Volume 48 — Texas Criminal Reports

<p>1. —Theft From the Person—Verdict—Practice.</p> <p>A verdict which alludes to the number and style of the case, but does not say that the jury find the defendant guilty “as charged in the indictment” is sufficient, where the .charge of the court presented the offense charged in the indictment.</p> <p>2. —Same—Circumstantial Evidence.</p> <p>Where the witness testified that he saw defendant take the watch out of the pocket of prosecutor, the issue of circumstantial evidence did not arise.</p>

The defendant contended that he killed deceased in self-defense. There was testimony that deceased did not fire a shot and also testimony on part of the State’s witness that deceased admitted that he fired at defendant. The evidence that deceased was armed at the time of the homicide was uncontradicted. There was also proof that his pistol had been fired. The defendant testified that deceased fired the first shot at him, whereupon he fired.

<p>1. —local Option—Transcript From District Court.</p> <p>Articles 471 and 473, Code Criminal Procedure, not requiring that the certificate of the clerk, transferring indictments to inferior courts, must show the date when the court met and when it adjourned, it will be presumed that the clerk performed bis duty according to law in transfering a case, in the absence of a showing to the contrary, and the mere failure in such certificate to state when the district court adjourned does not authorize the county court to quash the transcript; however, a corrected transcript was filed after the motion to quash was made.</p> <p>2. —Same—Two Days Before Trial—Transcript.</p> <p>Where a valid transcript from the district court to the county court was filed in .the latter court, more than two days before the case was called for trial, there was no error.</p> <p>3. —Same—Charge of Court—Sale—Weight of Evidence.</p> <p>Where the court in a local option case charged that in law a sale is the agreed transfer of property having some value to another for a valuable consideration, and that a sale may be shown by facts and circumstances, as well as by direct proof, it was not on the weight of the evidence and correct.</p> <p>4. —Same—Charge of Court.</p> <p>It was not error to charge the jury in a local option case that the election in a certain county was held by virtue of the laws of the State.</p> <p>5. —Same—Fact Case.</p> <p>Where the evidence for the State showed a sale by appellant of whisky within local option territory, although circumstantial, the conviction will be sustained.</p>

Tried below before Hon. E. R. Muse. Appeal from a conviction of murder in the first degree; penalty, death. A full statement of the main facts in this case will be found in the companion case of Burrell Oats v. State, reported in this volume.

The appellant interposed the plea of former conviction, and the said plea on its face showed, (1) a certified copy of a valid complaint, filed in the Mayors Court of the town of Gorman, charging the appellant with an affray with the prosecuting witness, Joe Ferguson, on the 31st day of December, 1903, in the town of Gorman, (3) a certified copy of a valid judgment, in due and legal form, convicting the appellant of an, affray, in the Mayors Court of the town of Gorman, and…

<p>1. —Simple Assault—Requested Charge—Self-Defense.</p> <p>Where the evidence on trial for assault showed that the prosecutor struck the first lick and defendant ran and sought to avoid the difficulty, being followed by prosecutor, it was immaterial whether defendant struck the blow, after he was struck by prosecutor, at the inception or termination of the difficulty, and the court should have submitted the requested charge on self-defense.</p> <p>2. —Same—Mutual Combat—Charge of Court.</p> <p>See opinion for facts which did not raise the issue of mutual combat and the court erred in charging on that subject.</p>

Tried below before Hon. F. H. Hewton. Appeal from a conviction of a violation of the local option law; penalty, a fine of $30 and twenty days- confinement in the county jail. From the briefs of counsel the following statement is taken, which is substantially correct:—The indictment charges that the sale was made to one Hudson.

<p>1. —Whitecapping—Indictment.</p> <p>Where the name used in the alleged posted anonymous ^.notice was different from the names of the persons alleged to have been threatened, and in fact probably referred to certain negroes who rented lands from them or either of them, the notice on its face referring to a class as “Nigs” and not to the persons alleged to have been threatened and who owned the premises upon which the notice was posted; and there was no averment showing that these parties, or either of them came within the class mentioned in the notice or that the person, dr persons posting said notice intended to interfere or frighten away the alleged threatened persons, or to prevent them from doing anything they saw proper in or about their premises, or interfere with the rights of these negroes to take employment from the persons alleged to have been threatened, the indictment was bad under the whitecapping statute.</p> <p>2. —Same—Circumstantial Evidence—Fact Case.</p> <p>Where the evidence on a trial for the offense of whitecapping did not show that appellant posted the alleged anonymous written threat, or identified it as his handwriting, and the main facts relied upon for conviction were some adverse expressions said to have been made by defendant about the persons alleged" to have been threatened, and a certain paper containing said notice which was not shown as coming out of a certain book introduced in evidence; thus basing the conviction on circumstantial evidence, which simply amounted to a slight suspicion and did not show guilt to the exclusion of every reasonable hypothesis of innocence, the conviction can not be sustained.</p>

<p>Appeal from the County Court of Tarrant. Tried below before Hon. R. F. Milam.</p> <p>Appeal from a conviction of theft; penalty, a fine of $100.</p> <p>The opinion states the case.</p>

<p>1. —Burglary—Definition of a House.</p> <p>The mere fact that one would have to pull off the planks used in boxing up the end of a buggy shed in order to steal the harness inside near the buggy, and that there was no door entering said shed, would not change the fact that the same was a house Within contemplation of law.</p> <p>2. —Same—Pact Case—Conflict of Testimony.</p> <p>Where the evidence of the State showed that certain wagon harness was fraudulently taken from a buggy shed which was entirely boxed up and part of a barn and log crib all under one roof, and no one could enter said shed without pulling off the planks nailed thereon to get to the harness, said shed constituted a house within the contemplation of the burglary statute; and the fact that the State’s testimony as to the entire boxing up of the shed was seriously controverted would not authorize a reversal.</p>

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

Tried below before Hon. J. R. Harper. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The opinion states the case.

<p>1.—Burglary—Charge of Court—Recent Possession.</p> <p>Where the court, in addition to his general charge on the law of possession of property recently stolen, gave a requested charge to the effect that if the jury believed from the evidence defendant got possession of the razor intro-duced in evidence from a negro by the name Sweet, they should acquit defendant, this being defendant’s explanation, the issues were sufficiently submitted to the jury.</p> <p>8.—Same—Evidence—Circumstance of Guilt.-</p> <p>Testimony by the officer who arrested defendant to the effect that the latter had seven or eight keys in his pocket, they being door keys and some of them skeleton keys which would open ordinary doors, was admissible as a circumstance, where the burglary was in the day time and property extracted from the house which was closed when the owners left it and found in the same condition when they returned.</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>

Tried. below before the Hon. W. W. Cook. Appeal from a conviction of aggravated assault; penalty, a fine of $100. The opinion states the case.

Tried below before Hon.. John G. Gose. Appeal from a conviction of simple assault; penalty, a fine of $5. The opinion states the case.

<p>T.—Slander—Charge of Court—Reputation—Reasonable Doubt.</p> <p>On a trial for slander, the defendant is not required to prove the general reputation for want of chastity of the female alleged to have been slandered, beyond a reasonable doubt, and it was error to so instruct the jury. Approving Manning v. State, 37 Texas Crim. Rep., 180.</p> <p>2. —Same—Charge of Court—Truth of Statement—Reasonable Doubt.</p> <p>On a trial for slander, the defendant is not required to prove the truth of the alleged slander, beyond a reasonable doubt, and it was error to so instruct the jury.</p> <p>3. —Same—Charge of Court—Reputation Confined to Present Residence Too Restrictive.</p> <p>Where the evidence with reference to the reputation for chastity of a female alleged to have been slandered was confined to the place where she formerly lived, and the evidence further showed that at the time of the trial she lived in a different place and community, it was error to charge the jury that if they believed from the evidence that such reputation was bad in the community in which she lived to acquit, as it was too restrictive, and defendant was entitled to a charge as to her reputation at her former place of residence. Approving Crane v. State, 30 Texas Crim. App., 464.</p>

<p>Appeal from the County Court of Johnson. Tried below before Hon. J. D. Goldsmith.</p> <p>Appeal from a conviction of adultery; penalty, a fine of $100.</p> <p>The opinion states the case.</p>

<p>1. —Selling liquor to Minor—Variance—Name of Injured Party.</p> <p>Where the information charged defendant with a sale of intoxicating liquor to A. B. Blake, such allegation was not supported by evidence of a sale to Burt Blake, unless it was shown that these names represent the same person.</p> <p>2. —Same—local Option Suspends law of Sale to Minors.</p> <p>Where the evidence showed that prohibition was in force in the town where the transaction occurred, it was error on part of the court to charge the jury to convict the defendant either for selling or giving intoxicating liquor to the alleged minor, as the defendant could not be guilty of violating the statute with reference to selling intoxicants to minors where local option is in' force.</p> <p>3. —Same—Minority Must be Known or Reasonably Appear.</p> <p>If it was shown on a trial for knowingly giving intoxicating liquor to a minor, the defendant gave the whisky to the minor without knowing or having reasonable ground to believe he was under 21 years of age, he was not guilty of such offense.</p> <p>4. —Same—Statute Construed.</p> <p>If defendant sold whisky in a local option town to a minor he could only be prosecuted for a violation of the local option law; if he gave the whiskey to a minor, he could only be prosecuted for a violation of the statute forbidding the giving of intoxicating liquor to a minor.</p>

<p>1. —Theft—Copy of Indictment Must Be Served Two Days Before Trial—Practice.</p> <p>Where defendant in a felony case is forced to proceed with her trial, before she has been served with a copy of the indictment and has asked for a postponement of two days in which to prepare for trial, which request was overruled, the error is fatal.</p> <p>2. —Same—Statutes Construed—Waiver.</p> <p>Where the indictment was presented on the 17th day of October, 1904, when defendant was in jail, and on the 12th day of November following she was admitted to bail and was at no time served with a copy of the indictment until the day of trial, December 14, following, when she requested the postponement of two days which was overruled and the trial proceeded. Held that although defendant had forfeited said bail and was rearrested it constituted no waiver of her right under article 540, Code Criminal Procedure, and that article 542, id., did not apply.</p>

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

The opinion states tlie case. The court below in charging on the issue of manslaughter instructed the jury, in addition to the usual form in use, as follows: “If you believe and find from the evidence that at the time defendant shot and killed deceased, that he was in a state of passion or terror aroused or brought about by the acts and conduct of the deceased in compelling him (defendant) to get on his knees and apologize to him (deceased), which passion or terror or both…

<p>The testimony for the State showed that defendant, his brother and deceased were seen together at Seguin on the evening of the day that deceased was last seen alive. They were apparently friendly; although defendant or his brother made some allusion to deceased’s sister as follows: “You think because you have a sister that I have intentions toward her person,” and they acted as if they were a little mad. They were drinking together. This was four days before the dead body of deceased was found in the river. The body was identified as that of deceased; it was all swollen and had a rock weighing about seventy-five pounds tied around it with a chain; that there was a long gash across the top of the back of the head of deceased; that it could not be told how or with what the gash was made, but possibly with a sharp instrument, or how deep it was, but possibly three inches, or how long the body had been in the water, but possibly a week; that there was some blood on the leaves and the rocks near by and some dark hair found, etc.; deceased also had a bruise on the left side of the forehead, etc.</p> <p>Besides the facts stated in the opinion, there was some testimony that deceased had objected to defendant coming to see the sister of deceased and that he was mad at him for some cause. Defendant by the testimony of the sister of deceased attempted to show that he and his brother staid at her house on the night of the day deceased was last seen alive, but could not fix the hour they came there, but it was just getting dark the witness said.</p> <p>The following taken from appellant’s brief is substantially correct: Francisco Renes testified that he is acquainted with and has known the defendant and his brother, Severa, for about three years; that he was present up here in Sonka’s pavilion or dance hall about a month ago on the occasion of the dance given by the Mexican society for the benefit of a new cemetery, and that the defendant and his brother spoke to him there; that they called him away from the dance hall to give him a drink and that defendant’s brother, Severa, then told him that they had done the Antonia deed and after they had done the deed they went to the house of his god-parent, or child, and they went there with the intention to do likewise to Mercede Montoya that they had done to Antonio Montoya; that defendant then said if defendant said anything about what they had told him they would send him on the same road that they did Antonio; that defendant and Severa were both together at the time of the confession; that no one else but defendant and his brother, Severa, were present at the time the confession was made; that no one besides the witness heard the confession; that he knows where Mercede Montoya lives; that he is a friend of defendant; that this conversation occurred here lately, not more than two months ago; that he was sober at the time; that the night was dark; that he has told no one about the conversation excepting Mercede Montoya and the Grand Jury; that the defendant and his brother, Severa, were also sober at the time; that the exact language used by defendant and his brother was "that after they killed Antonio Montoya they went by the house of Mercede to see if they could get him and kill him too”; that no one told him to make this statement and that no one paid him anything to make this statement; that he saw Tanislaus Bios there at that dance that night; that he does not know at what hour they killed Antonio Montoya; that they did not tell him; that they did not tell him that they had tied the rock to him and thrown him in the river; that they did not -tell him how they got Antonio Montoya to the river; that they did not tell him where they had killed Antonio Montoya; that he did not ask them any questions about the matter; that they had said that they had killed him; that they did not use any other name excepting “Antonio”; that defendant and his brother did not tell him where they had stayed that night; that he remembers of Antonio Montoya being taken out of the river and that this conversation occurred after the time that Antonio Montoya was found in the river; that the words used were “that after they did this deed of killing the dead man, Antonio, they came up to Mercede’s house with the intention of killing him, too, but everything was so quiet that there they passed on by,” and that defendant said, “If you say anything about it we will kill you”; that he has heard of no other “Antonio” being killed about that time.</p>

<p>Carrying Pistol—Special Deputy Constable.</p> <p>A special constable of B. County, duly deputized and sworn in as such, with instructions from the constable to proceed to M. County and there have the city marshal execute certain copias profine, and who there went into the opera house where people were assembled for amusement, carrying on his person a pistol, looking for a certain party to have him arrested, should not have been convicted of unlawfully carrying a pistol on his person.</p>

Tried below before Hon. A. T. Watts. Appeal from a conviction of robbery; penalty, ten years imprisonment in the penitentiary. No statement necessary.

<p>Murder Second Degree—Charge of Court—Manslaughter.</p> <p>Where in a prosecution for murder the evidence showed that deceased was in a difficulty or had just gotten out of one with the two brothers of defendant, in which he had. fired at them twice, which brought defendant on the scene of the trouble, apparently in defense of his brothers. Held if upon ascertaining the fact that his brothers were being shot at by deceased, defendant went to their rescue with his mind in such an inflamed condition as to render it incapable of. cool reflection, or if in going to their rescue, the deceased started towards him in a threatening manner, in either event such evidence called for a charge on manslaughter.</p>

<p>1.—local Option—Sale—C. 0. D. Shipment.</p> <p>Where the contract of sale is C. O. D. with no contingencies voiding the sale at that point and no stipulations by which the sale is otherwise than an ordinary O. O. D. transaction, the sale is at the point of shipment.</p> <p>i$.—Same—Sale—Point of Shipment.</p> <p>Where an order for whisky was solicited by defendant in K. County, where prohibition was in force, and the order was transmitted by him to his principals in D. County and accepted by them, and the whisky shipped C. O. D. per express to the party ordering the same in K. County, who received and paid for the whisky together with express charges on same and the charge of express company for collecting and returning the money so paid to defendant’s principals in D. County, the sale was in D. County and defendant could not be prosecuted for a violation of the local option law in K. County.</p>

The main State’s witness testified that he had been robbed by defendant and another; that they had assaulted him, and then went through his pockets and took his money. Defendant denied that he had assaulted or 'robbed the witness, but that he had interfered in a difficulty between him and the other party, whom witness said assaulted him; that no one robbed witness of his money as far as defendant knew.

<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 .a violation of the local option law; .penaltjq a fine of $25 and twenty days confinement in the county jail.</p> <p>The opinion states the case.</p>

<p>1. —Murder in Second Degree—Charge of Court—Accomplice.</p> <p>A charge of the court which simply required the jury to convict defendant provided the testimony of an accomplice had been corroborated is reversible error.</p> <p>2. —Same—Self-Defense—Charge of Court—Apparent Danger.</p> <p>Where the evidence in a case of murder showed the issue of self-defense to arise from apparent and not real danger; the deceased having threatened defendant’s life, and upon the occasion of the homicide had reached to his person as if to draw a pistol with which to execute his threat, it was error for the court to limit the right of self-defense to a condition where it appeared by the acts or by words coupled with the acts of deceased, that it was his intention to commit murder, and the charge omitted to say that the right of self-defense occurred as well where the killing occurred to prevent serious bodily injury, but only alluded to this inferentially in another part of the charge with reference to the defendant resorting to other means for the prevention of the injury in order to justify tke homicide; which latter charge was not called for under the evidence.</p> <p>3. —Same—Clothing of Deceased—Evidence.</p> <p>It is only where the clothing of deceased tend to illustrate or make manifest or throw light upon some issue in the case, that they are admissible in evidence. See opinion for facts which should have excluded them.</p>

Tried below before Hon, L. C. Hill. 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 following is the order for the whisky: “August 17th, 1904. The Mew Bank Saloon, • E. P. Gates, proprietor, Waco, Texas. Ship to Dan Allison, Town Hillsboro, State of Texas, When Ship, tomorrow, ■via, Salesman, R. S. Merriweather, All orders subject to approval of consignors.

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

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

<p>Appeal from the Criminal District Court of Galveston. Tried below before Hon. J. K. P. Gillaspie.</p> <p>Appeal from a conviction of sodomy; penalty, two years imprisonment in the penitentiary.</p> <p>The offense was committed on a boy 12 years of age. According to his testimony the crime was fully accomplished. The following is a statement of defendant’s witnesses, as taken from his brief, with reference to his mental condition:</p> <p>W. B. Adams, for defendant, testified: “The defendant is my son. He is 19 years ol'd. ’ The last Saturday in August,'1903, the defendant had been drinking for a week. The defendant had been living with us at the house. As far as the defendant’s mind is concerned when he is drinking or drunk, he has no mind; he has never been right from his cradle up; he has never been very bright when he was going to school with other boys of his age, along about 10 or 12 years of age. Drinking makes the defendant lose his mind in a way; the defendant has never been right from his cradle up.” On cross-examination, witness said: “Never have had the defendant confined; never did anything for the defendant’s mind, just let him run along like other boys. I suppose the defendant does know right from wrong, but then he is not and has never been bright like other boys of his age. The defendant works on the Southern Pacific docks, and working there when arrested. Sometimes the defendant had sense enough to attend to his work, and sometimes he didn’t, especially when he was drunk. I don’t think the defendant knows right from wrong when he is drinking or drunk, not fiom what I can find out. 1 have known the defendant to he drunk, after he was getting along in age, getting older.”</p> <p>Mrs. W. B. Adams, for defendant, testified: “The defendant is my son; he is now 19 years old. I don’t think the defendant knows right from wrong when he is drunk. Oh the last Saturday in August, 1903, the defendant was drunk. The defendant has never been right from his birth; he has never been like the rest of the family; he never learned anything at school, and he has no education. His father took him and tried to get him to learn the carpenter’s trade, and we tried to help him in that way for the last four years, but we never could get him to learn anything; he never was bright and could never learn anything like the rest of the children. The defendant did not stay at home all of the time; he would run away from home and go off and we would not know where he was gone. One time he went off and was gone four or five weeks, and we could not find out anything where he was gone, and we finally found him at work in the cotton mills; we hunted all around, and nobody could tell us anything about him. One time when he was about 8 years old he went off without letting us know anything about it, and was gone three weeks, and then came back home; he went away that way I don’t know how many different times, and we could not do anything with him. When he would go away that way I did not know where he was gone, only knew that he was gone; he never would let me know when and where he was going. On the last Saturday in August, 1903, the defendant came home drunk, and I put him to bed, but he got up and went off again, and was brought back again to the gate and I went out and brought him upstairs and put him to bed again, then he stayed at home. When the defendant is drinking he is perfectly wild; after he has been drinking off and on he will take those spells and will be drunk and wild and does not seem to know anything.” On cross-examination, witness said: “De-</p> <p>fendant was a bad boy; he would run away from home; he was not right when he was drinking; we could not manage him or do anything with him when he was drinking; he wanted to have his own way.” Mrs. Florence Handy, for defendant, testified: “I am a sister of defendant. I have^ seen him when he was drinking and when he was drunk. I have seen him when he was drinking when he didn’t seem to know what he was doing. I was living at home on the last Saturday in August, 1903, I can’t say that the defendant is crazy when he is drunk, but he don’t act rational. On the last Saturday in August, 1903, the defendant was drunk. I can’t say whether the defendant knows right from wrong when he is drunk or not. I have not been with him much at such times, but I know that he naturally is not very bright, and has never been right from his birth. I know that when the defendant was younger he would go away from homé without letting anyone know where he was going, and we would not know where he was; he would be gone for some time, and the family would worry about him. The defendant would never learn anything, and we could not get him to stay at home; and this has gone on ever since the defendant was a small boy.”</p>

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

Tried below before Hon. P. A. Turner. Appeal from a conviction of murder in the second degree; penalty, twenty years imprisonment in the penitentiary. The opinion states the case.

Tried below . before Hon. J. K. P. Gillaspie. Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary. The opinion states the ose.

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

<p>local Option—Agency—Sale—liquor By Express.</p> <p>Where whisky was shipped to appellant from Kansas City, Mo., to H. County, Texas, and he knew nothing about it until it reached its point of destination, and he then accepted the price of the whisky and expressage from third parties and turned the liquor over to them, he was not their agent, but the seller of the whiskey and was guilty of a violation of the local option law.</p>

Tried below before Hon. W. J. Oxford. Appeal from an order remanding relator to custody, on proceeding by habeas corpus. The opinion .states the case.

Tried below before Hon. V. L. Brooks. Appeal from a conviction of murder in the first degree; penalty, death. Ho statement necessary.

On cross examination prosecutrix testified as follows: Q. “How came you to have intercourse with Mack Barnard the first time you had intercourse with him?” A. “Well because we were engaged and he promised to marry me.” Q. “That was the only reason?” A. “And then I loved him.” Q. “Did you not swear on a former trial of this case that the only sole reason that you had intercourse with him was because you loved him?” A. “Yes sir.” Q. “You swore that?” A. “Yes sir.” Q. “Ain’t…

<p>1. —Illegal Practice of Medicine—Constitutional law.</p> <p>The Act of the 27th Legislature, p. 12, with reference to the practice of medicine, and which among other things provides that although a person may have a diploma from a bona fide medical college of respectable standing, he must nevertheless receive a certificate to practice from one of the duly constituted boards of medical examiners of this State, which shall be recorded before he would be authorized to practice, is constitutional.</p> <p>2. —Same—Medical Board of Examiners—Certificate.</p> <p>While it would not have been necessary, for one who desired to practice medicine to undergo an examination before the medical board, if he had filed his diploma with satisfactory evidence that the same was issued by a bona fide college of respectable standing and thereupon received a certificate from said board and recorded the same as required by the statute, yet the refusal of said board to examine him or issue him a certificate is no defense to a prosecution under said law.</p>

Deceased’s dying statement showed that while attempting to interfere between defendant and one Dupree whom defendant had shot at, the latter turned on the deceased and shot him. The defendant claimed that both he and the deceased were drunk at the time of the homicide; that he did not shoot at Dupree, but fired in the air, and that in a friendly scuffle between deceased and defendant over his gun, defendant fell and his gun accidentally went off and the shot hit deceased.

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

<p>The evidence of two children was that they had seen defendant standing, about the time charged in the information, inside of his field fence, and he had his gun leaning upon the fence, and he had something sticking in his pocket that looked like a piece of iron or chisel. There was brush about there, and just before witnesses saw defendant, they saw prosecutor’s cow running through the brush and against trees like she couldn’t see and blood was running out of her eyes. Witnesses spoke to defendant, but he did not speak to them. They did not see him strike the cow. Defendant had an insufficient fence. The owner of the cow, and prosecutor in the case, testified that his cow stood out that night and when he found her next day lying down in the brush at the back of defendant’s field, where the children said they saw her the evening before, she had gashes cut around her eyes that looked like they had been made by some sharp instrument. He called on defendant and accused him with cutting his cow, and the latter denied it, but said he would have cut her if he could have caught her. Another State’s witness saw the defendant driving this and other cows the evening before prosecutor found her. This witness did not speak to defendant then, but saw the cow next day and she was cut around the eyes; but he did not see defendant cut her, or do anything to her. The defendant testified that he ran the cow with others out of his field; that he was mad enough to cut her, but did not touch her and had no gun and nothing but a monkeywrench in his pocket at the time the children saw him.</p>

The wife of the deceased testified that Holley Vann and defendant came into deceased’s store by a side door about ten or fifteen minutes after 9 o’clock on the night of the 29th day of November, 1904, and called for a sack of Durham tobacco, and as deceased handed them the tobacco, the two men drew their pistols and told him to hold up his hands.

Tried below before Hon. G. M. Felts. 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.

Tried below before Hon. B. L. Jones. Appeal from a conviction of murder in the second degree; penalty, thirty years imprisonment in the penitentiary. This is a companion case to that of Harrison v. State, 47 Texas Crim. Rep., 393, in which case the facts appear substantially in the opinion.

Tried below before Hon. F. D. Bobertson, Special Judge. Appeal from a conviction of seriously threatening the life of another; penalty, a fine of $100 and one day confinement in the county jail.

Tried below before Hon. R. L. Porter. Appeal from a conviction of assault with intent to rape; penalty, two years imprisonment in the penitentiary. The opinion states' the case.

Tried below before Hon. James R. Hamilton. Appeal from a conviction of a violation of the Sunday law, by keeping open his place of business for traffic on Sunday; penalty, a fine of $20. The opinion states the case.

Tried below before Hon. G. B. Gerald. Appeal from a conviction of keeping and exhibiting a gaming table; penalty, a fine of $100, and ninety days confinement in the county jail. The opinion states the case.

Tried below before Hon. E. B. Pool. Appeal from a conviction of unlawfully carrying about his person a pistol; penalty, a fine of $25. The opinion states the case.

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

<p>Ho statement necessary.</p>

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

<p>1. —Burglary—Charge of the Court—B,ecent Possession.</p> <p>The court charged: “In this case the State relies upon the possession by defendant recently after the time when the offense is alleged to have been committed of the property alleged to have been so taken. Such possession of recently stolen property to warrant an inference or presumption of guilt from the circumstances alone of possession, must be personal, must be recent, must be unexplained. If the facts warrant an explanation, or if explained, such explanation must fail to satisfactorily account for such possession.” Held to be a charge on the weight of the evidence.</p> <p>2. —Same—Circumstantial Evidence.</p> <p>See opinion where the evidence did not call for a charge on recent possession, but only one on circumstantial evidence.</p>

ourt of Bell. Tried below before Hon. .John M. Furman. Appeal from a conviction of rape; penalty, ninety-nine years imprisonment in the penitentiary. The opinion states the case.

<p>1.—Mingling Noxious Potion—Evidence—Bill of Exceptions.</p> <p>Where the prosecutrix testified against her husband on a charge against him for an attempt to poison her that sometime before they separated he placed $150, which she had received from her guardian, between the beds and two pistols, and that one morning she went to the cow pen, leaving the defendant in the house and upon her return the money was missing, the two pistols not being disturbed, and that she never recovered the money; an objection to this testimony that it was immaterial and irrelevant, without showing enough of the surrounding facts under which it was admitted, was insufficient to exclude it, as it was not obviously immaterial.</p> <p>3.—Same—Charge of Court—Limiting Testimony.</p> <p>The taking by the husband of money, the separate property of the wife, would not be a crime, and it was therefore not necessary for the court to limit testimony given by her against him on his trial for attempting to poison her, to the effect that she had missed such money, etc.</p> <p>3.—Same—Evidence—Bill of Exceptions Must State Surrounding Facts.</p> <p>Testimony by the prosecutrix, against her husband for attempting to poison her, that sometime before she was seized with convulsions, the defendant requested her to make a will and therein to will her property to him,, to which objection was made that it was immaterial and likely to prejudice the jury against defendant, can not be held on appeal as inadmissible, where the bill fails to give the surrounding facts under which it was introduced upon trial; such testimony not appearing to be obviously inadmissible.</p> <p>4. —Same—Evidence—Impeaching Defendant.</p> <p>Where the defendant claimed that the noxious potion alleged to have been given by him to his wife' was not strychnine, but some other medicine furnished him by a physician to cause an abortion on his wife, it was legitimate for the State to show that such defense was fabricated, by cross-examining the defendant while on the stand, why it was that he applied for a continuance to secure the testimony of a certain physician whom he claimed had furnished this medicine, when he had testified that another physician had furnished it; and it was immaterial whether such application was in writing and sworn to by defendant, or made verbally by his counsel.</p> <p>5. —Same—Charge of Court—Confessions—Corpus Delicti.</p> <p>Where there was abundant evidence outside of defendant’s alleged confessions, both as to the corpus delicti and his connection therewith, there was no necessity that the court should have instructed the jury that they could not convict on confessions alone.</p> <p>6. —Same—Charge of Court—Weight of Evidence.</p> <p>Where the court directly instructed the jury in the first instance, if they believed the defendant mingled or caused to be mingled a noxious potion with water, with the specific intent to injure or kill E., and then told the jury, if the noxious potion so mingled with water was strychnine, and that after so mingling said strychnine with water defendant, did then and there, with intent to injure and kill, cause said E. to drink said water with which said noxious potion or substance had been mingled, then to find defendant guilty, etc., the charge was not on the weight of the evidence.</p> <p>7. —Same—Harmless Error.</p> <p>See charge in opinion which was given to limit impeaching testimony, which was not on the weight of the evidence, but rather too favorable to appellant.</p>

<p>1. —Murder—Continuance—Diligence.</p> <p>Where process was issued from. Rusk to Red River County and returned Jan. 14 and the case went to trial on the 23d of the same month, and no other act of diligence is shown to secure the witness, the diligence is not sufficient.</p> <p>2. —Same—Materiality of Testimony—Not Probably True.</p> <p>Where the defendant while on the witness stand controverted the theory of the testimony set out in his application for continuance, the same was not material or probably true and there was no error in overruling his motion for continuance on account of the absent witness.</p> <p>3. —Same—Testimony Not Probably True and Immaterial.</p> <p>Where defendant himself admits that he did the shooting, it-would appear to be rather immaterial that his wife, for whose absence he asked a continuance, would swear that the single barrel shotgun was at another place at the time of the shooting. Besides, in the light of the overwhelming testimony to the contrary, it was not likely that the wife would have testified to that effect, or that if she had that it would likely have had any effect, as it was not probably true, and there was no error in overruling his application for continuance.</p> <p>4. —Same—Eye-Witness—Circumstantial Evidence.</p> <p>Where the eye-witness to the homicide, whom the State refused to place on the witness stand on motion of defendant, was implicated in the homicide, and had been previously indicted for the same and the indictment dismissed against him; and where he was introduced by the defendant and testified to some material facts in his behalf, there was no error in the court’s action in overruling a motion that the State place him on the stand because the State’s evidence was circumstantial. Questioning Thompson v. State, 30 Texas Crim. App., 325.</p> <p>5. —Same—Charge of Court—Self-Defense.</p> <p>Where the evidence showed that defendant and another, who were on one side of the difficulty, shot and killed two men on- the other side of the difficulty, the defendant being on trial for the alleged murder of a certain one of the said two men slain, and the jury were instructed that the defendant was authorized to act in self-defense as against one or both of these two men, but the jury were not authorized to convict him except for the alleged murder of said certain one, there was no error in refusing a requested charge that if defendant’s companion killed the other it could not affect the defendant.</p> <p>6. —Same—Charge of Court—Circumstantial Evidence.</p> <p>Where in addition to defendant’s confession, an eye-witness to the homicide testified for him to the facts of the killing; besides the defendant’s own testimany that he did the killing, there was no error in failing to charge on circumstantial evidence. It is only where the case is one wholly of circumstantial evidence, that it is necessary to charge on this subject: Confessions alone will take the case out of the rule.</p> <p>7. —Same—Argument of Counsel—Misstatement.</p> <p>A misstatement of counsel, whether inadvertently or intentionally made, unless some injury be shown, is not reversible error.</p> <p>8. —Same—Charge to Exclude Necessary.</p> <p>Where no charge is requested to exclude objectionable argument of counsel, it can not be reviewed, even if in fact such language of counsel was improper or not called for.</p> <p>9. —S^me—Former Provocation—Charge of Court.</p> <p>Where the evidence showed that the deceased and defendant had an altercation late in the evening’ before the night of the homicide, which caused or led up to it and during which deceased made threats to kill defendant that night, upon which phase of the case the court submitted full instructions, there was no error in refusing to charge on former provocation; that issue not being in the case.</p> <p>10. —Same—Bill of Exceptions—Practice on Appeal.</p> <p>Where the bill of exceptions fails to recite the answer to the question against which objection was raised, the question cannot be reviewed on appeal, and the court cannot look to the statement of facts to help out the bill; although this showed that the State’s witness was simply permitted to refresh his memory and there was no attempt to impeach him by the State.</p> <p>11. —Same—Charge of Court—Manslaughter—Self-Defense.</p> <p>See opinion for charges on manslaughter and self-defense which were correct and not calculated to confuse the jury.</p>

<p>The defendant admitted the fact that he committed the homicide, hut claimed to have done so in self-defense. He claimed that the night before, he was shot at by some one from ambush and that on the day of the killing he armed himself for self-defense; that in returning from his field work with some of his children in his wagon, he passed deceased, who was mounted on a mule, at about dark, near the latter’s home, returning home; that just as defendant had passed him, deceased said, “Hold up, Mr. Long,” and that he stopped. Deceased said, “What of my stock has been bothering you?” Defendant replied, “Two mules”; the deceased asked, “Where do they get in?” Defendant replied, “Any place”; the deceased said, “There must be a lame place in the fence,” and defendant replied, “If there is I don’t know it.” Deceased repeated that there must be a lame place in the fence and defendant repeated that the mules went in where they pleased; deceased said the mules did not jump; defendant then asked deceased whether he had wired up defendant’s gate [this gate defendant claimed was wired up the night some one shot at him], and deceased said, he did; whereupon defendant replied, “If you are the man that wired up my gate, you must be the man that shot at me last night”; deceased remarked that he had not shot at defendant, but that his son had fired a gun somewhere abo.ut deceased’s house. Just at that time, defendant testified, deceased pulled up the mule he was on to the left and made a demonstration to his back pocket, with his right hand and as he did this, defendant grabbed his gun and shot deceased; that he did so in defense of himself and children. Defendant denied making any previous threats, as testified to by the State’s witnesses, or that he used the language attributed to him by the wife of the deceased before or after the killing; that he sent the note to deceased to keep his stock out of defendant’s pasture with no ulterior purpose and that up to the time the deceased’s stock got into his pasture and he was fired upon by some one, there was no ill-feeling between him and deceased.</p> <p>The State, as disclosed in the opinion of the court, introduced among other circumstances the note and other declarations made by defendant at different times and to different persons to show motive and malice and that deceased was not armed as far as the witnesses knew.</p> <p>The court charged upon the different degrees, of murder, on manslaughter and self-defense; the latter, to which exception was taken, was as follows:—“Upon the law of self-defense you are instructed, gentlemen, that homicide is permitted in law when inflicted for the purpose of preventing murder or the infliction of serious bodily injury, when the killing takes place under the following circumstances: First. It must reasonably appear by the acts or the words coupled with the acts of the person killed, that it was the purpose and intent of such person to commit such murder or to inflict such injury. Second. The killing must take place while the person killed was in the act of committing such murder or inflicting such injury, or after some act done by his showing evidently an intent to commit such an offense or to inflict such injury. * * * In this case, therefore, if the defendant killed J. T. Anderson he was justified in doing so if he did so to prevent Anderson from murdering or inflicting serious bodily injury upon him, the defendant or upon his children, provided it reasonably appeared to the defendant by the acts or the words coupled with the acts of Anderson, viewed from the defendant’s standpoint that it was the purpose and intent of Anderson to murder or inflict serious bodily injury upon him, the defendant, or his children and provided, the killing took place while Anderson was in the act of murdering or inflicting serious bodily injury upon the defendant or his children, or after some act done by Anderson showing evidently an intent to murder or to inflict serious bodily injury upon him the defendant, or his children, viewed from the standpoint of the defendant, and Long was not bound to retreat in any event to avoid the necessity of killing Anderson. And if he believed his life was in danger he also had the right to arm himself to defend against such danger, or apparent danger, and would forfeit no right by doing so.”</p>

Tried below before the Hon. Chas. A. Wilcox. Appeal from a conviction of selling liquor to minor; penalty, a fine of $25. The opinion states the case.

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

From McCulloch County. Appeal from the order of Hon. J. W. Goodwin, District Judge, denying bail in habeas corpus proceedings. The following were the facts introduced in evidence: Oscar Devore, witness for State, being sworn said: “My name is Oscar Devore. I live on Calf Creek. I know the defendant, John Walker. I knew the man, O. E. Elliott, when he was living. He is now dead. I was present when said O. E. Elliott met his death. He met his death in McCulloch County, Texas.

<p>Recognizance—Dismissal—Judgment—Appeal.</p> <p>Where upon appeal from a conviction of a misdemeanor, the recognizance did not conform with article 887, Code Criminal Procedure, in not sating that appellant was convicted of a misdemeanor, etc., and the appeal was dismissed in the Court of Criminal Appeals; and afterwards a forfeiture was taken upon such defective recognizance in the court below. Held error, as such recognizance was insufficient to constitute the basis of a judgment.</p>

Tried below before Hon. W. R. Butler. Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the county jail. The opinion states the case.

<p>Appeal from the County Court of Nueces. Tried below before Hon. W. B. Hopkins.</p> <p>Appeal from a conviction of keeping and exhibiting a gaming table or bank; penalty, a fine of $25 and ten days confinement in the county jail,</p> <p>The opinion states the case.</p>

<p>Appeal from the District Court of Falls. Tried below before Hon. Sam E. Scott.</p> <p>Appeal from a conviction of assault with intent to murder; penalty, five years confinement in the penitentiary.</p> <p>The opinion states the case.</p>

<p>Assault With Intent to Commit Bape—Charge of Court.</p> <p>A charge upon impeaching testimony, that the same was to be considered by the jury for the sole purpose of enabling them to judge of the weight to be given the testimony of the witness so impeached is error, where the credibility of such witness is made the issue by the impeaching witnesses.</p>

<p>The opinion states the casé.</p>

<p>Appeal from the County Court of Bexar. Tried below before Hon. Robt. B. Green.</p> <p>Appeal from a conviction of aggravated assault; penalty, a fine of $200.</p> <p>The opinion states the case.</p>

<p>1. —Theft of a Hog—Evidence—Improbability of Defendant’s Theory.</p> <p>Where in a prosecution for hog theft the evidence showed that meat corresponding to that of the lost animal, which was a black sow with some white hair, was found in a barrel or tub on appellant’s premises, and in the same vessel was found other meat indicating that a red hog had been killed, there was no error in admitting the testimony with reference to the meat of the red hog, where the object of this testimony was to discredit the probability of appellant’s testimony that the two hogs belonged to the same litter, he admitting that he had killed the red hog, and there being no evidence that the red hog had been stolen; and also to show the probability that the black sow was the hog alleged to have been stolen, the latter weighing about 125 pounds, and the red hog about 250 pounds.</p> <p>2. —Same—Argument of Counsel—No Special Instruction.</p> <p>Where the State’s counsel in hiá argument alluded to certain testimony as follows: “This testimony concerning the finding of meat of a red hog was introduced for the purpose of throwing light upon the theft of the black and white spotted sow described in the indictment, and has no other bearing on the case. This matter relating to the taking of the red hog will be attended to later,” to which defendant excepted because there was no evidence of the theft of a red hog, and the court reproved State’s counsel for using this language, but there was no special instruction requested. Held, if error, it was not reversible error as presented.</p> <p>3.—Same—Impeaching Testimony Question Por Jury.</p> <p>Where in a prosecution for theft of a hog, the circumstantial evidence is strong and cogent; and in addition there is positive testimony of such theft, by a witness whose testimony is sought to be impeached, the verdict will not be disturbed, as the jury could nevertheless believe the testimony of this witness.</p>

Tried below before Hon. V. L. Brooks. Appeal from a conviction of forgery; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Manslaughter—Statement of Facts—Diligence.</p> <p>7 Where the statement of facts was not approved by the trial judge, and it appeared from the affidavit of appellant’s counsel that the judge was ill at the time the statement of facts was prepared, but such affidavit failed to show when the statement of facts was prepared, when the judge was taken sick, how long he was ill and whether or not any effort was made to locate him during the twenty days in which appellant had a right to file the statement of facts, the diligence is totally insufficient to warrant a consideration of said purported statement of facts.</p> <p>2. —Same—Judge Absenting Himself From Bench—Unsworn Contest.</p> <p>Where it appeared from the affidavit of appellant’s counsel that the trial judge had absented himself for three or five minutes from the court room during the trial of appellant for felony and had lost control of the trial, and this issue was not controverted by counter affidavit by the State’s counsel, there was no other alternative than a reversal of the case.</p>

<p>Appeal from the County Court of Lavaca. Tried below before Hon. C. J. Gray.</p> <p>Appeal from a conviction of adultery; penalty, a fine of $100.</p> <p>The opinion states the case.</p>

<p>Murder in Second Degree—Manslaughter—Charge of Court.</p> <p>See opinion for evidence which required- a charge on manslaughter, an exception having been reserved for failure to so charge.</p>

Tried below before Hon. J. W. Warren. Appeal from a conviction of drunkenness in a public place; penalty, a fine of $1. The opinion states the case.

<p>Theft of Hog—Substitution of Indictment—Practice.</p> <p>Where the original indictment had on a former appeal been left in the custody of the Court of Criminal Appeals, it was error to substitute an indictment upon reversal and second trial of the case, although the defendant’s counsel first agreed thereto, and did not urge the point until after verdict in his motion for new trial. The Constitution requires that all felony cases shall be tried on indictment, and only where the original has been lost, mislaid, mutilated or obliterated, has it been held that the same can be substituted. Following Shehane v. State, 13 Texas Grim. App., 533.</p>

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

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

<p>1.—Rape—Continuance—Diligence—New Trial—Statute Construed.</p> <p>Where the evidence in a prosecution for rape, was of such a character that the question of consent in connection with resistance was the paramount issue, and the want of consent was not proven by that overwhelming character of testimony that would justify the trial court to determine that the testimony of the absent witness was not probably true, a new trial should have been granted under article 597, Code Criminal Procedure, although the application for a continuance on account of such absent witness was properly overruled for a want of sufficient diligence to enforce the attendance of such witness.</p> <p>3.—Same—Severance—Practice—Exceptions in Limine.</p> <p>Where the question of severance between appellant and his codefendant was raised in his motion for new trial, instead of a timely objection by proper bill of exceptions, it could not be considered, although under the circumstances he could not have been forced to trial, before the court determined either by trial or final disposition the case of his codefendant.</p> <p>3.—Same—Charges Requested—Resistance Used by Prosecutrix.</p> <p>Where in a case of alleged rape, the State relied upon force in conjunction with threats, the evidence showing that the transaction occurred in broad daylight, in close proximity to a number of persons; the prosecutrix having two protectors along with her when she was first assaulted by defendant and his codefendant; that no resistance was used, and no outcry or attempt made to elude her assailants, it was the duty of the court to have submitted the requested charges to the effect that the prosecutrix was required to put forth re sistance to prevent the outrage, the general charge failing to submit this issue.</p>

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

Tried below before Hon. W. E. Hunnicut. Appeal from a conviction of unlawfully leaving the dead carcass of a horse near a public road; penalty, a fine of $5. The opinion states the case.

Tried below before Hon. Jas. G. Cook. Appeal from a conviction of a violation of the local option law; penalty, a fine of $35 and thirty days confinement in the county jail. The opinion states the case.

Tried below before Hon. Sam E. Scott. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The opinion states the case.

<p>Local Option—Habeas Corpus—Dismissal of Prosecution.</p> <p>Where relator was convicted of a violation of the local option law upon an indictment which had been dismissed at a previous term of the court, he is upon writ of habeas corpus entitled to his discharge, notwithstanding the reasons for the county attorney’s dismissal did not appear in the judgment of dismissal, as required by article £37, Code Criminal Procedure, and this issue was not raised by motion for new trial.</p>

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

Tried below before Hon. J. H. Calhoun. Appeal from a conviction of assault with intent to murder; penalty, three years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Manslaughter—Evidence—Form of Question.</p> <p>Where a question appeared to call for the conclusion' or opinion of the witness, there was no error in excluding it, although part of the question was legitimate.</p> <p>2. —Same—Charge of Court—Harmless Error—Provocation.</p> <p>Where the evidence showed in a prosecution for murder that deceased had insulted defendant’s fiancee, but that defendant had repeatedly met deceased thereafter without resenting the insult, a charge on this phase of the case, while erroneous, was harmless, because the court in effect withdrew it from the consideration of the jury and submitted the provocation at the time of the homicide, in his charge on manslaughter.</p> <p>3. —Same—Fact Case—Self-Defense—Manslaughter.</p> <p>See record where the evidence presented a nice question for the determination of the jury, whether defendant acted in self-defense, or under circumstances calculated to produce in his mind terror or alarm, superinduced by the attitude of deceased as it appeared to him at the time, rendering the mind of defendant incapable of cool reflection.</p>

Tried ‘below before Hon. W. R. Butler. Appeal from a conviction of unlawfully removing a division fence without consent of owner; penalty, a fine of $10. The opinion states the case.

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

Tried below before Hon. P. S. Hale. 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.

From the testimony of the defense it appears that the trouble originated through slanderous reports concerning female relatives of the defendant, circulated by the husband of the deceased, and which fact was communicated to defendant a few days before the homicide.

The following statement taken from appellant’s brief is substantially correct: Mike Thompson, the alleged injured party, testified that both parties were working in a restaurant and saloon together, and that the difficulty started, over an order appellant had given him for some ham jumbles to be cooked; that he didn’t hurry up the order as he had been using the telephone, and appellant asked him, “How about that order of mine?” and he said, “Well your order will come along…

The State proved by the owner of the horse that he made a contract with defendant to hire the horse and that he sent same by a stable hand, as requested by defendant, to the latter’s hotel, and that he a few days later heard that defendant had sold the horse, etc. Defendant’s witness Smith testified that he was the man that made the contract to hire the horse and ordered it sent to the hotel and after-wards traded it to defendant; this was denied by the owner who was…

■ Tried below before Hon. Jas. I. Perkins. Appeal from a conviction of assault with intent to murder; penalty, four years imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. H. H. Wallace, special judge. Appeal from a conviction of assault with intent to murder; penalty, .two years imprisonment in the penitentiary. The opinion states the case.

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

Tried below before Hon. B. J. Wood. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and twenty days confinement in the county jail. The testimony of the State witnesses, especially one of them, was that the hop-ale sold by the defendant affected them just like beer would, and would intoxicate if enough of it was drank.

<p>1.—Local Option—Variance—Allegation—Proof.</p> <p>Where the information charged a sale of intoxicating liquor by defendant to prosecutor, and the proof showed that a third party, upon the suggestion of defendant, loaned the prosecutor a dozen bottles of beer which the latter promised to return and no money passed, the variance between the alegata et probata is fatal,</p> <p>2.—Same—Validity of local Option law.</p> <p>See opinion as to question of invalidity of the local option law in B. County which was passed on in Hanna v. State, 48 Texas Crim. Rep.</p>

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

<p>1. —False Swearing—Marriage license—Charge Requested.</p> <p>In a prosecution for false swearing, in obtaining a marriage license, where the affidavit made by the defendant contained the statement, among others, that he saw the father of his fiancée sign the order to the clerk for said license; while the testimony of defendant and his witness was that the affidavit was not read to defendant and that the clerk did not ask him whether he saw said father sign the order, but simply whether the defendant saw it signed which he answered affirmatively, because he saw his fiancée sign it, and that he did not know that the affidavit contained the above statement as to the father’s signature, the court should have given the requested charge which pointed out this matter to the court and jury, and the court’s charge which referred to a want of knowledge on defendant’s part of the allegations in the affidavit in a general way was insufficient.</p> <p>2. —Same—Right to Have Issue Pertinently Presented—Charge in Felony.</p> <p>A party on trial for felony has the right to have the law applied fairly, correctly and pertinently to the issues made by the testimony, and because a special charge corresponds in part with the charge given by the court, would not deprive defendant of the right to have that portion of the charge which brought pertinently before the jury the issue involved.</p>

<p>1.—Theft of Hog—Circumstantial Evidence—Charge of Court.</p> <p>Where the case is one of possession of property recently stolen, it is one of circumstantial evidence, and a charge on that character of evidence must be submitted.</p> <p>2. —Same—Principals—Charge of Court.</p> <p>Where the case was one of circumstantial evidence of theft of a hog, a charge on principals to the effect that it was not necessary that all the persons acting together were«in fact all actually bodily present on the ground when the offense was actually committed was error. The statute defining principals requires the presence of all the parties acting as such at the time of the commission of the offense, that is the original taking.</p> <p>3. —Same—Ownership—Charge of Court.</p> <p>Where in a case of hog-theft the evidence was not clear or satisfactory that the question of identity and ownership was narrowed down to the fact as to whether the hog belonged to defendant or the prosecutor, it was error to charge that the jury should acquit if they had a reasonable doubt as to which of the two was the owner, as the prosecution failed if the property was that of a third party, other than the alleged owner.</p> <p>4. —Same—Threat of Prosecution—Confession—Evidence.</p> <p>Where the prosecutor threatened a prosecution if he was not paid for the hog alleged to have been stolen, evidence that the price of the hog was paid in corn was inadmissible as a confession of defendant’s guilt, as the payment of the corn was in response to the threat and to avoid a prosecution.</p> <p>5. —Same—Impeaching and Original Testimony—Verbal Instruction—Weight</p> <p>of the Evidence.</p> <p>Where the testimony of the prosecuting witness in a case of hog-theft was that when he asked the defendant and his- codefendants where the head of the hog was that one of defendant’s codefendants replied he ate it to keep it from spoiling, and defendant’s testimony showed that in this same conversation he and his codefendants had offered to take the prosecutor to a place different from that where they were charged to have killed the hog, to show that they had killed the hog where they were going to take prosecutor and also take him to the house and show him the head of the hog, which he declined, and denied on the stand that such conversation had occurred, it was error on part of the court to say to the jury that he admitted testimony only as impeaching testimony as otherwise it was self-serving, as this was original testimony and besides flatly contradicted prosecuting witness. Such verbal instruction was on the weight of the evidence.</p>

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

<p>Appeal from the District Court of Walker. Tried below before Hon. Gordon Boone.</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>

Tried below before L. W. Moore. . Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The opinion states the case. .

<p>1. —Murder—Change of Venue—Nearest County. Seat—Judge’s Reasons.</p> <p>Where the defendant in a prosecution for murder filed an application to change the venue, setting up both grounds of the statute, but did not mention any particular county to which he desired the venue to be changed, and the State controverted the application, there was no error in the action of the court in- changing the venue over defendant’s objections to a county whose county seat was not as near as that of another adjoining county to the county from which the venue was changed; the trial judge stating the reasons for his action in defendant’s bill of exceptions.</p> <p>2. —Same—Severance—Res Judicata—Change of Venue.</p> <p>Where a severance had been refused defendant upon the contest of a codefendant, and the motion for severance was renewed after a change of venue and the cases of each were there pending and both consenting to the severance, it was error to hold that the application for, severance was res judicata.</p> <p>3. —Same—Evidence—Unconnected Incident Not Admissible.</p> <p>Testimony in a murder case to the effect that on the night of the homicide, and after it had occurred, the defendant came to witness’ house for a drink of water, that his dogs barked and came smelling around defendant, that he had to scold and kick them off, and that witness did not know why the dogs did this, was inadmissible and had no connection with or relevancy to the case.</p> <p>4. —Same—Evidence—Acts And Declarations of Co-Conspirators.</p> <p>Acts and declarations of the wife of deceased and one C. made in the State of Washington in 1895 with reference to going to Texas and getting married there, after a divorce was procured from the deceased, and made long before they had even met or known the defendant and before he could possibly have known their intentions, and not looking to the murder of deceased which occurred in 1898 in Texas, were inadmissible and not brought within the rule that acts and declarations of co-conspirators are admissible against each other.</p> <p>5. —Same—Conspiracy—Court’s Province to Admit Evidence.</p> <p>It is the province of the court first to satisfy his legal mind that a sufficient predicate has been laid to admit the acts and declarations of co-conspirators, if there is a conflict in the testimony in regard to the conspiracy, then the court may admit the declarations and instruct the jury not to consider them unless they should first find that the conspiracy is shown independent of such acts or declarations; but it is not the province of the jury to pass upon the admissibility of such declarations and an instruction to that effect is error.</p> <p>6. —Same—Accomplice—Corroboration.</p> <p>An accomplice cannot corroborate himself by his declarations or statements, and the statement of one accomplice can not corroborate another accomplice.</p>

Tried below before Hon. G. W. Perryman. Appeal from a conviction of obstructing a public road; penalty, a fine of $25.

Tried below before Hon. B. H. Gardner. Appeal from a conviction of theft of hogs; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Gaining—Witness—Practice.</p> <p>Where a State’s witness was cross-examined by the defendant and then impeached by defendant for truth, there was no error in refusing the recall of the witness by the defendant as an original State’s witness to have him testify to purely original and defensive matter; if defendant desired his testimony he should have put him on the stand as any other witness testifying originally on his behalf.</p> <p>2. —Same—State Not Confined to Date Alleged—Evidence—Surprise.</p> <p>In a prosecution for gaining, the State was not confined to the particular date alleged in the information; and the defendant could not claim surprise, unless he could show that he had a defense against the date selected by the State upon which the cards were played, and his bill of exceptions should have shown this.</p> <p>3. —Same—Statutes Construed—Allegation and Proof—Private Residence.</p> <p>Under article 379 Penal Code as amended, an information to be good must allege that the gaming was at a private residence occupied by a family but was commonly resorted to for the purpose of gaining, in order to come within the exception. However, where the information did not allege that the private residence was occupied by a family, but alleged that the private residence was resorted to for the purpose of gaming, and there was no proof that the place was occupied by a family, but there was proof that a number of games of poker were played there, the case for the State was made out as alleged.</p>

<p>1. —Assault to Murder—Exhibiting Wound—Evidence.</p> <p>See statement of facts in the opinion under which, as explained by the court, there was no error in what occurred with reference to prosecutor exhibiting his wound or scar to the jury.</p> <p>2. —Same—Evidence—Declarations of Third Parties—Limiting Testimony— Threat.</p> <p>Defendant who was being tried for assault to murder introduced a witness who testified that he told defendant a short time before the alleged assault occurred that prosecutor had it in for him and would kill -him if he did not mind; and on cross-examination this witness was asked over defendant’s objection to state the conversation between himself and prosecutor from which witness arrived at such conclusion, and which was made in the absence of defendant; and witness answered that prosecutor said, if defendant did not get off the place he would make it damn hard for him, and the court limited this testimony as only affecting the credibility of the witness. Held error, first, because declarations of third parties made in the absence and without knowledge of defendant are inadmissible, and second, after being admitted the testimony should not have been thus limited as it was original evidence of prosecutor’s threat.</p> <p>3. —Same—Argument of Counsel—Withdrawn by Court..</p> <p>Where the argument objected to was either, legitimate, or if doubtful the counsel was corrected by the court and the remarks withdrawn from the jury, there . was no error.</p> <p>4. —Same—Refused Charge—Specific Allegation Limits Prosecution.</p> <p>Where the testimony of defendant showed that besides the shot that struck prosecutor and which he fired in self-defense, he fired two shots under excitement without aim or purpose, the indictment charging assault by shooting with a pistol, and not an allegation of an assault to murder in general terms, and the court charged as to self-defense confining the case to said first shot, and also charged on aggravated assault, but refused to submit a requested instruction to acquit defendant if he fired the last two shots as claimed by him and the first shot in self-defense. Held error, because the indictment alleged the specific means and manner of the assault, and because the court charged an aggravated assault, and the defendant could not be convicted thereof under the indictment for firing the last two shots according to defendant’s testimony.</p>

Tried below before Hon. L. B. Hightower. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Burglary—Charges Refused—Felony—Theft—Breaking.</p> <p>Where the evidence, in a case of burglary to commit theft, the indictment not charging and the proof not showing the value of the property the defendant intended to steal, showed that defendant was seen crouched near the door of a store house, drawing his arm out of "a broken place in a glass door, and that there was a conflict of testimony whether the glass in said door was broken" prior to the alleged burglary, it was error to refuse requested charges that if the glass was broken prior to the burglary, or the property defendant intended to steal was under the value of $50, or if the jury had reasonable doubt whether the defendant broke the glass for the purpose of committing theft, in either case to acquit.</p> <p>2. —Same—Statutes Construed—Indictment—Proof—Felony.</p> <p>Article 841, Penal Code, is a limitation on article 838, same code; the latter article which defines burglary to include an intent to commit a felony or theft, is controlled by the former which provides that where the entry is only of a part of the body the crime intended to be committed after such breaking must be a felony; and under article 842, same code, this must be through an aperture made by the accused. Before a conviction could be had the evidence must show that defendant broke the glass through which the evidence showed he inserted his arm, and that the property intended to be extracted was of or over the value of $50, making the theft a felony. Under the allegations in the indictment and the proof thereunder the value of the property was not stated or shown.</p>

<p>1. —Burglary—Evidence—Identity and Intent of Defendant—Variance.</p> <p>Where the indictment alleged the burglarious entry of B’s house, a private residence, at night-time, testimony that S occupied and controlled a certain room in said house, and that his watch, which was afterwards found to have been disposed of by defendant, was taken from said room, was admissible to identify the defendant connecting him with the burglary, and to show his intent to commit theft as alleged; notwithstanding the burglar did not take any property from the particular room occupied by B, but in which he was seen at the dresser handling something and which adjoined S’s room; and there was no variance between the proof and the allegation.</p> <p>2. —Same—Ownership—Renter—V ariance.</p> <p>Where an indictment alleged the burglarious entry of a private residence at night-time owned and occupied by B; proof that he was a renter thereof and controlled it as such was not variant from such allegation of ownership and occupancy. Approving Linhart v. State, 33 Texas Crim. Rep., 504; Willis v. State, id., 168; Reed v. State, 34 id., 597. -</p>

<p>Appeal from the County Court of Comanche. Tried below before Hon. J. H. McMillan.</p> <p>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.</p> <p>The opinion states the case.</p>

<p>Burglary—Evidence—Declarations of Defendant—Husband and Wife.</p> <p>A conversation between defendant and his wife while the former was in jail for burglary, overheard by a daughter of the sheriff, was not admissible without proper warning to defendant, and is reversible error where the evidence was insufficient to convict without such illegal testimony.</p>

<p>Appeal from the District Court of Kerr. Tried below before Hon. Ed. Haltom, special judge.</p> <p>Appeal from a conviction of murder in the second degree; penalty, seven years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

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

<p>Aggravated Assault—Misconduct of Jury—Defendant as a Witness.</p> <p>The mere allusion by one of the jurors during their deliberations to the failure of the defendant to testify is not in itself cause for reversal.</p>

The testimony for the State that defendant was implicated in the assault was that of the witness Ray, who testified that he stopped to see what was occurring among a crowd of men who had gathered on the street, and that he saw Bill Brown, brother of Bolivar Brown, rvho was alleged to have assaulted Dr. Houghton, pass his hat around asking different persons to contribute towards paying said Bolivar’s fine to fight, and that he saw among others, the defendant put $2.50 .into…

Tried below before Hon. Ed Haltom, special judge. Appeal from a conviction of perjury; penalty, two years imprisonment in the penitentiary. The opinion states the case.

• Appeal from the County Court of Comanche. Tried below before Hon. J. H. McMillan. 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.

From Johnson County. Original application for writ of habeas corpus for release from commitment upon conviction of a violation of local option law. The opinion states the case.

Tried below before Hon. M. Kennon. Appeal from a conviction of theft from the person; penalty, two years imprisonment in the penitentiary.

<p>No statement necessary.</p>

The opinion states the case. The following are the court’s charges to which defendant excepted and as taken from his brief: The court erred in its main charge to the jury, after presenting affirmatively the defendant’s right to arrest, place in jail, and search the prisoner, in attempting to limit and qualify his charge in the following manner: “But in tins connection you are charged that, if you believe from the evidence beyond a reasonable doubt, that the defendant, at the…

<p>1. —Assault with Intent to Murder—Charge in Felony Case—Aggravated Assault—Plea of Guilty.</p> <p>Where on a trial for assault to murder the evidence showed that the defendant was shoved or put off the train by the conductor: that defendant had paid his fare, and that he accidentally dropped his pistol which went off, for which the conductor put him off the train, after which the defendant fired at the train at a distance of some hundred and fifty or two hundred feet, and that in the event he had killed the conductor he would have been entitled to a charge on manslaughter; and not having killed the conductor, to a charge on aggravated assault, it was error not to so charge the jury; and this, notwithstanding defendant’s plea of guilty, as the court’s charge should have submitted every phase of the case presented by the evidence.</p> <p>2. —Same—Employment of Attorney—Right to Present Defense—Motion for New .Trial.</p> <p>Where on a trial for assault to murder, the motion for new trial, supported by affidavits, showed that defendant believed that he had employed an attorney to represent him in the district court; that he had given said attorney the names of his witnesses to be summoned, and that defendant for the first time, after being brought from jail into court was informed by the court that said attorney would not represent him, that his witnesses were not present and were not summoned, and that he must go to trial; and that defendant being ignorant of his rights pleaded guilty to the indictment, although as shown by said affidavits he had a good defense, it was error not to have granted a new trial.</p> <p>3. _Same—Means Used Impossible to Have Committed Assault to Murder.</p> <p>Where a motion for new trial, after a conviction for assault to murder, showed by the accompanying affidavits that the shots fired by the defendant were parallel with the train upon which prosecutor was conductor, at a distance of from one hundred and fifty to two hundred feet, with a pistol, and that it was impossible for defendant to have made an assault on the prosecutor or' reached him by the means used, it was error not to have granted a new trial as the defendant could not be convicted under the circumstances of an assault with intent to murder.</p>

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

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

The testimony disclosed that Charlie Johnson, the prosecuting witness for the State was a native of Sweden, but had been in America 26 years; he bought a bottle of whisky from Jack, he could not say when he got the whisky from Jack, that Jack was an old Negro; he said “I can’t say what I paid for the flask of whisky,” I do not know what it was; I can’t say whether it was after the saloons were closed up in Bay City, and before the 1st day of January, 1905, or not.

<p>The testimony discloses that one Frank Bauman and the appellant each fired a shot at the other on the afternoon of Oct. 28, 1901; that the difficulty occurred on Nolan Creek about three miles west of Belton, appellant’s farm lying on the north side of Nolan Creek, and Frank Bauman residing with his mother about a mile below and on the opposite side of the creek to apellant’s place.</p> <p>Frank Bauman testified in substance that on the afternoon of the difficulty he had gone up the creek hunting, that he was walking up the creek on the north side of the same near the adjoining fence between appellant’s land and the land of one George Adams. “I saw Ellington just before I went into his pasture riding horseback between the creek and Adams’ house. I went on up the creek about one hundred and seventy-five yards in appellant’s pasture and sat there in a swing until I got tired and returned and crossed over on the south side of the creek. At this time I saw Ellington on the north side of the creek between sixty-five and seventy yards, on horseback, standing there cursing and abusing Mrs. Adams. I spoke to him and told him, “You know Mr. Adams is not at home, that is the reason you are taking it out on her.” He then cursed me and said, “I am coming down there and take it out on you.” He told me to come across the creek to him and I started, got down on the gravel bar, and he drew his six shooter and said, “I am going to kill you.” I had left my gun by a post on the bank and I ran up the hill and grabbed my gun, and as I ran behind a tree as I got in about two feet of the tree he shot at me, but did not hit me. He had run down the creek on Adams’ land. I shot at him as soon as he shot at me. He fired first. After I ran behind the tree he told me to come out from behind it and he would let me alone. He said he was going homé and get his gun and load it with buckshot and fill me so full of holes I would not hold air. I do not care whether the defendant is convicted or not, but I am paying money to employ counsel to prosecute him. I did not say of Ellington to Bob Smith and to Charlie Smith before this trouble that I wanted to get a shot at him. I did not hear my mother say that she was not coming to my trial because I was to blame and this Adams woman had gotten me in this trouble.</p> <p>Mrs. Drew Adams testified that she lived with her husband, Geo. Adams about two hundred yards north of the creek and just below and adjoining Ellington’s place. That she had gone down to the creek and met defendant “and he began cursing me for dogging his cattle. He cursed Frank Bauman, while we were standing there. Frank Bauman passed near us going up the creek. Ellington spoke to him and said he had a great mind to shoot him, now, Frank did not say anything. Ellington and I stood there and talked a little while, we were talking loud. I next saw- Frank across the creek on the south side. Ellington was cursing me and used bad words, he said we had four big dogs and Bauman spoke to Ellington about taking it out on me because Mr. Adams was not at home, and Ellington cursed him and when Bauman got down to the creek, Ellington drew his pistol and I told Frank Bauman to run. He was not below the spring and I thought he was taking rest on a post. I broke and run and did not see the shooting. A few minutes after I got home and after the shooting,' Ellington came up to the house and said he wanted me to remember who shot first. He said that he tried to kill Bauman, that he would kill him yet. . My husband at that time was in town. My state of feelings are bad toward the defendant, and me and my husband employed counsel to prosecute this case. I was down at John Kolls’ house on the night of the shooting, but I did not tell John Kolls and Mrs. Brown and Mrs. Johnson and Fritz Kolls that Frank shot the first shot.”</p> <p>C. B. Adams testified that he returned home from town after the shooting on Oct. 28, and Frank Bauman was at his house and Mrs. Drew Adams was there and the defendant came up and cursed Bauman and said, “I shot at you down at the creek and you shot back at me,” and told Bauman he was going to kill him. “I do not like defendant.”</p> <p>Bobt. Smith and Charley Smith testified for the defendant that a few days before the shooting Frank Bauman told them that he would like to shoot Ellington and would like to fight him, with his target and Ellington with his shotgun, etc.</p> <p>John Kolls, Mrs. Johnson, Mrs. Brown and Fritz Kolls all testified that they saw Mrs. Drew Adams on the night after the shooting and she said that Frank Bauman had shot at Ellington first and that Ellington had then shot at him as he ran behind a tree.</p> <p>The defendant testified that on the evening of the trouble he was riding around his fence repairing it and met Mrs. Adams near the creek; that he was having a conversation with her, when Frank Bauman spoke up and as “I turned my head he fired at me, and he then unbreached his gun and was reloading it when I shot at him. He ran behind a tree and I told him to come out, I would not hurt him. He came out and I could have shot him if I had wanted to, but got on my horse and rode off. I shot at him to keep him from shooting at me. He had made one shot and I thought he was reloading his gun to shoot again. I was on my own land. I rode up to Mrs. Adams’ house and she told me that Bauman shot first. I told her to remember that. I then went over to J. M. Smith’s and told him what had happened. I told him just as I have stated it here. Sometime later I started to go down to Mr. Kolls to see him on some business, and intended going down through Mr. Adams’ place as that was the nearest way, but when I came to his house, Adams told me not to come through there and I went back home. I did not have any conversation at that time with them about the trouble, nor say that I had shot at Bauman and he had shot back at me, and that I intended to kill him yet. I went down to J. W. IColls’ on the next morning and told him about the trouble just as I have testified to the same in this case.</p>

<p>Appeal from Justice to County Court—Appeal Bond.</p> <p>Where in an appeal from the justice to the county court, the difference between the stipulations in the bond given, and that set out in the Act of the 27th Legislature, p. 291, is found in the fact that the law states, “that said defendant has appealed to the county court,” whereas the bond recites, “that said defendant has given notice of appeal to the county court,” it was error to dismiss the appeal, as there was no substantial difference between the two expressions.</p>

Tried below before Hon. Wells Thompson. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>Appeal from the County Court of Bell. Tried below before Hon. W. R. Butler.</p> <p>Appeal from a conviction of the local option law; penalty, a fine of $50 and twenty days confinement in the county jail.</p> <p>For a statement of the case reference is here made to appellant’s brief.</p>

The testimony in this case showed that the owner of the chickens kept them in a chicken-house, and that his chickens were all marked with one punch between the toes on the left foot, and were white leghorns; that on the night of the alleged burglary he heard a noise at his chicken coop which was situated on his land containing thirty acres; that he went out with his lantern and found the door of his chicken house open and some of the chickens gone; that he. found tracks made…

<p>1. —Assault to Murder—Refusal Peremptory Charge to Acquit.</p> <p>Where in a trial for assault with intent to murder, the confession of defendant, the testimony of the accomplice and the other evidence support the conviction, there was no error in refusing, to peremptorily instruct the jury to acquit the defendant.</p> <p>2. —Same—Jury and Jury Law—Recalling Witness—Practice.</p> <p>Where on a trial for assault to murder, the jury, after having retired to consider their verdict, requested the court that they desired to hear the testimony of a witness read to them, and the court informed them in writing that under the law they could not have the testimony read to them, but could have the witness recalled and have him detail the testimony upon which there was disagreement among them. Held correct, and there was no error.</p> <p>3. —Same—Practice.</p> <p>There was no error in the action of the court in permitting a witness to be recalled at the instance of the jury and have him again detail his testimony.</p> <p>4. —Same—Testimony Favorable to Defendant—Withdrawal.</p> <p>Where testimony as to the age or mental capacity of defendant on account of nonage, which was afterward withdrawn and could not have injured him, redounded to his benefit, there was no error.</p> <p>5. —Same—Confession—Charge of Court—Harmless Error.</p> <p>Where there was other testimony than defendant’s confession, it was harmless error to charge the jury that the confession must be taken together and that the State was bound by it, unless shown to be untrue in whole or in part; besides the charge was proper if the confession was relied upon alone for conviction.</p> <p>G.—Same—Charge of Court—Accomplice—Practice.</p> <p>See opinion for charge of court on the law of accomplice, which is sustained upon former decision, but suggesting that it is better practice to follow the statute. Reviewing Jones v. State, 3 Texas Crim. App., 575.</p> <p>7.—Same—Circumstantial Evidence—Confession—Accomplice.</p> <p>Where appellant’s confession was introduced in evidence, there was no necessity to charge upon the law of circumstantial evidence, besides the testimony of the accomplice took the case out of the rule.</p>

<p>1. —Aggravated Assault—Charge of Court—Provoking Difficulty.</p> <p>Where in a prosecution for assault with intent to murder, the defeiidant was acting with P., and P. with intent to provoke a difficulty used language towards the injured party calculated to effect this object, then the defendant would be guilty of the intent actuating P. in-provoking the difficulty whatever that intent may be, and P. must have done some act at the time calculated to provoke the same, and defendant must have co-operated with P. in whatever intent P. had, and this question should have been properly submitted to the jury.</p> <p>2. —Same—Charge of Court—Declarations and Acts of Third Party.</p> <p>Where during the progress of a trial for assault to murder the evidence showed that one P. had a difficulty with one G., and certain acts and conversations leading up to said difficulty between them were introduced in evidence against the defendant, which acts and conversations were not in the presence of the defendant, the court should have charged the jury that if they believed the same, then the same were introduced for the purpose of illustrating the intent and purpose of said P., to throw light upon his animus and purpose, and that the jury should not regard said acts and conversations unless they were satisfied beyond a reasonable doubt that the defendant was actuated by the same purpose, and that he adopted said intent of P., and was co-operating with him in bringing on the difficulty. See charge of court in opinion on this question held to be error.</p> <p>3. —Same—Sufficiency of Evidence.</p> <p>Where in a trial for assault to murder, the evidence' shows that appellant was co-operating with one P., at the time of the difficulty in making an assault on one G., the evidence is sufficient to support a verdict for aggravated assault.</p>

<p>1. —Murder in Second Degree—Evidence—Hearsay.</p> <p>Testimony as to the conduct of deceased on the night of the killing, etc., to the effect that deceased was a nice and perfect gentleman, defendant not knowing of such conduct, was inadmissible.</p> <p>2. —Same—Evidence—Animus of Witness—Contradicting Testimony.</p> <p>On a trial for murder, it was error not to permit defendant to introduce testimony by the witness on cross-examination to show his animus and hostility toward the defendant and to contradict the State’s witness. See opinion for questions set out in full which were erroneously excluded.</p> <p>3. —Same—Impeaching Testimony.</p> <p>It was error on a trial for murder, not to permit defendant to impeach a State’s witness, by showing by another witness that said State’s witness had made certain contradictory declarations to certain parties about the difficulty between defendant and deceased.</p> <p>4. —Same—Evidence—Appearance of Deceased.</p> <p>On a trial for murder, it was error to permit a witness to testify that prior to the killing in the afternoon of the day of the homicide, he saw deceased at a certain place and he then looked peaked and like he had been sick, as defendant did not know anything about this, and the condition of deceased was apparently obvious.</p> <p>5. —Same—Charge of Court—Manslaughter—Cooling Time—Provoking Difficulty.</p> <p>Where in a prosecution for murder the evidence showed that there were two difficulties, and that the acts that constituted the provocation occurred some four or five minutes before the homicide, in what was termed the first difficulty; the court in his charge on these facts should have submitted the law as to cooling time; and the facts adduced by the State, also showing that the defendant returned after the first difficulty and provoked a second one with the deceased, a charge on provoking the difficulty would also have been authorized ; and it was error in a charge on manslaughter not to have submitted the law on cooling time, although the general charge on manslaughter did not limit the acts constituting the provocation for sudden passion to acts occurring at the very time of the homicide, and was in other respects correct.</p> <p>6. —Same—Charge of Court—Provoking Difficulty.</p> <p>Where the evidence on a trial for murder was sufficient to authorize a charge on provoking the difficulty, it should have stated that if the defendant returned to the scene of the difficulty for the purpose of provoking a difficulty by the use of words or acts, with the specific intent to kill, he would be guilty of murder, and if without such specific intent, then he would be guilty of manslaughter. See opinion for erroneous charge on this phase of the case.</p> <p>7. —Same—Self-Defense—Appearance of Danger. •</p> <p>On a trial for murder, where the evidence tended to show that defendant probably returned to the place of the first difficulty for the purpose of inquiring of deceased why he struck him and deceased renewed the difficulty, and defendant’s life was in danger or his body was in danger of serious injury, then defendant would have the right to act upon the appearance of danger and slay the deceased, and the court should have so charged.</p> <p>8. —Same—Self-Defense—Stand Point of Defendant.</p> <p>On a trial for murder the court, in charging on self-defense, should have told the jury to consider the facts from defendant’s standpoint, and it was error to tell the jury that they must consider the facts from the standpoint of defendant as near as they are able.</p> <p>9. —Same—Deadly Weapon—Charge of Court.</p> <p>On a trial for murder, where there is an issue of the deadly character of the weapon, the statutes, articles 717 and 719, Code Criminal Procedure, should be given; however, if the knife used is of such character and the blade of such length as to show it to be a deadly weapon, it would not be necessary to give these articles in charge.</p>

<p>1. —Murder in Second Degree—Statutes Construed—Destruction of life.</p> <p>Where in a prosecution for murder the testimony showed that deceased died within a few days of six months after the wounds were inflicted by defendant, not necessarily fatal without certain complications which did not arise, the court, under the law of reasonable doubt, and articles 651 and 652, Penal Code, should have charged that if the wounds inflicted by defendant upon deceased did not cause his death, and defendant was not the guilty agent that brought about ■ the complete destruction of his life, then he was not guilty of murder, and this although the health of deceased gradually failed under the wounds thus inflicted.</p> <p>2. —Same—Self-Defense—Charge of the Court.</p> <p>Where in a prosecution for murder the testimony of the defendant tended to show self-defense, it was error not to charge on that issue.</p> <p>3. —Same—Manslaughter—Aggravated Assault—Charge of the Court.</p> <p>Where in a prosecution for murder the State’s testimony showed that the defendant and deceased met in the public road, deceased being in a wagon and defendant walking, and that words ensued between them and defendant attempted to shoot deceased with a pistol which snapped and the defendant left, but in a few minutes returned with a gun and shot deceased in the face, putting out his eyes and slightly wounding him in other portions of his head and face, the deceased dying within a few days of six months after - such wounds were inflicted, and the defendant’s testimony raised the issues of manslaughter and aggravated assault, it was error not to charge on these issues.</p> <p>4. —Same—Self-Defense—Previous Threats.</p> <p>Where in a prosecution for murder the evidence raised the issue of previous threats on part of deceased to injure defendant, the court, in presenting the law of self-defense, should have charged on the question of previous threats.</p>

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

Tried below before Hon. J. E. Dillard. Appeal from a conviction of murder in the second degree; penalty, fifteen years imprisonment in the penitentiary. The opinion states the ease.

Appeal fimo, the District Court of Erath. Tried below before Hon. W. J. Oxford. Appeal from a conviction of murder in the first degree; penalty, death.

Tried below before Hon. P. S. Hale. 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>The opinion states the case.</p>

<p>Theft of Horses—Continuance—New Trial.</p> <p>Where on a- trial for theft of horses, defendant applied for a continuance on account of material testimony of absent witnesses, and after conviction attached to his motion for new trial the affidavits of said witnesses corroborating defendant’s application, a new trial should have been granted; especially where the facts of the case render such testimony probably true. Following Baines v. State, 1 Texas Ct. Rep,, 816.</p>

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

<p>The opinion states the case. See Cole v. State. 45 Texas Crim. Rep., 225.</p>

Tried below before Hon. J. W. Timmins. Appeal from a conviction of seduction; penalty, four years imprisonment in the penitentiary. The opinion states the case.

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

Tried below before Hon. B. C. Thomas. Appeal from a conviction of murder in the second degree; penalty, twenty-five years imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. B. B. Muse. Appeal from a conviction of theft from the person; penalty, two years imprisonment in the penitentiary. The opinion states the case.

The following statement of the case in the brief of the Assistant Attorney-General is 'substantially correct: The State’s case in substance is, that the police of the city in which the burglarized house was situated, became suspicious of appellant and one Will Haney. About midnight of the alleged burglary, the police saw appellant and Haney come to the store of the prosecutor; that either appellant or Haney broke open the door.

The State’s testimony showed that the buggy and mare had been driven to the town of Milford and were left behind a store building about 7 o’clock in the evening. When witness returned to get them, an hour and a half later, they were gone. Witness did not know who took them and they were taken without the consent of the owner or his agent. The mare was seen about sixteen days afterwards in the city pound at Waxahachie.

The principal witness testified (as taken from appellant’s brief) substantially as follows: (After having testified about having owned a ranch in Crockett County) he says: “I had sheep on the ranch, and also four head of horses and one two-year-old colt. I missed one horse about the first of March, 1904. It was what one would call a dark-brown horise or black horse, and was then about two years old. It was small and fat.

<p>Murder—Habeas Corpus—Bailable Case.</p> <p>See facts which show a bailable case, and that the judgment of the lower court denying bail should be reversed and the relator permitted to enter into recognizance or give bond.</p> <p>1905.1 Ex Parte Parker.</p>

Tried below before Hon. H. R. Lindsey. „ Appeal from a conviction for fraudulently disposing of property on a contract of hire; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Murder—Charge of Court—Provoking Difficulty—Self-Defense.</p> <p>Where the evidence for the State on a trial for murder might justify a charge on provoking a difficulty, but the evidence of the defense more cogently showed that the difficulty was brought on by the deceased and not the defendant, it was clearly incumbent on the court to charge the converse of the theory of provoking a difficulty.</p> <p>2. —Same—Charge of Court—Self-Defense—Weight of Evidence.</p> <p>On a trial for murder the court erroneously charged on the question as to whether or not the defendant was justifiable, that the facts and circumstances must be viewed from the standpoint of the defendant, but that he would not be justified in killing deceased, because deceased had followed him, or because deceased had whistled at defendant’s horse, and that the only act that would justify the defendant in killing deceased would be such acts upon the part of deceased or words coupled with his acts as were reasonably calculated to produce in the mind of the defendant a reasonable expectation or fear of death or serious bodily injury. Such charge was. on the weight of the testimony as it singled out but two of the facts which led up to the difficulty.</p> <p>3. —Same—Charges Requested and Refused—Provoking the Difficulty.</p> <p>See opinion for charges requested and refused on the subject on provoking the difficulty which should have been given.</p> <p>4. —Same—Deadly Weapon—Charge of Court—Statutes Construed—Question of Fact.</p> <p>Where on a trial for murder the weapon used is described as an old knife, with one handle nearly off; that it could be thrown open and shut; that it would stand open when held straight, but if held in the least bit slanting it would fall shut; that the back spring was broken; that the defendant got it out of his pocket, and that he made but one thrust with if; that no deadly conflict was contemplated by defendant and that, according to his theory, he was simply asking deceased for an amicable settlement between them, and that probably the deceased provoked the difficulty, the court should have submitted to the jury articles 717 and 719, Penal Code, defining homicide when committed by means of an instrument not likely to produce death unless there was an intention to kill, etc., and the fact that death resulted can not be held as proof that the weapon producing it was necessarily a deadly weapon, and the fact should have been submitted to the jury.</p>

Tried below before Hon. V. J. Word. Appeal from a conviction of keeping open saloon on election day; penalty, fine of $100. The opinion states the case.

<p>1. —Sunday law—Evidence Before Grand Jury—Warning of Defendant.</p> <p>Where in a prosecution for the violation of the Sunday law there is nothing in the record to show that defendant was under arrest at the time he made his statement before the grand jury, although he evidently believed he was under suspicion for violating the Sunday law and he was questioned about that, and was not warned that his evidence might be used against him, such statement or confession is admissible in a subsequent trial against him. Distinguishing Wood v. State, 22 Texas Crim. App., 431; Gilder v. State, 33 S. W. Rep., 867.</p> <p>2. —Same—Evidence—Action of Grand Jury—Failing to Find Bills Against Others.</p> <p>On a trial for violation of the Sunday law, it was not competent to prove that the grand jury which found the indictment against the defendant failed to find bills against others for a violation of the Sunday law, or of the gaming law.</p> <p>3. —Same—Charges Refused—liquor Dealer.</p> <p>Where on a trial for violation of the Sunday law the evidence showed that . defendant was a liquor dealer, the court did not err in refusing a special charge to the effect that no evidence had been introduced of that fact.</p> <p>4. —Same—Keeping Open Saloon—Wares and Merchandise—Traffic—liquor Dealer.</p> <p>On trial for the violation of the Sunday law the court was not required to instruct the jury as requested, that appellant must have kept his place open for the sale and exchange of goods, wares and merchandise, and that if he kept it open for any other cause or reason to acquit him, nor what it took to constitute traffic, nor to define to the jury what it took to constitute a liquor dealer.</p> <p>5. —Same—Merchant—Saloon-Keeper—Charge of Court.</p> <p>On a trial for violating the Sunday law where defendant stated that he was a saloon-keeper; that he had been doing business every Sunday for the last several Sundays, and that there was an agreement between the saloon keepers and the officers to keep open during certain hours on Sunday, there was no error in the charge of the court that if defendant was a merchant or dealer in goods, wares, and merchandise, and opened his place of business for the purpose of traffic on Sunday to convict.</p> <p>6. —Same—Charge of Court—Ingress and Egress—Traffic on Sunday.</p> <p>There was no error in the charge of the court, on a trial for the violation of the Sunday law, to the effect that the law required defendant’s place of business to be closed against all traffic on Sunday, and that it was immaterial whether the door stood open or was open for ingress and egress to parties and was closed as soon as they went in or out, the evidence showing that although the door was closed persons went in and out opening and closing the door.</p>

Tried below before Hon. John W. Hornsby. Appeal from a conviction of malicious mischief; penalty, a fine of $5. The opinion states the case.

County Court of McLennan. Tried below before Hon. G. B. Gerald. Appeal from a conviction of pursuing an occupation without license; penalty, ninety days confinement in the county jail. The opinion states the case.

<p>1.—Assault to Murder—Plea of Guilty—Practice.</p> <p>Where the bill of exceptions stated that the defendant pleaded not guilty to the charge of assault with intent to murder but guilty to an aggravated assault, but that the court had announced in the presence of the jury that he would receive no other plea than one o£ not guilty, and the court explained the bill by certifying that he did not make such statement in the presence of the jury, but merely entered defendant’s plea of not guilty on the docket; there was no reversible error.</p> <p>2. —Same—Convict—Capacity of Witness—Pardon—Evidence.</p> <p>Where the objection to the witness was not on the ground that he was a convict, but because his pardon which had been lost was not produced, there was no error in admitting testimony as to the contents of the pardon as secondary evidence. A different question would have arisen if the objection had been based on the ground that the witness had no capacity to testify to any fact, not even to the contents of his pardon.</p> <p>3. —Same—Deadly Weapon—Charge of Court.</p> <p>Where the evidence for the defense showed that the shotgun was fired at the prosecutor at a distance of from fifty to sixty yards, and that of the State that the distance was twenty-five or thirty yards; the shot having struck prosecutor about the head and neck and some were imbedded in his skin, there was no error in not submitting the issue of deadly weapon. r</p> <p>4. —Same—Charge of Court—Aggravated Assault.</p> <p>Where the court charged an aggravated assault generally, and no exception was taken because the court did not submit the question of an insult to a female relative, there was no error.</p>

From Rusk County. Original application for habeas corpus for a release from arrest on a charge of violating the local option law. The opinion states the case.

The prosecutrix testified: “1 was in my thirteenth year in the fall of 1903. I was living with the defendant and my mother. The defendant is my step-father. He had been married to my mother a little more than a year. They lived together until sometime in October, 1903, when they separated and have not lived together since. On Sunday, about the 2nd of September, 1903, I was assisting defendant in loading some cotton, from a cotton-seed house in the field, onto the wagon.

The-State’s testimony showed that defendant was seen on the night of the 15th of August, 1904; that pistol shots were heard in the direction of the saloon where the deceased was found lying on the gallery in front of the saloon, dead. Defendant was lying near deceased, groaning and the pistol was lying between them on the floor.

Tried below before Hon. Bichard B. Levi. Appeal from a conviction of embezzlement; penalty, four years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Assault to Murder—Intent to Kill—Deadly Weapon.</p> <p>Where on a trial for assault to murder the evidence showed that the weapon used was a stick of stove wood, nearly as long as the arm of the prosecutrix, with which defendant struck her', inflicting a number of severe wounds, knocking her unconscious to the floor and inflicting injuries which confined her to her bed for over a month and her attending physician testified that said stick was of a deadly character and capable of producing death; the defendant while beating prosecutrix threatening to kill her, a conviction for assault with intent to murder is sustained, especially where the law of aggravated assault was submitted with that of assault with intent to murder.</p> <p>2. —Same—Verdict—Misspelling of Word.</p> <p>Where on a trial for assault to murder the word “penitentiary” was spelled “penitemary” in the verdict of the jury, such inadvertence did not vitiate the verdict.</p>

Tried below before Hon. Ben H. Denton. Appeal from a conviction of aggravated assault; penalty, $25 and thirty days confinement in jail. The opinion states the case.

<p>Theft of Cattle—Insufficiency of Evidence.</p> <p>See opinion for evidence held insufficient to support a conviction for the theft of a cow, no fraudulent intent on the part of defendant when he took the animal having been shown.</p>

Tried below before Hon. Ed. R. Sinks. Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary. The opinion states the case.

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

Tried below before Hon. James I. Perkins. Appeal from a conviction of disturbing the peace; penalty, a fine of $5. The opinion states the case.

Tried below before Hon. W. J. Townsend. - Appeal from a conviction of unlawfully knowing and permitting a house to be kept for the purpose of prostitution, etc.; penalty, a fine of $200. The opinion states the case.

<p>Appeal from the District Court of Shelby. Tried below before Hon. James I. Perkins.</p> <p>Appeal from a conviction for assault with intent to murder; penalty, three years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

<p>1.—Assault with Intent to Murder—Evidence—Qualification of Witness—Fine and Costs—Sheriff.</p> <p>On a trial for assault to murder there was no error to exclude the testimony of a codefendant who had been convicted of aggravated assault but had not paid his fine and costs at the time he was offered as a” witness, but had been discharged by the sheriff on the verbal promise of a friend who promised the sheriff to pay said fine and costs, the sheriff having no authority to take such promise, either verbal or in writing.</p> <p>ÍJ.—Same—Charge of Court—Issue Involved.</p> <p>Where on trial for assault to murder, the evidence showed that in shooting the party alleged to have been injured, the defendant also hit another party, the court correctly charged that if the jury believed from the evidence that defendant could not be convicted for assaulting the party alleged to be injured, they could not convict him for shooting another not alleged in the indictment; and there was nothing in the criticism that the court’s charge did not properly protect defendant on this phase of the case.</p>

<p>1. —Illegal Voting—Former Conviction—False Swearing.</p> <p>The offense of false swearing and illegal voting are different offenses, and there is no inhibition in the Constitution against defendant being prosecuted for both offenses; the mere fact that they occur contemporaneously does not make them one and the same offense.</p> <p>2. —Same—Statutes Construed—Illegal Voting—Repeal by Implication.</p> <p>Article 171, Penal Code, denounces the offense of illegal voting and attaches thereto a penalty. The fact that other acts are subsequently denounced as illegal voting and made penal under the Terrell Election Law, would not prevent said acts being prosecuted under said article, and the party may be prosecuted and convicted under said article for not having paid his poll tax and not holding a certificate before voting as required under the Terrell Election Law, which does not repeal said article by implication.</p>

<p>Burglary—Materiality of Testimony—Continuance.</p> <p>AYhere on a trial for burglary defendant’s witness was duly subpoenaed and at a former term was in attendance and instructed to return under the same summons at the next term of the court, when he did not appear, and it was found that he was residing in the adjoining county and there was nothing in the record showing that defendant was cognizant of this fact, but was led to believe from the return of the officer of said adjoining county, that the witness lived in the county of the trial, and that defendant could have shown by the testimony of said witness that defendant did not enter the alleged burglarized house, and that this was at the very time that the State’s witness claimed defendant entered and burglarized said house, a continuance should have been granted; especially where said State’s witness had been impeached by other witnesses.</p>

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

Tried below before Hon. J. C. Scott. Appeal from a conviction of burglary of a private residence; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. J. W. Pierson. Appeal from a conviction of a misdemeanor; penalty, a fine of $10 and two hours confinement in the county jail. The opinion states the case.

Tried below before Hon. Richard B. Levy. Appeal from a conviction of rape; penalty, fifteen years imprisonment in the penitentiary. • The opinion states the case.

Hugh Powell, a witness for the State, testified that he attended a party or dance and was in the house when the- dance was going on and saw the defendant there, and in the yard in front of the gallery; a number of boys were out there in the yard talking about the dance being stopped; that defendant said something about the fiddler and the deceased said that if he had been the fiddler, he would have fiddled on, and the defendant said, “Yes, and you would not have had two…

Tried below before Hon. Ben H. Denton. Appeal f-rom a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The following statement taken from the brief of the Assistant Attorney-General is substantially correct: The alleged assault was committed upon one A. L. Johnson. Johnson and appellant were neighbors.

Tried below before Robert Berger. Appeal from a conviction of the violation of the local option law; penalty, fine of $25 and twenty days confinement in the county jail.

<p>Murder—Bill of Exceptions—Verbal Charge—Form of Verdict.</p> <p>On a trial for murder, where defendant complained that the court gave a verbal charge as to the form of their verdict, and there was no bill of exceptions reserved, the question can not be considered on appeal.</p>

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

Tried below before Hon. N. R. Lindsey. Appeal from a conviction of false swearing; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Sodomy—Indictment—Sow.</p> <p>On trial for sodomy an allegation that the beast or animal with which appellant was alleged to have copulated was a sow is sufficient.</p> <p>2. —Same—Insufficiency of Evidence—Eact Case.</p> <p>See opinion for facts held to be insufficient to authorize a conviction for sodomy.</p>

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

<p>Appeal from the County Court of Camp. Tried below before Hon. J. D. Bass.</p> <p>Appeal from a conviction of a violation of the local option law; penalty, a fine of $50 and thirty days confinement in the county jail.</p> <p>The opinion states the case.</p>

<p>Perjury—Predicate—Allegation and Proof—Variance.</p> <p>On a trial for perjury where the proof showed that defendant swore that M. did not play cards at a certain time and place at all, and the allegation in the indictment was that he played at said time and place with four certain parties, such variance between the proof and the allegation was fatal and reversible error.</p>

Tried below before Hon. J. D. Bass. 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>1. —Murder—Husband and Wife—Void Marriage.</p> <p>On a trial for murder where the testimony of a State’s witness was objected to by the defendant because she was his wife, and the evidence showed that she had married defendant in jail shortly before the trial, and that she had a living husband at that time, and that her marriage to defendant was illegal and void, there was no error in admitting her testimony.</p> <p>2. —Same—Evidence—Declaration and Acts of Third Tarty.</p> <p>On a trial for murder it was error to admit in evidence the acts and declarations of third parties not shown to have been authorized by appellant.</p> <p>3. —Same—Evidence—Threats—Charge of Court—Self-Defense.</p> <p>On a trial for murder where the testimony of the defendant showed threats on the part of the deceased against him, and that thereafter he met deceased who made a violent assault upon him and that thereupon he shot him, it was reversible error on the part of the court not to charge on the law of threats in connection with self-defense.</p> <p>4. —Same—Self-Defense—Assault—Threats—Charge of Court.</p> <p>On a trial for murder where the evidence showed that the deceased had made threats against defendant and thereafter violently assaulted him whereupon he shot deceased, it was not necessary that the jury should believe that each effort to injure defendant was committed by deceased before defendant could avail himself of the right to self-defense, and it was error on part of the court to substantially charge to that effect. See opinion for substance of charge which should have been given.</p> <p>5. —Same—Manslaughter—Charge of Court—Adequate Cause.</p> <p>Qn a trial for murder where the evidence showed that the defendant had been previously warned of threats against his person by deceased, and that suddenly meeting him he violently assaulted defendant, whereupon defendant killed him, the court should have charged that if defendant’s mind was incapable of cool reflection and he slew deceased under anger or fear, producing sudden passion from an adequate cause, they should have convicted him of manslaughter.</p> <p>6. —Same—Statement of Facts—Adjournment—Twenty Days Order—Bill of Exceptions.</p> <p>Where on appeal from a conviction of murder appellant’s affidavit showed that he exercised the utmost diligence to ascertain whether an order permitting him to file bills of exception and statement of facts within twenty days after adjournment had been entered by the court, but could not ascertain prior to such adjournment, and that he had a right to believe that said” order was entered on the court’s docket, said bill of exceptions and statement of facts should be considered on appeal.</p>

Tried below before Hon. Sed. F. Caldwell. Appeal from a conviction of violating the local option lay; penalty, a fine of $25 and twenty days confinement in the county jail. The opinion states the case.

<p>Appeal from the County Court of Camp. Tried below before Hon. J. D. Bass.</p> <p>Appeal from a conviction of a violation of the local option law; penalty, a fine of $40 and thirty days confinement in the county jail.</p> <p>The opinion states the case.</p>

Tried below before Hon. John W. Love. Appeal from a conviction of a violation of the Sunday Law; penalty, a fine of $20. The opinion states the case.

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

<p>Local Option—Evidence—Other Transactions.</p> <p>Where on trial for a violation of the local option law, evidence was introduced to the effect that defendant received during the month previous to the transaction in question, nine packages of whisky by express, and such evidence did not serve to show system* in making the sales, nor did it serve to illustrate the intent of defendant, and there was no question that defendant received the whisky alleged to have been sold, by express, or that defendant furnished a quart of whisky to prosecutor or that he sold said nine packages of whisky, and said evidence was no part of the res gestse of the transaction for which he was being tried. Held reversible error.</p>

<p>1. —Murder-—Charge of Court—Self-Defense.</p> <p>See opinion for facts which hardly warranted a charge on self-defense, the testimony showing that it was secret homicide.</p> <p>2. —Same—Indictment—Constitutional Law—Endorsement.</p> <p>The omission of the article “the” in the constitutional form and beginning of an indictment for murder is not a valid objection thereto. The names of State witnesses need not be endorsed on indictment.</p> <p>3. —-Same—Jury and Jury Law—Practice in District Court.</p> <p>On a trial for murder where three or four of the jurors on the special venire were at the time defendant’s case was called, out, deliberating on another case, there was no error in proceeding with the testing of other jurors in the meantime, and then passing upon the first jurors who had come into court in the meantime and who all qualified but were peremptorily challenged by the State.</p> <p>4. —Same—Special Venire.</p> <p>On a trial for murder where the record showed that twenty-four of the jurors on the venire 'of forty were summoned and. in attendance on the court, and a number of the others had been excused and some not found, there was no error in the court’s refusal to quash the venire.</p> <p>5. —Same—Evidence—Confession—Fraud.</p> <p>On a trial for murder there was no error in admitting in evidence the confession of defendant to a witness, a detective, who had induced defendant to make such confession upon the pretention of the witness that he had committed various crimes and killed people, in order to gain the confidence of defendant and to secure the confession from him, there being no duress or coercion, and the bones of deceased being found where defendant said they could be found.</p> <p>6.—Same—Argument of Counsel—Harmless Error.</p> <p>On trial for murder where the case was so clearly made out by the evidence that the jury could not have done otherwise than assess the death penalty, notwithstanding the inflammatory and extraneous appeals of the district attorney the verdict will not be set aside, although such conduct of prosecuting attorneys is criticised by the court, and should not be indulged in by prosecuting officers.</p>

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

<p>1. —Murder—Change of Venue—Affidavit of Compurgators—Postponement.</p> <p>On a trial for murder where the motion for change of venue was not supported by the affidavit of two compurgators as required by the statutes, the same was insufficient and the court did not err in refusing to postpone the case, that defendant might secure such affidavit.</p> <p>2. —Same—Continuance—Witness Beyond Jurisdiction—Testimony Probably Untrue.</p> <p>On a trial for murder where the application for a continuance showed that the witnesses were beyond the jurisdiction of the court, and the testimony of others was probably not true in the light of the record, there was no error in overruling the motion.</p> <p>3. —Same—Insanity—Charge of Court—Approved Forms—Special Charge.</p> <p>On trial for murder where the charge on insanity is in accord with the approved form as laid down by many decisions of this court, the court did not err in refusing appellant’s special charge on insanity.</p> <p>4. —Same—Temporary Insanity—Charge of Court.</p> <p>See opinion for case where it was held not error in failing to charge on temporary insanity.</p> <p>5. —Same—Murder in First and Second Degree—Charge of Court—Robbery.</p> <p>On trial for murder where the evidence showed that the crime was' committed in the attempted perpetration of robbery, the same precluded any other issue than murder in the first degree, and there was no error in the refusal of the court to charge on murder in the second degree.</p> <p>6. —Same—Expert Witnesses—limiting Testimony.</p> <p>On trial for murder where there was no way in which the testimony of expert witnesses on insanity could have been limited, it must be considered by the jury as other testimony and a requested charge limiting the same was correctly refused.</p> <p>7. —Same—Sweat-box Confession—Controvening Testimony.</p> <p>On trial for murder there was no error in admitting the confession of the defendant over objection by him that the confession had been extracted through a sweat-box process, the evidence showing that this was not true and that the defendant was duly warned and voluntarily confessed.</p> <p>8. —Same—Articles Found on Defendant—Evidence.</p> <p>On a trial for murder there was no error in the introduction in evidence of all the articles found in appellant’s house where they corresponded in character and kind with articles found at the scene of the homicide.</p> <p>9. —Same—Absent Witnesses, Whereabouts Of.</p> <p>On a trial for murder there was no error in the court permitting witnesses to testify as to the whereabouts of the absent witnesses.</p> <p>10.—Same—Evidence—Remote Circumstances.</p> <p>On trial for murder there was no error to admit testimony that about three weeks before the homicide, defendant statgd that his furniture was mortgaged and that he needed money, etc.; other evidence showing that the murder was perpetrated in the commission of robbery.</p> <p>11. —Same—Evidence—Neck-tie—Identity.</p> <p>On trial for murder there was no error to permit a witness to testify that the necktie exhibited to him looked like the one owned and worn by defendant, the witness haying identified the necktie as being the one he' saw appellant have just prior to the homicide.</p> <p>12. —Same—Tracks—Evidence—Non-Expert Testimony.</p> <p>On a trial for murder it was admissible to show that the shoes exhibited to the witness would make the same kind of track as those found near the place of the homicide.</p> <p>13. —Same—Motion in Arrest of Judgment—Copy of Indictment—Foreman.</p> <p>On a trial for murder where the record does not bear out the contention that defendant was not served wjth a true copy of the indictment,, and that the verdict of the jury was not signed by the foreman, the same cannot be considered.</p> <p>14. —Same—Fact Case—Death Penalty.</p> <p>On a trial for murder where the evidence irresistibly led to the guilt of the defendant a judgment inflicting the death penalty will not be disturbed.</p>

Tried below before Hon. P. A. Turner. Appeal from a conviction of destroying the vitality of a child in state of being born, etc.; penalty, five years imprisonment in the penitentiary. The evidence of the State showed that defendant was the illegitimate father of the child, the life of whom he was alleged to have destroyed.

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

<p>1. —Robbery With Fire Arms—Deputy Clerk—Woman May Act as Deputy— Filing.</p> <p>On a trial for robbery, on change of venue, there was no error in permitting the transcript to be filed during the trial. A woman is not disqualified from acting as deputy clerk and certifying to such transcript.</p> <p>2. —Same—Special Venire—Jury and Jury Law.</p> <p>On a trial for robbery, it appearing that there were only thirty-six jurors drawn for the term, and the order for the venire not only provided for summoning these thirty-six jurors but for additional jurors, there was no error. -</p> <p>3. —Same—Bill of Exceptions.</p> <p>Where a bill of exceptions is defective in not stating the testimony it will not be considered.</p> <p>4. —Same—Evidence—Corroboration.</p> <p>On a trial for robbery there was no error to show that on the night of the robbery the prosecutor was on his way to B. County, to explain why he did not ° remain at the place of the robbery and ferret out the crime.</p> <p>5. —Same—Withdrawal of Testimony—Identification.</p> <p>On a trial for robbery where the court withdrew the testimony of a witness as to declarations by prosecutor with reference to the identification of defendant, and there was evidence that the prosecutor did identify defendant as the party who robbed him, there was no reversible error.</p> <p>6. —Same—Evidence—Corroborating Testimony.</p> <p>On a trial for robbery there was no error in permitting witness to testify that he saw the prosecutor at the depot in El Paso on his way to San Antonio, etc., which was offered in corroboration of prosecutor’s testimony.</p> <p>7. —Same—Charge of Court—Alibi.</p> <p>Where there was no testimony that defendant was not at the scene of the crime a charge on alibi was not required.</p> <p>8. —Same—Evidence—Confession—Attempt to Escape.</p> <p>On a trial for robbery there was no error to admit statements of the defendant to the officer while the latter was conveying him to jail, showing efforts on part of defendant to escape by standing in with the officer.</p> <p>9. —Same—Evidence—Charge of - Court—Co-Conspirator.</p> <p>On trial for robbery where the testimony showed that a declaration of a codefendant to prosecutor just before the robbery was not of a criminative character, there was no error in admitting same and in not charging on the law of co-conspirators.</p>

<p>1. —Theft—Bringing Stolen Property Into State—Indian Territory—Judicial Knowledge.</p> <p>The courts of Texas take judicial knowledge of the fact that the United States has enacted a statute making the laws of Arkansas operative in the Indian Territory, under which laws it is made a felony to obtain as much as $10 by false pretenses, and an indictment charging theft of $160, describing same, "in the Indian Territory and bringing the same into the State of Texas, charges an offense against the laws of Texas.</p> <p>2. —Same—laws of Indian Territory—Predicate for Introduction.</p> <p>See opinion holding that proper predicate for the introduction of the laws of Indian Territory was laid. Following Beard v. State, 11 Texas Ct. Rep., 716.</p> <p>3. —Same—Misdemeanor—Felony—Charge of Court.</p> <p>Where on a trial for theft of property over the value of $50, in the Indian Territory and bringing the same within this State, the court charged upon circumstantial evidence, and presented the question of the value of the property stolen and brought into the State of Texas in every possible phase, telling the jury that if the defendant did not bring as much as $50 into the State of Texas he would only be guilty of a misdemeanor, or if there was a reasonable doubt to so find, there was no error.</p> <p>4. —Same—Evidence—Money Found on Codefendant—Conspiracy.</p> <p>On a trial for theft there was no error in permitting the sheriff to testify that he found two twenty dollar bills in possession of appellant’s codefendant. It is permissible under the rules of this court to prove the possession of the fruits of the crime by either of the codefendants, even after the conspiracy has terminated.</p> <p>5. —Same—Evidence—Impeaching Testimony—Books of Express Company.</p> <p>On a trial for theft there was no error in permitting the State to prove by the express agent that he did not transport a corpse on the day of the alleged theft, without producing the books of the company; the false pretense of defendant consisting in his statement ■ that he needed the money to transport a corpse.</p> <p>6. —Same—Confession—W aiming.</p> <p>On a trial for theft there was no error in permitting the sheriff to testify to declarations of defendant while in jail, the latter having been properly warned.</p> <p>7. —Same—Evidence—Extraneous Crime.</p> <p>On a trial for theft the court committed reversible error in permitting testimony showing that defendant and his codefendant had obtained money from the witness by the same subterfuge and false pretense resorted to in the case on trial; the evidence in the case showing that defendant did not controvert this fact.</p>

<p>Appeal from the District Court of Kaufman. Tried below before Hon. J. E. Dillard.</p> <p>Appeal from a conviction of manslaughter; penalty, five years imprisonment in the penitentiary.</p> <p>The opinion states the case.</p>

<p>—local Option—Evidence—Bill of Exceptions.</p> <p>Where on trial for a violation of the local option law testimony was introduced over,defendant’s objection that the witness then had on.hand about forty packages, the same not showing any extraneous crime, there was no error, besides the exception that the testimony was incompetent and immaterial, was too genereal.</p> <p>ÍZ.—Same—C. 0. D. Order—Insufficiency of Evidence—Venue.</p> <p>On trial for a violation of the local option law where the evidence showed that the purchaser received two packages of whisky on two separate occasions from defendant, for which he had made no order, for which he paid at the time of delivery in the county of the prosecution, and the express charges having ! been prepaid. Held that the sale was in the local option county and not in the county from where the whisky was shipped.</p> <p>3.—Same—Indictment—Corporation.</p> <p>Where the indictment alleged that defendant, agent of the T. & K. Company, did sell liquor, etc., the? same was sufficient although the allegation as to agency was unnecessary, as the defendant, and not the company was involved.</p>

Tried below before Hon. J. D. Goldsmith. Appeal from habeas corpus proceeding to reduce bail. The opinion states the case.

Tried below before Hon. W. B. Powell. Appeal from a conviction of burglary, etc.; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. Gordon Boone. Appeal from a conviction of murder in second degree; penalty, five years imprisonment in the penitentiary. The opinion states the case.

Tried below before Hon. Gordon Boone. Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary. The opinion states the case.

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

<p>Appeal from the County Court of Nacogdoches. Tried below before Hon. Robert Berger.</p> <p>Appeal from a conviction of a violation of the local_ option law; penalty, a fine of $50 and. twenty daj's confinement in the county jail. The opinion states the case.</p>

Tried below before Hon. J. D. Bass. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and sixty days confinement in the county jail.# The following statement taken from the brief of the Assistant Attorney-General is substantially correct: “It appears that Searcy was sick with the smallpox and did not testify at this trial, but Albert Coke and J. A. Guest, eye-witnesses to the sale, testified that appellant sold and delivered the whisky…

<p>1. —Bribing an Officer—Variance Between Allegation and Proof.</p> <p>The offer to bribe consisted in the following language as set out in the indictment: “How much will you take to turn me loose and let me go and get away.” The language proved upon the trial as having been used by defendant, was: “How much will you take to turn me loose and let me go”—omitting the expression charged in the indictment, “and get away.” Held no variance.</p> <p>2. —Same—Statutes Construed—Offer to Bribe an Officer—Evidence Insufficient.</p> <p>On a trial for offering to bribe an officer, where the defendant asked the officer who was taking him to jail, how much he would take to turn him loose and let him go and get away, and there was no actual offer to bribe made to the officer by defendant, or any inducement held out to him, the evidence was insufficient to sustain a conviction.</p>

<p>1. —Local Option—Time of Publication of Order Declaring Result.</p> <p>Where it appeared from the record that the commissioners court entered an order declaring the result of a local option election prohibiting the sale of intoxicating liquor, on March 26, 1902, and said order was not published in the newspaper for four successive weeks until eleven months after the date of said order, when the order was reformed, the failure to publish the order immediately, did not render the same invalid and said law became effective.</p> <p>2. —Same—Charge of Court—Internal Revenue License—Saloon—Restaurant.</p> <p>On a trial for a violation of the local option law, the mere fact that defendant may have been running a saloon and whisky was sold in the house, or running a restaurant and whisky was sold in the house, there being an internal revenue license posted in said place, would not make defendant guilty, if some one else sold the whisky; especially where the evidence showed that the whisky was actually delivered by a third party; and a charge instructing the jury if they found the above state of facts to convict, was error.</p> <p>3. —Same—Indictment—Firm—Surplusage.</p> <p>An indictment charging that two certain persons, a firm, violated the local option law, affirmatively alleging that both of said persons did so, is good, and the words, “a firm,” can be treated as surplusage.</p>

Tried below before Hon. P. A. Turner. Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary. The opinion states the case.

<p>1. —Aggravated Assault—Charge of Court—Defense of Person and Property.</p> <p>On a trial for aggravated assault where the evidence showed that the defendant went to the place where the prosecutor was digging post holes upon defendant’s premises and asked him to leave, whereupon prosecutor assaulted defendant, upon which defendant struck prosecutor two or three blows with a hoe handle, the court should have submitted defendant’s special charges upon the defendant’s rights in defense of his person and property.</p> <p>2, —game—Ownership—Possession—Trial of Court—Tenant.</p> <p>On trial for aggravated assault where the evidence showed that the defendant acted in defense of his person, and certain property in his charge, it was error to confine his rights of defending property to actual ownership, but the charge should have extended such right to that of possession as a tenant.</p>

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

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

<p>1. —Burglary—Railroad Car—Indictment.</p> <p>Where the allegations in an indictment for burglary were such as to support either a night or daytime burglary, and the court submitted the case upon the theory that it was night-time burglary, there was no error, the evidence showing beyond controversy that the entry was at night.</p> <p>2. —Same—Newly Discovered Testimony—Diligence.</p> <p>See opinion for facts showing due diligence why newly discovered testimony could not be obtained for the trial, and the materiality of such testimony.</p> <p>3. —Same—Charge of Court—Sleeping in Car—Intent to Commit Theft.</p> <p>Where on a trial of burglariously entering a railroad car, the contention of the State was that defendant entered said car with intent to commit theft, and that of defendant that he entered the same for the purpose of going to sleep therein, and the court submitted a charge that if defendant entered said car for the purpose of sleeping therein, and not with the intent of committing theft they should acquit, there was error, "and the requested charge that if appellant entered the car for the purpose of sleeping or for any purpose other than that of committing theft to acquit, should have been given.</p>

<p>From McLennan County.</p> <p>Original application for habeas corpus for release from commitment for contempt for violating injunction restraining relator from running a gambling house.</p> <p>The opinion states the case.</p>

From Nolan County. Original application for habeas corpus for release from custody, under plea of former acquittal of the same offense in another county in a court of competent jurisdiction. The opinion states the case.

The following statement taken from the brief of the Assistant Attorney-General is substantially correct:—The evidence developed a conspiracy between appellant and prosecutor’s wife, for the purpose of murdering prosecutor, that appellant might marry prosecutor’s wife— appellant’s codefendant. Mrs. Benoist testified at the instance of the State, and admitted the conspiracy. The assault occurred at night, in prosecutor’s horse-lot.