Volume 50 — Texas Criminal Reports

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

<p>1. —Violation of Game Law—Hand-Writing—Expert Testimony.</p> <p>Where upon a trial for a violation of the game law the State’s witness was permitted to testify to his belief that the signature purporting to be appellant’s to a letter was the same hand-writing as that signed to an appearance bond, and the witness did not qualify as an expert, there was reversible error.</p> <p>2. —Same—Requested Charge—Reasonable Doubt—Circumstantial Evidence.</p> <p>Upon a trial for a violation of the game law it was error to refuse a special instruction that the jury must believe beyond a reasonable doubt that the defendant transported the game, e"tc. It was also error to refuse a charge on circumstantial evidence.</p>

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

Tried below before Hon. W. W. Glass. Appeal from a conviction of keeping a bucket shop and selling cotton futures; penalty, a fine of $100 and thirty days confinement in the county jail.

Appéal from the District Court of Williamson. Tried belotv before Hon. V. L. Brooks. Appeal from a conviction of perjury; penalty, three years imprisonment in the penitentiary.

<p>The indictment charges the defendant, “that he did then and there unlawfully make an assault with intent then and there to commit rape in and upon one Mrs. Willie Bateman, a woman, by then and there attempting by force, threats and fraud to ravish and have carnal knowledge of the said Mrs. Willie Bateman without her consent, against the peace and dignity of the State.”</p> <p>The opinion states the case.</p>

<p>1.—Murder- in First Degree—Jury and Jury Law—Bill of Exceptions—Question to Juror.</p> <p>Upon a trial for murder in the impanelment of the jury, it was improper on the part of the State to ask a juror if he were taken on the jury would he be influenced even in the slightest degree by an appeal to any higher law than the law of the land, or as the law would be charged by the court. However, as no particular prejudice to the defendant’s right was set out in his hill of exceptions, there was no error.</p> <p>¡¡.—Same—Evidence—Declaration by Defendant—Confession—Warning—Res Gestae.</p> <p>On a trial for murder it was error to admit declarations of the defendant to the officer after his arrest, and which referred to a conversation that had previously occurred between them; such declaration being made some time after the homicide (the record not showing how long) and did not relate to the homicide itself or show that the transaction was voicing itself, but was simply a statement by defendant that he had told the officer that he would come to him.</p> <p>3.—Same—Evidence—Hearsay—Harmless Error.</p> <p>Upon a trial for murder, while it was improper to introduce certain correspondence of the-wife of deceased to a third party with refenerce to the property of deceased without showing any connection of her action and that of defendant, or any knowledge on his part of her conduct, or that he was a party thereto; yet she answered in the negative and favorably to the defendant, the error was harmless.</p> <p>4. —Same—Cross-Examination—Want of Chastity.</p> <p>Upon a trial for murder the State was not bound by the answer of the wife of the deceased upon cross-examination that she had never surrendered her virtue, and had never had carnal knowledge of any person except deceased; but the State had the right to prove that her reputation for chastity was bad.</p> <p>5. —Same—Act of Third Party—Harmless Error.</p> <p>Upon a trial for murder while it was improper for the State to prove by the wife of defendant what she did with reference to writing letters to different banks concerning deceased’s property, such question was harmless as she answered in the negative.</p> <p>.6.—Same—Bill of Exceptions—Certificate of Judge.</p> <p>It has frequently been held that the statement of a ground of objection in a bill, is not the certificate by the judge that the fact is so, and unless this appears the bill is insufficient, although the testimony admitted and which related to certain transactions of defendant with reference to deceased, was of that character as to make it inadmissible.</p> <p>I. —Same—Charge of (iourt—Approved Form.</p> <p>Upon a trial for murder in the first degree where the court’s charge was in accordance with the approved form upon the issue of murder in the first degree, there was no error.</p> <p>3.—Same—Charge of Court—Manslaughter—Adequate Cause.</p> <p>Where upon trial for murder the evidence showed that shortly before the killing a witness told the defendant that deceased had told the witness that he, deceased, did not want his wife to appear against him in his divorce suit that he had brought against her; that he did not want to injure her character, and that he would prove she was pregnant two months before he married her, which statement concerned defendants daughter; it was error upon part of the court to charge that it was a question of fact for the jury to determine from the evidence as to just what the witness told defendant on that occasion, there being no controversy about this statement.</p> <p>9. —Same—Adequate Cause—Chastity of Female—Provocation.</p> <p>See opinion for discussion of article 704, Penal Code, limiting extent of provocation where insulting language has been used by deceased with reference to female relative of defendant, and as applying to a charge on manslaughter as adequate cause.</p> <p>10. —Same—Restrictive Charge—Manslaughter.</p> <p>Where upon trial for murder the court in charging upon manslaughter enumerated all the essential elements that must be proved in order to make a case of manslaughter, but omitted to charge affirmatively that if the jury believed the facts in evidence on this issue to convict appellant of manslaughter; and immediately proceeded to tell the jury that if such elements did not arise from the evidence but that the homicide was done from hatred, ill will or revenge, etc., the killing would not be manslaughter; such additional charge as framed put a greater burden on the defendant than the law authorized; in as much as that the court in the first charge quoted, submitted as an issue to the jury that they must find that appellant had been informed of the insulting language concerning the daughter of defendant by deceased, which by the evidence was not controverted, and in the additional charge instructed the jury on the same issue and told them if they believed that the defendant had not been informed or did not believe in good faith that deceased had been guilty of such insulting language and conduct that he could not avail himself of the defense of manslaughter. This charge suggested to the jury that in the mind of the court there was no manslaughter in the case.</p> <p>II. —Same—Self-Defense.</p> <p>See facts in the opinion which did not authorize a charge on self-defense, as the evidence did not raise this issue.</p>

<p>Appeal Bond—Notice of Appeal—Statutes Construed.</p> <p>■ Under the Act of the Twenty-seventh Legislature, page 291, an appeal from the justice to the county court in which the appeal bond set out the number and style of the case in the justice court, and number of precinct, name of county and State, and that there was a judgment rendered against defendant convicting him of the offense of unlawfully carrying on and about his person a pistol, a misdemeanor, and that he gave notice of appeal to the county court of the proper county, the same was sufficient.</p>

<p>1. —Murder in Second Degree—Weapon Used.</p> <p>Where upon a conviction of murder in the second degree the record showed upon appeal that the death of the deceased was caused by defendant by stabbing him with a knife, and showing the wounds which the knife had inflicted; there was nothing in the point raised by defendant that the evidence was insufficient to show that defendant killed deceased by means of the knife.</p> <p>2. —Same—Charge of Court—Threats During Difficulty.</p> <p>Upon appeal from a conviction for murder in the second degree where the record showed that if any threats were in fact made by deceased they were made during the difficulty, it was not necessary to charge the law of threats.</p> <p>3. —Same—Charge of Court—Manslaughter.</p> <p>Where upon trial for murder the evidence showed that if there was any previous assault by deceased it was by means of throwing a beer glass at appellant; and that the court charged on this phase of the case, there was nothing in the objection that the charge on manslaughter was too restrictive.</p> <p>4.—Same—Cooling Time—Continuous Difficulty.</p> <p>Where upon trial for murder the evidence showed that the acts were so near together that the difficulty was a continuous one from its inception to its close, and that there was no interregnum of sufficient importance to raise the question of cooling time, there was no error in omitting to charge on this issue.</p> <p>[Motion for rehearing overruled without written opinion.—Reporter.]</p>

<p>1. —Theft of Mules—Self-Serving Declarations.</p> <p>Where upon a trial for theft of mules the State had offered in evidence other accounts of defendant of how he came by the property, as original and inculpatory evidence, and not for the purpose of impeaching him as to his statement on the stand, it would not authorize defendant to support his testimony given on the stand by proving that he gave similar accounts of his testimony delivered on the trial, before or after his arrest; although the State subsequent to his testimony, introduced testimony that the defendant’s account as to how he came by the property was not true.</p> <p>2. —Same—Evidence—Cross-Examination—Impeachment—Harmless Error.</p> <p>Where upon trial for theft of mules, a witness for the defendant had testified to playing a game of cards with defendant and others at a certain time, and the State upon cross-examination over objection of defendant asked said witness if the game of cards that he had in mind was not a game in which the defendant and others were engaged at a different time and place than the one testified to about by witness, and if that was not the only game of cards that he ever witnessed in which said third parties participated with the defendant, to which witness replied in the negative, the court qualifying such exception by the statement that the question was merely to fix the time of the game with reference to one to which defendant had alluded, and had laid a predicate for the trade for the mules, and not to impeach the witness, or to prove other' offenses. Held that there was no error; besides if impeaching testimony it would be harmless as defendant had admitted that he had been prosecuted for felonies.</p> <p>3. —Same—Argument of Counsel.</p> <p>Where upon trial for theft of mules it did not appear from the record that the argument of State’s counsel was not predicated on the testimony, there was no error.</p> <p>4. —Same—Postponement—Want of Diligence—Self-Serving Declaration.</p> <p>Where upon trial for theft of mules a motion to postpone for absent witnesses was made pending the trial, and the record showed that there was not sufficient diligence, there was no error in overruling the motion. Besides the testimony of the absent witnesses was inadmissible had they been present, as simply showing self-serving declarations of defendant.</p> <p>5. —Same—Declarations of Third Parties and by Defendant.</p> <p>Upon a trial for theft of mules, it was not competent to show by a witness of defendant that the witness told defendant some time after the alleged occurrence and before the arrest of the defendant that witness believed they were laying a scheme to have defendant arrested about the mules in question; nor was the reply ,i>i the defendant thereto competent testimony.</p> <p>io.—Same—Circumstantial Evidence—Possession—Admission of Defendant.</p> <p>Upon a trial for theft of mules where the defendant claimed that he purchased them from the son of the prosecutor, it was an admission of the taking of the mules, the State having introduced evidence that the defendant’s statement was false, thus leaving him under his confession as having come into possession of the mules by taking and driving them from prosecutor’s pasture; this brought the evidence within the rule as to the acquisition of the property as a case of positive and not of circumstantial evidence, and there was no error in not charging on circumstantial evidence.</p>

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

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

The court below gave the following charge on accomplice’s testimony: “The court instructs you that the witness Frank McCue under the evidence in this case and under the law as it is written is an accomplice, and you are further instructed that you cannot find the defendant guilty upon his testimony unless you are satisfied that the same has been corroborated by other evidence tending to establish that the defendant did in fact commit the offense—the evidence of the…

<p>Theft of Chicken—Specific Value—Statutes Construed—Requested Charge.</p> <p>Under article 867, Penal Code, which provides that the specific value of domesticated animals and birds must be proved, and the evidence under a prosecution of this article for theft of a chicken did not show such value, although it was alleged, the conviction could not be sustained, especially where a requested charge called this matter to the attention of the court.</p>

<p>1. —Burglary—Evidence—Accomplice.</p> <p>Upon a trial for burglary where the evidence was overwhelmingly in support of the testimony of the accomplice the verdict will not be disturbed.</p> <p>2. —Same—Germane Testimony.</p> <p>Upon a trial for burglary where the evidence was conclusive as to the guilt of the defendant and the State seemed merely to have insisted on proving that he lived and associated with lewd negro women, such testimony was germane and proper.</p>

<p>1. —Bigamy—Demurrer to Evidence—Common law Marriage.</p> <p>Upon a trial for bigamy where the evidence showed that the first marriage was consummated by virtue of a marriage license and that the second was a common law marriage, there was no error to overrule a motion to strike out the. evidence and instruct the jury to acquit; as in this State a common law marriage is valid.</p> <p>2. —Same—Voluntary Repudiation of Marriage.</p> <p>Upon a trial for bigamy it was no defense that the woman with whom the alleged bigamous marriage occurred repudiated the same as soon as she discovered the fact that the defendant was not divorced from the former wife.</p> <p>3. —Same—Jury and Jury law—Practice—Handcuffs.</p> <p>Where upon trial for bigamy, when the case was called for trial, defendant was brought into court handcuffed in the presence of the jury panel from which defendant’s jury was taken, and there was nothing in defendant’s bill of exceptions nor in the record that this resulted injuriously to appellant, there was no error, although such practice should be avoided.</p>

<p>1.—Murder in the First Degree—Foot Prints—Evidence.</p> <p>Upon trial for murder, where the evidence showed that deceased was traveling along the road in a wagon with a companion, and that defendant was standing behind a clump of bushes and when the wagon got opposite the same he fired upon deceased and killed her; there was no error in admitting testimony by a State’s witness that he saw some tracks which looked like a man’s track behind a clump of bushes besides the road near the place of the homicide, although the size of said tracks or the size of the shoe worn by defendant was not shown.</p> <p>2. —Same—Leading Questions.</p> <p>Where upon an appeal from a conviction of murder, the bill of exceptions showed that State’s counsel was permitted to ask the State’s witness leading questions for the purpose of refreshing his memory, and no error was shown therein which was injurious to the rights of appellant, there was no reversible error.</p> <p>3. —Same—Hearsay—Tracks.</p> <p>-Upon a trial for murder, where the evidence showed that defendant had been riding a horse and had hitched the same at a certain haw tree, and immediately after the shot was fired which killed deceased defendant attempted to get on the horse when pursued by the companion of deceased, testimony that a State’s witness saw some horse tracks where a horse had been tied to a certain haw tree was not hearsay.</p> <p>4. —Same—Exclusion of Question.</p> <p>Upon trial for murder where the State’s counsel asked witness if he had heard defendant had been in the penitentiary, and such question was excluded, there was no error.</p> <p>5. —Same—Continuance—Immaterial Testimony.</p> <p>Upon a trial for murder, there was no error in refusing a continuance upon testimony which was not material nor probably true.</p> <p>6. —Same—Evidence—Pardon—Animus.</p> <p>Upon trial for murder there was no error that the court refused to send an officer to a defendant’s witness’ home to get the pardon of that witness, the record showing that said witness was then confined in jail on another charge, and the court had postponed the case once and permitted counsel to send out to the witness’ home and endeavor to find the pardon. Nor was it error to refuse to permit defendant to prove by another witness that he not only had animus towards deceased but also towards said absent witness.</p>

<p>1. —Embezzlement—Habeas Corpus—Requisition of the Governor—Indictment-Affidavit—Complaint.</p> <p>An extradition warrant cannot be issued on an information, but the law prescribes no particular form of warrant, and if when inspected it is found to contain the essential elements required under the Federal enactment it will be sufficient; and a complaint is an affidavit; nor is it necessary that the executive warrant should be accompanied by certified copies of the affidavit or indictment or that they should be set out therein; or that they were presented to the Governor. See opinion for form of executive warrant held sufficient.</p> <p>2. —Same—Authority of Courts to go Behind Executive Warrant.</p> <p>It is not an open question as to the authority of courts of this State to go behind the executive warrant, in order to examine and review the ground upon which the Governor may have issued his extradition warrant.</p> <p>3. —Same—Authentication.</p> <p>See opinion for proper authentication of affidavits by the executive of the State of Colorado, to form basis for action by the Governor of this State.</p> <p>4. —Same—Case Stated—Affidavit—Extradition.</p> <p>Upon requisition of the Governor of the State of Colorado upon the Governor of the State of Texas, the affidavit upon which the requisition was based showed that affiant made oath to same on information and belief, and also showed upon its face to charge an offense over which the courts of the State of Colorado did not have jurisdiction, because if an offense was committed it was committed in the State of Kansas. Held, that the action of the Governor of Texas in issuing his extradition warrant could be reviewed and set aside by the courts, as not complying with the law governing extraditions. Brooks, Judge, dissents.</p>

<p>Rape of Female Under Age of Consent—Charge of Court.</p> <p>Where upon trial for rape the jury came into court and propounded the question whether they had a right to reject a part of a witness’ testimony and accept the other part, and the court referred them to his general charge informing the jury that they were the exclusiye judges of the credibility of the witnesses, and refused the requested charge that the jury were not authorized to convict upon the testimony of a witness who had sworn falsely, there was no error.</p>

<p>1. —Murder in the First Degree—Jury and Jury Law—Special Venire—Talesman —Statutes Construed.</p> <p>Under the Act of the Twenty-ninth Legislature it is provided that after the exhausting of a special venire, an additional venire if necessary shall be drawn from the list selected by the jury commissioners, and it was error upon trial for murder for the court, after the special venire drawn had been exhausted, to instruct the sheriff to summons talesmen.</p> <p>2. —Same—Evidence—Reputation of Deceased.</p> <p>Upon trial for murder where defendant had not'put in evidence the reputation of deceased, it was error to permit the State over defendant’s objection to introduce testimony that the reputation of deceased was that of a quiet and peaceable citizen and not a dangerous man.</p> <p>3. —Same—Irrelevant Testimony.</p> <p>Upon a trial for murder it was error to permit the State to introduce the county physician to testify that he had examined the wife of deceased and that he found her nervous but not sick; the said wife of deceased having testified upon trial of defendant and stated that she was nervous on account of the shock and, etc., she received at the death of her husband.</p> <p>4. —Same—Age and Intelligence of Witness.</p> <p>Upon a trial for murder, where the court rejected the testimony of a child only eight years of age because in his judgment the witness did not show sufficient intelligence, and the facts are not stated in the bill of exceptions which bear upon this statement of the court, the matter cannot be reviewed.</p> <p>5. —Circumstantial Evidence—Charge of Court.</p> <p>Upon trial for murder, where defendant admitted the killing and the circumstances placed the two parties on the gallery together in close juxtaposition to the killing, and defendant did all the shooting, there was no error in not submitting a charge on circumstantial evidence.</p> <p>6. —Same—Impeaching Testimony, Limiting Effect of.</p> <p>Upon trial for murder where defendant’s witness testified that deceased had struck her, and she denied the statement that she had previously said that her deceased husband had never struck her, and witnesses were placed upon the stand to prove that she did make such statement, the court should have limited the testimony to the issue of credibility.</p> <p>7. —Same—Charge of Court—Imperfect Self-Defense.</p> <p>See opinion for facts which did not require the court to submit a charge on the law of imperfect self-defense.</p> <p>8. —Same—Charge of Court—Manslaughter—Anticipated Danger—Eight of Going Armed.</p> <p>Upon a trial for murder, where the evidence showed that the defendant and deceased were brothers-in-law and strangers; that defendant called upon deceased to talk with him in a peaceable and <juiet manner about the mistreatment of a relative, whereupon deceased jumped up throwing his hand in the direction of his pocket where lie had a pocket knife and advanced towards defendant, who remonstrated but finally drew his pistol and fired; having armed himself to guard against anticipated danger, the court should have charged on manslaughter. Following Shannon a-. The State, 35 Texas Grim. Rep., 2.</p> <p>9. —Same—Defendant’s Testimony—Criminal Law.</p> <p>In criminal cases the law should be applied to any and all of the issues suggested by the testimony, and it is immaterial from what source the testimony comes; and upon a trial for murder it was error to gauge all charges representing defendant’s legal rights upon defendant’s personal testimony.</p>

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

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

<p>Burglary—Age of Defendant—Reformatory.</p> <p>Where upon trial for burglary the evidence lacked that conclusiveness as to defendant’s knowledge and discretion to understand the nature and illegality of the act, although he may have known right from wrong, the conviction was not authorized.</p>

<p>Burglary—Possession of Property—Oral Proof—Corporation.</p> <p>Where in a prosecution for burglary the indictment alleged the ownership and possession of the burglarized house and property in R, and the proof showed that R was the manager of a corporation and had actual care, control and management of the house and property, although this was not proved by the introduction of the charter and minutes of the corporation but by oral testimony, there was no error; as ownership as well as possession could- be so proven, and it is immaterial whether such possession was legal or illegal.</p>

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

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

Tried below before Hon. M. Kennon. Appeal from a conviction of assault with intent- to murder; penalty, three years imprisonment in the penitentiary. The shooting occurred at night at an entertainment. The party injured testified that he was invited to the entertaiment and that the defendant and two others began the difficulty with him, and that defendant shot him. The theory of the defense was that some one else and not the defendant fired the shot.

<p>1. —Bobbery—Bill of Exceptions.</p> <p>Upon trial for robbery where the bill of exceptions to the objection of testimony wi'th reference to money found on the defendant, did not show the object or purpose of the testimony, the matter will not be reviewed.</p> <p>2. —Same—Imputing Crime to Another.</p> <p>Where upon trial for robbery a witness was asked whether he made any investigation on the night of the robbery for the purpose of determining whether any other person was seen with the party robbed before the robbery on that night, and the court sustained the State’s objection thereto, and the bill of exceptions did not state the object and purpose of the testimony the matter could not be reviewed.</p> <p>3. —Same—Remarks of Judge—Discrediting Witness.</p> <p>Upon a trial for robbery where the defendant asked one of his own witnesses if he was drunk, and the court sustaining the State’s objection thereto remarked that if the witness did get drunk the court did not think that his evidence would amount to much; and it was also in evidence that defendant was a witness and that he was drinking heavily on the night of the robbery; and also that the prosecuting witness was drunk, such remark of the judge was sweeping enough to reach other witnesses besides the one to which he alluded to and also discredited the testimony of defendant. Held, reversible error.</p> <p>4. —Same—Imputing Crime to Another.</p> <p>Where upon trial for robbery the defendant asked the officer what investigation he had made on the night of the robbery and the next morning to ascertain who had been with the prosecutor, to show that the officer received information that would have caused him to arrest a certain party (not the defendant) as one of the probable parties who robbed the prosecutor, and thus to prove the conclusions of the officer based upon his investigation of the alleged offense, without sufficiently connecting the said party as a probable participant in the offense, there was no error in excluding this testimony.</p> <p>5. —Same—Charge of Court—Weight of the Evidence.</p> <p>See opinion for charge of court with reference to certain currency bills referred to by the testimony, which was not bn the weight of the evidence.</p>

<p>Theft of Mules—Evidence—Detective—Consent.</p> <p>Where upon trial for theft of mules, the evidence showed that the owner had made a written contract with a detective in order to catch defendant whom they believed had been stealing the owner’s stock, and the court charged that if said detective, induced defendant to commit the theft, and that the intent to steal on part of the defendant originated with and was suggestead by said detective, it would be a taking with the consent of the owner, there was no error.</p>

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

<p>Burglary of Private Residence at Night—Statutes Construed—Indictment.</p> <p>In a prosecution for burglary of a private residence in the night-time, under articles 839a, 845c, Penai Code, an indictment which failed to charge that said house was occupied and actually used by some person named at the time of the offense as a place of residence was fatally defective.</p>

<p>1. —Murder in Second Degree—Expert Opinion.</p> <p>Upon a trial for murder, there was no error in permitting a physician to give his opinion in regard to the condition of defendant’s mind upon a hypothetical case.</p> <p>2. —Same—-Evidence—Flight.</p> <p>Upon a trial for murder where the evidence showed that the defendant fled across the Rio Grande, and was captured in Mexico, there was no error to show that he was in jail in Mexico when arrested as a fugitive and brought back.</p> <p>3. —Same—Evidence Res Gestae.</p> <p>Upon a trial for murder where the evidence of the State’s witness was practically the same as in a companion case in which his testimony was admitted, there was no error. Following Martinez v. State, 57 S. W. Rep., 838.</p> <p>4. —Same—Same Transaction—Intent.</p> <p>Upon a trial for murder, where the evidence showed that another party was killed in the same transaction in which deceased was slain, testimony of such other killing, to show the intent and purpose of the parties acting together with the defendant was admissible.</p> <p>5. —Same—Evidence—Depositions.</p> <p>Where upon trial for murder it was shown that the proper predicate had not been laid for the introduction of the depositions of a witness, there was no error in excluding depositions.</p> <p>6. Same—Charge of Court—Intent—Weapon—Statutes Construed—Principal.</p> <p>Upon a trial for murder, where the evidence showed that there was no question as to the intent of defendant’s codefendant to kill and who used a spear in killing the deceased, and that it was a deadly weapon, there was no error in submitting article 717, Penal Code, with reference to the instrument or means used; the evidence also showing that the defendant was a principal with his codefendant in the transaction.</p> <p>7. _Same_Charge of Court—Reasonable Doubt—Presumption of Innocence.</p> <p>Upon a trial for murder, where the evidence showed that several parties attacked the deceased and inflicted a mortal wound upon him with a spear, and there was a conflict of testimony between the State and defendant’s theory as to whether the latter participated in the assault upon the deceased; and the court submitted reasonable doubt, the presumption of innocence, that the burden of proof was on the State and if there was a reasonable doubt as to the defendant’s presence or participation in the killing to acquit him, there was no error to not further charge that if there was a probability of the innocence of the defendant to acquit.</p>

From Bexar County. Original application for habeas corpus for release from, a commitment for contempt of violating the writ of injunction restraining the .use of a certain building for the purpose of gaming. The opinion states the case.

<p>1.—Carrying Pistol at Social Gathering—Insufficiency of Evidence.</p> <p>Where upon trial for carrying a pistol into a social gathering, the evidence showed that defendant did not have the pistol in the ball room but that it remained behind the bar in the bar room until he called for it, the same was insufficient to constitute a violation of article 340, Penal Code.</p> <p>Z.—Same—Charge of Court—Intent—Burden of Proof.</p> <p>Upon trial for carrying a .pistol at a social gathering, it was error by a charge to the jury to place the burden of proof as to his intention to violate the law upon the defendant; the intent was a necessary element of the offense and the burden was upon the State, as per requested charge.</p> <p>3,—Same—Charges Refused—Insufficiency of Evidence.</p> <p>Where upon trial for carrying a pistol at a social gathering, the evidence showed that the defendant upon reaching the grounds where the social gathering was had, immediately divested himself of the possession of said pistol and that he did not carry it on or about his person while at such social gathering, a charge submitting this issue should have been given.</p>

<p>1. _Murder in First Degree—Conviction of Convict.</p> <p>There is no provision of law that would prevent the trial and conviction of a convict for homicide or for any other offense, committed while he was detained as a prisoner, by virtue of his prior conviction.</p> <p>2. —Same—Sufficiency of Evidence—Self-Defense.</p> <p>Upon a trial for murder the evidence showed that defendant and deceased had a scuffle which seemed not to have been of a serious nature and they were separated, when defendant cursed deceased and said he would kill himand some half hour afterwards while the deceased was on his all fours adjusting some cross ties, defendant approached him from behind and struck him -on the neck with the edge of his shovel, and deceased fell over, defendant striking him a time or two afterwards and killed him; defendant claiming self-defense. Held that a conviction of murder in the first degree was sustained.</p>

<p>1. —Burglary of Private Residence at Night-Time—Other Offenses.</p> <p>Upon trial for burglary, it was not competent to show that certain articles found on the defendant were the fruits of former crimes, in as much as they had no bearing on the case then being tried, either as part of the res gestee or to show intent or system. Besides the appellant had not been warned concerning some of the articles which were found on him.</p> <p>2. —Same—Affirmative Charge—Purchase—Defense.</p> <p>Where upon trial for burglary there was no evidence that the defendant gave an explanation as to how he came by the alleged stolen property and he simply stated that he did not remember; but there was evidence that he purchased the property in question, the court should have presented this question in his charge to the jury; and this, although there was proof as to other stolen property found in defendant’s house but not in his actual possession.</p> <p>3. j_Same—Charge of Court—Property Found—Possession.</p> <p>Where upon trial for burglary the evidence showed that a purse identified as that of the prosecutor was found in defendant’s house, but not in his actual possession, it was error to charge the jury if they found the defendant was in possession of same and gave no explanation that they were authorized to consider it as a circumstance against him.</p> <p>4. —Same—Private Residence—Actual Use—Indictment.</p> <p>In a prosecution for burglary of a private residence where the indictment failed to charge that the same was occupied and actually used at the time of the offense by the prosecutor as a place of residence, the same was fatally defective.</p>

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

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

<p>1. —Murder in Second Degree—Continuance—First Application.</p> <p>Where upon trial for murder the diligence for obtaining the attendance of the absent witnesses was sufficient, the testimony material and the motion for continuance the first application therefor, it was error not to grant the same.</p> <p>2. —Same—Dying Declaration—Res Gestae.</p> <p>Where upon trial for murder the testimony of the absent witness tended to contradict the State’s testimony as to deceased dyin^ declaration, and that the statements of the deceased according to the absent testimony was res gestae, and also contradicted the testimony of the main State’s witness as to his character as an accomplice, it was error to overrule the application for continuance.</p> <p>3. —Same—Dying Declaration—Predicate.</p> <p>Where upon trial for murder the testimony, for laying the predicate for the introduction of dying declarations, did not show that declarant was then conscious of approaching death, and had abandoned all hope of recovery, such predicate was not sufficient.</p> <p>4. —Same—Writen Declaration—Oral Testimony.</p> <p>See opinion as to the admission of parol testimony where the deceased had answered written questions concerning the homicide which had been previously prepared, and which written statement had not been signed by declarant.</p> <p>5. —Same—Charge of Court—Self-defense—Attack—Apparent Danger.</p> <p>Where upon trial for murder there was evidence that the deceased and others had made an attack upon defendant, and thereupon he used a knife and cut deceased, there Was no error in the court’s charge in referring to the appearance • of an attack made by deceased upon defendant, and was not too restrictive in regard to the law of appearances of danger.</p> <p>6.—Charge of Court—Limiting Impeaching Evidence.</p> <p>See opinion for facts discussed requiring a charge limiting impeaching testimony to the credibility of the witness attacked.</p>

<p>1. —Bigamy—Witness Under Buie—Discretion of Court.</p> <p>On a trial for bigamy, there was no error that the court placed expert physicians under the rule, which had been invoked, and excluded one of the physicians who had not been pl'aced under the rule and had talked to some of the witnesses, from testifying for the defendant.</p> <p>2. —Same—Contents of Letter—Parol Testimony.</p> <p>Upon a trial for bigamy it was reversible error to admit the contents of a letter written by the defendant- to his daughter to be introduced by parol testimony, it being shown that said letter was in existence and within the control of appellant’s daughter, and that no notice was given to produce it; and the same being of a material nature and injurious to the rights of defendant.</p> <p>3. —Same—Charge of Court—Insanity—Beasonable Doubt.</p> <p>Upon a trial for bigamy where the defense was insanity, where the court charged that the defendant was required to clearly prove his insanity by a preponderance of the evidence, he should have explained that it was not meant by this that defendant should prove his insanity beyond a reasonable doubt.</p>

<p>1. —Bobbery—Corroboration—Inducement.</p> <p>Where upon trial for robbery the chief State’s witness and defendant’s alleged accomplice, on cross-examination admitted that for a time he denied all participation in the robbery, and the State was then permitted to show that the witness made a similar statement to that testified to by him on the trial, that he, admitted his connection with the robbery and detailed to the officers the same circumstances concerning it as testified to by him on the trial, but it was shown in that connection that he made this statement confessing the details of the crime, subsequent .to an .inducement offered by the officers, such testimony of corroboration was not admissible.</p> <p>2. —Same—Absence of Judge During the Trial.</p> <p>Upon a trial for robbery where the record showed that the trial judge was absent from-the bench on two occasions during the argument of counsel, for from five to twenty,rminutes, and out. of the hearing and sight of the proceedings, a conviction could not be sustained.</p>

The State’s testimony in this case shows an assault by force upon the prosecutrix in which defendant choked and forced her to the ground and committed rape upon her without her consent, and that prosecutrix resisted to the utmost to prevent him from perpetrating the crime; that the assault was made upon her by the defendant near her house in the absence of her husband, with no one present except her little children, the oldest of whom was a little over 5 )ears old.

<p>1.—Aggravated Assault—Charge of the Court—Intent Presumed.</p> <p>Where upon trial for aggravated assault the evidence showed that no- physical injury was inflicted, but that the defendant pulled his gun and cocked both barrels as prosecutor started towards him, and that the latter then ran; that defendant could have shot prosecutor but did not do so, it was error to instruct the jury under article 588, Penal Code, that when the injury is inflicted intent to injure is presumed, etc.</p> <p>3.—Same—Evidence—Custom—Persons Meeting in Road—Right of Way.</p> <p>Upon a trial for aggravated assault, where the evidence showed that the parties met in the road and neither gave the road, and an altercation ensued it was error to admit evidence of custom that where parties driving wagons met in the road each would give half the road, and where one wagon was loaded and the other was not, that the loaded wagon should have the right of way; especially where the defendant stated that he could not see whether the prosecutor had a loaded wagon.</p>

<p>Aggravated Assault—Charge of Court—Indecent Familiarity.</p> <p>Where in a prosecution for aggravated assault based upon indecent conduct towards a female, and where the question of consent and injury were involved, the court should have charged the jury that if defendant used violence .with intent to injure prosecutrix, and fondled her person against her will and consent, and that such conduct created in her mind a sense of shame or other disagreeable emotion of her mind, to convict; otherwise if the defendant had no intent to injure and the jury believed no such emotions in the mind of the prosecutrix were produced; to acquit; and it was error to ignore the intent to injure.</p>

<p>1.—Murder in Second Degree—Charge of Court—Manslaughter—Adequate Cause.</p> <p>Upon trial for murder where the evidence showed that the defendant and deceased had had a wordy altercation just preceding the homicide, and deceased among other things said that the defendant had had every man in town, there was no error in the court’s charge in not instructing the jury that this language was adequate cause to reduce the offense to manslaughter; but even if it be conceded that it was adequate cause outside of the statute, it was not necessary that the court should have directly charged upon this and presented it to the jury as adequate cause. A general charge was all that was necessary, leaving it t.0 the jury to determine from all the circumstances of the case whether the testimony showed adequate cause or provocation at the time to reduce the offense to manslaughter.</p> <p>2. —Same—Accomplice Testimony.</p> <p>See opinion for facts showing that no charge was required on accomplice testimony.</p> <p>3. —Same—Cause of Death—Sufficiency of Evidence.</p> <p>Where upon trial for murder the evidence showed that the deceased lived something like a month later she received the wound, and her attendant physician testified that he entertained no doubt that her death was attributable directly or indirectly to the wounds she received and that there was no maltreatment, the cause of the death of the deceased was sufficiently proven.</p>

Tried below before the Hon. B. H. Gardner. Appeal from a conviction for the theft of a hog; penalty, two years in the penitentiary.

<p>Theft—Information—Description—Promissory Note.</p> <p>In a prosecution for the theft of a promissory note where the information described the stolen property as one promissory note of the value of $31.80, the same was insufficient on motion to quash. A promissory note is regarded as property and is the subject of theft.</p>

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

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

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

<p>1. —Murder in Second Degree—Affidavits on Appeal—Practice.</p> <p>Upon appeal from a conviction of murder in the second degree, affidavits filed by appellant in regard to the order of the trial court overruling motion for new trial and matters connected with it, cannot be considered, and a motion to strike them from the record was sustained.</p> <p>2. —Same—Motion for New Trial—Controverting Affidavits—Notice.</p> <p>Where defendant attached to his motion for new trial certain affidavits in which he set out the fact that the interpreter had incorrectly given the testimony of defendant during the trial and which seemed to have referred especially to a certain expression testified to by defendant as used by deceased; and the State thereupon filed a controverting affidavit as to the meaning of said expression, and before the motion for new trial was overruled; held, the defendant had legal notice of said last affidavit and could not be heard to complain that he had no actual notice of the filing thereof.</p> <p>3. —Charge of Court—Manslaughter—Insulting Conduct to Female Relative.</p> <p>Where upon trial for murder the evidence showed that the insulting language employed by deceased was intended as an insult to the defendant and not to his female relatives, there was no error in not submitting the law on this phase of the case as to adequate cause.</p> <p>4. —Same—Charge of Court—Self-Defense.</p> <p>Upon a trial for murder where the State’s theory showed a killing with malice, and the theory of the defense was that of self-defense, both of which theories were submitted to the jury under proper instructions, there was no error.</p>

The testimony showed that the defendant, a negro, was working about the yard of the Southern Pacific Ey.

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

<p>1.—Forgery—Indictment—Innuendo—Averment.</p> <p>Upon a trial for forgery, where the indictment set out the instrument upon which the forgery was based according to its tenor, and alleged by way of innuendo the meaning of certain names used in said instrument, and the said instrument being one which was the subject of forgery, the indictment was sufficient.</p> <p>2.—Same—Sufficiency of Evidence.</p> <p>See opinion for evidence that the alleged names in the indictment represented real persons and that the allegations in the indictment were sustained.</p> <p>3.—Same—Conduct of Counsel—Surprise—Postponement.</p> <p>Where upon trial for forgery, defendjant’s counsel complained of the conduct of State’s counsel as deceiving him as to the whereabouts of a witness, and there was no motion of postponement on account of surprise, the matter could not be reviewed.</p>

<p>1. —Murder in Second Degree—Manslaughter—Explanation—Going Armed— Affirmative Charge.</p> <p>Where upon trial for murder the evidence showed insult to defendant’s wife by deceased and a first meeting of the parties after this, and also the communication of threats; and that defendant armed himself to seek an explanation from the deceased; and there was also evidence of an attack upon defendant, the court should have affirmatively charged the law of self-defense and manslaughter.</p> <p>2. —Same—Threats—Charge of Court—Self-Defense.</p> <p>Where upon trial for murder the evidence showed communicated threats, it was error in the charge of the court to so limit defendant’s right of self-defense as to practically shift the burden from the State to the defendant; and defendant was entitled to an affirmative charge under the law of threats as applied to self-defense.</p>

<p>1. —Gaming—Indictment—Charge in Alternative—Statutes Construed.</p> <p>Where upon trial for gaming, the indictment charged the defendant in the' alternative, to wit: for unlawfully betting at a gaming table or bank, and left it uncertain whether or not the offense charged was betting at one or the other, the indictment was insufficient; notwithstanding article 461, Code Criminal Procedure.</p> <p>2. —Same—Immunity From Prosecution.</p> <p>Where upon trial for gaming it was developed that defendant had been previously brought before the grand jury under the promise of immunity if he would testify fully as to the games in which he had participated, he could not be prosecuted thereafter, although there was some doubt whether he testified to the name of a certain party involved in a game in which he participated, defendant having testified to the essential facts in regard to such game.</p>

<p>1.—Embezzlement—Circumstantial Evidence—Confession.</p> <p>Upon trial for the embezzlement of a horse, where the defendant made a confession that he and the agent of the owner of the horse appropriated the same, there was no error in the court failing to charge on circumstantial evidence.</p> <p>2.—Same—Venue.</p> <p>Where upon trial for the embezzlement of a horse, the evidence showed that the defendant acting with others as principal embezzled a horse in H. County and shipped the same by railway through D. County, the venue would be in D. County, whether he actually accompanied such embezzled horse through D. county or not.</p> <p>3. —Same—Confessions—Corpus Delicti—Refused Charge.</p> <p>Where upon trial for the embezzlement of a horse the evidence showed that the defendant took the property, besides other testimony connecting him with the offense, the court was not called on to submit defendant’s special instruction that he could not be convicted on his confessions alone.</p> <p>4. —Same—Several Counts—Election—Charge of Court.</p> <p>Where upon trial for the embezzlement of a horse, upon an indictment containing six counts, where the court submitted only two counts, there was no error in failing to instruct the jury that they could not convict on the other four counts; as the court’s charge was equivalent to an election by the State of the two counts submitted.</p> <p>5. —Same—Agency of Codefendant—Confession—Partioeps Criminis.</p> <p>Where upon trial for the embezzlement of a horse, the evidence showed not only circumstances tending to connect the agent of the owner of the alleged horse with the taking, but defendant’s confession made said agent particeps criminis with him, the court was authoried to submit the issue of the agent’s complicity with the defendant in the commission of the offense.</p> <p>6. —Same—Charge of Court—Weight of Evidence.</p> <p>Where upon trial for the embezzlement of a horse, the court submitted the allegation made in the indictment that defendant’s codefendant was charged to be an employee of the owner of the horse, it was not tantamount to telling the jury that said agent was such employee; especially where that issue was fairly submitted in another part of the court’s charge.</p> <p>7. —Same—Election—Charge of Court—Different Counts.</p> <p>Where upon trial for the embezzlement of a horse, the indictment contained six counts, and the court submitted only two counts, one of which charged theft and the other embezzlement, and the jury convicted defendant of embezzlement, there was no error in not forcing the State to elect upon which count, or the taking of what animal the State would rely.</p> <p>ON REHEARING.</p> <p>8. —Same—Circumstantial Evidence—Agency.</p> <p>Where upon trial for the embezzlement of a horse, the evidence showed, in connection with defendant’s confession, by the testimony of the owner of the horse that the alleged agent had charge of the owner’s ranch and the horses therein during the absence of the superintendent of the ranch, a charge on circilmstantial evidence as to the agency involved was not required.</p> <p>9. —Reforming Judgment—Statutes Construed.</p> <p>Where the court submitted one count for theft, and another for embezzlement of the horse, and the record showed that the defendant was convicted of embezzlement, but the judgment adjudicated him guilty of theft, and the sentence was for embezzlement, the judgment on appeal was corrected and reformed so as to adjudicate appellant guilty of embezzlement in accordance with the verdict.</p>

<p>1. —Perjury—Indictment—Gaming—Wager.</p> <p>Upon trial for perjury, where the indictment failed to charge that there was a bet or wager on the game played at a private residence occupied by a family commonly resorted to for the purpose of gaming, the same was insufficient to base an assignment of perjury thereon.</p> <p>2. —Same—Statutes Construed—Gaming.</p> <p>Under article 379, Penal Code, as amended by the Act" of the Twenty-seventh Legislature, page 26, in connection with article 381, Penal Code, it is no offense to play cards merely for amusement at a house occupied by a family, unless it is accompanied by a bet or wager, and the residence played at is one commonly resorted to for the purpose of gaming.</p> <p>3. —Same—Affirmative Allegation.</p> <p>It is an offense against the laws of the State for parties to play cards at certain places, but not an offense to see them played; and an indictment for perjury, which based an assignment for false swearing of defendant for seeing persons named play cards in a certain place, was defective.</p> <p>4. —Same—Requested Charge—Private Residence.</p> <p>In a prosecution for perjury based upon false swearing with reference to a game of cards alleged to have been played at a private residence, the requested charge on this subject should have been given.</p>

<p>Habeas Corpus—Constitutional Law—Self-Accusation—Sunday Law.</p> <p>Where the relator was brought before a grand jury and declined to answer whether his bar-keepers under his control bad made any sale in his saloon on. Sunday, and was thereupon reported to the district judge, who imposed a fine for contempt and placed relator in jail, he was discharged on writ of habeas corpus.</p>

<p>1. —Assault to Murder—Discretion of Court.</p> <p>Upon a trial of assault with intent to murder, it was in the sound discretion of the court to admit testimony at any time before the conclusion of the argument; and this matter cannot be reviewed unless it be shown that such discretion was abused to the injury of the accused.</p> <p>2. —Same—Argument of Counsel.</p> <p>On trial for assault with intent to murder, where the criticism of the argument of State’s counsel could not be applied to much of his argument in denouncing in severe terms a witness for the defendant for testifying falsely in other cases, and there was not sufficient transgression of the. rules of legitimate argument, there was no reversible error.</p> <p>3. —Same—Charge of Court—Self-Defense—Defendants Stand Point.</p> <p>Where upon trial of assault with intent to murder, the theory of the defense was that the prosecutor fired at defendant before the latter shot at prosecutor, and the' court instructed the jury that they must view the matter from the defendant’s standpoint, there was no merit in the objection that the court had not sufficiently emphasized this matter in his charge on self-defense.</p> <p>4.—Same—Specific Intent to Kill—Robbery.</p> <p>Where upon trial for assault with intent to murder, the evidence showed that during the difficulty between the parties the defendant required prosecutor with force of arms to pay him what money he had, under a claim that he owed defendant for rent, defendant could not plead justification or mitigation of his assault to murder on the ground that the assault was committed for the purpose of robbery, if defendant’s intent was to collect the money from prosecutor or kill him; and there was no error to fail to charge that if defendant intended to commit robbery or in case of reasonable doubt to acquit him.</p>

<p>1. —Sunday law—Sale—lunch—Restaurant-Keeper.</p> <p>Upon a trial for a violation of he Sunday law under article 199, Penal Code, where the evidence showed that the defendant, a restaurant keeper, furnished lunches to his custom., s, and served with each lunch a pint bottle or glass of beer, and that the customers paid 15 cents or 5 cents each time, ostensibly for the lunch; a ticket being made out for the lunch at 15 cents or 5 cents per lunch, and the customer being asked, by defendant’s agents, when ordering the lunch what he wanted to drink, and the price of the lunch being printed on the bill of fare; the question as to whether the transaction was a sale or a gift of the beer should have been submitted to the jury for determination, and there was no error of the court in submitting such a charge.</p> <p>2. —Same—Occupations on Sunday—Hotel Keeper.</p> <p>The mere fact that a hotel keeper or restaurant keeper can pursue his occupation on Sunday, would not authorize him to violate any other prohibitory law, ami in the absence of a statute authorizing him to furnish intoxicating liquors with meals on Sunday, it is not lawful for him to do so.</p>

<p>Carrying Pistol—Charge of Court—Self-Defense.</p> <p>Upon a trial for unlawfully carrying a pistol where the evidence showed that defendant had exchanged a gun for a pistol, and was carrying the pistol home; that on the way he stopped at the house of prosecutor and demanded of him an explanation with regard to an insult which he claimed was committed by the prosecutor toward his wife a day or so previous, and of which he had heard the night before; the court should have instructed the jury that defendant had a right to ask an explanation of prosecutor, and to defend himself with a pistol if attacked; and this although prosecutor may not have in fact made such insult, but the defendant reasonably believed it.</p>

<p>1. —Disturbing Peace—Private Residence—Deadly Weapon.</p> <p>In a prosecution under article 334, Penal Code, the indictment should allege that the gun displayed near a private house was a deadly weapon.</p> <p>2. —Same—Act Must be Calculated to Disturb.</p> <p>Upon a trial for disturbing the peace by going near a private residence and cursing, etc., the court should have charged that if defendant did so in a manner calculated to disturb the inhabitants thereof, to convict.</p> <p>3. —Same—Indictment—Proof—Variance.</p> <p>Upon a trial for disturbing the peace where the indictment alleged the private residence was that of Sam McReynolds, and the evidence showed that it was the residence of S. C. McReynolds there was no variance.</p>

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

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

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

<p>1. —Manslaughter—Agreement of Counsel—Substitution of Indictment.</p> <p>Where upon appeal for manslaughter the record showed an agreement between counsel, for the substitution of a lost indictment, and that appellant’s counsel objected to the copy of the indictment as not being a true copy, but failed to offer proof on this issue, there was no error.</p> <p>2. —Same—Clothing of Deceased—Evidence.</p> <p>Where upon trial for murder the clothing of deceased was offered in evidence, and there was no question about the infliction or description of the wounds, except one about the neck of the deceased, the introduction of the coat in evidence may have been authorized, but the introduction of the pants could have thrown no light on the transaction and should have been excluded.</p> <p>3. —Declaration by Defendant—Evidence.</p> <p>Where upon trial for murder it was not shown that defendant’s remark, that when he went after anybody he generally got him, was made after the stabbing, but was probably made before and did not refer to deceased, the same should have been excluded.</p> <p>4. —Same—Allusion to Former Conviction.</p> <p>Upon trial for murder it was error to. permit defendant’s witnesses on cross-examination to testify that they as jailors had defendant in custody for a conviction of the same offense upon a former trial; nor should the court have permitted State’s counsel to read in evidence an article of the Code of Criminal Procedure, to counteract the effect of defendant’s refusal to escape under a former conviction pending an appeal.</p>

<p>Robbery—Insufficiency of the Evidence—Identification.</p> <p>Upon a trial for robbery, where the evidence showed that the defendant and prosecutor were strangers, having had only a slight acquaintance before the occurrence of the offense, and that he identified the defendant in the dark by his size and voice, and that there was nothing unusual about either, the evidence of identification was not sufficient to sustain a conviction.</p>

<p>1. —Seduction—Statute Construed—Marriage.</p> <p>Under article 969, Penal Code, as amended, where a prosecution is begun and indictment is pending, and to avoid the consequences of the charge the accused marries the seduced woman, then the case shall be continued on the docket for the space of two years, in order to hold the accused to perform his marital relations in good faith; and the prosecution may be revived if he does not act in good faith. This article applies only where prosecution had begun at the time of the marriage, and does not apply where the marriage takes place prior to the institution of criminal proceedings.</p> <p>2. —Same—Case Stated—Abandonment.</p> <p>Upon trial for seduction where the evidence showed that the marriage between defendant and prosecutrix occurred March 8, 1905, that he abandoned her; that the illicit intercourse between the parties occurred some months before the marital relation was assumed; and the indictment was returned April 24, 1906, more than a year subsequent to the marriage, the prosecution was without authority.</p>

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

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

<p>1. —Murder in Second Degree—Argument of Counsel.</p> <p>See opinion as to argument of State’s counsel for which he was reprimanded by the court, and the jury instructed not to consider same.</p> <p>2. —Same—Charge of Court—Self-Defense.</p> <p>Where upon trial for murder, the evidence showed that the case was one of real and not apparent danger to defendant, the court might have limited his charge on self-defense to real danger, but in submitting a charge on self-defense on appearance of danger, the same was beneficial to defendant and he could not complain. See opinion for charge on self-defense held sufficient.</p> <p>3. —Same—Charge of Court—Manslaughter.</p> <p>Where upon trial for murder the evidence showed according to the State’s witnesses that deceased borrowed a shotgun and met defendant; that they could not hear what was said between the parties, but could see them, and which controverted the testimony of defendant that deceased had raised the gun or made any demonstrations with it so far as they could see; there was doubt as to whether the issue of manslaughter was in the case. However, the court charged the jury to find defendant guilty of manslaughter if from all the facts and circumstances they should find that defendant’s mind was rendered incapable of cool reflections, and there was no error.</p> <p>4. —Same—Case Stated—Verdict Sustained.</p> <p>Where upon trial for murder, there was evidence that defendant shot and killed the deceased, and that there was no demonstration on his part to use a shotgun, but there was a heated and angry conversation between them, defendant claiming self-defense, and the court charged on murder in the second degree, manslaughter and self-defense, a verdict for murder in the second degree was sustained.</p>

<p>1. —Local Option—Sale—Gift.</p> <p>Upon a trial for a violation of the local option law, no conviction could occur unless there was a sale of intoxicating liquors. If the beer was given to the alleged purchaser it would not be a violation of the law.</p> <p>2. —Same—Publication of Order—County Judge—Pour Consecutive Weeks.</p> <p>Upon a trial for a violation of the local option law, where the evidence showed that the publication of the order putting local option into force was published for three consecutive weeks in a newspaper published in the county to be affected thereby, when the publication of the order was enjoined by the district court, and thereupon the same order was published in another newspaper in said territory for several weeks by the voluntary act of the publisher, and was not authorized or caused to be published as the law directs by the county judge in said second newspaper, said subsequent publication could not be added to the three prior publications in the first newspaper, to complete the four weeks, and such publication was not in accordance with the law which requires that the county judge shall designate the newspaper, and that for four successive weeks publication shall be had.</p> <p>3. —Same—Statutory Requirements—Ratification—Ultra Vires.</p> <p>It has been the universal holding of this court in regard to the local option law, that-all the statutory provisions precedent to putting the law into operation must be complied with, and unless this has been done, the law will not be operative; and where the county judge did not designate the newspaper and cause the order declaring the result of the election to be published in said newspaper for four successive weeks, he could not adopt or ratify á publication which he did not cause to be made as the law directed.</p>

<p>1. _Theft From Person—Unwilling Witness—Refreshing Memory.</p> <p>Where upon trial for theft from the person, the State’s witness from whom it was alleged the money was taken, was an unwilling witness and wavered in his statement as to whether he gave the defendant his consent to take the money out of his pocket, there was no error, for the purpose of refreshing his mind, to call his attention to a prior statement he made to another party; especially where no prejudice could result therefrom to the defendant.</p> <p>2. —Same—Verdict—Error of Form—Correction.</p> <p>Where upon trial of theft from the person the verdict of the jury omitted the word confinement, which the court permitted to be inserted, there was no error.</p> <p>3.—Same—Instructed Verdict.</p> <p>See opinion for evidence which did not require a charge of the court instructing the jury to return a verdict of not guilty on defendant’s motion.</p> <p>.4.—Charge of Court—Want of Consent—Implied Consent.</p> <p>Where upon trial of theft from the person, the evidence showed that prosecutor was drinking and had gone to sleep in a saloon; and while in that condition deput his hand in his pocket and pulled out a five-dollar bill, remarking that it was easy money; and the evidence further showed that the parties were good friends and that prosecutor had told defendant before getting drunk to look after him, etc.; a charge of the court that if the parties had an understanding and agreement that defendant should take prosecutor’s money when he became drunk to acquit him was error, and he should have submitted the requested charge that if defendant believed prosecutor intended for him to take his money from him they should acquit him.</p> <p>5.—Same—Charge Refused—Offense Defined.</p> <p>Upon trial of theft from the person the court should have submitted the requested charge on implied consent, which was the theory of the defense; and this although defendant may have subsequent to the taking of the money, formed the design to appropriate a part of it.</p>

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

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

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

<p>1, —Murder in Second Degree—Evidence—Reputation of Deceased—Uneommunicated Threats.</p> <p>Upon a trial for murder, where no communicated threats had been proven and defendant had not attacked the reputation of deceased as a quiet and peaceable man, the court erred in permitting the State to introduce evidence of the quiet and peaceable character of the deceased.</p> <p>2. —Same—Dying Declaration—Suggestion by Third Party—Change of Statement.</p> <p>Upon trial for murder, the evidence showed that while the declarant was making his dying declaration, questions were asked him before he had finished his statement, and it was suggested to him whether he was not mistaken in his statement that at the time he was shot he was facing defendant, whereupon declarant stated that he did not know whether his back was turned to defendant or not when defendant shot him. Held, the court committed error in instructing the jury not to consider this last statement of declarant. Either the whole or none of the dying declaration upon this crucial point in the case should have gone to the jury, as this qualification of declarant bore directly upon the position of the parties at the time of the fatal shot.</p> <p>3. —Same—Charge of Court—Self-Defense—Threats—Negative Charge.</p> <p>Where upon trial for murder, the evidence did not show communicated threats by the deceased, but there was evidence of an uncommunicated threat, and that the deceased made an attack upon defendant or threatened to do so, the court’s charge on the law of threats was improper and used uncommunicated threats as the means of eliminating or minimizing defendant’s right of self-defense, and perhaps curtailing the law of manslaughter. See opinion for court’s charge on threats which was error.</p> <p>4. —Self-Defense—Charge of Court—Restricted Charge.</p> <p>Upon a trial for murder, where the evidence showed that the deceased pulled defendant from his horse so that the latter struck the ground, and it was a question whether defendant’s mind was thus enraged beyond cool reflection, the question of manslaughter was suggested, and the same should have been submitted to the jury without a combination of other facts as necessary ro make or constitute adequate cause.</p> <p>5. —Same—Self-Defense—Manslaughter—Affirmative Charge.</p> <p>Upon, a trial for murder, where the issues of manslaughter and self-defense were raised by the evidence, the law applicable to these issues should have been submitted in an affirmative manner and favorable to defendant, and not in a negative, restrictive and argumentative manner.</p> <p>6. —Same—More Than One Assailant.</p> <p>Where upon trial for murder the evidence showed more than one assailant against defendant, he was entitled to a charge on self-defense as against both.</p>

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

<p>1. —Fence Cutting—Indictment—Different Counts—Election.</p> <p>Upon trial for fence cutting where one count in the indictment was for cutting prosecutor’s fence and another for cutting a part of his feneej there was no error in the court’s refusal to require an election as between these two counts; it being the same offense.</p> <p>2. —Same—Evidence—Act of Codefendant—Instrument Used in Crime.</p> <p>Upon trial for fence cutting where the evidence showed that the defendant and his codefendant were connected in the commission of said offense, there was no error to admit in evidence the fact that after the arrest of the parties defendant’s codefendant threw away a pair of wire nippers "which the officers recovered.</p> <p>3. —Circumstantial Evidence—Charge of Court.</p> <p>Where upon trial for fence cutting the court charged on circumstantial evidence, it was not necessary to inform the jury that the case on trial was one of circumstantial evidence.</p> <p>4. —Same—Charge of Court—Hypotheses of Guilt—Innocence.</p> <p>Where upon trial for fence cutting the charge on circumstantial evidence was in the usual form, and concluded, ‘"that the accused and no other person committed the offense charged.” the same embodied the necessary test in a negative way that there was a reasonable hypothesis consistent with the innocence of defendant, and there was no error.</p>

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

<p>Rape—Habeas Corpus—Confession—Corpus Delicti.</p> <p>Where upon appeal from a habeas corpus proceeding, before indictment found, there was no evidence in the case charging rape on a girl under age, except the confession of the defendant that he had had intercourse with the girl, and testimony of other witnesses that he had been seen sleeping on the same pallet with the girl and her mother; but the witnesses saw nothing wrong between them and the record further showed that both the mother and her daughter were present at the investigation and were not called upon to testify by either party. Held, that the corpus delicti could not be made out by the appellant’s confession alone, and he was ordered released from custody.</p>

<p>—Swindling—Verbal Representation—Acts—False Pretense.</p> <p>In the offense of swindling there need not be verbal representation; acts of a fraudulent nature calculated to deceive may constitute the false pretense.</p> <p>2.—Same—Information—Amount Involved—Jurisdiction—Money—Value.</p> <p>Where upon trial for swindling, the information alleged that prosecutor was swindled by defendant out of a check for $91.95, which was also alleged to be the value of same, and then proceeded in detail to allege the character of the swindle, and that the defendant acquired the excess of the amount of the money over that to which he was entitled, and which excess was alleged at $2.70, it sufficiently fixed the jurisdiction in the county court and alleged the value. Money under our statute has a distinctive meaning, significant of value.</p> <p>3. —Same—Charge Refused—Appropriation.</p> <p>On a trial for swindling where the evidence showed fraudulent weight of hogs which defendant sold and delivered for his son to the prosecutor, and that the false pretense was committed, if committed at all, by the father and not the son, it was not material to whom the benefit of the swindle accrued, and there was no error in the court’s refusal of a requested charge that if the hogs did not belong to defendant, but were owned by his son, and the fraudulent intent enured to the son’s benefit, to acquit the defendant.</p> <p>4. —Same—Charge of Court—Declarations Between Third Parties.</p> <p>Where upon trial for swindling, the court instructed the jury not to consider conversations between third parties, and there was no exception to the introduction of such testimony, there was no error.</p> <p>5. —Same—Charge of Court—Intent—Fraudulent Weight.</p> <p>Where upon ' trial for swindling, the question was raised by the evidence whether the defendant was responsible for the fraudulent weighing of a piece of iron together with a load of hogs on a wagon, by which extra weight of said iron the prosecutor overpaid the amount due defendant for said hogs; and it was also a question whether said iron accidentally fell from the wagon after the hogs were delivered and the wagon reweiglied, or whether it was intentionally thrown off by defendant; the court correctly charged that if such iron fell from the wagon of the defendant without his knowledge, or that he did not know that the weight of said iron was included in the gross-weight with the hogs, or was included by mistake or if they had a reasonable doubt as to either of these questions, to acquit the defendant.</p>

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

<p>1.—Injuring and Breaking Fence—Agricultural Land—Statutes Construed.</p> <p>Where upon trial for breaking down and injuring the fence of another under article 794, Penal Code, an objection was raised on appeal that the land inclosed was not farming land as required under said article: held that this act originally contained a caption with reference to fences enclosing land used for agricultural purposes, but was brought forward in the Code without said caption. and thus relates to all fences and is not circumscribed to fences around agricultural land. Besides tile evidence showed that the land in question was used in connection with a pasture for a cow lot, the occupant of the premises being engaged in farming.</p> <p>2.—Same—Joining and Disjoining Fences—Definition of Offense—Trespass.</p> <p>In a prosecution for breaking down and injuring the fence of another, where the evidence showed that the defendant had objected to the prosecutor joining on to his fence, but that the latter had done so against his consent, protruding the poles of his fence through defendant’s line fence, and using said line fence for his enclosure, and that the defendant had knocked loose the fence.of prosecutor where it joined defendant’s fence without notifying prosecutor. Held, that article 2501, Revised Civil Statutes, as to notice, did not apply, and defendant was not liable to a prosecution under article 794, Penal Code, for injuring the fence of prosecutor, as the prosecutor was a trespasser; and the requested charge submitting this issue should have been given.</p>

<p>1. —Local Option—Indictment—County Judge—Commissioner’s Court—Publication.</p> <p>Where in a prosecution for a violation of the local option law, the indictment averred a publication of the result of the election by the commissioners court and not by the county judge, the same is insufficient; and testimony offered to show a particular publication of the result of said election by the county judge was not authorized under the indictment. The law requires the county judge to make such publication, and not the commissioners court.</p> <p>2. —Same—Gift—Sale—Charge of Court.</p> <p>In a prosecution for violation of the local option law, where the defendant claimed that he wanted to use the dollar he received for the whisky to purchase a dinner; this would not constitute the transaction a gift, and the court was not required to charge on that issue.</p>

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

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

<p>Motion for Rehearing Overruled. November 8, 1906.</p> <p>1. —Murder in First Degree—Jury and Jury Law—Reading Newspaper—Hearsay.</p> <p>Where upon appeal from a conviction of murder, defendant’s bill of exceptions did not show that the juror upon whom he exhausted his peremptory challenge, received his information on which he formed his opinion from any witnesses or testimony in the case, but from reading a newspaper; and the juror stated that notwithstanding his opinion he could try the case fairly and impartially; and where, defendant’s bill of exceptions did not show wherein the jurors defendant was forced to accept were objectionable, there was no error.</p> <p>2. —Same—Evidence—Res Gestae—Wounds Inflicted.</p> <p>Where upon trial for murder, the evidence showed that at the same time of the homicide, the sister of deceased was killed by the defendant, there was no error to show the circumstances attending the killing of both, and the wounds that were inflicted.</p> <p>3. —Same—Evidence—Tone of Voice.</p> <p>Upon trial for murder it was competent for the witness to state the tone of voice in which the parties may have expressed themselves, whether an angry tone or otherwise.</p> <p>4. —Same—Confession—One Transaction—Res Gestae—Motive.</p> <p>Upon trial for murder, where the evidence showed that the killing of deceased and her sister at the same time by the defendant was one transaction, the confession of defendant relating to the killing of both, after being properly warned was admissible to show the animus, motive and intent of defendant in killing the deceased.</p> <p>5. —Same—Evidence—Impeaching Defendant’s Witness—Did Mot Remember.</p> <p>Upon trial for murder where defendant’s witness testified that defendant was drunk on the day of the homicide; and upon cross-examination stated that he did not remember whether he had stated to the impeaching witness that the defendant was not drunk on said day, there was no error in permitting the State to prove by the impeaching witness that defendant’s said witness on said occasion told him that the defendant was not drunk on the day of the homicide.</p> <p>6. —Same—Charge of Court—Recent Use of Ardent Spirits—Temporary Insanity.</p> <p>Where upon trial for murder the court instructed the jury that if defendant was laboring under temporary insanity because of the recent use of ardent spirits, they might consider the same for the purpose of determining the degree of murder of which they might find him guilty, and in mitigation of the penalty attaching to the offense; and that in murder in the first degree the intent to kill must have been formed with a calm cool, deliberate mind, and if defendant slew deceased when his mind was not cool but disturbed by passion he would be guilty of murder in the second degree, there was no error in refusing a requested charge calling the attention of the jury to a disturbed mind produced by the use of intoxicating liquor. Following Evers v. State, 31 Texas Grim. Rep., 318.</p> <p>[Motion for rehearing overruled at Tyler without written opinion, November 8, 1906.—Reporter.]</p>

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

Shelby. Tried below before -the Hon. James I. Perkins. Appeal from a conviction of burglary; penalty, three years imprisonment in the penitentiary. Besides the facts stated in the opinion by Judge Brooks, the facts constituting the acts of cruelty in extorting the confession from defendant and his codefendants are fully set out in the concurring opinion of Presiding Judge Davidson.

From Fayette County. Original application for a writ of habeas corpus to suspend sentence of death pronounced upon relator at a special term of the district court, under a judgment of conviction for rape entered at a regular term of the district court. The opinion states the case.

<p>Theft—Statement of Facts—Mandamus—Want of Diligence.</p> <p>Where upon appeal from a conviction of theft of property over the value of $50, the statement of appellant’s counsel did not show diligence on his part to see that an order of the court authorizing the stenographer to make up a transcript of the evidence was properly entered upon the minutes of the court; followed up by an effort to get the stenographer to make up the statement as required by law, the same did not authorize the writ of mandamus requiring the district judge to send up the evidence.</p>

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

Prosecutrix testified that defendant grabbed hold of her arm and took her into another room, jerking her around, and said, “Yes, Miss Bitch, T have come, I have come to kill you, and you are not going to stay here and make any money in this town.” After a few more words between them, defendant hit her and then took a razor out of his hip pocket and cut her; that the prosecutrix ran down the street and defendant ran after her, and caught her, repeating the same language,…

<p>1. —local Option—Jury and Jury law—Private Prosecutor.</p> <p>Where upon trial for a violation of the local option law, it developed after the jury had been empaneled that two of the jurors were related to the prosecuting witness within the third degree and that they and the witness were members of a committee who had employed counsel to prosecute violations of the local option law, there was no error in not excusing the jurors and to proceed with the trial.</p> <p>2. —Same—Evidence—Search Warrant—Discovery of Concealed liquor.</p> <p>Upon a trial for a violation of the local option law there was no error in admitting testimony that the witness under a search warrant had made search of defendant’s premises where the whisky was alleged to have been sold, and that he found a number of pint bottles of whisky similar in size, appearance and labels to the bottle sold prosecutor, concealed under the floor of defendant’s restaurant.</p> <p>3. —Same—Impeaching Testimony.</p> <p>Where upon trial for a violation of the local option law, all of the impeaching testimony which was of importance was admitted by the court, there was no error in excluding certain statements made by deiendant.</p> <p>4. —Same—Evidence—Bill of Exceptions.</p> <p>Upon appeal from a conviction of a violation of the local option law where the bill of' exceptions did not suggest that the facts connected with the defendant’s refusal to receive money from another who found it on the table in defendant’s restaurant, was not permitted to go to the jury, the same could not be considered; besides it is' not believed that this testimony was admissible.</p>

From Wood County. Original application for habeas corpus for release from a commitment upon a conviction of disturbing religious worship. The .opinion states the case.

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

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

<p>1.—Murder in First Degree—Argument of Counsel—Defendant’s Failure to Testify.</p> <p>Üpon trial for murder where the State’s counsel in his argument used the following language: “What is the testimony on the part of the defense to meet this? (referring to the circumstances surrounding the homicide). Why gentlemen, they are as silent as the grave, which trust he will soon fill (pointing at defendant).” Held, that the expression was of a general character, and not a reference to defendant’s failure to testify.</p> <p>3.—Confession—Intimidation—Promise—Fruits of Crime Found.</p> <p>Upon a trial for murder where defendant objected to the introduction in evidence of his confession, and upon appeal this matter was not presented properly by any bill of exceptions, it could not be considered; however, by an inspection of the statement of facts it appeared that the fruits of the crime were discovered, and this rendered the confession admissible, even if undue means were used to induce the confession.</p> <p>3. —Same—Charge of Court—Felonious Homicide.</p> <p>Where upon trial for murder there was nothing in the case to reduce it below murder in the first degree, it was not necessary for the court to state in his charge the excusable or mitigating circumstances which reduced the offense to lower degrees of felonious homicide.</p> <p>4. —Same—Malice Aforethought—Definition of Malice.</p> <p>Where upon trial for murder the court’s charge on murder in the first degree applied the law to the facts, and there was a sufficient definition of malice aforethought to cure the defect in the general charge upon the subject under the facts of the case, which was a homicide in the perpetration of robbery, the same was sufficient.</p>

<p>1. —Theft—Arrest of Judgment—Two Days.</p> <p>After a conviction of theft, a motion in arrest of judgment more than two days after the verdict and judgment came too late.</p> <p>2. —Same—Statues Construed—Complaint—Signature of Affiant.</p> <p>Article 467, Code Criminal Procedure, does not require that the complaint upon which the information is based should be signed by the affiant. However, even if article 257, Code Criminal Procedure, requires such signature, and a motion to quash might have been entertained, a motion in arrest of judgment because affiant could have signed his name but only made his mark, could not be entertained.</p> <p>3. —Same—Possession—Ownership.</p> <p>Where upon trial for theft of a pistol the evidence showed the same to have been pawned to the person alleged to be the owner thereof, and was in his possession at the time of the taking, there was no error.</p> <p>4.—Same—Tender of Money—Charge of Court.</p> <p>Upon trial for theft of a pistol where the evidence showed that the pistol was taken without the knowledge or consent of the prosecutor and secreted by the defendant, tender of money due as charge on said pistol for which it was pawned and refusal of same, was not a defense.</p>

<p>Injuring Fence of Another—Crossing River in Boat.</p> <p>Where upon trial for knowingly injuring the fence of another, the testimony showed that defendant was in the habit of crossing the river in the prosecutor’s boat, and that the latter had permitted the general public to do so, but that a month or so before the alleged transaction had locked the boat by a chain to his fence, and had no longer permitted the use of it by the public; but that defendant still believed lie had a right to use the boat and that the same belonged to the county, or was under its supervision. Held, there was no offense if defendant acted in good faith in using the boat, although this might have involved the breaking of the fence.</p>

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

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

Tried below before the Hon. Bobert Berger. Appeal from a conviction of unlawfully playing at a game with cards; penalty, a fine of $25.

<p>1.—Unlawfully Carrying Pistol—Carrying Pistol Home—Charge of Court.</p> <p>Upon a trial for unlawfully carrying a pistol where there was evidence that defendant got the pistol expecting to carry it home, but walked around to various places and went into a public gathering with it, the court correctly charged that defendant would have the right to carry his pistol home, but it was his duty to proceed home with it in a reasonable time, and upon the commonly pursued route; and he did not have the right to make unnecessary departure from his direct route or to visit places with bis pistol, which in the exercise of his right to carry his pistol home, it was not necessary to visit.</p> <p>3.—Same—Charge Refused—Presumption of Knowledge of the law.</p> <p>Upon trial for carrying a pistol unlawfully, there was no error in refusing a special charge that if defendant had no intention of violating the law, to acquit him. Defendant was presumed to know the law.</p>

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

<p>Murder in First Degree—Manslaughter—Paramour.</p> <p>On trial for murder where the evidence showed that defendant killed deceased, who was his paramour, because she refused to talk to him or continue illicit relations with him, the issue of manslaughter was not raised thereby.</p>

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

<p>1. —Rape—Marriage license—Loco Parentis—Environments.</p> <p>Upon trial for rape, there was no error in admitting in evidence the marriage license, and other evidence of marriage of defendant and the prosecutrix mother. Where a defendant stands in loco parentis and takes advantage of this to seduce and have carnal intercourse with a female in his charge and under age of consent, it would be a circumstance that the jury may consider; besides the infliction of the lowest penalty showed that the jury were not prejudiced by such testimony.</p> <p>2. —Same—Evidence—Husband and Wife—Identification.</p> <p>AVhere upon trial for rape, during cross-examination of defendant, his wife was brought into his presence for the purpose of identifying her as his wife, there was no error; besides no injury was shown to defendant on this account.</p> <p>3. —Same—Hearsay—Bill of Exceptions—Practice on Appeal.</p> <p>Upon an appeal from a conviction for rape, where the record showed that appellant objected upon the trial to the introduction of testimony that he was going under an assumed name, as hearsay, but the bill of exceptions did not sufficiently raise this question, the same could not be considered. The mere objection to testimony without properly reserving exceptions is not sufficient.</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>Incest—Insufficiency of Evidence.</p> <p>Where upon trial for incest the testimony for the State simply raised a suspicion, and was not corroborated by facts that could have been easily obtained, the same was not sufficient to sustain a conviction of incest.</p>

<p>1. —Murder—Manslaughter—Special Venire—Statute Construed.</p> <p>The Act of the Twent-y-Ninth Legislature, page 17, article 3159a, does not change the venire law which requires the name of all the veniremen to be placed in a box prior to the drawing of the venire. Following Mays v. State, 50 Texas . Grim. Rep., 165; 16 Texas Ct. Rep., 482.</p> <p>2. —Variance—Name of Deceased—Spelling in Indictment.</p> <p>Where upon trial for murder the indictment alleged the name of deceased as Dirarvo and the testimony showed that the name was pronounced, De-sali-vo, but the witnesses admitted that the name was properly spelled in the indictment, there was no error.</p> <p>3. —Charge of Court—Self-Defense—Character of Deceased.</p> <p>Where upon trial for murder there was no evidence that defendant had any knowledge of the character and disposition of the deceased, it was error to include this feature in the court’s charge on self-defense. It was a matter of indifference to defendant whether deceased was a dangerous man or not; he had. I he right to defend against an assault by deceased. Following Hickey v. State, 45 Texas Grim. Rep., 297.</p> <p>4. —Charge of Court—Self-Defense—Pari Materia.</p> <p>See opinion for a charge of court on self-defense enumerating certain facts, which was not error when considered in connection with the whole charge.</p>

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

Tried below before the Hon. B. H. Gardner. Appeal from a conviction of arson; penalty, seven years imprisonment in the penitentiary.

<p>1. —Forgery—Passing Forged Instrument—Other Offenses.</p> <p>On a trial for passing a forged instrument, it was error to permit the State to introduce subpeenses issued to different counties for witnesses whose names are said to have been signed to certain alleged forged instruments growing out of the main forgery, to show by the returns of such subpeenses that the parties could not be found and were therefore fictitious persons. Such testimony was totally irrelevant, immaterial and prejudicial.</p> <p>2. —Same—Evidence—Letters—Due Course of Mail.</p> <p>Upon a trial for passing a forged instrument, it was error to admit the introduction in evidence of some letters purporting to have been signed by the defendant, without proving their genuineness; and the fact that they were received in due course of mail was not a sufficient predicate for. their introduction in evidence.</p> <p>3. —Same—Privileged Communication—Attorney and Client.</p> <p>Upon a trial for passing a forged instrument where the introduction of certain letters alleged to have been written by defendant or by his authority, was questioned, the fact that they had been written by the defendant’s attorney at his request should have excluded them on that ground; and if written by the attorney’s own volition they were not authorized by the defendant and therefore inadmissible. Neither were letters admissible which were supposed to have been written by defendant’s wife in his absence, and which were not connected up to show that they were written at his request.</p> <p>4. —Same—Charge of Court—Other Offenses—Weight of the Evidence.</p> <p>Upon a trial for passing a forged instrument where there was evidence of collateral forgeries and passing forged instruments, the court should have charged the jury that before they could consider any collateral matters growing out of the main transaction or connected with it as evidence against defendant, even bearing upon Ms intent, motive, etc., the alleged collateral forgeries must be found to be forgeries before the)' could be considered as collateral crimes.</p>

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

<p>Burglary—Explanation of Defendant—Insufficiency of Evidence.</p> <p>Where upon trial for burglary the defendant stated, when asked to explain, that he was drunk and went to sleep in the house alleged to have been burglarized, and such explanation was not in any material point controverted by the State’s testimony, the same was insufficient to sustain a verdict of conviction.</p>

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

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

<p>1. Murder in First Degree—Declaration of Bystander—Res Gestae.</p> <p>Upon a trial for murder, there was no error in refusing to permit defendant to introduce testimony as to declarations of bystanders which occurred immediately after and near the place of the homicide; the declarant not having participated in the transaction. This was not res gestae.</p> <p>2. —Evidence—Hearsay.</p> <p>Where upon trial for murder the evidence showed that sometime before the homicide there was an altercation between deceased and defendant’s friend about some old debt, it was error to admit the declarations of deceased with reference to said debt made after said altercation and in absence of defendant, and which said declarations had never been communicated to the defendant..</p> <p>3. —Stenographic Notes—Impeaching Testimony.</p> <p>Upon a trial for murder there was no error in permitting the stenographer to read from his notes taken at the habeas corpus trial, for the purpose of impeaching the witness for defendant; the stenographer having sworn to the accuracy of his notes.</p> <p>4. —Same—Evidence—Remoteness of Other Crimes—Credibility of Witness.</p> <p>On a trial for murder it was improper to introduce testimony attacking the credibility of a witness, by showing that he was indicted of a felony some twenty years before.</p> <p>5. —Impeaching Testimony—Rebuttal—Supporting Testimony.</p> <p>Where upon trial for murder the State had introduced testimony of some remote offenses against defendant’s witness to impeach him, and that the county attorney had produced the stenographic report of said witness’ testimony at a previous trial, to show that he had sworn differently to what he had on the trial, it was error to refuse defendant to introduce testimony showing that his said witness had immediately after the homicide stated that he was an eye-witness to the killing, etc., and that the man who did the killing had done so in self-defense, which was a similar statement to the one the witness had made upon the trial.</p> <p>6. —Same—Motive—Manslaughter—Charge of Court.</p> <p>Where upon trial for murder the evidence showed that the State’s theory was that defendant became angry on account of a difficulty between his friend and deceased; that he then formed the intent to kill deceased, and went after a gun and shot and killed him; and the theory of defense was that he got this gun to keep it out of the way of his friend and that he accidentally met deceased who drew a pistol upon defendant and his friend, and that then defendant snatched the gun out of his son’s hand and killed deceased, and there was no evidence that defendant and deceased were acquainted; the court erred in not charging on manslaughter.</p> <p>7. —Same—Charge of Court—Provoking the Difficulty.</p> <p>Where upon trial for murder the court charged on provoking the difficulty but failed to instruct the jury that unless defendant had the intention of killing, he would not be guilty of any higher grade of defense than manslaughter, there was error.</p>

<p>1. —Swindling—Information—Promise in Future.</p> <p>Where in a prosecution for swindling, the information charged that defendant represented to the prosecutor that a third party had agreed to go on a note with him to secure $10 for which prosecutor would treat his teeth, this was a representation of an existing fact, and not a promise in the future; and where there was an allegation in the information that prosecutor was induced by the representations of defendant to part with his property, it was not necessary to further allege that he relied on the false representation so made.</p> <p>2. —Same—Insufficiency of Testimony.</p> <p>Where upon a trial for swindling the evidence showed that the defendant had made representations to the prosecutor that certain parties would go on defendant’s note as security to secure the prosecutor the $10 for work and material in treating defendant’s teeth, but that these parties declined to go on said note, after the work was done. Held, that there were no false representations by defendant; what happened subsequently was beyond his control.</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>local Option—Accommodation loan—Sale—Charge of Court.</p> <p>Upon a trial for a violation of the local option law, where the evidence showed that the prosecutor was ill and approached defendant to let him have some whisky, which the latter refused; that prosecutor then asked defendant to order him some whisky and gave him the money for that purpose; that prosecutor again asked appellant to loan him a pint of whisky until his whisky arrived and that defendant complied with said request; that both defendant and prosecutor stated that it was not a sale but a loan. Held, that this was no defense to the alleged sale and the court was not required to charge on that subject. Following Tombeaugh v. State, 50 Texas Grim. Rep., 286. Davidson, Presiding Judge, dissenting.</p>

From Wood County. Original application for habeas corpus for release from commitment for a conviction of a misdemeanor, on the ground that the information was defective.

<p>1. —Murder—Practice in District Court—Codefendant.</p> <p>Upon a trial for murder, there was no error in not permitting defendant’s codefendants, who were confined in the jail, to be brought into the court room during the progress of the trial in order that defendant and his counsel might successfully cross-examine the witnesses, who were to testify to the acts and declarations of said codefendant.</p> <p>2. —Same—Declarations of Third Parties in Absence of Defendant—Conspiracy.</p> <p>Upon trial for murder, certain acts, conduct and statements of one of defendant’s codefendants, occurring in his absence long after the killing, were not admissible, and could not show conspiracy.</p> <p>3. —Same—Charge of Court—Principal.</p> <p>Where the indictment merely charged the defendant with the murder of deceased, the court should have charged the offense in the words of the indictment, and not that he was charged as principal.</p> <p>4. —Same—Charge of Court—Intent—Criminal Responsibility.</p> <p>It is a well known rule of law in Texas that the accused is only bound to answer in the courts of this State to his own felonious or unlawful intent, and that the intent of his codefendant, unless he adopts the same and acts with the same intent, does not bind him at all; and he might be a principal in the sense of a participant to a killing, and his criminality or grade of punishment might be very different from his codefendant.</p> <p>5. —Same—Knowledge of Unlawful Intent—Defense of Another—Charge of Court—Principal of First or Second Degree.</p> <p>Upon trial for murder, where the evidence showed that deceased was on top of defendant’s son, some forty or fifty yards away from him; that the defendant was informed that deceased had his son down killing him, and to come to his rescue; that defendant and another immediately hastened to the scene of the difficulty; that appellant drew his pistol and struck deceased knocking him off of his son; that there was no testimony that defendant at any time fired at deceased or that he knew anything about the difficulty before he was informed to come to his son’s rescue, and that deceased was killed by the party accompanying defendant in self-defense, it was reversible error to impute the condition of his codefendant’s mind to the defendant, without regard as to whether defendant was principal of the first or second degree, or whether he acted without either intent in the defense of his son.</p> <p>6. —Same—Provoking Difficulty—Manslaughter.</p> <p>On trial for murder, where the evidence showed that defendant interfered in behalf of his son who was held down on the ground by deceased, without knowing who provoked the difficulty, it was error to charge on provoking the difficulty, especially without submitting the question as to whether defendant knew whether his son provoked the difficulty and approved of such action; and without submitting the converse of the proposition, to wit: that if his son, even if he provoked the difficulty, acted without intent to kill, neither would be guilty of any higher offense than manslaughter.</p> <p>7. —Same—Self-Defense—Defense of Another—Charge of Court.</p> <p>Upon trial for murder, where the evidence showed that the defendant acted in defense of his son, the court should have charged the law in regard to the defense of another, and not merely the abstract proposition of law of self-defense, as the defendant would have been entitled to an acquittal in either event.</p>

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

The testimony of the principal State’s witness was that defendant came into his restaurant and asked for a chicken sandwich on credit, which prosecutor refused, whereupon defendant began to curse him; that thereupon prosecutor ordered defendant out of the house; that about an hour afterwards defendant returned tq the restaurant and said he wanted chicken on a credit and prosecutor refused, opened the door and told defendant to get out; that when prosecutor was about to shut…

<p>1.—Bigamy—Charge of Court—Common Law Marriage.</p> <p>Upon a trial for bigamy where the evidence showed a common law marriage, there was no error in the court’s charge that whatever be the form of the ceremony or if there be no ceremony, if the parties agreed to take each other for husband and wife and from that time on live professedly in that relation, proof beyond a reasonable doubt of these facts would be sufficient proof of a marriage binding on the parties.</p> <p>2. —Previous Marriage—Burden of Proof.</p> <p>Upon a trial for bigamy a charge by the court that if the jury believed beyond a reasonable doubt that the defendant was a married man before the second marriage and that his wife was alive at the time of the second marriage, did not shift the burden of proof from the State, and there was no error.</p> <p>3. —Same—Evidence—letters—Husband and Wife—Privileged Communications.</p> <p>Where upon trial for bigamy certain letters were admitted in evidence alleged to have been written by defendant to his first wife, it was error not to have excluded the same upon motion from the consideration of the jury as privileged communications between husband and wife. Distinguishing Crow v. State, 72 S. W. Rep., 392.</p>

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

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

<p>Deceased and defendant and others were at a church party on the night of the homicide. The main State’s witness testified: That the party had broken up and most of them had left; that she saw deceased in the door, before she got to the church house, barefooted and bareheaded, and no top shirt on; that she heard him call one of the boys to go home with him to put his clothes on * * * that he asked his sister what she did with his “pretty,” and she said it was in the trunk, and he got it. * * * The deceased asked witness if he could go home with her; that she refused; that he took hold of her hand and said, “I am going home with you, or else die and go to hell trying.” The deceased walked on one side of the witness and the defendant on the other; witness snatched her hand away and told him she did not want his company; that when they came to where the roads forked, the witness’ aunt told witness which way to go, and when they turned to go that way the deceased said, “All right, we will all go that way—I’m going or die and go to hell trying.” The defendant then asked deceased what was the matter with him, and deceased called him a d- black s— of a b-, and ran around witness towards the defendant, who shot him three times as fast as he could pull the trigger. * * * Witness did not see deceased have any knife or firearms; nor did she see what he took out of his trunk when he asked for his “pretty.” * * * The deceased had his hand back under his coat when he advanced upon the defendant.</p> <p>Defendant testified substantially as the main State’s witness; and in addition stated that he was placed in charge of the State’s witness and her aunt to take them to the supper and back home; that they, defendant and deceased were perfectly friendly before the homicide; that deceased was jerking at something when he made for defendant; and that defendant thought he was drawing a pistol and shot him in self-defense; that deceased was in the habit of carrying a pistol, etc.</p>

<p>Murder—Manslaughter—Misconduct of Jury.</p> <p>Where upon trial for murder, the defendant’s reputation had not been placed in issue, and the record showed that the jury in their retirement had discussed the reputation of defendant as being a bad negro, and that he had been sent to the county convict farm, there was such misconduct of the jury as to constitute reversible error.</p>

<p>local Option—Charge of Court—Internal Revenue liquor license—Prima Facie Proof.</p> <p>Upon trial for a violation of the local option law for selling whisky, the proof showed that the liquor sold was whisky and defendant did not contravene the intoxicating properties of the liquor, but denied a sale; and it was not disclosed in the record whether the United States Interna] Revenue license exhibited in defendant’s place of business was a license to sell malt liquor or spiritous liquors; it will not be presumed that it was a malt liquor license; especially as defendant testified that he got the license when he was being prosecuted before for selling whisky; and there was no error in the court’s charge that such license was prima facie proof that the defendant was engaged in the sale of intoxicating liquor. Distinguishing Uloth v. State, 13 Texas Ct. Rep., 521.</p>

<p>1. —Theft—Change of Venue—Bills of Exception—Twenty-Day Order—Statutes Construed.</p> <p>Upon a trial for theft, on motion for change of venue, where the defendant had not filed his bills of exception to the action of the court overruling his motion for change of venue during the term of court as required by article 621, Code Criminal Procedure, the same could not be considered on appeal, notwithstanding there was a twenty day order permitting statement of facts and bills of exception to be filed after adjournment of court; and the Act of the Twenty-Ninth Legislature relating to statement of facts and bills of exception embodied in stenographic report is controlled by article 621, supra, as to the rule relating to the overruling of motions to change venue.</p> <p>2. —Indictment—Constitutional Requirement.</p> <p>In an indictment containing two counts, one for theft and one for swindling, there was no error in overruling a motion to quash on the ground that the indictment failed to separate the charge of theft from the charge of swindling by distinct counts because the first count did not conclude against the peace and dignity of the State; as this requirement was observed in the concluding part of the indictment.</p> <p>3. —Same—Motion to Elect—General Verdict—Same Transaction.</p> <p>In a prosecution upon an indictment containing two counts, one for swindling, and one for theft, there was no error in refusing to require the State to elect upon which count it would prosecute the case, as both counts charge the same transaction.</p> <p>4. —Same—Charge of Court—Reasonable Doubt.</p> <p>Upon a trial for theft, where the evidence showed that the acts and declarations of the codefendant were a part of the transaction when both parties were present, there was no necessity of charging on reasonable doubt whether these declarations were made in the absence of defendant.</p> <p>5. —Same—Difference Between the Offense of Theft and Swindling.</p> <p>Where upon trial for theft the evidence without controversy showed that the fee in the property alleged to have been stolen was acquired by defendant by means of a false pretext, and not the mere possession of the property, the offense was swindling and not theft, and defendant could not be convicted of theft. It is only in such cases where the facts show that it is a swindle and does not come within the meaning of theft, that a prosecution for swindling can be maintained, following: Witherspoon v. State, 37 S. W. Rep., 433; Hirshfield v. State, 11 Texas Grim. App., 207. Overruling Sims v. State, 21 Texas Grim. App., 649.</p>

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

<p>1.—Murder in First Degree—Dismissal—Codefendant—Severance.</p> <p>Where upon trial for murder, defendant presented a motion to have his codefendant placed upon trial first so as to use his testimony, whereupon the State dismissed the case against said codefendant and did not place him on the witness stand though requested by defendant to do so, so that he might have had the benefit of cross-examination, and did not give immunity against further prosecution against said codefendant, the same was reversible error,. Overruling: Brown v. State, 42 Texas Grim. Rep., 176. Following: Wolf v. State, 46 Texas Grim. Rep., 231; Follis v. State, id., 203.</p> <p>8.—Same—Character of Deceased—Argument of Counsel.</p> <p>Where upon trial for murder the State’s counsel on cross-examination of defendant asked him whether he did not know that the deceased was a peaceful man who did not resent even insults, and other questions of a similar import, which were answered in the negative over defendant’s objection that this was proving the peaceful character of deceased in the absence of an attack by defendant on such character; and the State’s counsel also commented on said testimony in his argument over defendant’s objection. Held, reversible error.</p> <p>3.—Conduct of Jury—Clothes of Deceased—Jury Boom.</p> <p>Upon a trial for murder, where the record showed that the clothes of deceased were introduced in evidence for the purpose of locating the position of the right arm of deceased at the time he was shot, and such examination of said clothes had been interrupted and not completed during the trial, and the court permitted the jury in their retirement to take said clothes with them; and it appeared from the' record that the jury had made use of said clothes in the jury room to illustrate the position in which deceased held his arm when he was shot, and that one of the jurors tried to put on these clothes and became sick; and it was not shown clearly that said clothes were used for any other purpose than that for which the same were introduced in evidence. Held, while not reversible error that great caution should be used In permitting this practice, and that the better practice is that such clothing be only used before the jury in open court; and then only to establish or, make clear some point in the case.</p> <p>4. —Same—Conduct of Jury—Qualifications of Jurors.</p> <p>See opinion for facts showing that certain jurors who tried defendant were fair and impartial, and there was no error that the trial court so held.</p> <p>5. —Same—Argument of Counsel.</p> <p>Where upon trial for murder, the argument of State’s counsel was objected to as a reflection on the jury and that the same was calculated to terrify them and to drive them into a verdict of murder in the first degree, and the record tends to bear out this construction such argument was unauthorized.</p> <p>6. —Same—Charge of Court—Manslaughter—Self-Defense—Provoking the Difficulty.</p> <p>Upon a trial for murder where the evidence showed that defendant shot deceased upon an insult by deceased, and there was also evidence on self-defense and provoking the difficulty, there was no necessity of charging on manslaughter, and the question was whether the defendant was guilty of either murder in the first or second degree, and a charge on provoking the difficulty was correctly submitted.</p>

<p>1. —Local Option—Other Sales—Minimum Pine—Harmless Error.</p> <p>•Where upon trial for a violation of the local option law, the State proved over defendant’s objection that about an hour and a half prior to the alleged sale for which defendant was tried, the witness bought a bottle of whisky from defendant; and there appeared to be no system about -the sale for which defendant was tried, the court should not have charged on the question of system; however, as the minimum fine was assessed, and the above testimony could not have injured defendant’s right, the error was harmless.</p> <p>2. —Same—Argument of Counsel—Bill of Exceptions.</p> <p>Where upon appeal upon a conviction for violating the local option law, the •bill of exceptions merely showed an objection of appellant’s counsel to the argument of the State’s counsel to the effect that defendant’s counsel were trying to prevent the enforcement of the local option law, without a certification by the court that there was no provocation on the part of State’s counsel to indulge in this remark, there was no error.</p> <p>3. —Same—Judicial Knowledge—Words and Phrases.</p> <p>An objection to the argument of State’s counsel that the defense was hatched up by “bootleggers,” without showing what is meant by this term, the court cannot take judicial knowledge as to what it means, or that such statement injured defendant.</p> <p>4. —Same—Response to Argument.</p> <p>Where the argument of the county attorney was nothing but a retort and reply to what defendant’s counsel had stated, there was no error.</p>

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

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

<p>Murder in First Degree—Manslaughter—Insulting language—Female Relative.</p> <p>Upon a trial for murder where the testimony showed that the deceased, who was defendant’s mistress, stated to defendant just before the homicide, that defendant was keeping his cousin as his mistress and giving deceased’s clothes to her, etc., -the court- should have charged on manslaughter .based upon insulting language, in regard to a female relative.</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>1. —Murder in Second Degree—Dying Declaration—Voluntary Statement.</p> <p>Upon a trial for murder where the evidence showed that deceased was conscious of approaching death; that his mind was in proper condition to make a statement in regard to the homicide; that he first made the statement orally, and subsequently on the next day he made a statement which was taken down in writing in response to questions that did not appear to suggest any desired answer, there was no error.</p> <p>2, —Same—Place of Homicide—Uncontroverted Fact.</p> <p>Upon trial for murder, where there was no controversy that the homicide occurred at a particular place, there was no error for a witness to describe a place pointed out to him as the one where the homicide occurred.</p> <p>3. —Charge of Court—Temporary Insanity—Whisky—Morphine—Statutes Construed.</p> <p>Upon trial for murder where the evidence showed that at the time of the homicide the defendant had drunk heavily of alcohol mixed with water, and that he had taken two tablets of morphine on the day of the homicide, and that the defendant had been using morphine for some time prior and that the effects of whisky and morphine would render him insane, the court should have charged the jury under article 41, Penal Code, and the decisions thereon that if defendant was insane at the time of the homicide from the use of morphine or from the combined use of whisky and morphine to such an extent that he did not know what he did was wrong, to acquit him. See charge of court which did not submit the law properly in the premises.</p> <p>4. —Same—Burden of Proof.</p> <p>See opinion for a charge of the court which, though not artistically drawn, was not subject to the criticism that it cast the burden of proof on defendant. ■</p>

<p>1. —Theft of Horse—Misconduct of Jury—Defendant's Failure to Testify.</p> <p>Where upon trial of theft of a horse the defendant did not -testify, and the jury in their retirement, before reaching a verdict discussed the matter of defendant’s failure to testify, the verdict must be set aside.</p> <p>2. —Same—Charge of Court—Fraudulent Taking—Permanent Appropriation.</p> <p>On trial for the theft of a horse where the evidence showed that defendant had escaped from a county convict farm; that in the pursuit by the officers, to escape arrest, he took the horse in question, rode him. awhile and then turned him loose, it was error to charge that if defendant abandoned the horse because the horse would go no further, to find him guilty if he took him fraudulently.</p> <p>3. —Same—Former Jeopardy—Defective Indictment.</p> <p>Upon trial for the theft of a horse where defendant pleaded former jeopardy and showed that he had been placed on trial for the same transaction under a different indictment, which indictment alleged the ownership of Paker, and also alleged want of consent of Parker, and that after plea of not guilty upon said former indictment defendant called the attention of the court to the variance in said owner’s name, the “r” having been left out in one name; and that thereupon the said indictment was quashed; and that the indictment upon which the defendant was being tried contained the name of Parker throughout. Held, that defendant could not avail himself of this matter, for the reason that he secured the quashal of the first indictment, even if the former indictment had been good.</p>

<p>1. —Carrying Pistol—Arrest—Confession—Act of Defendant,</p> <p>Upon a trial for unlawfully carrying a pistol, where the evidence showed that • the officers of the law had defendant under arrest when he made certain statements denying having a pistol; and the officer testified that just before they arrested him the defendant threw away the pistol; these matters should have been excluded.</p> <p>2. —Same—Evidence—Explanation by Defendant.</p> <p>In a trial for unlawfully carrying a pistol, it was error to exclude the testimony of the defendant that he bought the pistol during the day previous to his being found with it by the officers, and that at the time he was arrested by them he was carrying it from his restaurant to his home, etc. He had a right to purchase the pistol and to carry it home.</p>

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

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

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

The testimony for the State showed that defendant had been on the premises of the owner of the horse several times before the theft, hunting work; that the alleged stolen horse was taken out of the owner’s lot, as he was left there on the night before the taking and the next morning he was gone; that a day thereafter the defendant was seen riding the horse in another county, when he was pursued and the horse was taken from him; that defendant fled into a thicket, where he…

<p>1. —Forgery—Misconduct of Jury—Defendant as a Witness.</p> <p>Upon a trial for forgery where the record on appeal showed that the jury commented on the fact that defendant did not testify on the trial, and that at this time they had not agreed upon appellant’s plea of insanity, but had agreed upon his guilt. Held, that the jury could not agree upon defendant’s guilt, until they had found him to be sane, and that an allusion to defendant’s failure to testify injured his rights, as the issue of his sanity was sharply made.</p> <p>2. —Same—Charge of Court—Insanity—Preponderance of Proof.</p> <p>Where upon a trial for forgery the defense of insanity was interposed, the court properly charged that the burden of proving such insanity was upon the defendant to the satisfaction of the jury by a preponderance of evidence.</p> <p>3. —Same—Non-Expert Opinion—Predicate.</p> <p>Upon a trial for forgery, there was no error, where the witness first related the facts to some extent upon which he predicated his opinion of the sanity or insanity of defendant, to admit his opinion. A non-expert witness should relate in detail the facts upon which he predicates his opinion, before such opinion is given to the jury.</p>

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

<p>1. Theft of a Horse—Charge of Court—Consent of Owner.</p> <p>Where upon trial for theft the evidence showed that the horse alleged to have been stolen was taken by the defendant and others including the person who was left in charge of the animal and who had legal possession of the same, the offense if any, was embezzlement and not theft and the court erred in not giving the requested instruction that defendant would not be guilty of theft if he had authority from said agent to take the horse.</p> <p>2. _Same—Jurisdiction—Pleading—Venue—Theft—Statutes Construed—Waiver.</p> <p>Under articles 235 and 240. Code Criminal Procedure, which provide that in cases of. embezzlement and theft the offender may be prosecuted either in the county where the property was taken or received, or in any county through or into which he may have undertaken to transport it, such language does not mean that a person shall be indicted or that he may be indicted in every county where he has been in possession of the property, and the jurisdiction or venue attaches in the county where the prosecution is first begun, and the defendant may set up by proper pleading the question of jurisdiction, or he can waive such right.</p> <p>3. —Same—Case Stated—Plea to Jurisdiction.</p> <p>Where upon trial for theft of a horse, defendant filed a pleading in limine calling the court’s attention to the fact that he was indicted for the same transaction in another county, through which he was alleged to have carried the property, and which indictment was presented prior to the indictment upon which he was about to be tried, and that therefore that court had acquired jurisdiction, and that he was under an appearance bond to appear in said county, and that therefore the court a quo had no jurisdiction to try him. Held, that the court erred in overruling said plea. Overruling Schindler v. State, 15 Texas Crim. App., 394.</p> <p>4. —Same—Special Plea.</p> <p>Wherever constitutional rights are involved, the accused is authorized to interpose special pleas.</p>

<p>1.—Seduction—Subsequent Marriage—Indictment—Constitutional Law.</p> <p>In a prosecution for seduction where the record showed upon appeal that appellant was indicted for seduction, and within nine days thereafter married the alleged seduced female; that when the case was called for trial it was postponed upon motion of the district attorney under the Act of the Twenty-eighth Legislature, page 221; that some five months thereafter appellant was placed upon trial because he had not been living with his said wife according to the terms of said act, and the prosecution was revived thereunder, the State contending abandonment and defendant proving the contrary. Held, that under section 10, article 1, of the bill of rights said part of the act of the Legislature is void; besides the abandonment of a wife is not defined by the Legislature to be seduction, and could not be. Brooks, Judge, dissenting.</p>

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

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

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

From. Henderson County. Original application for habeas corpus for release from a commitment . upon a fine for misdemeanor, and refusal of justice of the peace to permit filing of appeal bond on appeal to county court.

<p>1. —Burglary—Accomplice—Charge of Court.</p> <p>Where upon trial for burglary the evidence showed that the defendant was under 13 years of age when the offense was committed; that the harness alleged to have been stolen was new and had cost the owner $26 and that the State’s witness claimed to have bought it from defendant for $1; that said witness was a grown man, in business and must have known that the price he paid for said harness was inadequate, the court should have charged on accomplice’s testimony.</p> <p>2. —Same—Nonage—Burden of Proof—Illegality of Act.</p> <p>In a prosecution for burglary where the evidence showed defendant to be under 13 years of age, it devolved upon the State to show that he had discretion to understand the nature and illegality of the act constituting the offense. Article 34, Penal Code, was enacted as a protection for children who are within the prescribed limits of the statutory nonage. That the defendant knew right from wrong or possessed ordinary intelligence was not sufficient.</p> <p>3. —Same—Confession—Arrest—Warming—Declarations of Third Parties.</p> <p>Upon trial for burglary, it was error to admit the testimony as to declarations between the officer who had defendant under arrest and the State’s witness in the presence of defendant, to the effect that the witness purchased the alleged stolen property from the defendant and that defendant remained silent as to such conversation, although he was duly warned.</p> <p>4. —Same—Circumstantial Evidence—Corroboration.</p> <p>Upon a trial for burglary, where the accomplice testified to the fact that defendant sold to him the alleged stolen property, such testimony required corroboration before a conviction could be sustained.</p> <p>5. —Same—Age of Defendant—Reformatory—Verdict.</p> <p>Where upon trial for burglary the evidence showed that the defendant was under 13 years of age, and the verdict assessed his punishment at two years in the State reformatory, without finding the age of defendant, the verdict was defective.</p>

<p>1. —Scire Facias—Offense Must be Named—local Option.</p> <p>Where in a scire facias proceeding in the county court no offense was named in the bond, in the nisi judgment, or the judgment final, except that it stated the offense: “violating the local option law,” the bond and judgment were insufficient. This is not an offense eo nomine.</p> <p>2. —Retaxing Costs in Scire Facias.</p> <p>Where upon appeal from the county court to this court, a scire facias case was reversed and dismissed, and a judgment rendered on the bail bond in this court against the principal and the sureties for costs, and thereupon on motion to retax costs the plaintiff in error claimed that he was not liable for costs on said bail bond. Held, that' the clerk is entitled to his costs as if the judgment had been affirmed, and the rule in civil cases governs. However, as the clerk is entitled to such fees only as in civil eases the costs will be retaxed.</p>

<p>1. —Saloon—Charter and. City Ordinance—Constitutional Law—Occupation Tax,</p> <p>Where upon trial of unlawfully locating and maintaining a saloon in a city with a special charter prohibiting the same to be located outside of certain limits in said city, the evidence showed that the defendant had an occupation tax license from the State and county. Held, that said charter was not in contravention of the general occupation tax laws, and was not an unconstitutional delegation of legislative authority.</p> <p>2. —Sale of Liquors in Incorporated City—Prohibition.</p> <p>The designation of localities within a city under a special charter where the sale of intoxicating liquor is inhibited is not prohibition but regulation of the sale, and such city may make reasonable regulations as to where within its limits the sale of liquor may occur; although a general and entire prohibition would be unauthorized.</p> <p>3. —Same—City Council—Sale of Intoxicants—Exceptions.</p> <p>A special charter of a city which authorized the city council to prohibit the sale of intoxicating liquors to be drunk on the premises outside of certain limits in such city, was not void because it inhibited said council from passing a law prohibiting the sale of intoxicants upon land owned by the city.</p> <p>4. —Same—Boundaries—Complaint—Indefinite Description—Question of Pact.</p> <p>Where upon a trial for unlawfully establishing and maintaining a saloon in a city limiting such saloons to a certain territory by virtue of a special charter, the objection was raised that the boundaries of such territory set out in the charter, were too indefinite and the lines and calls thereof did not close. Held, that this was a question of fact, and there being no evidence that said calls did not close said objection was untenable.</p> <p>[Motion for rehearing overruled March 13, 1907, without written opinion.—Reporter.]</p>

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

<p>1. —Burglary—Evidence—Other Crimes—B.es Gestae.</p> <p>Where upon trial for burglary the State was permitted to show that the officer had taken from the codefendants of defendant certain stolen articles which had been taken during the commission of other burglaries, and were not identified as the property taken during the burglary for which the defendant was being tried, the same formed no part of the res gestEe and threw no light on any issue in the case, and such evidence was inadmissible.</p> <p>2. —Same—Burglar’s Tools—Argument of Counsel.</p> <p>Upon trial for burglary it was not permissible for the county attorney to argue that a certain bunch of keys introduced with other articles in evidence were burglar’s tools, there being no evidence that they were.</p> <p>3. —Same—Evidence—Other Offenses—Res Gestae—System.</p> <p>Upon trial for burglary it was error to permit the State to prove a confession made by defendant to the effect that he had taken the goods found upon his person, not out of the house alleged to have been burglarized, but out of the store of a party not alleged in the indictment. Proof of distinct crimes other than the one on trial is not admissible unless it is res gestae, or serves to identify the defendant or to prove intent or system, although they may have been contemporaneous.</p> <p>4. —Same—Misconduct of Jury—Separation.</p> <p>Where upon trial for burglary it was not shown, in the record on appeal, that the jurors who separated from the main body to go to a water closet unattended, conversed with any one about the facts of the case, there was no reversible error. However, such practice is to be discouraged.</p>

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

<p>1. —Murder in Second Degree—Evidence—Character of Deceased.</p> <p>Upon trial for murder where defendant testified that deceased made a demonstration toward him just before he shot him in the dark, and that he thought deceased might be going to cut him with a knife, there was no error in cross-examination to ask the defendant whether he ever knew deceased had. tried to cut anybody with a knife, which he answered in the negative. This did not put the character of deceased in issue.</p> <p>2. —Same—Charge of Court—Manslaughter—Insult to Female Relative—Time of Provocation.</p> <p>Upon trial for murder where the evidence showed that the sole cause for reducing the homicide to the grade of manslaughter was insulting words or conduct towards a female relative communicated to defendant, it was error to instruct the jury that the provocation must have occurred at the time of the homicide.</p> <p>3. —Same—Charge of Court—Adequate Cause—Truth of Insult.</p> <p>Upon a trial for murder where the evidence showed that the deceased had attempted illicit intercourse with defendant’s wife, and that this was interposed as a defense, there was no error in the court’s charge that if the jury believed that defendant had been informed that deceased had been guilty of insulting words and conduct to defendant’s wife, etc., as being too restrictive in confining adequate cause to an actual insult.</p> <p>4. —Same—Charge of Court—Different Communications Regarding Insult.</p> <p>Where upon trial for murder the evidence showed that the first communication which defendant received of the insult by deceased to his wife was of a very general character, and that the second communication was given to him by his wife in a direct way, after defendant had met deceased, whereupon he at once called upon deceased, and the homicide occurred, the court should have charged with reference to both communications.</p>

<p>The testimony for the State showed that the attention of some of the State’s witnesses was directed to the alleged burglarized store early in the night at the time of the burglary, and that they noticed from a toilet room in the hotel, near the scene of the crime, a person walking up and down the alley alongside of said store dressed in a light overcoat and black hat, who said at the time, “The road or street is clear”; that he walked towards the end of the alley about three minutes afterwards, saying, “He’s gone, when I get to the end of the alley come out”; that shortly after this, and after said party walked to the end of the alley, another person came out of the window of said store; that this person was seen standing in the office of said store turning on the electric light; that then he gave the window a shove pulling it down from the top, and came out over the top of the window which he had left down; that this person wore a cap; and turned down the alley when he got out; that these two persons (one of them being the defendant) were afterwards arrested—one or two hours after the burglary—in company with another, and were searched when taken to the jail by the officers; that the property found upon them was not identified as coming from the burglarized store, but some of it as that coming from the other houses which were probably burglarized on the same night, and which were entered by all or some of these parties. Other circumstances such as the swinging of the electric light, etc., which were discovered a few minutes after the burglary, were introduced in evidence.</p> <p>The defendant’s testimony related principally to the good reputation which the defendant had previously borne; and an attack on the credibility of the State’s witnesses, etc. This statement together with that contained in the opinion is sufficient for an understanding of the errors assigned.</p>

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

<p>1.—Murder—Insanity—Charge of Court.</p> <p>Where upon trial for murder the evidence did not show that insanity was admitted or proved to exist or was continuing and permanent in its nature, the rule that insanity once admitted or proved is presumed to continue did not apply, and a general charge on insanity was sufficient.</p> <p>2.—Same—Non-Experts-^-Proper Predicate.</p> <p>Where upon trial for murder the testimony of the non-expert witnesses was not sufficient to lay a predicate upon which to base their opinion, it was error to admit in evidence the opinion of such non-expert witness.</p>

<p>Forgery—Indictment—Explanatory Averments.</p> <p>Where upon trial for forgery the alleged forged instrument did not show upon its face whether it created, increased, discharged or defeated any pecuniary obligation, etc., the indictment should have alleged by proper explanatory averments matters of extrinsic proof which constituted such instrument a legal and pecuniary obligation.</p>

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

<p>1. —Murder—Negligent Homicide—Jury and Jury law—Special Venire—Statutes Construed.</p> <p>Upon a trial for murder where the special venire for the term included 252 jurors from which 100 men had been drawn prior to the time the defendant’s special venire was drawn, which said 100 names were not replaced in the box, but defendant’s jury was drawn from the remaining 152 names, there was no error and the action of the court was authorized under article 647a, as amended by the Acts of the Twenty-ninth Legislature, pages 17 and 18.</p> <p>2. —Same—Evidence—General Reputation of Defendant.</p> <p>Wherever an issue is made which brings into controversy the character of the defendant, he is authorized to prove the same; and it was error upon a trial for negligent homicide, where the defense was against negligence, to reject testimony proving the general reputation of the defendant for being a cautious and prudent officer, where the testimony showed that the homicide occurred while the defendant as an officer was attempting a lawful arrest of the deceased.</p> <p>3. —Same—Evidence—Conspiracy—Declaration of Third Parties.</p> <p>Upon a trial for murder and negligent homicide where the testimony was not clear that there was a conspiracy between defendant and another, or that said other party acted with the knowledge and consent of the defendant, in inducing deceased to arm himself and go out with said third party and they would shoot up the town in order that defendant might have the opportunity to arrest deceased, in the attempt of which arrest deceased was killed by defendant; it was error to permit the State to show that said third party was heard to say to the deceased on the night of the homicide to take said third party’s pistol and go shoot up the town, etc., the defendant not being present.</p> <p>4. —Same—Evidence—Intent—Self-Serving Declaration.</p> <p>Upon a trial for murder and negligent homicide there was no error in refusing defendant to state what his feelings were after the homicide was committed and as a result thereof; and that he was very much grieved and surprised when he found the deceased was shot.</p> <p>5. —Same—Charge of Court—Acts of Defendant—Negligence.</p> <p>Where upon trial for murder the evidence developed a case of negligent homicide the court was authorized to submit this issue; and where the evidence showed that the deceased was carrying two pistols at the time he was shot by the defendant in attempting to arrest him, there was no error to charge upon that phase of the case, and upon defendant’s manner of firing his pistol, but the court should have informed the jury that there must have been apparent danger causing the death of deceased in the defendant’s act of handling his pistol, in order to justify a conviction.</p> <p>G.—Accomplice—Charge of Court.</p> <p>Where upon trial for murder and negligent homicide it developed that a State’s witness was evidently an accomplice, the court should have charged on the law of accomplice testimony.</p>

<p>1. —Misdemeanor—Theft of Money—Self-Serving Declaration.</p> <p>Upon trial for theft of money, there was no error in excluding the opinion of witness as to whether the defendant found the money alleged to have been stolen.</p> <p>2. —Same—Voluntary Beturn of Stolen Property.</p> <p>Upon trial for theft, where it was not shown that the same property that was taken by defendant was returned, such defense could not be interposed, and there was no error in refusing a charge on this phase of the case.</p>

<p>1. —Sunday law—Charge Refused—Dealer in Merchandise.</p> <p>On a trial for a violation of the Sunday law, a special instruction to the effect that before the jury could convict the defendant they must believe beyond a reasonable doubt that the defendant" was a merchant, grocer or dealer in wares and merchandise, should have been submitted to the jury.</p> <p>2. —Same—Ejusdem Generis—General and Particular Words—Rule of Construction.</p> <p>Where general words follow particular words, the rule of construction is that the words are applicable to persons or things ejusdem generis; while the statute or other document enumerate classes or persons or things and is immediately followed with an enumeration of a clause or clauses embracing other persons or things, will be generally read as “Other such like.”</p> <p>3. —Same—Definition of Offense—Statutes Construed.</p> <p>Under article 199 of the Penal Code, where the evidence showed that the defendant made wine or cider of grape juice and blackberry juice, which he raised on his own farm and made there, besides raising other farm products, and sometimes sold the same, and on the occasion in question sold a quart of wine or cider for 30 cents on Sunday. Held, that he was not a merchant, grocer or dealer in wares and merchandise, or a trader in any business in the terms of the statute.</p>

Tried below before the Hon. L. B. Cobb. Appeal from a conviction of murder in the second degree; penalty, sixty-five years imprisonment in the penitentiary.

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

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

<p>Appeal from the Criminal District Court of Dallas. Tried below before the Hon. E. B. Muse.</p> <p>Appeal from a conviction of assault with intent to rape; penalty, two years imprisonment in the penitentiary.</p> <p>The prosecutrix testified that she was stopping in a room on the fourth floor of a Dallas hotel; that during the night she had occasion to ring for ice water; that the bell boy (the defendant) came up with the water and turned out the light in her room; that prosecutrix jumped up in her night gown and turned it on again, telling the defendant to leave on the light; that defendant then locked the door and put the key in his pocket; that the prosecutrix started for the bell but defendant grabbed her hands and she began to scream, struggling to get away from him; that defendant picked her up and slammed her down on the floor, saying, “you look good to me, I am going to have some.-” Defendant had his pants unbuttoned and his privates out, and tried to tear prosecutrix’ clothes; that prosecutrix finally got her hand to the bell button and pressed the same, and in a few moments the night- watchman came up, and she told him, and shortly after-wards defendant was arrested. When 'she rang for the watchman defendant opened the door and went out. The defendant went on the stand and denied that he made any effort to rape, but that he was trying to get 50 cents from her which she owed him. The State also proved by the night watchman and hotel clerk that the prosecutrix had marks of violence upon her person and was bleeding some when they got to her room, etc., and that the defendant was seen near the prosecutrix’ room and shortly after left the hotel.</p>

<p>Appeal from the District Court of Ellis. Tried below before the Hon. J. E. Dillard.</p> <p>Appeal from a conviction of burglary with intent to rape; penalty, two years imprisonment in the penitentiary.</p> <p>The prosecutrix testified that she saw defendant as she sat by the window in the kitchen through the window; that he passed by looking at her through the window; that she became frightened and left said room to go into another, and the defendant disappeared; that he returned and raised the latch of the door and entered the house through the kitchen, making two or three jumps towards her, that she took the pistol and pointed it at him and he opened the door and jumped out; and the prosecutrix ran out and got out of the reach of defendant. She was alone, but her husband soon returned. This occurred in daytime.</p>

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

<p>Appeal from the District Court of Victoria. Tried below before the Hon. James G. Wilson.</p> <p>Appeal from a conviction of murder in the first degree; penalty, death.</p>

Tried below before the Hon. W. H. Pope. Appeal from a conviction of embezzlement; penalty, three years imprisonment in the penitentiary. The testimony of the express messenger was that he had inadvertently signed a receipt for the package of $300, which the defendant claimed he had handed the said messenger; that he had not in fact received said money, but thought he had signed a receipt for certain baggage.

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

Tried below before the Hon. J. D. Goldsmith. 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 State’s testimony showed that the prosecutor went to defendant’s place of business and purchased a pint of whisky and some tobacco from him and paid him 50 cents for it.

According to the defendant’s statement he and his wife had been quarreling about some rings upon which they had been trying to get some money; that when they had finally got settled down, and went down the street, and he started to take the rings away from her, that a crowd gathered around, and he ran and that the deceased came up in a buggy behind him and hollowed at him to halt, and that defendant shot at him twice; and he also said he shot four times.

From Bexar County. Original application for habeas corpus for release and discharge from arrest, for a violation of a city ordinance prohibiting the issuance and sale of scalper’s tickets. The opinion states the case.

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

<p>1. —Burglary—Indictment—Day or Night Burglary—Charge of Court.</p> <p>The general allegation that the house was broken or entered by force is sufficient ordinarily to cover a night or day burglary; but where the burglary is alleged to have been committed at night, and there was no direct evidence as to when the house was entered, the court should have charged that if the burglary was committed in the daytime, defendant should be acquitted.</p> <p>2. —Same—Juvenile Offender—Reformatory—Verdict.</p> <p>Where upon trial for burglary, the verdict failed to specify the age of the defendant and assessed a penalty in the reformatory, there was reversible error.</p>

<p>1. —Felony—Theft—Charge of Court—Principal.</p> <p>Upon trial for felony theft it was error to charge that parties who were not actually present on the ground when the offense was committed were principals if they acted together, etc.</p> <p>2. —Same—Charge of Court—Accomplice Testimony.</p> <p>Where upon trial for theft the charge of the court in regard to accomplice testimony was practically the same as that which has been held vicious by this court, the same constitutes reversible error.</p>

<p>From Bexar County.</p> <p>Original application for habeas corpus for release from a commit- ' ment for contempt for selling non-transferable railroad tickets in disobedience to an injunction issued by the district court.</p> <p>The opinion states the case.</p>

<p>Sodomy—Charge of Court—Penalty—Reformatory.</p> <p>Upon a trial for sodomy, a charge of the court that if the jury found defendant was under 16 years of age to assess his punishment at confinement in the penitentiary- for not less than two years nor more than five years, was reversible error. See opinion as to reformatory.</p>

The party assaulted testified that in returning home on the train, he stood on the platform of the car in front of the negro coach; that the defendant, a negro, came out and vomited, and a bystander told him “puke it up”; that when this was said defendant became angry, cursed and 'drew his knife and cut the witness before he could get back into the coach; that witness was cut in two places on the shoulder, once from behind and was also cut in the back.

<p>Appeal from the District Court of Bexar. Tried below before the Hon. Edward Dwyer.</p> <p>Appeal from an order remanding relator to custody on habeas corpus and extradition proceedings, in vacation.</p> <p>The relator stood charged by complaint and information in the State of Colorado with the crime of obtaining property by false pretenses and making fraudulent conveyance of lands in such State, and was a fugitive from justice. Demand was made under the Federal Statute by the governor of said State upon the governor of this State for the extradition of the relator; and was accompanied by a copy of said complaint and information duly certified as authentic by the governor of said State, whereupon the governor of this State issued a warrant of arrest and extradition in the usual form. After arrest the relator sued out a writ of habeas corpus. Belator interposed special exceptions to said warrant, and also answered to the merits of the charge, all of which were overruled and the relator remanded to custody, from which order she appealed to the Court of Criminal Appeals. This with the statement in the opinion is sufficient.</p>

<p>1. —Felony—Theft of Money—Confession—Warning.</p> <p>Where upon trial for theft of money, the warning given was sufficient, and there was no coercion or persuasion, the confession was properly admitted.</p> <p>2. —Same—Charge of Court—Weight of Evidence.</p> <p>Where upon trial for the theft of money, the defendant claimed that he had nothing to do with it, a charge on the question of fraudulent taking could not injure defendant, and was not on weight of the evidence.</p> <p>3. —Same—Variance—Allegation—Charge of Court.</p> <p>Where upon trial for theft of money, the charge seemed to have considered that the proof offered by the defense constituted a variance from the allegations in the indictment, the same was favorable to the defendant, and not on the weight of the evidence.</p> <p>4. —Same—Swindling—Title of Property.</p> <p>Where upon trial for theft, there was no evidence that the prosecutor intended to part with the title in the money alleged to have been stolen, but was to have received it back with other money, and that he merely gave it in change, there was no intent on his part to part with the title; and the court was not required to submit a charge on swindling.-</p>

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

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

Tried below before the Hon. Sil Stark. Appeal from a conviction of a violation of the Sunday law; penalty, a fine of $10.

<p>1. —Murder in Second Degree—Jury Law—Challenges.</p> <p>Where upon trial for murder, it was shown that two of the State’s witnesses may have been adverse' to defendant because of some previous local option cases, such would not authorize an investigation in selecting a jury how such jurors had voted at the last local option election, the defendant contending that the case arose out of violation of the local option law.</p> <p>2. —Same—Attorney and Client—Attorney When not Disqualified.</p> <p>Upon a trial for murder there was no error in compelling defendant’s attorney (o testify as a witness to what defendant, whom he represented, had testified to upon a former trial of the case. Where such client testified in open court to the matter in issue it then ceased to be privileged. However, it would be better practice to make proof of this by some other witness than defendant’s attorney.</p> <p>3. —Same—Self-Defense—Charge of Court—Alibi.</p> <p>Where upon trial for murder there was no testimony showing that deceased made or was about to make an attack on defendant, but that such attack was made on defendant’s companion, but the defense was not an abili, a charge on self-defense while not strictly correct was not reversible error.</p> <p>4—Same—Weapon of Deceased—Charge of Court—Intent to Kill.</p> <p>Where upon trial for murder the evidence showed an altercation between deceased on the one side and the defendant’s companion on the other side, and that the deceased attacked said companion with a deadly weapon, it was tire imperative duty of the court to have charged the jury that if such were the case, it was presumed that the deceased intended to kill defendant’s companion and that defendant had the right to slay deceased at once.</p> <p>5.—Same—Provoking Difficulty—Converse Proposition.</p> <p>Where upon trial for murder, it was a question of fact as .to provoking the difficulty, and the court submitted a charge thereon and also gave a converse proposition thereto, there was no error.</p>

<p>1. —Arson—Convict—Sentence—Witness.</p> <p>Where upon trial for arson the State introduced a witness who had been convicted of felony more than three days before he testified, but no motion for new trial had been filed and no sentence had been passed by the court on said witness upon such conviction, the witness was not disqualified.</p> <p>2. —Statement of Third Parties—Corroboration.</p> <p>Where upon trial for arson the defendant had introduced witnesses to show that his codefendant exonerated him from blame or connection therewith, there was no error in permitting the State to show that said codefendant stated soon after the occurrence of the crime that he and defendant had committed it, just as he had stated on the trial in his testimony; said statements being contemporaneous.</p> <p>3. —Same—Accomplice—Corroboration—Contemporaneous Statements.</p> <p>An accomplice stands as far as credibility is concerned like any other witness save and except his testimony must be corroborated, and where the defense proved contradictory statements as having been made by an accomplice to the statements he made in testifying, it was legitimate for the State to prove contemporaneous statements made by the accomplice to other witnesses in line with his tesimony. It is not correct that an accomplice must first be believed by the jury before he can be corroborated.</p> <p>4. —Same—Sufficient Corroboration.</p> <p>Where upon trial for arson, the evidence strongly corroborated the testimony of an accomplice and suggested the participancy of defendant in the commission of the crime, the conviction was sustained.</p>