Afterwards, on the same night, Joe Brooks, Nathan Jackson and defendant came to witness’ house for a compromise, and defendant came into witness’ room and said that if witness would not “pull” him, he would pay him until he was satisfied, and admitted that he had gotten witness’ hog. Joe Brooks testified that defendant sold him the hog and said he got him from his mother. The wife of the owner of the hog testified that defendant begged her and her husband not to prosecute him, that he would pay them five dollars, etc. Defendant and his witnesses testified that he simply killed the hog for Joe Brooks at the instance of Brooks. The latter had been indicted for the theft of the hog and acquitted.</p>

The following statement of the case, taken from appellant’s brief, is substantially correct: The record in this case discloses that the appellant was tried in the corporation court in the city of Weatherford, Texas, on the 2nd day of Dec., 1903, charged with gaming, to wit: With unlawfully playing at a game of cards not at a private residence occupied by a family, within the territorial limits of the city of Weatherford, on Nov. 26, 1903.

<p>1. —Burglary—Accomplice—Evidence—Corroboration.</p> <p>Where the witness who was introduced to corroborate the testimony of an accomplice could only testify to having heard one statement which appellant addressed to the accomplice, and which could have referred to any other matter as well as to the commission of the burglary, the corroboration is insufficient.</p> <p>2. —Same—Facts Stated—Insufficient Corroboration.</p> <p>See evidence stated in the opinion which is held to be insufficient to corroborate the testimony of accomplices on an indictment charging appellant as an accomplice in burglary.</p>

<p>1. —Local Option—Habeas Corpus—Notice of Election."</p> <p>The local option election law which provides for posting notices at five places for twelve days prior to the day of election in the territory in which such election is to be held, is not repealed by the general election law, passed subsequently, which provides that notices for special elections are required to be published in a newspaper for twenty days prior to the date of the election, or by posting, etc., in the event there is no paper, for twenty days, etc.; and an election held for local option under the provisions of the local option law is valid.</p> <p>2. —Same—Repeal of Laws by Implication Not Favored.</p> <p>Special laws and legislation to be made operative by the voters of a particular locality, and laws of kindred character, are not repealed by general laws, unless specially mentioned in the general law, or such purpose is made manifest from the plain provsisions of the general law.</p> <p>3. —Same—Purpose and Intent of the Legislature.</p> <p>It is manifest, that inasmuch as the general election law, known as the Terrell Election Law, does not mention the local option law, that no repeal of any of the provisions was intended; nor is it to be gathered from any provisions of that law that the evident intention or manifest purpose of the Legislature was to repeal any of the provisions of the local option law in respect to giving notice of elections thereunder. Following Schields v. State, 38 Texas Grim. Rep., 252.</p> <p>4. —Same—Judicial Decisions Presumed to Enter Legislative Intent.</p> <p>Where the decisions of the appellate courts were well understood at the time to hold that the general law in regard to notice of special elections did not apply to local option elections, and that there was no repugnancy or conflict between the general and the special law, it will be presumed that this construction entered into the legislative intent when the Terrell Election Law was passed.</p> <p>5. —Same—Purpose to Repeal must be Manifest.</p> <p>Local option is a part of the constitutional and legislative system of Texas, and before the courts will be justified in holding the general law as repealing the prior local option statute in regard to election notices, there must be express mention of that purpose in the general law, or else the purpose to repeal must be clearly manifest.</p>

<p>Manslaughter—Provoking the Difficulty—Charge of Court.</p> <p>See facts stated in the opinion which authorized the court to submit to the jury a charge on provoking the difficulty, and which charge is an exact copy of the charge approved by this court in Matthews v. State, 42 Texas Grim. Rep., 31.</p>

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

The' affidavit of the district judge filed in the Court of Appeals showed that as a judge of the Fifth Judicial District of Texas, he heard in chambers ex parte T. C. Wallace on habeas corpus and after hearing remanded him without bail August 19, 1904, from which order relator appealed. That he (the judge) then certified to all the proceedings had before him, and ordered them filed by the clerk of the District Court.

<p>1. —Perjury—Indictment—Materiality of Assignment.</p> <p>Where an indictment charging perjury, alleged that the defendant as a witness committed perjury in a corporation court of the city of Weatherford on a complaint charging one" W. P. with unlawfully playing at a game with cards, etc., ■in said county and city, the materiality of the predicate on which perjury is assigned was sufficient and the indictment being good in other respects, the exceptions thereto were properly overruled.</p> <p>2. —Same—Evidence—Territorial Limits of City.</p> <p>Where on trial upon an indictment for perjury committed in a corporation court, the proof showed that the game of cards concerning which the alleged perjury was committed, was played outside of the corporate limits of the city of Weatherford,. instead of within such territorial limits as alleged in the indictment, the conviction for perjury could not be sustained.</p>

The testimony of Dr. Joe Sanders showed that he went out in his pasture to catch his horse, and when about 160 yards from defendant’s house, he saw him walk out of it across the big road to where deceased was plowing just on the inside of the fence, who was turning at the end of a cotton row, and was about thirty or thirty-five feet north of due east line from defendant’s front door.

<p>1. —Perjury—Indictment—Jurisdiction—Corporation Court.</p> <p>Section 2 of the act of 1899, page 40, confines the jurisdiction of corporation courts in criminal cases, to those arising within the territorial limits of the city wherein the corporation court exists, and an indictment for perjury which fails to allege that the game of cards, concerning which it is charged perjury was committed by defendant in the corporation court of the city of Weatherford, was played in the territorial limits of said city is fatally defective.</p> <p>2. —Same—Corporation Court Confined to Territorial limits of City.</p> <p>If, as a matter of law, the corporation court of Weatherford could not have jurisdiction of the case, wherein the alleged perjury was committed, then all the acts of the court were void, and everything occurring on the trial in it was void; and the statements made by the witness in the case could not be material, because said trial could not in any legal sense be a trial.</p> <p>3. —Same—Evidence.</p> <p>Testimony that the game of cards, concerning which perjury was assigned, was played beyond the territorial limits of the corporation court trying the same was most material on a trial of defendant for such perjury, and to exclude it was reversible error, had the indictment been good.</p>

Mrs. Barnes, wife of defendant, testified that on the morning of the 18th of August, 1904, the defendant left her house and went over to a neighbor’s house and claimed he was sick; he. went in her buggy and drove her horse. After he had gone over there, she went also; going into the lot where the horse was, caught him and started to lead him out of his lot, when defendant came up and asked her what she was going to do with the horse.

Tried below before Hon. S. A. Lindsey. Appeal from a conviction of adultery; penalty, a fine of $200.

The evidence showed that the injured party, Mattie Smith, while sitting in the depot awaiting a train, was assaulted by defendant with a knife two and one-half inches long and severely cut by him, the witness using the expression, “butchered up like a hog,” cut on the shoulders, elbows, side and back, and had eleven cuts on her person; one cut was almost to the bone around the arm, and another just below the heart, etc. A policeman rushed to her rescue and arrested the…

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

Tried below before Hon. J. D. Haney. Appeal from a conviction of unlawfully carrying on and about his person a pistol; penalty, a fine of $25. The opinion states the case.

<p>1. —Manslaughter—Charge of the Court—Harmless Error.</p> <p>If it be conceded that the court’s charge on manslaughter was erroneous in not submitting the question of an intentional killing to the jury, still if the facts show that manslaughter was the lowest grade of homicide of which the jury could find appellant guilty, that is, that negligent homicide is not in the case, the error of the court in his charge on manslaughter would not affect appellant. Davidson, Presiding Judge, dissenting.</p> <p>2. —Same—Fact Case—Negligent Homicide.</p> <p>See opinion for facts which did not call for a charge on negligent homicide and which disclose an intentional killing. Distinguishing Reddick v. State, 47 S. W. Rep., 993.</p>

<p>1. —Assault to Murder—Jurisdiction—Federal Courts—IT. S. Fort—Judicial Notice.</p> <p>While the courts of Texas take judicial notice of the cession by the State to the United States of the land conveyed to the latter upon which is situated Fort Brown, they do not take such judicial notice of the precise metes and bounds of said land by its field notes and bounds as run out upon the ground.</p> <p>2. —Same—Evidence—Fence or Wall Not Boundary.</p> <p>It was error to exclude on the trial of assault to murder testimony of defense showing by actual metes and bounds that the alleged offense was committed within the boundaries of the land conveyed to the United States for which cession was made by the State to Fort Brown, as in that event the Federal Court had exclusive jurisdiction of such offense, and the possessory right of the United States was not fixed by the fence or wall enclosing the land, or that land outside such enclosure was abandoned.</p> <p>3. —Same—Cession Only Confers Jurisdiction.</p> <p>A different question would be presented if there had been no cession by the State of the place, although it were used and constantly occupied by the United States for a fort, etc. But that question is not before the court.</p> <p>4. —Same—Streets—Relinquishment—Waiver.</p> <p>Even if the United States had opened streets across the land occupied by Fort Brown, which was acquired by purchase and cession from the State, and had permitted the public to travel these streets, the authority of the United States would not thereby be relinquished, or the exclusive jurisdiction of the Federal courts affected. Brooks, Judge, dissenting.</p>

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

<p>The relator was prosecuted in the Corporation Court of Corsicana for violating the Sunday law; the prosecution being in the name of the State, for violating the penal law of the State. Relator was convicted and appealed to the county court, and was again convicted in said court and copies pro fine issued upon said judgment of the county court, by which process he was held when he sued out a writ of habeas corpus before the district court; contending that the judgment of the county court is void because the justice court alone has exclusive jurisdiction to try all misdemeanors, where the fine imposed does not exceed $200; and the corporation court had no jurisdiction to try relator, and the appeal conferred no jurisdiction on the county court.</p> <p>Relator contends that the law under which he was prosecuted is unconstitutional. The prosecution in the corporation court arose prior to any special charter granted the city of Corsicana—said court being duly and legally organized under the corporation court act, and the date of the prosecution being May 5, 1902.</p>

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

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

<p>Personating Officer—Indictment—Proof—Variance.</p> <p>Where the indictment specifically alleges the name of the officer which was falsely assumed, and the proof only showed that defendant pretended to be the character of officer charged in the indictment but there was no proof that he assumed the specific name therein charged, the variance is fatal.</p>

<p>Gaming—Indictment—Cumulative Punishment.</p> <p>See opinion for indictment held insufficient to sustain a conviction authorizing cumulative punishment under article 1014, Penal Code.</p>

Tried below before Hon. G. P. Webb. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and twenty-five days confinement in the county jail. The opinion states the case.

<p>Bight of Appeal—Sheriff—Betaxing Costs—Jurisdiction.</p> <p>The jurisdiction of the Court of Criminal Appeals is confined to appeals in criminal cases in which a defendant alone has the right of appeal. There is no appeal by a sheriff on matters of costs where the court below has stricken items from his cost bill on a motion to retax cost.</p>

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

<p>Breach of Peace—Information.</p> <p>Where the information charged “in a manner,” instead of “under the circumstances” reasonably calculated to provoke a breach of the peace, it was sufficient.</p> <p>[Motion for rehearing overruled without written opinion.—Beporter.]</p>

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

<p>1.—Swindling—Indictment—Knowingly—Whole Instrument.</p> <p>An indictment for swindling must allege that the false pretenses were knowingly made; and where a written instrument is the basis of the swindling, the whole of the written instrument must be set out in the indictment.</p> <p>2. —Same.</p> <p>An indictment for swindling must set out all that is pertinent to the issue which induced the party injured to part with his property, and if the document in question, when the whole is presented, fails to show that the representation was made with the intent to induce the prosecutor to part with his property, the prosecution can not be maintained; the false pretense must afford some reason why the party was induced to part with his property, that he_ relied thereon and that the same was knowingly false.</p> <p>3. —Same—Case Stated.</p> <p>Where the swindling pretense was based upon a letter, a part of which only was set out in the indictment which was alleged to have been made to procure a loan from a bank of three thousand dollars on certain cattle, whereas if the whole of the letter had been set out it would have shown upon its face that defendant desired an extension only of his existing indebtedness, and where other letters in evidence clearly showed that defendant was not seeking a loan at that time. Held, without indorsing in full the doctrine that the whole .of the written instrument should be set out, that in this case the letter should have been set out in full. Brooks, Judge, dissenting.</p> <p>[Rehearing overruled without written opinion.—Reporter.]</p>

<p>Sunday law—Keeping Open For Barter Place of Business.</p> <p>Where the information charged and the evidence showed that defendant kept open his place of business on Sunday for the purpose of-traffic, it is immaterial whether he made a sale.</p> <p>[Motion for rehearing overruled without written opinion.—Reporter.]</p>

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

<p>1. —Assault With Intent to Murder—Short Hand Facts.</p> <p>It is permissible for a witness to state the appearance of the accused at the time of the difficulty, as to whether he was angry or appeared to be so, or was cool or excited. This is in the nature of a “shorthand” rendering of the facts.</p> <p>2. —Same—Argument of Counsel—Res Gestae.</p> <p>Testimony that appellant’s sister, at the time of the difficulty, threw rocks at prosecutor’s house was admissible as res gestae on trial of the appellant for assault with intent to murder; and State’s counsel could comment thereon.</p> <p>3. —Same—Charge of Court—Adequate Cause.</p> <p>Where the evidence showed insulting language and conduct by the person assaulted towards the sister of the defendant, and the court in defining adequate cause charged that insult to a female relative was adequate cause if the shooting occurred on the first meeting after defendant learned of the same, and that it would be presumed that his mind had become excited by such information and that no specific cooling time was fixed by law, but was a question of fact for the jury; they could not have been misled by the words, "‘under the immediate influence of sudden passion arising, etc.,” used in applying the law of adequate cause to the facts in evidence as meaning passion arising at the time when defendant met prosecutor; nor were defendant’s rights injured in refusing his special charge which contained a similar expression about sudden passion.</p> <p>4.—Same—Province of Jury—Pact Case.</p> <p>When the evidence showed conclusively that defendant shot the prosecutor because he had insulted defendant’s sister, yet the jury could find from the evidence that defendant’s mind had cooled at the time of the shooting, the court will not disturb a verdict for assault with intent to murder.</p>

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

<p>1. —local Option—Transfer From District to County Court.</p> <p>Where the record showed that the order transferring the case, designated the same by number only, and the transcript showed the name of the defendant in addition to the number, it was sufficient and there was no variance. Nor is it necessary that the transcript should show the date on which the district court adjourned.</p> <p>2. —Same—Petition For Election.</p> <p>It is immaterial whether a petition for local option was defective, the court having the absolute right under the statute to order the election.</p> <p>3. —Same—Election For Entire County.</p> <p>Where all of the county of O. was under local option, except the towns of M. and W. at the time of ordering the election for the whole county, such election for the entire county was legal.</p> <p>4. —Same—Fact Case—Sale.</p> <p>Where the evidence showed that a package containing whisky was shipped O. O. D. to appellant at M. by express, he not having ordered the whisky; but prosecutor knowing that the package was at the express office, and desiring the whisky, informed appellant and procured an order from him for it, upon which he obtained and paid for it, the transaction constituted a sale.</p> <p>5. —Same—Knowledge of the law Presumed.</p> <p>There was no error in refusing to permit defendant to prove that he had no intention of violating the local option law by giving an order to the prosecutor for whisky in his name at the express office, since it is presumed that he knew the. law.</p> <p>G.—Same—Evidence.</p> <p>Where the express agent had no independent recollection of the transaction and could only testify what his books showed; it being an order upon him for whisky by defendant in favor of prosecutor which order was already in evidence, there could be no error; besides, such testimony was admissible.</p> <p>7.—Same—Presumption That local Option law is in Force When.</p> <p>Where the orders of the court with reference to the local option election were nroper and the certificate of the judge having been properly entered, certifying that the result of the election had been duly published; it authorized the court trying defendant for a violation of the local option law to assume in his charge that said law was in force at that time.</p> <p>[Motion for rehearing overruled without written opinion.—Beporter.]</p>

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

<p>1. —Burglary—Indictment—Variance.</p> <p>Where a count in the indictment, which was submitted to the jury, alleged the burglary of a house at night, and the proof showed that the house burglarized was a private dwelling, the variance was fatal.</p> <p>2. —Same—Separate Offenses.</p> <p>A daytime burglary of a house, or the night-time burglary of a house, is a distinct and separate offense from the night-time burglary of a dwelling house.</p>

<p>1. —Hog-Theft—Accomplice Testimony—Charge of Court.</p> <p>Where the State’s testimony depended largely upon the testimony of two accomplices, and the court charged that the same must be corroborated, but failed to charge the jury that one accomplice could not corroborate another, there was reversible error.</p> <p>2. —Same—Principals—Charge of Court.</p> <p>A charge which instructs the jury that defendant could be convicted as a principal, although not actually present when the offence was committed, without further charging that defendant must have done some act at the time of the commission of the offense in furtherance thereof, such as keeping watch, was error.</p>

<p>Murder in the First Degree—Death Penalty.</p> <p>See opinion for evidence held sufficient to sustain a conviction p£ murder in the first degree assessing the death penalty.</p>

<p>Appeal from the County Court of Ellis. Tried below before Hon. Lee Hawkins.</p> <p>Appeal from a conviction of causing intoxicating liquor to be given to a minor; penalty, a fine of $25.</p>

<p>Theft—Continuance—Contradiction.</p> <p>Where upon trial of theft of a watch, defendant flatly contradicted the facts he expected to prove by the absent witness, this rendered them highly improbable; besides prosecutor thoroughly identified defendant as the man who took the watch. Held no error in refusing the application for continuance.</p> <p>[Motion for rehearing overruled without written opinion,—¡Reporter.]</p>

<p>1. —Assault With Intent to Rape—Evidence—Res Gestae.</p> <p>Where a little girl 6 years of age was criminally assaulted and some twenty minutes thereafter, upon being asked by her mother what defendant had done to her, told her the facts; that the child looked “wild”' and began crying when her mother questioned her; that the statements of the child were spontaneous and not coerced or persuaded. Held res gestae and admissible in evidence.</p> <p>2. —Same—Age of Witness—Res Gestae .</p> <p>Where the statements of a child 6- years of age, who had been criminally assaulted, to her mother, relating the facts constituting the assault, and such testimony was res gestae, the same would not be excluded on the ground that the child was incompetent to testify.</p> <p>3. —Same—Fact Case.</p> <p>See evidence in opinion held sufficient to sustain a conviction of assault with intent to rape.</p>

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

<p>1. —Rape—Indictment—Distinct Offenses.</p> <p>Where one count in an indictment charges rape and the other incest and both are predicated on the same transaction, each charging a distinct offense, the indictment is good.</p> <p>2. —Same—One Day After Service of Venire—Sunday.</p> <p>Where the special venire was served on Saturday about 3 o’clock and defendant’s case was called for trial Monday morning following, when he was forced to trial, an’ objection that the Sunday intervening was no day in law and that he had been deprived of one full legal day after such service, was properly overruled.</p> <p>3. —Same—Service and Return of Special Venire.</p> <p>Where defendant complained of the manner of service and return of the copy of the special venire, and that the same contained only nine persons summoned, whereas the original writ and return showed that forty of the special venire of sixty were summoned, because there appeared no mark or dot opposite the names of jurors on the copy. Held, the whole copy could be looked to, showing in the concluding portion the particular persons not served, and leaving the remaining names as served.</p> <p>4. —Same—Deputy Sheriff—Special Veniremen.</p> <p>Where the court appeared to have satisfied himself from proof on the question that the deputy sheriff was not prejudiced against defendant, there was no error in authorizing that officer to make service of special veniremen as drawn.</p> <p>5. —Same—Confession—Warning.</p> <p>Where the court’s explanation shows that the defendant was properly warned, his statement was properly admitted.</p> <p>6. —Same:—Other Acts of Sexual Intercourse.</p> <p>Where upon trial for rape, the court admits in evidence other acts of sexual intercourse than the one for which defendant, is on trial and not bearing on the case, the judgment of conviction must be reversed and the cause remanded. Approving Smith v. State, 7 Texas Ct. Rep., 343: Ball v. State, id., 105; Barnett v. State, id. 391; Hackney v. State, id. 890. Distinguishing Henard v. State, 10 Texas Ct. Rep., 191.</p>

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

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

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

<p>1. —Burglary—Evidence—Harmless Error.</p> <p>Where the witness had testified as to the general reputation of defendant for honesty, truth and veracity and that it was good, the State was permitted to ask the witness whether he did not know that defendant had been charged with and indicted for subornation of perjury and that in order to escape prosecution for that offense he married his wife, the very woman he had to swear a lie for him; to which witness replied in the negative. Held, the first part of the question was legitimate, but the last was not; however, the witness answering in the negative, the error was harmless.</p> <p>2. —Same—Bill of Exceptions.</p> <p>The remoteness of an extraneous crime, about which a witness was interrogated can not be considered where the bill of exceptions is not sufficiently definite, besides the court instructed the jury not to consider this, question.</p> <p>3. —Same—Evidence—Extraneous Crimes.</p> <p>The time of another offense should be fixed, so that it may appear whether it was too remote to be introduced as evidence of impeachment, however, where the court eliminated that objection in his explanation by showing that the same was too general and also by sustaining the" objection to any reference to defendant’s wife in that connection, there was no error.</p> <p>4. —Same—Charge of Court—Weight of the Evidence.</p> <p>Where the court instructed the jury that the testimony before them as to defendant’s having been charged with any other crime or crimes than the one for which he was then on trial, was admitted only for the purpose of going to the credibility of the defendant as a witness and for no other purpose and they should not consider it for any other purpose whatever, he was assuming that there was testimony that defendant had been charged with other crimes, and besides the latter portion of the court’s charge as to defendant’s credibility was on the weight of the evidence.</p>

Tried below‘before Hon. F. M. Newton. Appeal from a conviction of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.

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

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

<p>Local Option—Variance.</p> <p>Where the information alleged that the defendant unlawfully sold intoxicating liquor to S., and the proof showed that M. paid for the liquor, the variance is fatal, although the fact appeared that S. drank some of the liquor.</p>

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

While the case as stated in the opinion discloses the facts sufficiently to clearly show the issues involved, it may be added that the deceased had no warrant for the arrest of defendant, and that no prosecution for seduction was pending at the time.

<p>Robbery—Absence of Judge From Bench.</p> <p>Where the judge during an important part of the trial was absent from the bench and out of sight and hearing of the jury, the conviction will be set aside.</p>

<p>Appeal from the District Court of Jefferson. Tried below before Hon. A. T. Watts.</p> <p>Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary.</p> <p>The facts can be found in the former appeal, 46 Texas Grim. Rep., 536.</p>

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

<p>Maiming—Indictment.</p> <p>An indictment for maiming which alleges that N. did then and there unlawfully make an assault upon M., and did then and there unlawfully and wilfully and maliciously set fire to a certain device, known as a cannon cracker, which said cannon cracker was then and there being held by said M. in his hand, and said cannon cracker immediately after it was set on fire and because it was set on fire by said N. as aforesaid exploded and destroyed the said M’s hand, and then and there and thereby the said N. deprived the said M. of his hand, thereby maiming him, is sufficient.</p> <p>[Motion for rehearing overruled without written opinion.—Beporter.]</p>

<p>1. —Keeping Disorderly House—Accomplice.</p> <p>Where on a trial for keeping a disorderly house, the evidence showed that appellant was the owner in contemplation of law and the manager and controller of the house; a State’s witness who had rented a room therein and used it for the purpose of prostitution, could not be an accomplice, since a prosecution would not lie under the indictment upon which the defendant was being tried.</p> <p>2. —Same—Verdict—Special Plea—Formal Amendment.</p> <p>Where the record showed that after the jury returned with a verdict of guilty, which was read, the court, upon the suggestion of State’s counsel, that the jury must find a verdict on defendant’s plea of former acquittal, further instructed the jury upon this point, whereupon the jury again retired and afterwards returned a verdict that the special plea was not true and that defendant was guilty, etc.; there was no error, as the verdict had not been received in the sense insisted upon by defendant, and the action of the court was simply to make it formal.</p> <p>[Rehearing overruled without written opinion.—Reporter.]</p>

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

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

<p>Local Option—Affidavit—City Attorney—Complaint—Information—Statutes Construed.</p> <p>Section 6 of the Corporation Court Act (Acts 26th Legislature, p. 42), does not authorize a city attorney to take oaths to complaints before any other court or for use before any other court than the corporation court. Neither does article 467, Code Criminal Procedure, confer this power, and an affidavit before a city attorney to a complaint, as a basis of a prosecution for violating the local option law, in the county court is unauthorized, and the information and complaint should have been quashed.</p>

<p>1. —Local Option—Charge of Court—Place of Sale.</p> <p>A charge of the court which authorized a conviction in a local option case regardless as to where the sale of the intoxicating liquor was made is erroneous.</p> <p>2. —Same—Profit—Agency.</p> <p>See opinion for evidence which did not authorize the court to submit in his charge the issues of profit or agency.</p> <p>3. —Same—Special Charge for State.</p> <p>See opinion for special charge of the county attorney which was erroneous, as it assumed agency in the absence of testimony and was uncertain as to what particular agency it assumed.</p> <p>4. —Same—Conflict Between the Requested and the Main Charge.</p> <p>Where the requested charges of appellant, on his trial for a violation of the local option law, stated correct legal rules, as applicable to the facts of the case, but were controverted by the main charge of the court, there was error.</p> <p>5. —Same—Fact Case.</p> <p>See opinion for facts which were insufficient to sustain a conviction for a violation of the local option law, constituted no sale, and a charge to acquit the defendant should have been given to the jury.</p> <p>6. —Same—Other Transactions.</p> <p>Where the transactions showed that the defendant, who was charged with a specific violation of the local option law, had ordered whisky for others in a legitimate way at different times, it was error to admit these transactions in evidence against the defendant.</p> <p>7. —Same—Malicious Prosecution.</p> <p>See opinion for comment on malicious and frivolous prosecution.</p>

<p>1. —Local Option—Place of Sale—Requested Charge.</p> <p>In the absence of some rule given by the court as to how the jury were to ascertain whose loss it would have been, if the whisky shipped from Dallas to Kaufman County to the prosecutor had been lost in transit, there was no error in refusing a requested charge to the effect that the true test as to whether the alleged sale of the whisky by 'defendant to prosecutor was consummated in Dallas or Kaufman County, was, whose loss it would have been had the whisky been lost in transit, and if the jury found that the loss would have been on the prosecutor, then the sale was in Dallas County.</p> <p>2. —Same—Charge of Court—Agency.</p> <p>Where the evidence did not show that defendant acted as agent of the vendor of the whisky, but indeed disproves it, it was error to submit a charge on agency.</p> <p>,3.—Same—Charge of Court—Place of Sale.</p> <p>While the evidence showed that the sale of the whisky was consummated in Dallas County, and not in Kaufman County, in which latter county the prosecution for a violation of the local option law was pending and where it arose, it was error to charge in effect, to find the defendant guilty regardless of the locus of the sale, whether it occurred in Dallas or Kaufman County.</p> <p>4.—Same—Conflicting Charges—Hew Trial.</p> <p>Where the court submitted the requested charges of defendant which contained a correct rule of law applied to the evidence, whereas the court’s own charge controverted these rules; it became the court’s duty in the event of a conviction to have granted a new trial.</p>

<p>The evidence for the State was quite full that the ditches, dam and levees constructed by the defendant obstructed the road in question; that about two years ago he built the dam higher and larger in every way, so that before the water will run over the middle of the dam or ends it backs up, etc., which is not the natural water course, and it never did run there, until the defendant got the middle and ends of the dam higher than the point, * * * The water stands two feet deep in the road after a rain and from sixty to seventy yards wide along the road and extending across the lane and road, etc. People walking could not pass along the road, but would have to leave it and go through the wire fence into the field in order to get by. * * * When the water is caught there by the dam, the sand settles there in the road till now there is a heavy sand bed there in the road for about 100 yards. It is a hard pull through there with a load, etc. Before the dam was built it was a clay-bottomed road with a little sand and dried rapidly after a rain, etc.</p> <p>Defendant controverted the size and the time of the erection of the obstruction, and among other things testified as follows:—“I dug that ditch and built that dam or levee for the purpose of protecting my land and crops. I had no purpose or intention to injure or obstruct the road herein in question. I dug this ditch and erected this dam in good faith believing I had a right to do it to protect my' land and crops, and not believing that it would injure or obstruct that road in the least. I had no earthly purpose in the world to injure or obstruct this road, and did not have the least idea that it would injure or obstruct it in any way. I did this in good faith, etc.”</p>

<p>1. —Manslaughter—Res Gestae—Declaration of Defendant.</p> <p>Where defendant proposed to introduce the declarations between herself and a witness which occurred five or six. hours after the homicide for which she was being tried, to the effect that she told witness that deceased had cut her all to pieces; in connection with her physical condition, there was no error in excluding this testimony as no part of the res gestas, the court having permitted the witness to testify as to defendant’s physical condition.</p> <p>2. —Same—Evidence—Cross-Examination—Husband and Wife.</p> <p>Where defendant had proved that witness and herself were husband and wife, it was legitimate cross-examination to interrogate witness as to the particulars of said marriage, when, where and how it occurred; and being admissible and competent testimony under the circumstances of the case, after it had been admitted, the State could use the same for any legitimate purpose connected with the case.</p> <p>3. —Same—Evidence—Motive.</p> <p>Where the circumstances of the case showed that the relation of defendant and the witness H. was legitimate matter of proof, and the theory of the State was that defendant killed deceased from jealousy against her because of her relations to said witness, H., it was legitimate to permit the State to prove by defendant on cross-examination that she had recently upon one or two occasions prior to the homicide and to her marriage to H. had carnal intercourse with him.</p> <p>4. —Same—Evidence—Motive—Credibility of Witness.</p> <p>It was legitimate for the State on cross-examination of defendant to prove that she had formerly, long anterior to the homicide, been an inmate of a certain house of prostitution where the homicide occurred" for which she was being tried; that she had there received men and had carnal intercourse with them; and sometime prior to the homicide bad been mistress of one H., now the husband of defendant; for the purpose of affecting her credibility and of showing motive and ill will of defendant against deceased because of defendant’s jealousy of deceased on account of finding défceased with said H., on the morning of said homicide. It was not necessary for the court to limit the testimony of her being a prostitute, as the jury were not likely to appropriate the same for any other purpose than affecting defendant’s credibility.</p> <p>5. —Same—Charge of Court—Self-Defense.</p> <p>Where the court in defining the law of self-defense used the word “great,” instead of “serious” bodily injury, but in applying the law to the facts used the correct term serious bodily injury, appellant could not complain.</p> <p>6. —Same.</p> <p>Where the testimony was conflicting as to defendant’s mission in .going to deceased’s room, and the court charged the jury that it was immaterial for what purpose she went there, that if deceased made or was about to make an attack on her, which from the manner and character of it and the relative strength of the parties, and the defendant’s knowledge of the character and disposition of deceased, caused her to have a reasonable expectation or fear of death or serious bodily injury and she killed deceased, to find defendant not guilty, there was no error.</p> <p>7. —Same—Charge of Court—Self-Defense.</p> <p>Where the court charged the jury that defendant was authorized to act on an attack made or about to be made, there was no - error on this enlargement of defendant’s rights of self-defense, even if it be conceded that there was no testimony tending to show that defendant may have acted on an attack about to be made.</p>

Tried below before Hon. J. F. Bradley. Appeal from a conviction of giving liquor to a minor; penalty, a fine of $25. The opinion states the case.

<p>1. —Forgery—Indictment—Explanatory Averments.</p> <p>Where the name alleged in the instrument and the one which it is charged it represents are not sufficiently connected, nor the property rights alleged to be involved set out by such explanatory innuendo as to make the instrument set out in the indictment the subject of forgery, it not appearing from the face of the instrument so set out, the innuendo and explanatory averments alleged in the indictment are not sufficient.</p> <p>2. —Same—Insufficient Innuendo.</p> <p>See opinion for instrument which in itself is insufficient to show that it was such an one as could be the subject of forgery, and where the innuendo and the explantory averments appearing in the indictment were insufficient to bring it within the scope of forgery.</p> <p>3. —Same—Variance.</p> <p>See opinion for a variance between the instrument set out in the indictment and that offered in evidence.</p>

From Dallas County. Original application for habeas corpus for release from commitment for contempt for disobeying the orders of the District Court. The opinion states the case.

<p>Sunday law—labor on Sunday.</p> <p>Where the evidence showed that defendant as steward for a club opened and conducted its business on Sunday and sold two bottles of beer, he was not guilty, under article 196, Penal Code, of doing labor on Sunday.</p>

<p>Appeal from the County Court of Hale. Tried below before Hon. W. C. Mathes.</p> <p>Appeal from a conviction of unlawfully playing at a game of cards not a private residence; penalty, a fine of $10.</p>

<p>Theft of Cattle—Indictment—Proof—Variance—Bailment.</p> <p>Where the indictment charged that the bailment was that defendant should carry the cattle to a pasture and that the conversion occurred under this state of case, whereas the proof showed that the defendant carried the cattle to the pasture and sometime subsequently sold the animals to a butcher, the variance between the allegation and the proof is fatal.</p>

<p>Unlawfully Making Indecent Composition—Information—Proof.</p> <p>Where the information drawn under article 365, Penal Code, failed to allege how the statement presented to prosecutrix was manifestly designed to corrupt the morals of youth, and the evidence does not support a prosecution of this character, the'judgment of conviction must be reversed and the case dismissed.</p>

<p>1.—Aggravated Assault—Charge of Court—Intent to Injure.</p> <p>Where the evidence upon a conviction of aggravated assault showed indecent familiarities without violence of defendant towards a female, the court should have charged the jury that in order to constitute an assault of this character, the familiarities must be indecent and without the consent of the prosecutrix ; that they must be under circumstances calculated to injure her feelings; that defendant must have" done the act against her will, or without reasonable grounds for believing that she assented thereto, and with intent to injure her feelings by producing a sense of shame or any other disagreeable emotion of the mind.</p>

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

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

<p>Appeal from the District Court of El Paso. Tried below before Hon. James B. Harper.</p> <p>Appeal from a conviction of burglary; penalty, two years’ imprisonment in the penitentiary.</p>

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

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

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

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

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