Volume 5 — Texas Court of Appeals Reports

<p>1. Theft —Indictment. —If the ownership of property stolen he alleged in parties to the grand jurors unknown, it is sufficiently laid.</p> <p>2. Evidence. — It is the province of the jury to reconcile all conflict of testimony, if possible, and if not, to give credit to such as in their opinion is best entitled to it.</p>

<p>Appeal from the District Court of Montgomery. Tried below before the Hon. J. Masterson.</p> <p>The opinion states the case.</p>

Tried below before the Hon. Gr. Cook. The substance of the indictment is fully set out in the opinion. The jury found the appellant guilty, and assessed his punishment at four years’ confinement in the penitentiary. The opinion clearly discloses such matters of fact as underlie the rulings made.

<p>1. Juror’s Oath. ■—If the judgment recites that the jury “ were duly sworn,” this court will presume that the oath prescribed by the statute was the one administered.</p> <p>2. Information. — An information must, in every material allegation, follow and correspond with the affidavit. Neither bad spelling nor verbal or grammatical inaccuracies, which do not affect the sense, are fatal to an indictment or information.</p> <p>3. Practice. — The appellant contends that the court below erred in sustaining the validity of an affidavit which was filed on Sunday, citing Paschal’s Digest, art. 1424. Beld, that this article applies only to civil suits; and held, that, having failed to raise that question in the court below, it amounted to a waiver, and it is too late to raise it for the first time in this court.</p> <p>4. Affidavit. — An affidavit attached to an information that bears the file-mark of the court will itself be considered filed.</p>

<p>Practice.—The Code requires that the defendant’s plea of “not guilty”, shall he entered of record, and that if he fails to plead, the plea of “ not guilty ” shall he entered for him. If the transcript fails to show the entry, the conviction will be set aside. The record must show, also, that the jury was sworn; otherwise, the judgment will be set aside.</p>

<p>Appeal from the District Court of Hopkins. Tried below before the Hon. G. J. Clark.</p>

<p>Appeal from the County Court of Hopkins. Tried below before the Hon. F. M. Bogers, County Judge.</p>

<p>Appeal from the County Court of Hopkins. Tried below before the Hon. F. M. Rogers, County Judge.</p>

Tried below before the Hon. J. F. Moseley, County Judge. As will be seen, the first opinion was rendered on a motion to dismiss; and subsequently, on a perfect transcript, the case was disposed of on the merits, by a second opinion.

<p>1. Arrest.—Under the Code of this State, a peace officer is empowered to make an arrest without a warrant where a felony or a breach of the peace is committed in his presence or within Ms view, or when ordered verbally by a magistrate within whose presence or view such offences are committed, or when there is no time to procure a warrant, and the offender is about to escape. And these are the only cases wherein such authority exists, except when exercised for the prevention of offences, as prescribed in Paschal’s Digest, arts. 2510 et seq. See the opinion in extenso on this subject.</p> <p>2. Assault with Intent to Murder—Aggravated Assault. —An arrest was attempted by an unauthorized party, and in attempting to make it he was cut by the accused, who, in consequence, was convicted of an assault with intent to kill. Held, that the authority to arrest was a material question, and that such facts called for a charge on aggravated assault.</p>

Tried below before the Hon. W. H. Andrews. This case was appealed to the Supreme Court in 1875, and, being undecided when the Constitution of 1876 went into effect, was transferred to the Court of Appeals, among the pending criminal causes. William Davis was the principal in the bond, in the body of which the names of J. G. L. Davis and A. Sinclair alone appeared as the sureties.

Tried below before the Hon. A. J. Boott. The appellant is charged by indictment with the murder of George Willis, in Harrison County, on October 1, 1874. He was convicted of murder in the second degree, and the punishment assessed against him, was confinement in the penitentiary for a term oí twenty years. He and the deceased were freedmen. Philip Brown, for the State, testified that he knew both deceased and appellant, and pointed the latter out to the jury.

<p>1. False Imprisonment. — In a trial for false imprisonment the prosecution need prove no more than the imprisonment, for that is presumed to be unlawful until the contrary is shown. It is for the defence to justify, by proving that it was lawful.</p> <p>2. Warrant. —Persons called upon, by an officer holding a warrant, to assist in the search for and arrest of a party charged with crime, are protected, whether they had the warrant at the time of arrest or not. A volunteer, however, is held to knowledge of his right to interfere, and acts at his peril. The guilt or innocence of the arrested party is an immaterial inquiry in the trial for his false imprisonment.</p>

<p>Appeal from the County Court of Hamilton. Tried below before the Hon. D. C. Smith, County Judge.</p>

Tried below before the Hon. G. Cook. The indictment and conviction were for'theft of personal property over the value of $20, and the punishment assessed was two years in the penitentiary.

Tried below before the Hon. Gr. J. Clark. The indictment charges the appellant with the theft of a calf, the property of one Thomas Eattan, from his possession. The testimony discloses that during the month of December, 1873, Eattan took up and estrayed a certain heifer. It is further disclosed that after the heifer was estrayed she gave birth to the calf alleged to have been stolen by appellant from the possession of Eattan, the taker-up.

Tried below before the Hon. L. C. Alexander. The testimony of the prosecutrix shows that the appellant, in the early morning of the day charged in the indictment, came to the window of the room in which witness was sleeping, broke out a pane of glass, and removed the stick which was placed above the lower sash to secure it, and placed it under the sash, having raised it, to keep it up.

<p>CoNTnnrAjrcB. — Upon complying with the statutory requirements, the applicant is entitled to a first continuance as a matter of right.</p>

<p>1. Perjury—Indictment. — Though it is common in practice to recite in an indictment for perjury the substance of the oath, still it is sufficient if the indictment charges that the detendant was “ duly sworn,” without describing the attendant ceremonies. If, however, the pleader sets out the oath more minutely than he need, or needlessly describes the manner in which it was administered, such matter cannot generally be considered as surplusage ; and if the proof and the averment do not correspond, the proceedings will fail by reason of the variance.</p> <p>2. Same. — The indictment should charge affirmatively that the testimony given by the defendant and alleged to be false was material to the issue, or its materiality must appear upon the face of the indictment. It is sufficient to charge, generally, that the false oath was material to the trial of the issue on which it was taken.</p> <p>3. Same. —If the indictment charges, in substance, that the defendant, under the sanction of a judicial oath, responded, with wilful and deliberate falsehood, to certain questions propounded to him in a judicial proceeding before a grand jury, it is sufficient, and it is not necessary that he be charged with having “ committed perjury ” in hma verba.</p>

<p>1. Evidence.—By the Code of Criminal Procedure, the jury are the exclusive judges of the facts in every criminal case. And, except where it is provided by law that proof of any particular fact is to be taken, as either conclusive or presumptive proof of the existence of another fact, or where the law directs a certain degree of weight to be attached to certain species of evidence, the jury are the exclusive judges of the facts proved, and of the weight to be given to the'testimony.</p> <p>2. Same. — The rule, as laid down by the Supreme Court, and adopted by this court, is that where there is discrepancy or conflict in testimony, it is the province of the jury to reconcile it, if possible; and, if not, to give credence to that which, in their opinion, "is best entitled to it.</p> <p>3. Same. — Primarily the court below, and afterwards this court, must determine whether or not there has been adduced before the jury a sufficient amount of legal and competent evidence to render it safe to allow the verdict to stand, and become a precedent for the adjudication of offences under the law.</p>

<p>Appeal from the County Court of Smith. Tried below before the Hon. G. W. Smith, County Judge.</p>

<p>Appeal from, the County Court of Ellis. Tried below before the Hon. J. D. Templeton, County Judge.</p>

<p>1. Indictment. — It is sufficient if the indictment pursues the language of the statute, if by so doing the act in the commission of which the offence consists is fully, directly, and expressly alleged, without uncertainty or ambiguity.</p> <p>2. Evidence. — If the guilt of a defendant indicted for a misdemeanor is made out by proper evidence, in such a way as to leave no doubt in the mind of a reasonable man, a judgment of conviction will not be set aside because immaterial evidence was received.</p> <p>3. Charge on the Court.—While the failure of the court, in a trial for keeping a disorderly house, to define the meaning of the word “ prostitution,” in the charge to the jury, is not fatal to the judgment, still it were best had such definition been given.</p>

Hareas corpus, on appeal from a judgment in chambers, rendered by the Hon. L. W. Moore, judge of the Fifteenth Judicial District. I. Gr. Killough, a citizen of Fayette County, held in the highest esteem for his personal integrity, his public spirit and usefulness, his private charities, and an intrepidity of soul often tested, but never shaken, in the military service of Texas, came to a sudden and sanguinary death on October 2, 1878.

<p>1. Evidence. — That a conviction may be sustained, it must not only appear that the offence charged has been committed, but the evidence must show to a certainty, beyond strong probability or suspicion, that the , person charged committed or participated in the commission of the offence.</p> <p>2. Same. — The responsibility of determining whether or not there has been adduced before the jury a sufficient amount of legal and competent testimony to render it safe to establish a precedent for the adjudication of offences, under the law, is placed hy the Code primarily on the District, and finally on this court. This duty of the court is the exercise of legal judgment as to what facts are sufficient to rebut the legal presumption of the innocence of the accused.</p> <p>3. Same. — The rule is, that the best existing evidence must he produced or accounted for. Note facts illustrative of this rule.</p>

<p>Appeal from the District Court of Rusk. Tried below before the Hon. A. J. Booty.</p>

Tried below before the Hon. L. C. Alexander. The appellant was tried and found guilty of the theft of a steer, and his punishment was assessed at two years in the penitentiary. The only question considered by this court is the refusal of the continuance, and the opinion discloses the matters involved. No previous application appears in the record.

<p>1. Theft. — If the owner of personal property be induced, by false representations, to part with the possession of it, but not with his title, and the wrong-doer appropriates the property without the consent of the owner, the offence is theft.</p> <p>2. Swindling.—But if the title to such property be acquired from the owner by false representations, the offence is not theft, but swindling. See the opinion in extenso for this distinction between theft and swindling, and for facts illustrative of it</p>

<p>Aureal from the District Court of Shelby. Tried below before the Hon. A. J. Booty.</p>

<p>Escape—Jurisdiction and Practice op the Court op Appeals. —Appellant in this case, having been convicted of a felony, effected his escape from the R. County jail, pending the action of this court on his appeal. The appeal had been properly docketed in the “fourth assignment,” but before it was reached, upon proof of escape submitted, and upon motion, the appeal was dismissed, under the act of August 21,1876. The appellant moves to reinstate the appeal, assigning as causes his voluntary return to jail before the fourth assignment was reached by this court, error in the dismissal of the appeal before the time for taking up and disposing of causes under the fourth assignment, and the unconstitutionality of the act of August 21, 1876. Held, that the act of August 21, 1876, is constitutional; that the system of assignment is merely conventional, and this court may determine questions in all cases of felony without regard to their position on the docket. And held, further, that when the party has effected his escape pending his appeal, and such appeal has been dismissed, this court has no further jurisdiction over the cause.</p>

Tried below before the Hon. A. J. Booty. The opinion states the case. The verdict gave the appellant four years in the pentitentiary.

<p>1. Continuance. — In an application for a second continuance, it is essential to show that the absent testimony upon which the application is based can be procured from no other source.</p> <p>■ 2. Same — Diligence.—The mere affirmation of diligence in an affidavit for a continuance does not suffice. The facts must be stated — the date of the issuance of the subpoena, to whom given, when returned, etc.—to enable the court to make the legal deduction as to the diligence; for nothing is to be presumed to aid an application for a second continuance.</p> <p>3. Evidence — Leading Questions. — The allowance of a leading question in the direct examination does not constitute material error, unless it appears that the rights of the defendant were prejudiced thereby, or that the question was not allowed,, under the recognized exceptions to the general rule.</p> <p>4. Charge of the Court.—It is not error to refuse a charge asked, when it has been substantially given in the general charge. It is suggested, however, to inferior courts, that when doubts arise as to the propriety of giving charges asked by defendants, it is best to give them, as no harm could result from the giving.</p> <p>5. Same. —If the charge of the court is signed by the judge, it is certified as required by law.</p> <p>6. Verdict. —It is not essential that the verdict of the jury should name the offence of which it finds the defendant guilty. If it finds the “defendant guilty as charged in the indictment ” it is sufficient, and identifies the offence.</p>

Tried below before the Hon. A. J. Booty. The indictment charges the appellant with the murder of Henry M. Johnson, in Panola County, on November 18, 1872. The conviction was for murder in the first degree, for which the jury, exercising the .power conferred by the Constitution of 1869, assessed the punishment at imprisonment for life, with hard labor.

<p>Appeal from the County Court of Eobertson. Tried below before the Hon. J. J. Kendrick, County Judge.</p> <p>The opinion of the court sufficiently discloses the case.</p>

A treat, from the County Court of Williamson. Tried below before the Hon. D. S.- Chessler, County Judge.

<p>1. Mew Trial.—Application for new trial was properly denied when the newly discovered testimony upon which it was based was intended to impeach a witness.</p> <p>2. Mewly Discovered Evidence. — Application for new trial based upon newly discovered evidence, which, with due diligence, might have been had, was properly overruled. It is not sufficient that the application shows that the newly discovered evidence will reach the facts stated. It must show, also, the source of information.</p> <p>8. Continuance.—When the statutory requirements are fully complied with in an application for a first continuance, it is a matter of right. Attachment for a witness living in the county cannot issue until a subpcena has been disregarded.</p> <p>4. Service. —An officer’s return on a subpoena which comprises several witnesses should distinctly show the names of the witnesses served, and also the names of the witnesses not served. “ Served by reading in hearing of,” is not correct. The return should show service by “ reading to ” the witness.</p> <p>5. Malice Aforethought. — The Penal Code gives no definition of “ malice aforethought.” The highest judicial tribunals, however, have established for it a signification more comprehensive than deliberate malevolence, enmity, ill-will, or revenge; and have so extended its meaning as to include all states of mind in which a homicide is committed without legal justification, extenuation, or excuse.</p> <p>6. Express and Implied Malice. — An actual and deliberate intention unlawfully to take the life of another, or to do him some great bodily harm, from which death might probably result, constitutes express malice. Implied malice is not a fact, but an inference or conclusion deducible from particular facts and circumstances, judicially ascertained.</p> <p>7. Murder by Poison. — Article 608 of the Penal Code (Pase. Dig., art. 2267) declares that “ all murder committed by poison * * * is murder in the first degree.” This is not to be understood as dispensing with the. malice aforethought, which is the distinctive characteristic of all murder, and as indispensable to constitute murder by poison as by any other means. But a homicide committed with malice aforethought, and by means of poison, is by this provision of the Code made murder of the first degree, whether the malice be express or implied.</p> <p>8. Same.—Mote in the opinion the collocation of the provisions of the Penal Code on offences committed by poison.</p> <p>9. Same.—Article 537 of the Penal Code (Pase. Dig., art 2198) defines the offence of mingling poison with any drink, food, or medicine, “with intent to kill or injure any other person; ” and the next article enacts that if any one shall, “with intent to injure’’ cause another to inhale or swallow any substance injurious to; health or to any of the bodily functions, or shall administer such substance “with intent to kill,’’ he shall be punished, etc. The succeeding article provides that if, within one year, death ensues from such acts, “ the offender shall be guilty of murder, and punished accordingly.” Held, that a murder so committed would, by virtue of article 608, be murder of the first degree.</p> <p>10. Same — Charge of the Court. — In the trial of an indictment for murder, based upon said articles 537 and 538, the charge to the jury should instruct them to determine whether or not the poison was “mingled or administered with the intent to kill or injure ” the deceased.</p> <p>11. Same. —In like manner, in the trial of an indictment for murder based on said article 608, it is necessary that the charge to the jury should define or explain “malice aforethought.”</p> <p>12. Same. — Indictment for murder by poison did not allege an attempt to rob. Held, error to instruct the jury to consider whether such was the intent, and thus submit to them an issue not presented in the indictment. To be legal, the charge must meet and be limited by the case made by the indictment.</p> <p>13. Accomplice’s Testimony. — The statute requires the corroboration of an accomplice to be by evidence tending to connect the defendant with'“the offence committed,” not with the offence charged.</p>

<p>1. Practice in this Court.—It is a settled rule that, in the absence of a statement of the facts in evidence before the court and jury, this court, on appeal, will only consider whether the indictment sustains the charge and the finding of the jury. See Longley v. The State, 3 Texas Ct. App. 611, and cases there cited.</p> <p>2. Murder — Evidence.—By bill of exceptions it appears that the defence in a murder case attempted to prove that the defendant, who, after the killing, in 1866, had gone to Missouri, sent word, in 1867 or 1868, to the private prosecutor in this case that he (defendant) was living openly at C., in said State, and was anxious to return and stand his trial, but was too poor; which evidence was objected to by the State as irrelevant and immaterial. Held, that the court below did not err in sustaining the objection.</p> <p>3. Same.—A second bill of exceptions complains of the exclusion hy the court of testimony sought, on cross-examination of the prosecuting witness) for the purpose of showing the animus of the witness. Its purport was that the witness had reliable information of the whereabouts of defendant for several years before he had the defendant brought back upon requisition, which was nbt done until several witnesses upon whom the defendant relied for his defence were dead. Held, that this testimony was properly excluded as immaterial. If the defendant chose to remain away until his witnesses died, instead of returning and placing himself under the protection of the law, he did so at his peril.</p> <p>4. Same. — A third bill of exceptions complains of the exclusion by the court of evidence on the animus of the prosecuting witness, tending to show (1) that he was informed, in 1869, that defendant was living openly at 0., in the State of Missouri; (2) that the defendant sent word to said witness that he (defendant) was anxious to come back and stand his trial, but was too poor to pay his expenses; and (3) that the residence of the defendant was generally known in the county of the forum for many years before he was arrested. This bill of exceptions also shows that the prosecuting witness was a brother of the deceased. Held, that such testimony was properly excluded for irrelevancy and immateriality.</p>

<p>1. Theft of Cattle —Evidence. —In a trial for theft of cattle, the State proved the ownership as alleged. The defendant adduced testimony tending to prove that he purchased the animals from one A., not the owner; and, in further proof of the purchase, offered an unrecorded bill of sale, entirely in the handwriting of an attesting witness, and not proved to be the act of A. Held, properly excluded, on objection of the State.</p> <p>2. Same — Charge of Court.—The jury were instructed for acquittal if they found that the accused purchased the animals from A. in good faith, whether he took a bill of sale or not; but that, if the sale was not in good faith, but made to cover a fraudulent taking, it was no defence. Held, a proper question for the jury, and fairly presented for their determination.</p> <p>3. Same—Limitation. — Trying an indictment for theft, which was filed “ March 6, 1877, the court charged that the offence was not barred by limitation if it was committed within five years preceding the 13th of March, 1877. Held, erroneous, because this warranted a conviction if the offence was committed after the filing of the indictment, —i. e., between March 6 and 13, 1877.</p> <p>4. Time is not material, except it be of the essence of the offence charged, and in general the commission of the offence need not be proved as of the date alleged; but when a limitation is prescribed for presentation of an indictment, the time alleged must be within the time limited, and not an impos. sible day, or a day subsequent to the filing of the indictment.</p>

<p>Immunity by Repeal oe Penal Law—Local Option. —The repeal of a penal law, when the repealing statute substitutes no other penalty, exempts from punishment all persons who have offended against the provisions of such repealed law, unless it be declared otherwise in the repealing statute. Wherefore, in a county which adopted, and has since rescinded, the local-option law of 1876, there is no legal authority for the punishment of persons who sold liquor in the county while it sustained the local-option law.</p>

<p>Appeal from the District Court of Jack. Tried below before the Hon. J. E. Fleming.</p> <p>No brief for the appellant.</p>

<p>Appeal from the District Court of Comanche. Tried below before the Hon. J. R. Fleming.</p> <p>The charge was the theft of certain steers.</p>

<p>Appeal from the District Court of Orange. Tried below before the Hon. Hi C. Pedigo.</p>

<p>1. Verdict. —If, in the joint trial of several defendants, the finding of the jury as to some differs from their finding as to others, it is necessary that the verdict designate hy their respective names the defendants to whom the findings severally relate. But in the trial of a single defendant, the verdict may designate him as “the defendant,” without stating his name.</p> <p>2. Proper Names—Misnomer. — There is no orthographical rule controlling the spelling of proper names. If the true and imputed names he idem sonans it is sufficient; and if they have a common derivation, even less particularity is requisite.</p> <p>3. Same — Case Stated. — On trial of John Williams for theft, the verdict found “the defendant, John William,” guilty. Held, that there is no uncertainty as to whom the verdict relates, and no material misnomer or variance; and that, under the authorities, the names are idem sonans. See the opinion in extenso on this question.</p> <p>4. Verdict — Assessment of Penaity. — A verdict which assesses the punishment at “five years’ confinement in the penitentiary” sufficiently designates the duration and place of imprisonment. The law supplements the finding hy prescribing that the imprisonment shall be at “hard labor.”</p> <p>5. Verdicts are to have a reasonable construction and intendment, and are not to he avoided unless from necessity, originating in doubt of their import, or on account of the immateriality of the issue found, or a manifest tendency to work injustice.</p>

Tried below before the Hon. E. Lewis. The indictment was for the murder of John A. Smith, a school-master, and, as. will be seen in the opinion, it impleaded three others besides the appellant. The conviction was for manslaughter.

<p>1. Intobmatioit.—If an information charges the offence in the language of the statute it is sufficient, as a general rule. The exception to this rule is when the statute uses generic terms, in which .case it is necessary to state the species, according to the truth of the case; and when the subject of the indictment cannot be brought within the meaning of the statute without the aid of extrinsic evidence, it is necessary, .besides charging the offence in the words of the statute, to aver such facts and circumstances as may be necessary to bring the matter within the meaning of it.</p> <p>2. Vaeiaítce. — An indictment must show that the offence was committed some time anterior to its filing, and that it does not appear to be barred by limitation. In this case the offence is alleged to have been committed in the year “one thousand and seventy-eight,” a mistake, evidently, which might have been corrected at the proper time. But held, that the variance between the complaint and information is fatal.</p>

<p>1. Theft. — The possession and ownership of the property stolen need not necessarily be in the same person in order to constitute theft. And where one has the general and another the special property in the thing stolen, the ownership may be alleged in either.</p> <p>2. Evidence must correspond with the allegations, and be confined to the points in issue.</p> <p>3. Same. — Evidence which merely tends to connect the accused with other offences, distinct from that for which he is on trial, must be excluded. The exceptions to this general rule are confined to cases which relate to knowledge or intent of the party as to some material fact which, though apparently collateral, had some bearing on the main fact.</p> <p>4. Same. — It is for the court to determine whether or not evidence offered is competent as throwing light upon the issue, or tending to establish guilt or innocence; and if competent, to admit it to be considered by the jury as other testimony in the case; otherwise, to exclude it. This duty of thet court should not be transferred to the iury.</p> <p>5. Same. —It was error, in a trial for theft, to admit evidence of the extradition of the accused from the republic of Mexico, on a charge of assault with intent to murder.</p>

Tried below before the Hon. Gr. H. Noonan. ■ Under an indictment for the murder of Dimas Muños, on April 9, 1878, in Bexar County, the appellant was convicted of murder in the second degree, and his punishment assessed at twenty years in the penitentiary. The conviction was had upon purely circumstantial evidence, a résumé of which is given below.

Tried below before the Hon; G. W. McKellar, County Judge. The conviction was for violation of the act “ regulating the practice of medicine in this State.” Gen. Laws 1876.

<p>1. Former Conviction. — The accused, in a prosecution for an aggravated. assault, pleaded former conviction, and introduced a justice’s judgment of" conviction for simple assault on the same person and at the same time as the alleged offence on trial. It is shown that the justice acted without affidavit or warrant of arrest, examined no witnessess, and his judgment, shows that his action was on the submission and demand of the accused. Meld, that the justice’s action placed the accused in no jeopardy, and constitutes no bar to this prosecution for aggravated assault.</p> <p>2. Evidence. —It is the province of the jury to pass upon the credibility of' the testimony; and when there is found sufficient evidence to sustain the verdict, it will not he disturbed on appeal.</p>

Tried below before the Hon. J. R. Fleming. The appellant was charged, by indictment, with the murder, by poison, of Dora Dees, on April 3, 1878, in Young County, Texas. A condensed statement of the leading evidence is here appended. The verdict was murder in the first degree, and the judgment death by hanging. The State’s witness Shockley had been arrested as a particeps. criminis, but turned State’s evidence.

<p>Appeal from the County Court of Cass. Tried below before the Hon. E. Croft, County Judge.</p> <p>The opinion discloses the case.</p>

<p>Appeal from the County Court of Nacogdoches. Tried ibelow before the Hon. R. H. Morris, County Judge.</p>

<p>Appeal from the County Court of Ellis. Tried below before the Hon. J. D. Templeton, County Judge.</p>

<p>Appeal from the County Court of Dallas. Tried below before the Hon. E. H. West, County Judge.</p> <p>The fine imposed on this appellant was $250.</p>

<p>New Total.—In a prosecution under the “Act to regulate the practice of medicine ” (Gen. Laws 1876, p. 281), the accused, may prove his exception under the provisos, and it was error to refuse an application for a new trial based upon the exclusion of such evidence.</p>

Tried below before the Hon. J. R. Fleming. Seven years’ confinement in the penitentiary was assessed against appellant for the murder of Samuel Hunter, in Hood County, Texas, on May 25,1875. The evidence upon which he was convicted being almost entirely circumstantial, a brief synopsis of the most pertinent is given below.

Original application to the Court of Appeals for a writ of mandamus to the county judge of Brazos County. The case is fully stated in the opinion.

Tried below before the Hon. J. C. Bussell. The indictment was for the murder of Augustine Anallo, in Nueces County, on September 7, 1878. The jury found the appellant guilty of murder in the first degree. The testimony, though brief, was to the purpose, and consistent in all material respects. Juan Ariano testified, for the State, that himself and appellant resided on the ranch of B. Johnson, in Nueces County, being employed by the said Johnson in the capacity of shepherds.

<p>Evidence. —It is the province of the jury to reconcile, if possible, any conflict in the evidence produced before them; and, if not possible, to give credence to the party they believe best entitled to it.</p>

<p>Appeal from the County Court of Bee. Tried below before the Hon. W. R. Hates, County Judge.</p> <p>The opinion sufficiently states the case.</p>

Tried below before the Hon. J. C. Russell. On November 8, 1878, the appellant was indicted for the murder of Anesto Moreno, on November 28, “ one thousand, eight thousand, eight hundred and seventy-four ” (as copied in the transcript), in Nueces County. He was put upon his trial on the 19th day of the same month, was convicted of murder in the second degree, and his punishment assessed at ten years in the penitentiary.

Tried below before the Hon. J. C. Bussell. The conviction was for murder, in Cameron County, and the death penalty was assessed. The State proved by the witness Moreno, brother of the deceased, that witness and deceased left Brownsville on the day of the killing, travelling the Corpus Christi Road, and that, after riding some six or eight miles, the attention oí witness, who was in advance of deceased, was attracted by the struggling of a horse.

Appeal, from the County Court of DeWitt. Tried below before the Hon. O. L. Threlkill, County Judge. The indictment fails to set out the name of the party assaulted, beyond charging that she was the wife of Thaddeus Bunker, and does not aver that her name is to the grand jurors unknown.

Tried below before the Hon. J. C. Russell. The indictment charged the appellant with the murder of a Mexican named Benito Martinez, in the county of Nueces,, on September 2, 1878. The appellant and the deceased, it appears, were both in-the employment of Capt. Kennedy, and the fatal blow was inflicted in his pasture. The facts relative to the questions of practice are disclosed in the opinion of the court, and indicated in the head-notes.

Tried below before the Hon. H. C. Pleasants. The appellant was tried for the murder of a colored man named Bill Kinney, by shooting him with a gun or pistol. He was convicted of murder in the second degree, and his-punishment assessed at five years in the penitentiary. The deceased was killed near the village of Yorktown, where, early in the evening of the killing, the appellant was-seen, heavily armed.

Tried below before the Hon. D. M. Prendergast. The indictment charged assault with intent to murder. The facts are indicated in the opinion.

Tried below before the Hon. H. C. Pleasants. Appellant was convicted of the theft of an ox, and his punishment was assessed at confinement in the penitentiary for three years.

Tried below before the Hon. B. H. Bassett, Special Judge. The appellant and Emma Butler were jointly indicted for the murder of Sam Butler, by shooting him with a pistol, on May 11, 1878. Emma Butler was the second wife of the deceased, and it appears that she had been the occasion of contention and trouble between her husband and the appellant. They were all colored people, as were also nearly all of the witnesses. The appellant was separately tried.

Tried below before the Hon. H. C. Pleasants. The indictment was for the murder of John Hendley, in DeWitt County, Texas, on September 10, 1876, and the conviction was for murder in the second degree, with twenty years in the penitentiary assessed as punishment.

<p>Appeal from the District Court of Houston. Tried below before the Hon. E. S. Walker.</p> <p>The conviction was for theft of a gelding.</p>

Tried below before the Hon. G. W. Grant, County Judge. The judge of the County Court delivered a verbal charge to the jury, over the objections of defendant’s counsel, who excepted at the time, and saved a bill of exceptions, which was duly allowed and certified by the judge.

Tried below before the Hon. E. S. Walker. The appellant was indicted for the murder of Edward H. Butler, in Houston County, on December 27, 1877. The conviction was for murder in the second degree, and the punishment was assessed at twenty-seven years’ confinement in the State penitentiary. Dr. Lewis Merriwether, for the State, testified that he was a practising physician. First saw the deceased about five minutes after the stabbing.

Tried below before the Hon. D. M. Prendergast. The indictment was for rape, committed upon the person of Fanny Hickman, a female of the age of five years, by appellant, who was a male of the age of eighteen years. The conviction was for assault with intent to commit rape, .and the punishment was assessed at seven years in the penitentiary. The parties were negroes.

Tried below before the Hon. J. E. B. Laird, County Judge. The opinion discloses the material facts. All the parties-were negroes.

Tried below before the Hon. M. H. Bonner. The appellant was indicted in three different cases, for assaults with intent to murder. In each case he was convicted of aggravated assault and battery, and adjudged to pay a fine of $500. He appealed from all the judgments, but died before they were reached for decision. Mrs. Sara March, his widow, by her attorneys, suggests the death of the appellant, and moves that all the proceedings be abated.

Tried below before the Hon. J. T. Hammons, County Judge. This is an appeal from the court below refusing an application on habeas corpus, founded upon the plea of former acquittal of the same offence for which the appellant was-held in custody.

Tried below before the Hon. R. S. Walker. The indictment was for the murder of C. G. Wooten, in Houston County, on December 30, 1866. Held: which said gun as aforesaid was charged with gunpowder and leaden bullets, he, the said Wallace Carter, did then and there discharge and shoot off to, at, and against him, the said Calvin Gr.

<p>Aitidavit. — In a prosecution by information, an affidavit is as indispensable as the information, and both must set out substantially the same offence against the law. Neither will stand without the other.</p>

Tried below before the Hon. E'. Lewis. The conviction was for theft of a horse-colt, and the punishment was assessed at five years in the penitentiary, at hard labor. The principal question of interest in this case is the refusal of the court to permit the witness Jones to detail the declarations of the appellant as to his possession of the colt, in reply to questions propounded in regard thereto by -witness.

<p>Appeal from the County Court of Gonzales. Tried below before the Hon. J. S. Conwat, County Judge.</p> <p>The opinion states the case.</p>

Tried below before the Hon. J. C. Milliken, County Judge. The opinion states the case. The penalty assessed by the jury was a fine of $10.

Tried below before the Hon. E. Lewis. The conviction was for the theft of a yearling, and the punishment was assessed at two years in the penitentiary. The testimony for the State proved the property in the animal as laid in -the indictment. By two witnesses it was proved that, when approached because of branding the animal, the appellant claimed to have made a mistake, and offered three dollars in payment, which was accepted as satisfactory.

<p>Appeal from the County Court of Gonzales. Tried below before the Hon. J. S. Conway, County Judge.</p>

<p>Appeal from the County Court of Lavaca. Tried below before the Hon. T. A. Hester, County Judge.</p>

Appeals from the District Court of Austin. Tried below 'before the Hon. L. W. Moore. The defendants were separately indicted and tried as principals in the commission of the same offence. Both were convicted, and the punishment in each case assessed at four years in the penitentiary, at hard labor.

<p>Appeal from the County Court of Lavaca. Tried below before the Hon. T. A. Hester.</p> <p>The opinion, states the case.</p>

Tried below before the Hon W. D. Wood. The indictment charged the appellant with the murder of P. W. Randolph, on February 8, 1878. The State first introduced James Randolph, a cousin of the deceased, who testified that himself, his brother John, and one Bob Wiley were present at the mill of witness’s-father, in Walker County, when the killing occurred.

Tried below before the Hon. E. B. Turner. The charge was the murder of Gus Porter, on November 15, 1878, and the appeal is from the refusal of the court below to admit the appellant to bail.

Tried below before the Hon. E. Lewis. The conviction was for the theft of a beef, and the punishment was assessed at five years in the penitentiary.

Tried below before the Hon. E. Lewis. The indictment charged James Zumwalt, William Walton, and Eeuben Zumwalt with the theft of a gelding, the property of O. W. McBride. The two former jointly asked and obtained a severance from Eeuben Zumwalt; and being-found guilty, their punishment was assessed at ten years in the penitentiary. A new trial was refused, and they appealed.

Tried’ below before the Hon. J. Mastersoh. The conviction was for the theft of a cow, and the punishment was assessed at two years in the penitentiary. The property was alleged to be in Madam Benson, and the proof showed that it was the property of Madam Benson and her children by her deceased husband, the children-being still minors and under her control. No administration on her husband’s estate had been had, nor any partition, of it between her and the children.

Tried below before the Hon. J. E. Fleming. The indictment was for theft of cattle ; the defence, that appellant was acting in good faith as agent for a supposed bond fide owner. The judgment was conviction, and the punishment assessed was five years in the penitentiary. A condensed statement of the evidence appears in the opinion.

Tried below before the Hon. D. M. Prendergast. The conviction was for murder in the second degree, and the punishment assessed was seven years in the penitentiary. W. P. Pardue, the father of the deceased, was the first witness examined for the State. His son died from the effects of a wound received on the night of October 26, 1877. About three days before the death of deceased, witness consulted with the attending physicians, Drs.

Tried below before the Hon. E. Lewis. The conviction was for the theft of five hogs, of the value of $20, and the penalty assessed was one year in the penitentiary.

Tried below before the Hon. A. J. Booxr. The conviction was for assault with intent to murder, and the punishment assessed was two years in the penitentiary.

Tried below before the Hon. J. R. Fleming. The appellant was convicted of the theft of five head of cattle, and his punishment assessed at four years in the penitentiary. The case of J. H. Taylor, referred to in the opinion, will be found ante, p. 529.

Tried below before the Hon. E. Lewis. The indictment was for the murder of Leonard Hyde, in Lavaca County, on February 14, 1878. The conviction, was for murder in the first degree. S. D. Peterson, being sworn for the State, testified that on the evening of February 14, 1878, himself and deceased were in the crib of witness, near Hallettsville, Lavaca County,, shucking corn.

Tried below before the Hon. J. A. Carroll. The conviction was for threatening to take the life of L. McCurry, and the punishment was assessed at three years-in the penitentiary. It will be observed that two opinions-were rendered in this case, and a final disposition of it made; on a rehearing allowed the State.

<p>Appeal from the District Court of Lavaca. Tried below1 before the Hon. E. Lewis.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. E. Lewis. The opinion sufficiently states the case. The indictment and conviction were for theft.

<p>Appeal from the District Court of Burnet. Tried below before the Hon. W. A. Blackburn.</p> <p>The opinion sufficiently discloses the case.</p>

Ajppeal from the District Court of Karnes. Tried below before the Hon. H. C. Pleasants. The prosecution was for the murder of Felipe Melendes, in Karnes County, on December 10,1876, and the conviction was for murder in the second degree, with fifteen years in the penitentiary assessed as punishment. The testimony, of which a synopsis is appended, discloses a case of unusual atrocity.

<p>Assault with Intent to Murder. — See the opinion for statement of a case, under a prosecution for assault with intent to murder, in which the law of sell-defence should have been given in charge by the court, in addition to the law on assault with intent to murder.</p>

Tried below before the Hon. W. S. Wright, County Judge. The appellant was found guilty of an aggravated assault and battery, and his punishment assessed at a fine of $100 and six months’ confinement in the penitentiary. .

Tried below before the Hon. W. H. Burkhart. The indictment charged the murder of Charles R. Foster,' in Galveston County, on September 2, 1876. The trial was had in Brazoria County, on a change of venue, and the appellant was convicted of murder in the second degree, his punishment being assessed at forty years’ confinement in the penitentiary. The appellant interposed, to no purpose, the defence of insanity.

<p>Appeal from the Criminal District Court of Harris. Tried below before the Hon. J. Mastersoh, judge of the Twenty-first Judicial District.</p> <p>The facts are substantially stated in the opinion of the court.</p>

Tried below before the Hon. W. S. Wright, County Judge. The appeal was from a conviction arid fine of $100, for aggravated assault and battery.

<p>1. Continuance. — An application for a continuance on account of absent witnesses, even if it shows that the process was sued out in ample time, does not show diligence if it fails to show that it was placed in the hands of an officer in ample time.</p> <p>2. Same. — This court repeats its former suggestion (1 Texas Ct. App. 452) that “the better practice, in order to establish such diligence beyond controversy, and certainly the most satisfactory, would he to make the process itself, if returned, a part of the application, as an exhibit.”</p>

<p>1. Indictment.—Printed norms for indictments may be used, the blanks being properly filled, without infringing the statutory requirement that an indictment shall be the “written statement of a grand jury,” etc. And a business card of the printers of such forms, put at the head of the blanks, however conspicuously displayed, or unseemly, is no part of the indictment, nor an infraction of the requirement that indictments must commence, “In and by the authority of the State of Texas.”</p> <p>2. Same — Nor does an unnecessary written caption constitute part of an indictment, or impair its validity.</p> <p>3. Assault with Intent to Murder.—In trials for this offence the jury-need not be instructed on the law of minor assaults, nor on self-defence, unless the evidence requires such instructions as part of the “law applicable to the case.”</p>

<p>1. Habeas Corpus — Second Application.—An application for a second writ of habeas corpus must show that since the hearing in the first application important testimony has been obtained, which it was not possible to get at the former hearing. The application must also set forth the testimony so newly discovered, and if it be that of a witness, the affidavit of the witness must accompany the application.</p> <p>2. Same. — But such application is not limited to newly discovered evidence. The right is conferred in two classes'of cases: 1. Where the applicant has obtained important evidence which, not newly discovered, it was out of his power to produce on the former hearing. 2.- Where the evidence is newly discovered.</p> <p>3. Same. — It is not sufficient-that the second application he accompanied by the affidavit of the witness, but it must in all things conform to the rule governing applications for new trial based upon newly discovered evidence.</p> <p>4. Same — Practice.—If the application does not in all things conform to this rule, the court below would be authorized to refuse the writ; and such action wduld be conclusive, for an appeal does not lie 'from the refusal of the lower court to grant the writ.</p> <p>6. Same —Practice in this Court. — The court below having granted the writ, and, upon hearing the testimony, having ruled that it was not newly discovered, this court, even though it concurs in that view, will not for that reason, or because the applicant was not entitled to the writ, affirm the judgment refusing hail. But, the writ having been granted and the proofs heard by the court below, and the evidence having become part of the record, on appeal this court is required to hear the facts and law arising thereon, and to enter such judgment and make such orders as the law and the nature of the case require.</p> <p>6. Same. — This court is precluded from revising the action taken below on incidental questions in this class of cases.</p> <p>7. Bight of Bail. — The Constitution of 1876 provides that “all prisoners shall be bailable by sufficient sureties, unless for capital offences when the proof is evident.”</p> <p>8. “Proof is evident” if the evidence adduced on the application for bail would sustain a verdict convicting the prisoner of murder in the first degree ; but if the evidence be of less éfficaey, bail should be allowed him. In other words, bail is not a matter of right, if the evidence is clear and strong, leading a well-guarded-and dispassionate judgment to the conclusion that the offence has been committed; that the prisoner is the guilty agent; and that, if the law be administered, he will be capitally convicted.</p> <p>9. Practice in this Court. — The present case being held bailable, and the record disclosing the prisoner’s ability to give bond in a certain sum, deemed reasonable, this court empowers the sheriff to take such bond, with sufficient sureties, and conditioned according to law, and directs that it be filed in the District Court having cognizance of the case.</p>

<p>Appeal fvom the Criminal District Court' of Galveston. Tried below before the Hon. G. Cook.</p> <p>The appellant' was charged by indictment with the murder of Henry Snowball, by shooting him with a pistol, in the county of Galveston, on March 4, 1878. The jury found him guilty of murder in the second degree, and assessed his punishment at confinement in the penitentiary durins: his natural life. A lucid statement of all material facts will be found in the opinion of the court.</p>