Volume 6 — Texas Court of Appeals Reports

<p>Appeal from the District Court of Johnson. Tried below before the Hon. W. D. Wood.</p> <p>The indictment charged the appellant with the murder of Mrs. Mary A. Hester, on February 21, 1877, by shooting-her with a gun. James M. Bowden and Samuel H. Myers,, who is a half-brother of the appellant, were also separately indicted for the same offence.</p> <p>The homicide was an assassination of more than ordinary atrocity. Mrs. Hester was the step-mother of the appellant and Samuel H. Myers, having been the third and surviving wife of their deceased father, of whose will she and the appellant were executors. On the evening of the 21st of February, 1877, having but recently become the wife of J. A. Hester, she was shot while sitting at her supper-table, and instantly killed. The shot was fired through a window, and carried away a part of her head. Though there were other inmates in the room at the time, none of them recognized the assassin.</p> <p>The appellant was tried at the June term, 1878, of the District Court of Johnson County, and, being found guilty of murder in the first degree, was adjudged to suffer the penalty of death. This result was doubtless due, in the main, to the testimony of James M. Bowden, who was made a witness for the State. The significance of the rulings made by this court depends upon the evidence, and requires a detailed account of its substance.</p> <p>John Clarriage, a brother-in-law of the appellant, was the first witness introduced by the State. It appears from his testimony that he, Mr. Hester, and the appellant, as well as Bowden, and John and Samuel H. Myers, all lived in the same neighborhood, in Johnson County. About sunset on the day of the murder, the appellant and Sam Myers came to witness’s house, and appellant asked why witness had sent his wife-to the appellant’s house, two days previous, after some money coming to her from their father’s estate. Witness replied that he had not sent his wife, and could so prove by her. Appellant gave witness the d—d lie, and after talking and quarrelling awhile, he and Sam rode off about a hundred yards, the former in a southern direction and the latter in a western. Appellant next rode across to Sam, and they seemed to be talking, but witness could hear nothing they said. They then came back to witness’s house, and appellant offered witness $25 to come out of the yard and fight him. He was angry, and said that this was a premeditated affair; that Mrs. Hester was as much to blame as any one else ; and that the trouble had just begun, and he did not know where in the devil it would stop, — adding: “You need not be uneasy. I will not do you any secret injury ; but you are in danger.” Then they rode off about sixty yards, and seemed to be talking. Next they returned, dismounted, came into the house, and appellant said : ‘ ‘ damage, I want that difficulty settled between you and Sam ; and if you will come over next Monday, I will settle with you.” About dark they went off south, in the direction of Hester’s. In about half an hour afterwards, witness and his wife went to McCoghren’s, a neighbor who lived some three hundred yards off; and when they were within one hundred yards of McCoghren’s, witness heard the report of a gun, followed by screaming, at Hester’s, which was between a quarter and a half mile distant. Witness left his wife at McCoghren’s and ran over to Hester’s, where he found Mrs. Hester on the floor, dead, the top of her head having been blown off. Others were at the house, and the appellant came there in about an hour and a half after the murder. Next morning, witness followed a track made by a run-down boot, which started from a smoke-house on the north-east of the residence, and passed over ploughed ground, in a westerly direction, to a fence; and, about two panels above where the man apparently crossed the fence, witness found, outside the fence, and about one hundred yards from the house, something which looked like horse-tracks. The road from the witness’s house to that of the appellant passes by the place where Hester and wife lived. This witness proved time and venue as alleged in the indictment. He acknowledged that he did not like the appellant much, on account of treatment received from him. Appellant and Sam had no arms in sight when at witness’s house.</p> <p>J. A. Hester, husband of the murdered woman, and the second witness for the State, testified that she was killed about dark, while sitting at table, eating her supper. She was shot from the outside of the house, through the only window in the room. Witness did not know who killed her. Bowden was arrested that night, and was at the inquest next day.</p> <p>D. Richardson, for the State, testified that he was on the jury of inquest, the day after the murder. He examined the room, and found pieces of skull, part of the brain, and blood ; and from the window he and others followed fresh tracks about two hundred yards, to the fence, and at the fence was a fresh horse-track, and indications that a horse had been hitched or held there the night previous. The man’s track appeared to be that of a No. 8 shoe or boot, run down at the heel. Sam Myers was at the inquest, and had on a run-down boot, which witness thought corresponded with the track. Bowden’s boot was straight. Appellant testified at the inquest, and stated that on the day of the murder he and his brother Sam had been to Cleburne, the county-seat, and came from there to Clarriage’s, and thence to his own house, and got supper, and then went to John Myers’s ; and, being specially asked if they did not meet some one on the road between his house and John Myers’s, he emphatically said they did not. Sam Myers also testified at the inquest, and kept his feet crossed, and under the chair. The tracks witness spoke of went in about the direction of the cross-roads at the school-house, which is west of Hester’s.</p> <p>A. J. Wynne, for the State, testified that, on the evening Mrs. Hester was married to Hester, he heard the appellant say that if she did marry, she would get her foot into it G—d d—d bad.</p> <p>J. R. McKenzie, for the State, testified that, early in the day of the murder, he got the appellant to accompany him to Mrs. Hester’s, to whom witness wished to pay some money. While there, Mrs. Hester said that there was Sam at the porch, and she would drive him off; that he had been trying to get her children to run off from her; and then the appellant exclaimed, “ Stop ! stop ! I will take him away,” and went out. Witness did not see Sam Myers on that occasion, nor personally know that he was there. On the same day, witness was at Cleburne, and heard the appellant ask Col. Hall for a copy of his father’s will, presenting an order for the same from Mrs. Hester. Hall talked with appellant about the will,, and told him that he would advise them to keep out of law; and asked the appellant, “ What are you all cutting up about.” To which the appellant replied, “She may have other children?” Witness stated that Mrs. Hester and the appellant seemed to be on perfectly friendly terms, and that he never heard the appellant say any thing against her.</p> <p>Col. J. M. Hall, for the State, gave a fuller account of his interview with the appellant on the occasion spoken of by McKenzie. He had previously told the appellant that he could not deliver to him his father’s will without an order from Mrs. Hester. On the day she was killed, the appellant presented to witness an order from her, and they talked about the will and the estate. Witness advised against any litigation over the matter, and told the appellant that by the terms of the will the property, on Mrs. Hester’s marriage or death, would go to her children by his father ; and asked the appellant, “What are you all cutting up about?” to which he replied that Mrs. Hester might have other children. Witness thought that appellant had previously received his portion of his father’s estate, and had no further interest in it.</p> <p>K. Hicks, for the State, testified that he was at W. A. Hunter’s, about a mile from Hester’s, the night of the murder. Some time after dark, two young men came and reported the assassination, and witness and Mrs. Hunter started to Hester’s in a wagon. Within some five hundred yards of Hester’s, they met the appellant and Sam Myers, who rode by within eight or ten steps of the wagon, and came from the direction of Hester’s. Mrs. Hunter spoke to Sam in a tone loud enough to be heard, as witness thought, but witness heard no reply from Sam. This was about half-past seven o’clock, and was on a road which leads from the appellant’s to John Myers’s. Witness saw no arms about the appellant or Sam Myers on that occasion. If they had had a gun, witness could have seen it.</p> <p>James A. Bowden, under indictment for the murder of Mrs. Hester, was next introduced by the State. He testified that about the last of January, 1876, the appellant and John Myers were at a blacksmith-shop, talking about their father’s estate, and the appellant said it had given him a heap of trouble, and he wished he was several miles away. In January, 1877, Sam Myers came to witness’s house, and asked witness to go to Fort Wrorth to buy a wagon, and requested witness to take his gun along. Witness asked why he should take his gun, and he replied that he would tell witness if witness would not tell any body else. He said he would go around behind John Myers’s field with the gun, and would go and kill old Mary Ann (Mrs. Hester), and come back and give the gun and some money to witness, who could get to Fort Worth by eleven o’clock that night, and prove an alibi; and that he would go to John Myers’s and pretend to be sick. Witness would not carry the gun when he heard the motive. On the Monday next before the Wednesday of the murder, witness and Sam Myers came from Fort Worth together. On Wednesday, Sam told witness he was going to put old Mary Ann off the place (the former residence of Sam’s father) before Sunday, and asked witness to meet him that evening at the cross-roads near the school-house, on the hill, some three or four hundred yards north-west from Mrs. Hester’s. Sam asked witness to load his gun with buckshot, and bring it along. According to this appointment, witness went with his gun about dusk; and just after he got to the place, Sam Myers came there on horseback, from the direction of Mrs. Hester’s. He dismounted, took the gun, asked witness if it was loaded as he directed, and said it was about suppertime, and he would find her at the supper-table. Witness held the horse, and Sam went off in the direction of Mrs. Hester’s house, and in four or five minutes witness heard the report of a gun at the house, and heard screaming there. Sam returned from the direction of the house to where witness was holding the horse, and said that he had found her at the supper-table, and shot the right side of the top of her head off. He gave witness the gun, and directed him to load both barrels with small shot; and ther he took the horse and rode off, and witness went home. The gun was a double-barrelled shot-gun. One of the barrels had been discharged since witness gave it to Sam, and witness drew the load out of the other barrel, and loaded both with small shot.</p> <p>J. C. Weaver, for the State, testified that, soon after the marriage of the deceased with Mr. Hester, the appellant, in a conversation about the division of his father’s estate, spoke of the marriage, and said he was afraid hell would be to pay over it.</p> <p>Albert Combs, for the State, testified that, about two weeks before the murder, he went to Cleburne with Sam. Myers and J. M. Bowden, and heard Sam say he had been to Mrs. Hester’s a few days before, and cursed her out, and called her a d—d old bitch, and that if he could not get revenge one way he would another. Appellant was not present, and witness had never heard him speak of Mrs. Hester.</p> <p>Frank Williams, for the State, testified that, about January 1, 1877, Sam Myers, in talking about his father’s wives, said that he was told the first of them was a good woman, and he knew his mother was a good woman, but that the last one, now Mrs. Hester, was a G—d d—d bitch, and he intended to blow her brains out the first time she crossed him or his sisters. Appellant was not present, and did not hear these statements.</p> <p>John Clarriage and J. A. Hester, recalled by the State, said that, from the places to which the appellant and Sam Myers rode out from, damage’s house, the evening of the murder, they could have seen Bowden at the cross-roads.</p> <p>Lewis Myers, a son of Mrs. Hester by her former husband, testifying for the State, gave his age as eleven years, and stated that he knew the nature of an oath. He was at the supper-table when his mother was killed. He fell under the table, and she fell on the floor. Before dark, the same evening, he went down to the back of the cow-lot to get some kindling-wood, and while there, and some two hundred yards from the house, he saw the appellant and Sam Myers sitting on their horses in the road, and about fifty yards beyond witness, and facing in the contrary direction from him. They were talking, and witness heard the appellant say “ G—d d—n.” Witness did not see that either of them had a gun. He returned to the house and told his mother, in the presence of others of the family, about seeing the appellant and Sam in the road. Sam Myers had previously told witness that if he (witness) did not leave, he would not have any home; and after the murder, Sam offered witness a six-shooter and $10 to leave home. Appellant was not present, and did not hear this talk.</p> <p>W. Atterberry, for the State, described the tracks leading from the window, and concurred with previous witnesses respecting them, but added that they were too small to have been made by the appellant.</p> <p>Thomas Coulter, for the State, testified that he and others, about nine o’clock the night of the murder, arrested James M. Bowden and took him to Hester’s, where he was kept until the inquest was concluded, the succeeding day, and he was then taken to jail. Witness examined Bowden’s doublebarrelled shot-gun when the arrest was made. Both barrels were loaded with powder and small shot, but there were indications that it had recently been discharged.</p> <p>Other testimony was introduced by the prosecution, but it was either cumulative or immaterial. So much of that detailed as relates to the threats and conduct of Sam Myers and of Bowden, made and done in the absence of the appellant, was admitted over objection by the defence, and bills of exception were duly reserved. After its admission, the defence moved the court to exclude it from the jury, because no complicity of the appellant in the common design of Bowden and Sam Myers was shown, and because it was hearsay and irrelevant in relation to the appellant, and likely to mislead the jury. This motion was overruled, and the defence reserved exceptions.</p> <p>The State having closed, the defence first introduced the two indictments by which James M. Bowden and Samuel H. Myers were separately charged with the murder of Mrs. Hester.</p> <p>James Keith, for the defence, testified that, on the day after the murder, he followed the track supposed to be that of the assassin, through the ploughed ground and the timber, and across the prairie, to the rear of Bowden’s field, and about two hundred yards from his house. He measured the track, and found that its length corresponded with that of Bowden’s boot. Witness thought that Bowden and Sam Myers wore boots of about the same size. The tracks were in the direction of the cross-roads, and towards Bowden’s house.</p> <p>Charley Myers, a son of John Myers, and nephew of the appellant and Sam Myers, eleven years of age, and a witness for the defence, testified that Sam Myers lived at John Myers’s, and left there on the morning of the day of the murder, wearing a pair of new boots, not run down, and with brass on the heels. Witness saw no more of his uncle Sam until the next morning, and then saw him get up and dress, at witness’s father’s house, where he had passed the night of the murder. Sam did not eat supper there that night. He went over to Hester’s the morning after the murder.</p> <p>M. Bawlings, for the defence, stated that he had known Bowden since 1875, and stayed at Bowden’s, but worked at John Myers’s gin. Witness thought that Bowden’s feelings towards Mrs. Hester were not good. While witness was staying at Bowden’s, the latter wrote a letter to Mrs. Hester, and wanted witness to copy it, and drop it in her yard; and when witness refused to do so, Bowden burned the letter. He said he did nut want it known who wrote the letter, and his handwriting might be recognized; and said he would pay witness well. The letter said that if Mrs. Hester did not, by a certain time, pay his wife some money due her from the estate, her house should be set on fire, and her brains shot out as she ran out of it. No name was signed to the letter, and it said : “ You may think that James M. Bowden wrote this letter, but that is not so ; it was written by a friend of Mrs. Bowden.” Witness heard Bowden offer money to Jack Turner to kill Mrs. Hester; thinks the amount was $200, and the time between the 10th and 15th of January, 1877.</p> <p>Jack Turner, for the defence, testified that, between the 10th and 15th of January, 1877, he was at Bowden’s house, and Bowden asked him if he did not want to make some money; and, on witness replying that he did, Bowden offered him $50 if he would kill Mrs. Hester. This occurred in the presence of Rawlings, the preceding witness.</p> <p>. D. Hampton, for the defence, testified that he examined the tracks supposed to have been made by the assassin of Mrs. Hester. In the ploughed ground the person seemed to have been running, and the heels stuck down in the ground two or three inches, but the tracks were not made with a run-down boot. Some two hundred yards outside of the field, he found what he took to be the same track, and followed it to the back of Bowden’s field, about two hundred and fifty yards from his house. It seemed to have been made by a No. 8 boot or shoe, and passed about fifty yards to the right of the cross-roads. Sam Myers wore about a No. 7 boot. This witness was a brother-in-law of the appellant.</p> <p>Dr. J. E. Russell, for the defence, stated that, about eight o’clock the night Mrs. Hester was killed, he was called upon to go in haste to John Myers’s house, to see his wife, who was said to be very sick. On the road, witness met Sam Myers, coming in a run, who turned back, and told witness to hurry, as he did not believe John’s wife would live until he and witness could get there. When they got near the appellant’s house, they found him standing on the side of the road, holding his horse. He told witness to hurry up, that John’s wife was very sick; and he also came along. The road went by the appellant’s, and within one hundred and fifty yards of Hester’s. They passed Hester’s between eight and nine o’clock, riding as fast as witness could endure. Witness heard no crying or unusual noise at Hester’s as they passed, but his whole attention was fixed on getting to John Myers’s sick wife, who proved to be very sick with congestion. When they reached the place, the appellant and Sam Myers went into a room other than that occupied by the sick lady, and witness saw them no more that night. About ten o’clock that night, intelligence came of the murder of Mrs. Hester.</p> <p>This concluded the evidence in the case. The opinion of this court treats of such portions of the charge to the jury as are involved in the rulings made. Special instructions on the subject of circumstantial evidence were asked by the defence, but were refused on the ground that they were substantially given in the general charge.</p> <p>As already stated, the jury found the appellant guilty of murder in the first degree, and the court adjudged against him the penalty of death, as prescribed by law for that offence. A new trial was asked and refused, and an appeal taken from the judgment.</p>

Tried below before the Hon. G. Cook. The indictment charged the appellant with an assault with intent to murder Sadie McClellan, on June 25, 1878. The evidence shows that the appellant went to Sadie’s establishment, in Galveston, and raised a very lively row with her, in which he threw at her a heavy spittoon, proved to be a deadly weapon, and also a soda-water bottle, heavy enough to kill.

Tried below before the Hon. J. Bledsoe. The prosecution was for the murder of Robert P. Mc-Kennie, and the conviction was for murder in the second degree, with the punishment assessed at ninety-nine years in the State penitentiary. The killing occurred in the village of Whitesboro, Grayson County. Dr. W. W. Graves was the first witness introduced by the State. Knows the appellant, and knew the deceased previous to his death.

Tried below before the Hon. E. Lewis. The indictment was for the murder of Henry Griffith, in Lavaca County. A change of venue was had to Colorado County, where, upon trial, the appellant was convicted of murder in the second degree, and his punishment assessed at fourteen years in the penitentiary. The evidence was entirely circumstantial. A report of a former trial, to be found in 3 Texas Ct. App. 558, states the evdence.

Tried below before the Hon. S. Ford. The appellant was convicted under indictment for an assault with intent to murder, and his punishment was assessed at five years in the penitentiary. Henry Hodges, the prosecuting witness, testified in substance that on the evening of the sixth day of March, 1878, between seven and eight o’clock, as he, with his family and some friends, sat down to supper, some person fired on him through the window.

Tried below before the Hon. G. Cook. The indictment was for the murder of Adolph Schachtrupp, and the conviction upon trial was for murder in the first degree. The opinion shows the matters alleged as-cause for a second continuance. Adolph Bachman was the first witness sworn for the State, and he testified, in substance, that the deceased, who was killed by the appellant in Houston, Harris County, Texas, on the thirty-first day of October, 1878, was his uncle.

Tried below before the Hon. G. Cook. John J. Ryan, the party assaulted, testified that on the night of April 26,. 1878, he attended a ball at the town of Harrisburg. Collins, the accused, was also at the ball, and during one of the dances he insulted the lady with whom witness was dancing. “ He pooted at her with his mouth.” After the dance, witness approached the accused to demand an apology, when the latter raised his hand, and witness struck at but missed him.

Habeas Corpus, on appeal from a judgment rendered by the Hon. T. G. Jones, Special Judge of the Fourth Judicial District. The appellants and several others were charged by indictment with the murder of Dr. Grayson and his wife, in Anderson County, Texas, on the twenty-third day of April, 1878. The testimony of the most important witnesses is briefly condensed.

Tried below before the Hon. J. A. Carroll. This record discloses a trial and conviction for the rare and revolting crime of fratricide, instigated, as it appears, by the father of the assassin and his victim.

<p>Plea.—If in any criminal case the defendant fails to plead, the plea of not guilty must be entered for him; and unless the transcript on appeal shows that the plea was made by or entered for the defendant, the conviction will be set aside by this court.</p>

Tried below before the Hon. N. M. Burford. The indictment was filed October 10, 1876, and charged that the appellant and one Jack Crews, on November 1, 1875, robbed one W. K. Cornish of a satchel and sundry currency notes of the United States, amounting to $1,050. It alleged that the robbery was effected by an assault upon Cornish with guns and pistols, and by putting him in fear of his life and of great bodily injury. Appellant alone was on trial.

Tried below before the Hon. J. A. Carroll. The indictment was filed October 3, 1878, and charged the appellant with the theft of a yearling, the property of William Renshaw, on the 3d of the preceding April. Benshaw, testifying for the State, said that he never gave the defendant permission to take or dispose of the yearling. Previous to the theft, it was running on its accustomed range, near John Hogg’s, in Wise County, with other cattle belonging to witness.

Tried below before the Hon. B. E. Green, County Judge. Jennie Bailey, the female assaulted, was the only witness introduced by the State. She testified that, during most of the year 1877, she lived at the house of the defendant, and that he, some time during that period, struck her three times with a switch. This was in the county of Montague. On her cross-examination, she said she had lived at the defendant’s twice.

<p>Appeal from the County Court of Ellis. Tried below before the Hon. J. D. Templeton, County Judge.</p> <p>The conviction was for an aggravated assault.</p>

Tried below before the Hon. J. D. Templeton, County Judge. The information charged that the appellant, in Ellis County, on the 15th of August, 1877, cut, struck, and stabbed Gr. A. Schuster with a knife, — a deadly weapon.

<p>Appeal from the County Court of Grayson. Tried below before the Hon. A. E. Wilkinson, County Judge.</p>

Tried below before the Hon. J. A. Carroll. The indictment comprised two counts against the appellant and C. C. Gardenhire, charging them with the murder of James Parker, in the county of Tarrant, on October 16, 1877. The first count charged that the deed was committed with a knife; the second alleged that it was done with a club.

Tried below before the Hon. B. E. Green, County Judge. The conviction was for aggravated assault. All material facts appear in the opinion of this court.

Tried below before the Hon. J. D. Templeton, County Judge. J. A. Cantrell, for the State, testified that, in the fall or late in the summer of 1876, about sunset, he was passing the cabin where Alexander Davis and Lizzie Davis, one of the defendants, lived, and witness stopped to inquire about some mules. The cabin door was closed. There was at the place a bad dog, and witness, hearing him growl, quickly opened the door to escape the dog, and at the same time called to Alex.

Tried below before the Hon. Gr. H. Noonan. The indictment was for theft of a bay stallion, on June 26,1878. The State adduced full proof of the theft, and that it was committed in San Antonio, in the night of June 26, 1878, at a later hour than ten o’clock. That same night, as further shown by the State’s evidence, the defendant brought the stallion to a place a few miles distant, where, the next day, he was arrested, and the stallion recovered for the owner.

Tried below before the Hon. H. Manet, County Judge. Appellant’s exceptions to the indictment being overruled, he waived a jury, and pleaded guilty; whereupon the court adjudged him to pay a fine of $50. Appellant’s assignment of errors, as well as his brief, impeaches the constitutionality of the statute in question; as to which see Davidson v. The State, 4 Texas Ct. App. 545.

Tried below before the Hon. J. Bledsoe. The conviction in this case was for an aggravated assault, ■for which the punishment assessed by the jury was a fine of $500. The indictment, however, was for an assault with ■intent to murder one John Hunter, on July 20, 1878, by .shooting him with a pistol. Hunter was the first witness introduced by the State. He had known Bingham, the defendant, for quite a number ■of years.

Tried below before the Hon. A. E. Wilkinson, County Judge. -The indictment charges that the defendant “did keep, deal, and exhibit” a bank for the purpose of gaming, etc. There is no statement of facts, or bill of exceptions. The defendant pleaded guilty, and the jury assessed his punishment at a fine of $50.

Tried below before the Hon. E. B. Turner. The indictment alleges that the perjury was committed before an inquest held on the body of one Andreas Fox. The opinion of this court clearly shows such features of the indictment as are germane to the rulings.

Error from the District Court of Cooke. Tried below before the Hon. J. A. Carroll. A clear synopsis of the material facts appears in the opinion.

Tried below before the Hon. J. D. Templeton, County Judge. The case is clearly stated in the opinion. The punishment assessed and adjudged against the appellant was a fine of $100.

<p>1. Fornication is, as yet, no offence against the laws of this State. Art. 2022, Paschal’s Digest, mentions, but fails to define it.</p> <p>2. Fornicators, however, will do well to note that it is defined and made penal by the Revised Code, which takes effect October 1, 1879.</p>

Tried below before the Hon. L. W. Moore. The indictment was for the murder of one Dolly Hudspeth, and the jury found the appellant guilty of murder in the first degree. The record does not bring up the evidence in the case, and discloses only such matters of fact as are discussed in the opinion of the court.

<p>1. INdiotments for statutory offences are good, as a general rule, if they follow the exact language of the act; and this rule is equally applicable to in-formations.</p> <p>2. Illegal Practise of Medicine.—The act of 1876, “to regulate the practise of medicine,” requires that, before any person engages in the “practise of medicine, in any of its branches or departments,” he shall comply with certain provisions of the act. Meld, that an information need not allege the particular “branch or department” of medicine in which the defendant engaged.</p> <p>3. Same—Evidence.—Proof that the defendant engaged in any branch or department of medicine sustains the allegation that he engaged “in the practise of medicine.”</p> <p>4. Same. —Informations for violation of the said enactment need not negative the exceptions contained in the provisos to the fifth section; they are matters of defence, and provable under the plea of not guilty.</p> <p>45. Same—(Evidence—Charge of the Court.—Defendant asked a charge that “ a person who was attending a single case could not he adjudged guilty of practising medicine, though he held and filed no certificate as required by law.” Meld, properly refused. Proof of a single act, in connection with other circumstances, might suffice to warrant a conviction, — as, for instance, that he held himself out to the community as a physician.</p> <p>6. Same — General Character. —Though the State is not allowed to put in issue the general character of the defendant, this rule does not preclude it, in cases like the present, from proving the professional capacity in which he held himself out to the public.</p> <p>7. Protection of the people against quack doctors is the purpose and policy of the “act to regulate the practise of medicine.”</p>

Tried below before the Hon. Gr. H. Noonan. On October 20, 1877, the grand jury of Bexar County returned into the District Court an indictment charging the appellant, his father, José Cordova, Sr., Henrique Diaz, and Merced Saucedo, alias Morales alias Cordova, with the murder of Robert Trimble, on July 7, 1877, by stabbing him in the breast with a knife, or other sharp instrument. At the December term, 1878, the appellant, José Cordova, Jr., was put upon his trial alone.

<p>1. Construction op Statutes. —Note in this case the collocation and application of certain important practical rules controlling the construction of' statutes.</p> <p>2.. Same — Case Stated.—An act of 1879 changes the times of'holding the-District Courts in the Twenty-second District, and contains an “emergency clause,” declaring it to take effect from and after its passage. A proviso in the act, however, requires that the first term be held in C. County; and this, under other provisions of the act, cannot be done until the third Monday of September, 1879. Held, notwithstanding the “emergency clause,” that the effect of the proviso is to postpone any change in the times of holding the terms in said district until the said term can be held in the county of C., and that the antecedent act controlling the subject remains in force until such term can be held.</p> <p>3. Constitutional Law—Local and Special Laws. — The case of Cordova v. The State, ante, p. 207, cited and approved, sustaining the constitutionality of the act of 1876 requiring five terms of the District Court of Bexar County to be held in each year, the said act not being a “local or special law,” in the sense of the constitutional inhibition of the enactment of local or special laws until publication thereof be first made.</p>

<p>Appeal from the District Court of Travis. Tried below before the Hon. E. J3. Turner.</p> <p>The opinion clearly discloses the facts.</p>

<p>1. Jurisdiction of Justices’ and County Courts. — The limited jurisdiction of misdemeanors conferred upon justices’ courts by the present Constitution and laws is not an exclusive jurisdiction, but one which is concurrently possessed by the County Courts. There is no class of misdemeanors of which the justices of the peace have exclusive jurisdiction. Solon v. The State, 5 Texas Ct. App. 301, referred to for a full exposition of the constitutional and statutory provisions on this subject.</p> <p>2. Same — Carrying Weapons — Constitutional Law. — The County Courts have concurrent jurisdiction with the justices’ courts to try persons charged with unlawfully carrying weapons. Forfeiture of the weapon, however, as part of the penalty prescribed by the act creating the offence (Paso. Dig., art. 6512), is unconstitutional, and cannot be enforced.</p> <p>3. Informations for unlawfully carrying weapons should negative the exemption of the accused by virtue of each and every of the exceptions specified in the act. The State, however, is not required to prove these negative averments.</p>

<p>Appeal from the County Court of Coleman. Tried below before the Hon. J. F. Miles, County Judge.</p>

Tried below before the Hon. E. H. Rogan, County Judge. The statement of facts shows that the defendant was a school-teacher, and the assaulted female a pupil of eleven years of age. She testified explicitly to certain indecent acts of familiarity with her person perpetrated by him. Witnesses for the defence contradicted some of her statements. The jury found the defendant guilty of an aggravated assault and battery, and assessed against him a fine of $100.

<p>1. Aggravated Assault—Evidence. — The assaulted party stated in his testimony that he owned the premises at which the assault was committed, and that the defendant was occupying them without authority; to which the defence objected that title to real estate could not be so proved. Held, inasmuch as the title to the premises was not in issue, nor even a controverted question, there was no error in allowing the witness to state his ownership as a fact explanatory of the res gestee.</p> <p>2. Duplicity in Pleading—Practice. —Information for aggravated assault, though it contained but one count, alleged three distinct matters of aggravation, but all laid at the same date, free from repugnancy, and intimately interwoven. No motion to quash, or other objection in limine was made by the defendant, nor did he ask the court to require the State to elect upon which ground of aggravation the cause should be tried; but, after conviction for simple assault, he moved in arrest of judgment because of duplicity in the information. Held, that the motion was properly overruled.</p>

Tried, below before the Hon. E. Lewis. A very excellent brief and argument was filed for the appellant, but the name of no counsel is appended to it.. Probably its authors were John Ireland and W. H. Burges,, Esqs., who were counsel for the defence in the court below.

<p>Variance. —Information against “Daniel Harrison ” was based on an affidavit which designated the defendant “Daniel Harrison, alias Bud Harrison.” Held, that the alias in the affidavit does not cause a variance between it and the information.</p>

Tried below before the Hon. W. A. Blackburn. The charging part of the indictment alleged that ‘6 Ed. A. Labbaite, with force and arms, in the county of Lampasas, and State of Texas, did, heretofore, to wit, on the 10th day of- March, A. D. 1877, then and there unlawfully, wilfully, feloniously, and without lawful authority, and with the intent to injure and defraud, make a certain false instrument in writing upon paper, purporting to be the act of others, to wit, the act of…

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

Tried below before the Hon. Gr. H. Noonan. The indictment, filed June 20, 1878, charged the appellant with the murder of Francisco Montero, in Bexar County, on June 10, 1878. Upon his trial, he was found guilty of murder in the second degree, and his punishment assessed at ninety-nine years in the penitentiary. Ursula Castro was the first witness placed upon the stand by the State.

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

Tried below before the Hon. J. A. Carroll. Held: and tell those people that he (witness) saw three men from the Indian Nation, on the day of the killing, hunting for deceased, and that he (witness) expected they “ got away” with deceased. From the place on the road where witness stood, the shooting could be seen very plainly.

<p>Appeal from the District Court of Palo Pinto. Tried below before the Hon. J. R. Fleming.</p> <p>The opinion states the case.</p>

Tried below before the Hon. E. Lewis. The indictment charged the appellant with the murder of' a freedwoman, named Harriet, on the fifth day of June, 1877, by cutting her with a hatchet. Harriet was the cook and house-servant of Judge C. C„. De Witt, who lived across the Guadalupe River from the town of Gonzales, at a distance of two miles by the highway, but only half a mile by a foot-path.

<p>1. Embezzlement, as defined by the statute (Paso. Dig., art. 2421), is the fraudulent misappropriation or conversion to his own use by a consignee or bailee, without the consent of his principal or employer, of any money or property of such principal or employer, or of the proceeds of such property after sale.</p> <p>2. Same — Charge of the Court.—Defendant was indicted for embezzlement of an organ, which, according to the evidence, he had leased from the owner, and subsequently pawned for a loan of money. The court below instructed for conviction in case the jury found that the defendant embezzled the proceeds of the organ. Held, that the charge was erroneous, because the defendant was not indicted for embezzlement of proceeds, but of the property itself; and also because, under the statutory definition of the offence, embezzlement cannot consist in the conversion of proceeds of trust property, other than such proceeds as have accrued from a sale of it-</p> <p>3. Same. — The record nowhere discloses that the value of the property was conceded to be more than $20, but the court below instructed the jury that it was so conceded. Held, erroneous because on the weight of evidence.</p>

Tried below before the Hon. G. H. .Noonan. In April, 1878, the grand jury of Bexar County presented an indictment against Jacques Handline, the appellant, for the murder of Peter Maddox, with an axe, on the 24th of the preceding February. On Tuesday, the 26th of February, 1878, the corpse of an old man was found in the San Antonio River, within the corporate limits of the city of San Antonio. The head had been crushed in by some blunt instrument.

Tried below before the Hon. E. B. Turner. The defendant, and also E. E. Hatch and William M. Gilleland, were charged by indictment with the forgery of the transfer of a certain bounty land-warrant, issued to George W. Jenkins, for two hundred and forty acres. The defendant, being alone upon his trial, was found guilty, and his punishment assessed at two years’ confinement in the penitentiary. The transfer was drawn up in usual form, except that it was made in blank.

Tried below before the Hon. E. B. Turner. Two counts were contained in the indictment,—forgery, and the utterance of a forged instrument. The defendant was tried on the last count, found guilty, and his punishment was assessed at five years in the penitentiary.

Tried below before the Hon. E. B. Turner. The indictment charged the appellant with rape upon the body of Louisa Lamascus. He was convicted upon trial, and his punishment assessed at death. Louisa Lamascus being the first witness offered by the State, her testimony was objected to by the defendant, on the ground that she did not know the obligation of an oath. The court then asked witness if she knew the obligation of an oath; to which witness made no response.

<p>Appeal from the District Court of Hill. Tried below before the Hon. T. Smith, Special Judge.</p>

<p>1. Disturbing Religious Worship. —For an application of the law under which this prosecution was had, see Owens v. The State, 3 Texas Ot. App. 404.</p> <p>2. Same—Evidence. — See the opinion for evidence held insufficient to sustain the charge of carrying a gun into a religious meeting.</p>

<p>1. Charge of the Court. — See the opinion for a charge held to he error because it required the jury to find whether a gun, loaded, but without caps upon the tubes, was, when attempted to be shot, capable of producing death or serious bodily harm.</p> <p>2. Self-Defence. — Self-defence cannot be made to depend upon whether a gun is or is not loaded, or will or will not shoot, unless it be shown that, the party upon whom it was attempted to be used knew that it was not. loaded, or that it would not shoot.</p>

<p>Appeal from the District Court of Eains. ' Tried below before the Hon. S. J. Hunteb, Special Judge.</p> <p>The opinion discloses the case.</p>

Tried, below before the Hon. J. C. Russell. The indictment charged the defendant with an assault with intent to murder one Julian Escobedo. ■ The proof for the State shows that both the defendant and Escobedo, before the assault, sustained criminal relations with a woman known as Manuela Salazar, and that', a few days prior to the assault, they had a difficulty about her.

Tried below before the Hon. S. Ford. The indictment charged that the appellant murdered Charles E. Roberts, in the town of Hearne, Robertson County, on the fifth day of April, one thousand “eiget” hundred and seventy-six. A change of venue to Milam County was granted.

Tried below before the Hon. T. M. Paschal. The appellant was indicted by the grand jury of Maverick 'County, for the murder of Michael Schultz.' He was convicted of murder in the second degree, and given ten years in the penitentiary. The testimony for the State discloses that both the defendant and the deceased were United States soldiers, members of the same command, and two of a scouting party sent out from Port Duncan, Texas, on or about the seventh day of October, 1876.

Tried below before the Hon. Gr. H. Noonan. There is no statement of facts. The indictment, however, also impleaded José Cordova, in the report of whose ease (ante, p. 207) will be found the main facts of the homicide, but, presumably, not all the evidence wMch inculpated tMs defendant.

Tried below before the Hon. T. M. Paschal. The indictment charges appellant with an assault with intent to murder, committed upon the person of a colored man, whose name was, by the grand jurors, called John Brown. The offence is alleged to have been committed in Medina County, on the first day of October, 1875. The appellant was convicted of an aggravated assault, and his fine fixed at $500.

Tried below before the Hon. B. E. Green, County Judge. The information was based upon art. 2169 et seq., Paschal’s Digest, and charged the false imprisonment of one T. B. Chambliss. The trial resulted in a verdict of guilty, and a fine of $50 was assessed against defendant.

Tried below before the Hon. E. B. Turner. The indictment is set forth in the opinion of this court, and the evidence immediately pertinent to the rulings is also there disclosed. The accused, as was fully shown by the evidence, disposed of the stolen watch and rings to a pawnbroker, within a day or two after the theft. After denying any knowledge of other articles of the stolen jewelry, they were found concealed in his room.

<p>Appeal from the District Court of Kerr. Tried below before the Hon. T. M. Paschal.</p> <p>The opinion states the case.</p>

<p>1. Practice. — The record must show affirmatively either that the defendant entered his plea of “not guilty,” or that it was entered for him; otherwise, the judgment will he reversed.</p> <p>2. Same. — When, as in this case, the information is lost after the commencement of the trial, and cannot he found, the proper course to pursue would be to substitute the information, or to commence the prosecution anew by an information based upon the affidavit of some credible person.</p>

<p>Appeal from the County Court of Comanche. Tried below before the County Judge.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. S. B. Raby, County Judge. Appellant and Tim C. Chambers were charged by information with the commission of an aggravated assault upon the persons of Louisa, Julia, and Willie Fore, females, on the twenty-ninth day of February, 1879. Appellant, being tried alone, was found guilty, and his punishment assessed at a fine of $200.

<p>Appeal from the County Court of Brown. Tried below before the Hon. W. H. Scott, County Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from the District Court of Tom Green. Tried below before the Hon. A. Blacker.</p> <p>The appellant, with eight others, was charged by indictment with the murder of Frederick Yunt, in Tom Green County, on the fourteenth day of February, 1878. Being alone tried, he was convicted of murder in the first degree.</p> <p>According to the testimony of J. M. Morris, the first witness introduced by the State, the defendant, who was a United States soldier, came into his (witness’s) saloon, in St. Angelo, Tom Green County, early in the evening on the night of the killing. He left the saloon shortly afterwards, going to roll-call, between eight and nine o’clock, and returned to the saloon between nine and ten o’clock, in company with several other soldiers, among whom witness noticed David Young, Tom Russell, Charles West, and others. A difficulty came up between the soldiers and one Monday. The defendant came up to witness and said that Monday was trying to raise a difficulty with them. About this time Monday came into the saloon, cursing and swearing, and saying that he wanted his pistol, which was behind witness’s counter, in charge of the bar-keeper, Mr. Nicholson. Monday made a rush in the direction of the counter, saying that he would just as soon die then as at any other time, or words to that effect. The witness at the same time heard a voice from the group of soldiers say, “ Shoot him,” and heard the defendant say, “ Knock him down.” Defendant had a six-shooter pistol in his hand at the time, which the witness attempted to take from him, advising him at the same time to have no difficulty. He answered that he did not want to hurt witness, and that if witness wanted to save himself, he had best leave the house; which witness did immediately.</p> <p>As witness left the house, firing commenced within. When witness left, the deceased was sitting at a table, playing cards. When he presently returned, deceased was lying dead on the floor, near the stove. One gunshot had •struck him in the arm, one had penetrated his groin, and «one his head, from which last wound the brain was oozing. There had been a quarrel between the soldiers and one Jack Brown, just before roll-call; but the deceased, who was a peaceable, quiet man, took no part in it. So far as the witness knows, there had been no quarrel between the -deceased and the soldiers up to the time of the killing.</p> <p>A. A. Rhodes, next introduced for the State, testified that he was in Morris’s saloon on the night of the killing. The first intimation he had of the difficulty was derived from a remark of defendant to Monday. He heard the former say to the latter, “ If you say so, you are a d—d son of a b—h.” Monday then remarked to witness, “ That’s hard to take,” when witness suggested to him to go to bed; and the two (Monday and witness) started towards the front of the door. Monday turned and said, ■“ I had as lief die now as at any time,” and started behind the bar after his pistol. Morris and the bar-keeper would not let him have it. Defendant, Young, and Bussell followed Monday, drawing their pistols, and witness heard one of them say, “ Shoot him,” and also heard defendant say, “ Knock him down,” as he (defendant) at the same time shot at him. As he fell, defendant waved his pistol over his head, and said, “ We are ready for you.” Young shot at Monday; Nicholson (the bar-keeper) shot at Young, and defendant shot at, or towards, Nicholson. The soldiers then ran out at the back door, and in two or three minutes seven soldiers appeared at the front and back doors, and commenced shooting into the house with carbines. Witness saw a soldier — does not know who — step up to the back door and shoot in, when the deceased fell off from a table upon which he had been sitting. Deceased took no part in the difficulty; was a peaceable,. quiet man, and had no .quarrel with the soldiers.</p> <p>Joe Johnson next testified for the State. Himself and John Gilmer occupied a room in the rear of the building in which Morris’s saloon .was situated. They were in this room on the night of the killing. They heard shooting in the bar-room, and afterwards in the rear of the bar-room. Witness tried to get out when the shooting commenced, but was prevented by Gilmer. The two finally left the room together, when Gilmer ran off, and was shot at while running. Witness could easily see into the bar-room from the room which he occupied. He saw defendant and two other soldiers come into the room, and at the same time noticed that deceased was lying on the floor, near the stove. The lamps had been knocked down, and the oil was burning on the floor. Saw defendant (whom he had known two years) and two other soldiers come into the room, and saw defendant put a carbine to the deceased’s head while he was lying on the floor. Saw him shoot, and then saw him and the other two soldiers run out.</p> <p>James Johnson, for the State, testified that he occupied a room in the “ corral ” back of Morris’s saloon. On the night of the killing he heard some shooting about the saloon. He stepped out of his room, and saw defendant and two> other soldiers in the rear of the saloon. He presently saw defendant step up to the door and shoot in. He then heard ■defendant say to the other two, “ I have killed one son of a b—h, and I will get two or three more.” Witness then ran off.</p> <p>Elihu Eoss, a freedman, who testified for the State, occupied room No. 2, in the rear of the saloon. When he heard the firing commence he ran to the door, and saw two or three men in the saloon with carbines, and saw one man lying on the floor. The light was dim, and he could recognize none of the parties. Saw a man step up to the man lying on the floor, place his gun to his head, and shoot. Could not recognize the man by the poor light. Has known the defendant well.</p> <p>Henry Williams testified that he was across the street, at Mr. Wilson’s, when the firing commenced. Mr. Wilson told him to go over to the saloon and bring a trunk from there, of his. Witness went, and, on entering, found the lamp knocked down and the floor on fire. Saw deceased lying on the floor, and asked him why he did not leave there; and he said that he was wounded and could not walk. Witness told him, then, that as soon as he had put out the fire he would help him. While he was working over the fire, three men came in. Witness recognized none of them. Presently he heard a shot behind him, and, turning, saw that one of the three men had shot and killed the deceased. Witness, being blinded by the smoke and the bright light over which he was working, could not recognize the men, but thought he recognized as defendant’s the voice that said, “Let’s go over to Wilson’s and look for”—some one whose name witness did not catch. The three men then ran out of the house. Has known defendant about two years, and has heard him talk a great deal. He is a man who talks a great deal.</p> <p>William Leffler testified, for the State, that he is a soldier, and knows the military regulations. Soldiers off duty are not allowed to bear arms. Some two or three days after the killing, he heard defendant say, “We killed two of them, and they got two of us, which made a stand-off.”</p>

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

<p>Appeal from the District Court of Falls. Tried below before the Hon. L. C. Alexander.</p> <p>By indictment, filed in the District Court of Falls County on the fifth day of September, 1878, the appellant and George and Joe White were charged with the theft of a gelding, the property of Zenas Bartlett. The appellant, being tried alone, was found guilty, and his punishment fixed at ten years in the penitentiary.</p> <p>When the case was called for trial, the appellant asked for a continuance, to procure the testimony of one John Cross. The application, in addition to the allegations copied in the opinion, averred that the appellant expected to prove by the said Cross that himself, George, and Joe White were employed by Cross to take the horse described, together with certain goods belonging to Cross at Bremond, through towards Calvert, while he (Cross) was to go through the business part of Bremond, and overtake appellant, George, and Joe at a section-house water-tank between the towns named; that Cross had told defendants that he had lost his horse in Falls County, and asked them to help him hunt for it; that defendants did not know that the horse was not the property of Cross, and that neither of the defendants claimed the horse; that they did not see the said Cross again, after parting with him at Bremond, until after they were arrested, when they learned that he was living in Hood County, Texas; that the facts, as above expected to be proved, are true; that this continuance is not sought for delay, etc.</p> <p>Upon the trial, the continuance being refused, Zenas Bartlett testified that he owned the gelding described in the indictment; had raised him, and knew him well. The horse was in the habit of coming up early. Was turned out on the Saturday of the theft, and witness did not see him again for four or five days afterwards, when, having heard that the animal was at Calvert, his son, Churchill Bartlett, went there and brought him back. Had never given the defendants, or either of them, or any one else, permission to take the horse.</p> <p>Churchill Bartlett, for the State, testified that his father had raised the gelding, and witness knows him well. A few days after the gelding was missed, witness got information that he was in Calvert, and accordingly went there and recovered him. Got the animal at the livery-stable from Mr. Jones, in Calvert, Eobertson County, Texas. The horse is worth $50 or $75.</p> <p>Jones, for the State, being sworn, testified that he is a deputy under his brother, the sheriff of Robertson County. On Monday or Tuesday, after the alleged theft, he saw the defendant and the other two Whites in possession of the animal described, in Calvert, thirty-six miles from Marlin, but does not remember whether the animal was being led or was ridden. It was the same, and the only horse that witness had turned over to Churchill Bartlett. The defendant and George and Joe White were together, going towards. Marlin, and were arrested in possession of the animal.</p> <p>Sam Read, deputy-sheriff of Falls County, sworn for the State, says that he knows the horse well, and that he is the property of Zenas Bartlett. Witness saw the horse, soon after the alleged theft, in the possession of Jones, deputy-sheriff of Robertson County, and saw the Whites in Marlin, on the day of the alleged theft.</p> <p>White, George White’s father, testified, for the defence,, that George White had been hired, a few weeks before the alleged theft, to do some hauling with a wagon, and that-Carroll White was so engaged.</p>

Tried below before the Hon. J. Alexander, County Judge. It was in evidence that cattle were in the habit of breaking into defendant’s field, and that, on this occasion, defendant, asking a witness if he thought he (defendant) could hit a cow, shot towards the cattle while witness’s back was turned. Defendant was found guilty, and fined $50.

<p>IMrgep.y—Indictment.—An indictment for forgery, alleging the execution of an instrument which purported to be the act of a firm, or partnership, should allege the partnership, and should state the name of each member of it, if known.</p>

<p>Appeal from, the District Court of Caldwell. Tried below before the Hon. L. W. Moore.</p> <p>Appellant was indicted for the theft of two hundred and fifty head of sheep, and, upon being tried and convicted, his punishment was assessed at four years in the penitentiary. Various objections were urged to the indictment upon the trial, and, that the questions raised may be better understood, the entry of the presentation of the indictment, and the indictment itself, are set out in full, except the printers’ advertisement on the indictment.</p> <p>“ Came the grand jury, a legal quorum being present, and returned into open court the following indictment, to wit: —</p> <p>‘‘The State of Texas jTheffc of sheep_ ^ ' V' | Presented on the 25 March, 1879. J. E. West. J</p> <p>“ The State of Texas, county of Caldwell. In the District Court of said county, March term, A. D. 1879. In the name and by the authority of the State of Texas: The grand jurors, good and lawful men of the State of Texas, county of Caldwell, duly tried on oath by the judge of the District Court of said county touching their legal qualifications as jurors, elected, empanelled, sworn, and charged to inquire into, and true presentment make of all offences against the penal laws of said State, committed within the body of the county aforesaid, upon their oaths, present in the District Court of said county that one J. E. West, whose Christian name, other than J. E., is to these grand jurors unknown, late of the county of Caldwell, laborer, on the fifteenth day of January, in the year of our Lord one thousand eight hundred and seventy-nine, with force and arms, in the county of Caldwell, and State of Texas, did then and there unlawfully, fraudulently, and feloniously take, steal, and carry away from the possession of B. T. Palmer, holding the same for the owner, two hundred and fifty head of sheep, of the value of two dollars per head, of the aggregate value of five hundred dollars, the corporeal personal property of James Culbertson; and that the said West did take said sheep as aforesaid, without the consent of the said James Culbertson, the owner thereof, and without the consent of the said B. T. Palmer, who had the possession thereof, and with the unlawful and fraudulent intent, then and there, on the part of him, the said West, to deprive the owner of said sheep of the value thereof, and to appropriate the same to his own use and benefit; contrary to the form of the statute in such cases made and provided, against the peace and dignity of the State.” Filed, March 25,1879.</p> <p>The various exceptions to the indictment having been overruled, and defendant put upon his trial, B. T. Palmer was placed upon the stand by the State, and testified that, on the fifteenth day of January, 1879, he had in his possession about one thousand and fifty head of sheep, the property of James Culbertson, and at that time had had them in charge for about two months. On that morning witness turned the sheep out of the pen, and his son drove them off to graze. When witness’s son brought them back that night, about three hundred and fifty head were missing. Witness did not give defendant, or other person, his consent to take the sheep. The sheep were kept on witness’s place, in the upper end of Caldwell County, near the line, and were herded on the Pace and Martinez leagues.</p> <p>On cross-examination, witness says that the sheep came into his actual possession on the twenty-eighth day of December, 1878, but had been herded for him by another man for about two weeks before that time, for which service witness was paying. The sheep were delivered to him under a contract between himself and Culbertson, under which witness was to keep the sheep until the 1st of September, 1879, on shares. Witness was to get one-fourth of the wool and one-fourth of the increase. The ewes had dropped some lambs prior to January 15, 1879, the time at which the three hundred and fifty sheep were missing; and witness supposes that the wool had grown some. Witness afterwards went with his son to the prairie near old man Jackson’s, about five or six miles west from home, and found the sheep that had been missing. When found, there were one or more lambs among them, but no person with them. Witness and his son drove them home, and put them in the herd with the rest. Witness is not much of a sheep-man, and does not know whether the sheep turned over to him by Culbertson were graded, or common Mexican sheep. Had never herded the sheep himself, but had been on the prairie several times and seen them. Witness supposes that it would be difficult for a lawyer to tell one sheep from another by its countenance, but would not be a very difficult matter for an observing man to do. Prior to the loss of these sheep, witness had never noticed whether they were branded or not; but, after the last sheep had been found and turned into the herd, noticed that some had been branded on the jaw. Witness cannot say whether airy of the sheep branded were among those found on the prairie or not, or whether only those so found were branded, or only those that remained at home. Witness recognized the sheep found on the prairie as the same sheep missed on the fifteenth day of January, by their general appearance, and by a peculiarly marked sheep, which was of a brown color under the belly and the lower part of the jaws, and had upon it a long, straight substance, which witness does not know whether to call hair or wool. San Marcos is about twenty-six miles west from where witness lives.</p> <p>T. J. Horton, for the State, testified that he-recognized the defendant as a man he saw at his place, about four miles east of San Marcos, on the seventeenth day of January, 1879. Defendant had a little flock of sheep with him, which he left grazing on the prairie when he went up to witness’s house. He tried to get witness to take the sheep and take care of them for him, which witness refused to do, and defendant left. The sheep, in the meantime, had wandered out of sight, and witness does not know which way defendant carried them. Defendant came to witness’s house from a south-easterly direction, in the afternoon of the seventeenth day of January, 1879.</p> <p>John Welch testified, for the State, that he knows the defendant ; saw him at the Bisbee Springs, in Caldwell County, on the sixteenth day of January, 1879. He then had with him a small flock of sheep, of two hundred and fifty or two hundred and seventy-five head. He was in a north-easterly direction from witness, towards the Green Mott. The time was between sundown and dark. Witness was in company with James Crenshaw. The Bisbee Springs are about fifteen miles, in a westerly direction, from B. T. Palmer’s. Witness lives about nine miles from Lockhart, and James Culbertson is his family physician. Knows defendant well.</p> <p>James Crenshaw, for the State, testified that he knows the defendant. Himself and John Welch saw him at Bis-bee’s Springs, in Caldwell County, on the sixteenth day of January, 1879, driving a flock of sheep. Defendant spoke to witness and Welch, and asked how he could get around the Green Mott. Defendant had herded sheep at Bisbee’s Springs a year or two before that. There is now a pasture between Bisbee’s Spring and the Green Mott, but witness does not now remember whether, or not, it was there that defendant used to herd sheep. Bisbee’s Springs are in a westerly direction from Lytton, where B. T. Palmer lives.</p> <p>James Culbertson, for the State, testified that, on the fifteenth day of January, 1879, he had a flock of about one thousand head of sheep, in the possession of B. T. Palmer, who was caring for them on shares. On that day some of them were reported missing. About eight or ten days afterwards witness found them in the possession of a man named Daniel, about four miles beyond San Marcos, in Hays County. Witness recognized the sheep by their general appearance, and by the fact that the last year’s lambs were in the same mark as witness’s mark. The peculiarly marked sheep spoken of by the witness Palmer was among them. There were about two hundred and seventy-five head in the flock found at Daniel’s. The defendant had herded sheep for witness about one a half years before this time, and knew his sheep well. The sheep taken were worth $2 per head. Witness did not give defendant, or other person, permission to take the sheep.</p> <p>Cross-examined, witness said that his sheep were “ graded sheep,” and that he had owned them about one and a half years prior to the 15th of January, 1879. Witness lived in the town of Lockhart, but kept his sheep in the country, from three to ten miles distant. Had never herded them himself, but often saw them every few days, or every few weeks, and sometimes two or three months passed without his seeing them. Had not seen them for six weeks prior to the day he recovered them in Hays County, after they were missed on January 15th. Witness turned them over to Palmer’s son-in-law, beyond the San Marcos river, where he found them.</p> <p>O. F. Daniel, for the State, testified that, about the twenty-first day of January, 1879, defendant came to his house, about four miles beyond the San Marcos, in Hays County, and brought with him a flock of sheep, and employed witness to take care of them for him for one month, promising to give witness ten choice ewes from the flock for so doing. A few days after that, the witness Culbertson and three or four others came to witness’s house and took them away, claiming them as the property of Culbertson. Defendant is the man who brought the sheep to witness. He told witness that he lived near Luling.</p> <p>Cross-examined, witness said that when defendant brought the sheep to him, he claimed them as his property. The men who took the sheep away were all armed, either with six-shooters or guns. Witness remonstrated with the men, and asked if they did not intend to give defendant a chance to assert his title. To this, one of the men replied, “No, by Gi—d; we have had trouble enough about these sheep.” Witness then gave them up, as he did not wish to have any trouble about them himself. Defendant was not present at the time.</p> <p>The defendant offered no testimony</p>

Tried below before the Hon. J. K. Helton, County Judge. The opinion discloses the case. D. G. Thomas, and Fossett The only error complained of—being one of law and apparent of record—is that the imprisonment is illegal, and not warranted by the judgment nor by authority of law. Applicant, by his counsel, respectfully submits : — 1.

<p>1. Accomplice Testimony — Charge of the Court. — The meaning of the terms “ corroborating evidence ” is plain, and no definition of them need he attempted in a charge upon the law governing accomplice testimony.</p> <p>■2. Burden of Proof. —Defendant having interposed the plea of autrefois acquit, the burden of proof, to that extent, was upon him.</p>

<p>Appeal from the District Court of Erath. Tried below before the Hon. T. L. Nugent.</p> <p>The opinion states the case.</p>

<p>1. CoNTiNtrAircE.—Defendant, being indicted for the theft of a horse he had borrowed from the owner, applied for a first continuance, to obtain testimony to prove that, instead of appropriating the animal, he had turned it loose upon its accustomed range, expecting it to return to its owner. Held, that the testimony was material; and, the application being otherwise sufficient, the continuance should have been granted.</p> <p>2. Evidence.—A. State’s witness being asked, on cross-examination, if he had inquired of one G. respecting the stolen animal, replied that he had not, because “people told him there was no such man as G. living in the county.” The defence moved that the latter part of the answer be stricken out for irrelevancy and as hearsay. Seld, that the motion should have been sustained.</p>

Tried below before the Hon. Z. Hunt. Appellant, Andrew Speer, and Gottlieb Sauter were charged by indictment with the theft of a steer, the property of Y. S. Boules. The defendant, being tried alone, was found guilty, upon evidence sufficient to support the verdict, and his punishment was placed at two years in the penitentiary.

<p>Indictment—UNXAwrDL Driving of Stock from Range. —An indictment for the “unlawful driving of cattle out of the county,” etc., which neither negatives the fact that the cattle were the property of the defendant, nor alleges that they were driven without the written authority of the owner, • charges no offence against the laws of this State.</p>

Tried below before the Hon. R. R. Gaines. The opinion discloses the case, and details the substance of the evidence. The indictment was for the murder of Frank Crain, who was a brother-in-law of Evans, the defendant.

Tried below before the Hon. S. Ford. The indictment, filed in the District Court of Bobertson County, June 12, 1874, and in the District Court of Milam County, under a change of venue, on the thirtieth day of October, 1876, charged the defendant with the rape of Liney King, on or about April 7, 1874. The trial resulted in his conviction, and his punishment was assessed at five years’ confinement in the penitentiary.

Tried below before the Hon. J. Bledsoe. The indictment charged that the animal was stolen on the night of the twenty-eighth day of June, 1877. The proof shows that the defendant was seen, on the evening of the 29th of June, 1877, riding the animal, leading one bay mule, and driving a- bay mule and bay horse in front of him.

Habeas Corpus, on appeal from a judgment in chambers, rendered by the Hon. J. Abbott, Judge of the Twenty-eighth Judicial District, and refusing bail to the appellant. The indictment, filed June 29, 1878, charged the appellant with the murder of William Gerrard, in Johnson County, on March 15, 1874. The testimony goes to show that, on the morning of January 24, 1875, the body of an unknown man was found about four miles north of the town of Cleburne, in Johnson County, Texas.

<p>Appeal from the District Court of Nueces. Tried below before the Hon. J. C. Russell.</p> <p>The opinion discloses the case.</p>

Tried below-before the Hon. J. Bledsoe. The conviction in this case was for murder in the first-degree ; for which the statute imposes the death penalty. The murder was committed in Grayson County, Texas, on, January 15, 1879, upon the body of J. A. Brunner. R. Cook, for the prosecution, stated that he was in the. saloon of the deceased, in the city of Denison, Texas, on the night of January 15, 1879.

<p>'Vabiawce. — The affidavit charges that the misdemeanor was committed October 14, 1878. The information charges the commission on October 11, 1878. Held, that the variance is fatal, and that the court erred in overruling defendant’s motion to quash the information, and in permitting the State to amend, making the affidavit and information correspond.</p> <p>Appeal from the County Court of Falls. Tried below before the Hon. E. C. Stuart, County Judge.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>The opinion discloses the case.</p>

Tried below .before the Hon. L. C. Alexander. The indictment charged the murder of J. J. Crow. The conviction was for murder in the second degree, and the penalty imposed was ninety-nine years in the State penitentiary. The dying declarations of the deceased, made without solicitation, and in anticipation of death, were testified to by several witnesses.

Tried below before the Hon. L. C. Alexander. The indictment, filed September 2,1878, charged the appellant with the murder of George Heaton, in Falls County, Texas, on the ninth day of April, 1878. His trial was concluded on the nineteenth day of March, 1879, resulting in his conviction of murder in the first degree. As conducive to a more thorough understanding of the opinion, a comparatively full resume of the evidence, which is contradictory and interesting, is appended.

Tried below before the Hon. W. D. Wood. The defendant was indicted by the grand jury of Houston County for the theft of a mare, the property of Frank Hefflin. The trial resulted in his conviction, and his punishment was assessed at five years in the penitentiary. It was proved by the prosecution that the mare and a colt, the property of Hefflin, ran on the range in company with a gray ridgling, the property of George Damon.

Tried below before the Hon. E. Lewis. The evidence in this trial is the same as that adduced on a former trial, reported on page 470 of volume 3 of these reports.

Tried below before the Hon. D. M. Prendergast. The defendant was indicted for the murder of James Shields, in Navarro County, Texas, on the fifth day of March, 1876. His trial resulted in his conviction of murder in the second degree, and his punishment was assessed at twenty-five years in the State penitentiary. Ben Lancaster, an acquaintance of both the defendant and deceased, was the first witness introduced by the State.

Tried below before the Hon. J. Paul, County Judge. For statement of facts, see the case of Long v. The State, which immediately follows this case.

Tried below before the Hon. J. Paul, County Judge. The defendant, was charged, by information, with the violation of sect. 39 of “An act to encourage stock-raising” (Gen. Laws 1876, p. 303), in that he purchased sixty-three head of cattle without taking a bill of sale therefor. Being tried, a verdict of conviction was rendered against him, and a fine of $1,260 adjudged, in accordance with the finding of the jury.

<p>1. Indictment—Amendment. —If the defect in an indictment is a matter of form, it may be amended, and the trial proceeded with. Not so, however, if the defect is one of substance, such as the venue of the offence.</p> <p>2. Same — Jurisdiction—Venue.—The indictment must show that the place where the offence was committed is within the jurisdiction of the court in which it is presented. If an indictment fails to lay the venue of the offence charged, it is a fatal defect, of which advantage may be taken by a motion to quash, or in arrest of judgment. See the opinion for an indictment held insufficient under these rules.</p> <p>3. Verdict. — A verdict finding the defendant “ guilty of the theft of property of the value of twelve dollars,” is not responsive to an indictment charging the theft of two hogs.</p>

Tried below before the Hon. H. C. Pleasants. At the June term, 1876, of the Karnes County District Court, this appellant, and three others unknown to the grand jury, were indicted for the murder of one Alfred Cone. Upon trial, he was convicted of murder in the first degree, and the jury, exercising a discretion conferred by the Constitution of 1869, assessed his punishment at confinement in the State penitentiary for the term of his natural life.

<p>Appeal from the County Court of Bosque. Tried below before the Hon. J. K. Helton, County Judge.</p> <p>The opinion discloses the case.</p>

<p>1. Bribery.—The payment, or offer of payment, of any money, emolument, or thing of value by any person to a sheriff, or other peace-officer, for the-release of any prisoner in the custody of such sheriff or peace-officer, brings the person so offering within the meaning of art. 307 of the Penal Code (Paso. Dig., art. 1930), defining the offence of bribery.</p> <p>2. Same.—If, however, with a view to entrap the defendant, the officer first suggests his willingness to accept a bribe, and thereby originates the criminal intent, the defendant, by acceding, is not brought within the spirit, of the said art. 307.</p>

Tried below before the Hon. L. C. Alexander. The evidence discloses that, on the night of the 5th of October, 1877, the jewelry store of Julius Tobler, in the town of Belton, Bell County, was entered, and a quantity of jewelry and some $335 in silver abstracted. Some days subsequent to the burglary, a pair of saddle-bags, identified as the property of the defendant, containing a number of the articles stolen, was found secreted in an oat-crib, on the premises of A. M. Hanna.