Volume 7 — Texas Court of Appeals Reports

Tried below before the Hon. W. D. Wood. The indictment charged the appellant with the murder of P. W. Randolph, on February 8, 1878. On his first trial he was found guilty of murder in the first degree, and adjudged to be executed. From that judgment he appealed to this court, and the conviction was set aside. The report of the case will be found at p. 493, 5 Texas Ct. App., where a full statement of the facts of the homicide is given.

Tried below before the-Hon. W. L. Faulk, County Judge. The material facts are disclosed in the opinion. The fine assessed against the appellant was $30.

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

Tried below before the Hon. J C. Robertson. The indictment charged George Moore, the appellant, with an assault on B. H. Pigues, with intent to murder him, and alleged that the assault was made with a loaded gun, on the 1st of November, 1878.

<p>Appeal from the County Court of Gregg. Tried below before the Hon. J. F. Witherspoon, County Judge.</p> <p>The opinion states the case.</p>

<p>1. Recognizanc. — There being no offence specifically designated in the Code as “ malicious mischief,” a recital in a recognizance that the defendant is ' accused of “malicious mischief” is not a compliance with the statutory requirement that “the offence of which the defendant is accused be distinctly named in the bond.” The omission, therefore, of such a designation of the offence is not a fatal defect in a recognizance otherwise sufficient.</p> <p>' 2. Same — Duplicity. —A recognizance which recites that the defendant is accused of two distinct offences is bad for duplicity.</p> <p>3. Case Stated. — Recognizance for an appeal recited that the defendant was " accused of “the offence of wilfully and wantonly beating and bruising one gelding, with intent to injure the owner.” Held, that this recital is duplicitous because, omitting the word “wantonly,” it describes the offence defined in art. 2344, Paschal’s Digest; and, omitting the clause “with intent to injure the owner,” it describes the offence defined in the next ensuing article.</p>

<p>Appeal from the County Court of Wood. Tried below before the Hon. W. J. Jones, County Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from the County Court of Camp. Tried below before the Hon. W. P. Skeen, County Judge.</p> <p>The opinion sufficiently states the case.</p>

Tried below before the Hon. W. G. W. Jowers, County Judge. Appellant was tried and convicted of an aggravated assault upon a female ; his punishment was assessed at a fine of $100, and imprisonment in the county jail for one year.

Tried below before the Hon. E. Lewis. The evidence is elaborate, and a detail of it is not necessary to the comprehension of the rulings in the opinion. The punishment assessed and adjudged was five years in the penitentiary.

Tried below before the Hon. W. J. Jones, County Judge. The indictment was for having a bar-room open on an election-day. The word ‘ ‘ did ’ ’ was not inserted in the charging clause, where it was necessary to the sense of the accusation, and to its imputation to the defendant.

,. Appeal from the District Court of Burnet. Tried below before the Hon; W. A. Blackburn. ‘ The material facts are disclosed in the opinion of the court.

Tried below before the Hon. B. T. Estes. The appellant was indicted and convicted of breaking open the jail at Mount Vernon, the county-seat of Franklin County, on August 15, 1878, with intent to effect the escape of one Peter Moore, confined therein. The jury consigned appellant to the penitentiary for a term of six years.

<p>1. Indictment. — The objection that an indictment does not show on its face that it was presented in the proper court is not one of substance; but if true in fact, and not cured by amendment, is good cause in support of a motion to quash.</p> <p>2. Same — Minutes of Court. — It is a requirement of the Code that the. fact of the presentment of an indictment in open court by the grand jury shall be entered on the minutes of the proceedings of the court; and this duty should not he neglected.</p> <p>3. Transfer of Causes from the District Courts to Inferior Courts. — The Code requires each district judge, at the end of each term of his court, to make an order transferring to inferior courts such criminal cases as pertain to their jurisdiction, specifying the cases, and the courts to which they are transferred; and the district clerk is required to deliver to such courts the transferred indictments and all papers relating to the cases, and to “accompany each case with a certified copy of all the proceedings taken therein in the District Court,” etc. Held, that the certified copy thus .required of the clerk should comprise the entry on his minutes of the presentment of the indictment by the grand jury, and all other record-entries relating to the case. Note the gucere in McDonald v. The State, post, p. 113.</p> <p>4. Same — Seal of Court. — The certified copy must be authenticated over the seal of the District Court.</p>

Tried below before the Hon. N. S. Battle. The opinion states the casé. The judgment appealed from was rendered in March, 1876, and before the abrogation of the Criminal Court of Waco by the present Constitution.

<p>Appeal from the District Court of Wood. Tried below before the Hon. J. C. Bóbertson.</p> <p>The evidence is recapitulated in the opinion .of the court.</p>

Tried below before the Hon. P. H. Davis, County Judge. A full statement of the material facts is given in the opinion of the court.

<p>Appeal from the County Court of Bell. Tried below before the Hon. W. M. Minyard, County. Judge.</p> <p>The opinion sufficiently states the case.</p>

<p>1. Continuance — Severance. — The Code authorizes a severance of defendants to enable one to obtain the testimony of the other, by a prior trial and acquittal of the latter; but this provision is based on the idea that there is no evidence against the party to be first tried, and does not contemplate that if he is convicted, and appeals, the other shall be entitled to a continuance until the appeal shall be determined.</p> <p>2. Pleading. — The rulings in Copping v. The State, ante, p. 61, referred to with approval.</p>

<p>1. Practice m this Court.—Refusal of a continuance will not be revised unless a proper bill of exceptions thereto appears in the record.</p> <p>2. Witness. — On his trial for theft, the defendant proposed to introduce as a witness a person who in a separate indictment was charged as a receiver of the stolen property. Held, that the proposed witness was properly excluded, in view of the provision of the Code which disqualifies principals, accessories, and accomplices from testifying in behalf of each other.</p> <p>3. Charge ofthe Court. —In the introductory portion of the charge to the jury, the court below miscalled the name of a person not on trial, but jointly indicted with the appellant. The attention of the court was not directed to the mistake at the time, but a general exception to the whole charge was taken. Held, not a material error, nor a matter within the purview of the general exception to the charge of the court.</p> <p>4. Same. — In a trial for theft wherein the State adduced circumstantial evidence only, the court below, in connection with the presumption of innocence and the reasonable doubt, instructed the jury that, to warrant a conviction, the circumstances, taken together, must be of such a character “as to be incapable of explanation upon any other rational hypothesis but that of the defendant’s guilt.” Ho additional instruction on the subject was asked. Held, a sufficient charge on the subject.</p>

<p>Appeal from the County Court of Falls. Tried below before the Hon. E. C. Stuart, County Judge.</p> <p>The case is clearly stated in the opinion of the court.</p>

Tried below before the Hon. B. T. Estes. The information charged the appellant with a petit theft, and was originally instituted in the County Court, but was transferred thence to the District Court in compliance with an act of 1879 which divested the criminal jurisdiction of the County Court of Bowie, and of several other counties, ánd restored it to their District Courts.

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

Tried below before the Hon. W. L. Faulk, County Judge. A clear and compendious statement of the material evidence is given in the opinion of the court.

<p>1. Former Acquittal constitutes no defence against a charge of which the . accused could not have been convicted in his former prosecution. Note the illustrations of this principle collated in the opinion of the court.</p> <p>2. Malicious Mischief. — Under the provisions of the Penal Code, the wilful killing, etc., of certain animals, with intent to injure the owner, is a different offence from the wilful and wanton killing, etc., of such animals, the property of another; and in a prosecution for one of these offences a conviction for the other could not legally be had. Therefore a former acquittal of one of these offences is no defence against a prosecution for the other, though both prosecutions were based on the same acts of the accused.</p>

<p>Appeal from the County Court of Montague. Tried below before the Hon. R. D. Rugeley, County Judge.</p> <p>Every matter oi any ^significance is disclosed in the opinion.</p>

Tried below before the Hon. W. H. Scott, County Judge. The appellant was prosecuted by information in the County Court of Brown County for unlawfully carrying a pistol about his person on July 26, 1878. In August, 1878, he was convicted, and a fine of $25 adjudged against him ; and he appealed. The material facts of the case are disclosed in the opinion.

<p>1. Verdict found the defendant “gully as charged in the indictment,” to which no objection was taken until assigned in the motion for a new trial-Held, that the verdict is sufficiently intelligible not to be misunderstood, and to preclude all reasonable doubt of its import. Note the distinction taken between this verdict and that in Taylor v. The State, 5 Texas Cf. App. 569.</p> <p>2. Same—Practice. —Defendant filed a motion for a new trial, and assigned as one cause the insufficiency of the verdict by reason of the defect above indicated; and thereupon the State’s counsel, in explanation of the mistake, filed the affidavit of the juror who wrote the verdict, and who accounts for the mistake as accidental, and because, when the verdict was written, it was so dark he could scarcely see to write. This proceeding is assigned as error. Held, that the explanation so given neither impairs the validity of the verdict nor otherwise warrants a disturbance of the conviction.</p>

<p>Appeal from the District Court of Tom Green. Tried below before the Hon. A. Blacker.</p> <p>The indictment charged the appellant with the murder of Hubert Speth, oh the 18th of May, 1879. The evidence was unusually concise and consistent, there being no controversy respecting the fact of the homicide, nor of the sole agency of the appellant in its commission.</p> <p>Arthur White, testifying for the State, deposed that on May 20, 1879, he saw Hubert Speth shot and killed by the defendant, Frye, at St. Angelo, in Tom Green County. The deceased and “ one of the Storks boys ” were walking along the road together, and the defendant and another of the Storks boys walking close behind them. “ The Storks boy in front,” says the witness, “ drew his pistol and fired twice up in the air, and I then saw the defendant, John Frye, put a pistol (I don’t know where he got it) up behind Speth’s head and shoot him. Speth fell as soon as the shot was fired, and defendant then locked arms with the Storks boys and walked on, without stopping to look at Speth.” The witness stated that he was about forty or fifty yards from the parties when" the deceased was thus killed, about two o’clock in the afternoon. “ When Speth was shot, he was doing nothing but walking along.”</p> <p>Dock Storks, for the State, testified that he and Hubert Speth, who was also called Joe Miller, were at St. Angelo, in Tom Green County, one Sunday afternoon in May, 1879. They were walking along together, Speth’s right arm in witness’s arm, and witness’s brother and the defendant walking along behind. Witness was drunk, and pulled out a little pistol and fired it up in the air, and then heard a shot fired from behind, and Speth fell down on his face. “ Defendant then came up and locked arms with me, and said to me, 1 Dock, .1 have killed Joe, by G—d ; I had to kill him in self-defence.’ I was afraid he would kill me. * * *</p> <p>At the time Hubert Speth was killed, he was doing nothing at all but walking along.”</p> <p>Other witnesses, who observed the deed from a short distance, gave a similar account of it, and the defendant repeatedly spoke of it in a boastful manner, though warned that his statements might be used against him. There was some evidence of a slight difficulty between the defendant and the deceased the day before the homicide.</p> <p>All other facts of any significance appear in the opinion.</p>

<p>Appeal from the County Court of Rains. Tried below before the Hon. E. P. Kearby, County Judge.</p>

<p>Appeal from the District Court of Bell. Tried below before the Hon. L. C. Alexander.</p> <p>The facts germane to the rulings are stated in the opinion.</p>

<p>Appeal from the District Court of Parker. Tried below before the Hon. A. J. Hood.</p> <p>The opinion discloses the facts germane to the rulings.</p>

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

<p>Appeal from the County Court of Johnson. Tried below before the Hon. W. J. Ewing, County Judge.</p> <p>All material facts appear in the opinion.</p>

Tried below before the Hon. W. J. Ewing, County Judge. This was a ease of aggravated assault and battery. The opinion shows the defect in certificate of the district clerk.

Tried below before the Hon. S. C. Bryson, County Judge. The appellant was charged, by information, with the misdemeanor of unlawfully pulling down a fence without consent of the owner. The jury assessed against him a fine of $10.

<p>Appeal from the County Court of Hunt. Tried below before the Hon. H. B. Simonds, County Judge.</p> <p>The conviction was for petit theft.</p>

Tried below before the Hon. W. A. Blackburn. It was in proof that the animal was regarded as an estray and the owner as unknown, in the neighborhood where it was taken by the appellant, who clipped the hair on the brand upon it so as to give the brand quite a different appearance. Other facts of significance appear in the opinion of the court. The punishment assessed was two years in the penitentiary.

Tried below before the Hon. G. H. Noonan. By indictment filed October 24, 1878, John Lanham was charged with the murder of Georgie Drake, by shooting her with a six-shooter pistol, on the 3d of August, 1878. It is seldom that the facts and details of a case of this character are elicited so distinctly and consistently as those narrated in the record made up on his appeal from the judgment of death by hanging, based on his conviction by the jury of murder in the first degree.

<p>Minutes of Court. —If the record fails to show that the defendant pleaded to the indictment, or that his plea was entered for him, the conviction cannot stand.</p>

<p>1. Practice. — Subject to certain prescribed regulations, the general control of criminal trials is confided to the discretion of the judges who preside thereat; and on this court is devolved the duty of correcting abuses of that discretion to the prejudice of defendants.</p> <p>2 Same. — Witnesses may be placed under the rule at the instance of either party, and be kept in charge of an officer or allowed to go at large as the court may direct; and by like direction those for the prosecution may be kept separate from those for the defence. A wide discretion over the subject is vested in the presiding judge, to the end that the integrity of the evidence may be protected against sinister influences; and the exercise of this discretion will not be revised on appeal, unless an abuse of it to the prejudice of the defendant be made to appear.</p> <p>3. Charge of the Court. — In a trial for felony the court below prominently propounded to the jury the inquiry whether, from the evidence they should find to be true, they could “ reasonably conclude that the defendant is innocent,” and in that event directed an acquittal, otherwise a conviction. Held, essentially erroneous and prejudicial to the defendant, because, overslaughing the presumption of innocence, it reversed the rule of law by requiring the jury to reach the conclusion of innocence before they could acquit. See the opinion in extenso.</p> <p>4. Challenge. — A juror already accepted cannot be challenged peremptorily.</p>

<p>Appeal from the County Court of Grayson. Tried below before the Hon. S. D. Steedman, County Judge.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>1. Petit Jury— Organization. —When there was no residuum from which to supply the places of regular jurors challenged for cause, the court below correctly required the accused to pass upon those in the- panel, and then had the panel filled by summons of qualified persons.</p> <p>2. Same. — The jury-law designs to supply the courts with a sufficient number of jurors at each term, and intends that they be made available, if practicable, without summoning talesmen.</p> <p>3. Dying Declarations are competent evidence only in cases of homicide wherein the death of the declarant is the subject of the charge, and the circumstances of his death the subject of the declarations. But note in this case circumstances under which it was held not material error to admit, as part of a dying declaration, a statement not directly declarative of the res gestee.</p> <p>4. Evidence.—In a trial for murder, there being evidence tending to prove that the deceased, when shot by the defendant in an altercation between them, had a pocket-knife in his hand, the defence proposed to prove that at a subsequent but indefinite hour of the same day the defendant was seen, a mile or more from the place of the homicide, with a fresh cut in the lapel of his coat. Held, that the proposed proof was properly excluded on objection of the prosecution.</p> <p>6. Practice. — Being convicted of a felony not capital, the defendant moved' for a new trial, and pending his motion the act of March 27, 1879, took effect, which authorizes sentence in such cases before appeal taken. His motion was overruled and sentence passed, to which he excepted because his conviction antedated the said enactment. Held, that the sentence was authorized by the act referred to.</p> <p>6. Charge of the Court.—In a trial for murder in the second degree of a defendant who had been previously convicted of that offence, but had obtained a new trial, the court below, in the charge to the jury, informed them of the previous conviction of the defendant, in connection with instructions to consider of no higher offence than murder in the second degree. ' No objection was taken to this part of the charge at the time it was given, and it was first mooted in the motion for a new trial. Held, proper to instruct the jury to consider of no higher offence than murder in the second degree, but in doing so it would have been better not to have informed the jury of the previous conviction of the defendant. In this case, however, no material error is perceived, inasmuch as the attention of the court below was not directed to the matter at the proper time, and as no right of the defendant appears to have been prejudiced.</p> <p>7. Separation of the Jury before verdict does not per se vitiate a verdict, even in a felony case. The verdict will be sustained or set aside, according to the circumstances.</p>

Tried below before the Hon. N. W. Battle. The opinion states the case. The judgment below was rendered prior to the abolition of the Criminal Court of Waco by the Constitution of 1876.

<p>1. Charge of the Court—Insanity. — In a trial for murder, the court below instructed the jury to the effect that an act done in a state of insanity is not punishable, and that in such cases the true inquiry is whether or not the accused was capable of having, and did have, a criminal intent, and the capacity to distinguish between right and wrong, in respect of the particular act of which he is charged. Held, in substantial accord with the adjudications of this and other States.</p> <p>2. Newly discovered Evidence. —Being found guilty of murder, the defendant filed his affidavit for a new trial, alleging that he had discovered since his trial that he could prove by certain absent witnesses that, a few hours before the homicide, they met the deceased, who was carrying a gun, and who inquired of them for defendant, saying that if he found defendant he would “ make it warm for him,” and would “ set him up.” Held, that the materiality of this proof is not apparent, inasmuch as it is neither alleged in the affidavit nor disclosed in the evidence at the trial that such threats of the deceased had been communicated to the defendant, or tho t the deceased, when shot by the defendant, was making any manner of hostile demonstration.</p> <p>3. Same. —Nor would newly discovered evidence to prove a criminal intimacy between the deceased and the wife of the defendant be material, without further proof that such intimacy came to the defendant’s knowledge, and that immediately thereupon he sought the deceased and killed him.</p> <p>4. Application for new trial based on newly discovered evidence must allege that such evidence was unknown to the defendant at the time of the trial, and not merely that it was unknown to his counsel; and if the supporting affiants allege information derived from other persons, the names of such others should be disclosed, and their affidavits be either filed or the want of them accounted for.</p> <p>5. Practice is Court op Appeals. — This court cannot hold the refusal of a new trial to be error, when the motion therefor failed to comply with essential requirements of the law.</p> <p>6. Verdict. — The Code directs that verdicts shall be entered on the minutes of the court, but does not require the clerk to mark them “filed.”</p>

<p>Appeal from the County Court of Lamar. Tried below before the Hon.- S. C. Bryson, County Judge.</p>

<p>Charge or the Court. — The law of Texas is and has ever been sedulously careful to establish and preserve well-defined boundaries between the functions of the judge and those of the jury, and to guard the province of each against intrusion by the other. It requires the judge to deliver to the jury a written charge distinctly setting forth the “law applicable to the case,” but strictly enjoins him from therein discussing the facts, weighing the evidence, summing up the testimony, or using any argument calculated to arouse the sympathy or passion of the jury. These injunctions exact from the judge, not merely that he refrain from positive expressions of the prohibited kinds, but that he avoid even the appearance of an intimation or the suggestion of the remotest inference from the evidence or the facts of the case on trial. Disregard of the law in these respects becomes especially material and prejudicial when, as in the present case, there was evidence which, if credited by the jury, tended to countervail the inculpatory evidence adduced by the State. See the opinion in extenso, and the application of these principles in this case.</p>

<p>1. Bribery. — O ’Brien v. The State, 6 Texas Ct. App. 665, cited and approved, to the effect that if an officer first suggests his willingness to accept a bribe, and thereby originates the criminal intent, the defendant, by acceding, does not commit bribery under art. 307 of the Penal Code. Rev. Penal Code, art. 133.</p> <p>2. Same — Charge of the Court. — But it was not error to instruct that, if the defendant offered to bribe the officer, no subsequent conduct of the officer could exculpate the defendant.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. Gr. H. Noonan.</p> <p>The opinion sets out so much of the indictment as sub-serves all purposes. J. H. Horan, Boy Bean, and Bethel Coopwood were the defendants. The ■ record shows that they claimed to have acted under authority of a writ of possession which emanated from the United States Circuit Court at Austin, of 'which Horan was a deputy-marshal. The jury found all three guilty, and assessed against Horan and Coopwood a fine of $250 each, and against Bean a fine of $5.</p>

<p>Appeal from the County Court of Rains. Tried below before the Hon. E. P. Kearby, County Judge.</p> <p>The case is disclosed in the opinion.</p>

<p>1. Practice.—Rule 56 for the District Courts allows exceptions to evidence to be embodied in the statement of facts, and this rule is applicable to criminal as well as civil cases. But when this practice is adopted, in lieu of a bill of exceptions, the statement of facts should expressly show and note the exceptions; no intendments will he indulged. Higginbothams. The State, 3 Texas Ct. App. 447, contra, explained.</p> <p>2, Same..—■Ihcompeten'CY of a witness by reason of his previous conviction of felony cannot be proved by the witness himself, if objection be duly interposed. The record is the best evidence, and it must show the judgment of conviction.</p> <p>3. Same. —Pardon of a witness, relied on to restore his competency, should he proved by the charter of pardon. Art. 3110, Paschal’s Digest, did not change this rule. (The second head-note in Schell v. The State, 2 Texas Ct. App. 30, was, it seems, a misconstruction by the reporters of the ruling in that case.) Rev. Code Cr. Proc., art. 730.</p> <p>4. Continuance. — Diligence is not shown by mere allegations that process for the absent witness was opportunely obtained and promptly placed in the hands of the sheriff. The application must also show whether the process has been returned, and, if so, when and by whom. Presumptions will not be indulged to supply these necessary allegations.</p> <p>5. Evidence. — Such collateral facts as are incapable of generating any reasonable presumption or inference respecting the guilt or innocence of the accused are not competent evidence, —as, for instance, the fact that an adverse witness had himself been prosecuted for crime. Nor, in general, is evidence admissible of the character of the person on whom the offence was committed, unless his character be part of the res gestes.</p> <p>6. Evidence of Witness out of the State.—The fact that a material witness is a resident of the State who, a few days before the trial, went and still is beyond the limits of the State constitutes no predicate for the introduction of the testimony given by him at a previous judicial investigation of the case.</p> <p>7. Credibility of Witnesses. — There is no rule which requires a jury to believe an unimpeached witness, or to reject the testimony of a witness against whom impeaching evidence has been adduced. Though a jury should not reject testimony arbitrarily, its credibility is for their determination, in view of all the evidence, the manner of the witness, etc.</p>

Tried below before the Hon. J. C. Robertson. Under an indictment returned in March, 1875, for the murder of one Tittle, whose given name was unknown to the grand jury, the appellant was tried at the October term, 1879, and was convicted of murder in the second degree, with his punishment assessed at fifteen years in the penitentiary. No statement of facts or bill of exceptions appears in the record.

<p>Appeal from the County Court of Rusk. Tried below before the Hon. A. J Smith, County Judge.</p> <p>A clear statement of the case is given in the opinion.</p>

<p>Appeal from the District Court of Dallas. Tried below before E. G. Bower, Esq., Special Judge. .</p>

Tried below before the Hon. A. J. Booty. The parties in the affair appear to have been colored people. Charley Writings, the assaulted party, testifying- for the State, deposed that it occurred close to a spring near a church in Rusk County. Witness and one Bennett got into a difficulty, and witness jumped on a bank above the spring and boasted that he was the best man on the ground.

Tried helow before the Hon. E. B. Turner. At the March term, 1878, of the court below, the appellant was indicted for the murder of Harvey Carter, on September 28, 1877. One count of the indictment alleged a knife to have been the means used, and a second count alleged a pistol. A mistrial of the case was had at the same term of the court.

<p>1. Challenge for Cause. — Conscientious scruples in regard to the infliction of death as a punishment for crime constitute cause for the challenge of a juror in a capital case, even though the juror limit his scruples to cases in which circumstan tial evidence is relied upon for a conviction.</p> <p>2. Burden on Proof. — Upon the issue of guilty or not guilty, the burden of proof never shifts from the State to the defendant, but remains upon the State throughout the trial.</p> <p>3. Confessions, though made in arrest or jail, are evidence against the maker if he made them voluntarily and after being cautioned that they might he used against him.</p>

<p>Appeal from the District Court of Robertson. Tried below before the Hon. S. Ford.</p> <p>At the December term, 1876, the appellant was indicted for the murder of James Munroe, on August 19, 1876, by striking and cutting him with a hoe. Upon his first trial, which was had at the January term, 1877, he was found guilty of murder in the first degree, and adjudged to suffer death. On his appeal from that judgment to this court, he obtained a new trial on grounds which are disclosed in the report of the case in 2 Texas Ct. App. 326. The second trial was had in June, 1878, and also resulted in the conviction of the appellant of murder in the first degree, and judgment of death ; and he again appeals, upon grounds indicated in the opinion of the court.</p> <p>The first witness for the State was John Perry, who testified that he knew James Munroe, and that he came to his death on August 19,1876, at his home in Robertson County. During the preceding evening, when the sun was about an hour and a half high, witness saw Munroe at the latter’s home; and on the next morning saw him lying on his bed in his own house, murdered. His wound was about the head, near the ear, and was made by a blow with some hard instrument; the head seemed to have been mashed. He was lying diagonally across the bed, speechless, but struggling occasionally. He was in his night-clothes, and could not have travelled after the blow was inflicted on him. Witness saw blood on the floor and bed, but observed none on the walls. The deceased was not bleeding much when witness saw him, but had been previously. The wound could have been made with an iron grubbing-hoe. No person had been in the room that morning, before witness. Susan Smith had called for McClain, and the latter had called to witness, saying that something was wrong at Munroe’s. Witness called at the edge of the gallery, and then went on the gallery and called again. The door was closed, and he pushed it open and looked in, and then saw some keys lying on the floor, by a half-open trunk, which he did not examine. A pair of pants, with blood on them, lay behind the door, and a knife, he thinks, was lying by them. A dog was tied to the gallery post with a small rope, and a pile of seed-cotton was on the left end of the gallery as one would enter the house. Witness made no search for tracks. He had, in the preceding spring, known the defendant, who then went by the name of Henry Walker, but who, after his arrest, went by the name of Bill Walker. The defendant had stayed with deceased for some time during the spring preceding the murder. Besides the front-door leading into the room where the deceased was found, there was another door, which led from that room to another one, in which there was a window. Witness thinks there was no window to the room in which the deceased was lying.</p> <p>Susan Smith, for the State, testified that she lived on the place of the deceased, and saw him sitting on his gallery between eight and nine o’clock the night before he was killed, and he then seemed to be well. He was an old man. A little after sunrise the next morning, witness went to milk the deceased’s cows, and, hearing a noise in the house, went to the door and knocked, but got no answer. Witness heard a struggling in the house. She then went to the cow-pen and called Mr. McClain, who called Mr. Perry, and the latter and witness went towards the house. Witness stopped at the gate, and cannot say who entered the house next after Perry.</p> <p>George Grimes, for the State, testified that he knew the deceased, and went to the latter’s house the morning he was murdered, about two hours after sunrise. This witness found the deceased in the position and condition described previously by Perry, and also saw the keys, pants, and knife mentioned by the latter. Witness and John Sanders, searching for tracks, went to the peach-orchard, and there found tracks which witness knew to be strange tracks on the premises. Some of them looked like the tracks of rundown boots, and others like barefoot tracks. Witness returned to the window of the dining-room, and near the window saw barefoot tracks, as though some one had stood upon his toes, and there was a hole in the ground which might have been made by a bar of iron used to get into the window. Witness next entered the room where the deceased was lying, and there saw the barefoot tracks in some ashes in the fireplace. Pie then went out and trailed the track through the garden-gate to the peach-orchard. The person had walked all over the orchard. Witness followed the tracks through a cotton-field on the north of the house, and there they took a trail for some distance towards Miles Kelly’s house. Witness cut a stick and stuck it in the track, so that he could identify it again, and then returned to inform George Brown and Mr. Callen. The latter cut a a cotton-stalle and measured the track. Witness saw the same measure applied to a track in Judge Joiner’s office at Bremond. Joiner made the defendant make his track in the ashes and sand in his office, where a stove had been. The impression made was plain, and about the same as the tracks found in the deceased’s house. The measure was applied to the footprint in Joiner’s office, and it was the same in every particular,—fitted it exactly. Witness could not tell much about the track found at the window, but measured it across the impression of the toes. The track in Joiner’s office corresponded with that of the toes at the window, and with the track found in the orchard. Witness did not measure the boot-track. On cross-examination, the witness said a person could change his track in his walk, but he could tell whether a track was a natural one or not. The defendant was under arrest when Joiner made him make the tracks. On reexamination, he said the tracks he found were natural tracks.</p> <p>Mary Killen recognized the defendant, and lived on the same place that he did at the time Munroe was murdered. Defendant had cleaned out a well, and witness rinsed the mud off his clothes after he cleaned the well. Witness had washed his clothes three or four times ; they were a coarse striped shirt and white pants. After rinsing the defendant’s clothes on the occasion mentioned, witness saw them in Judge Joiner’s office in Bremond; she knew them by the mud on them. The defendant went off the Thursday night next before the Saturday night when Munroe was killed. The following Sunday morning, a half-hour by sun, witness saw him again ; he came from towards Bremond, and was wearing some new clothes. He brought to witness’s daughter anew dress, hat, underskirt, and pair of shoes. On her cross-examination, she said the defendant had some money when he went off the Thursday before the killing.</p> <p>O. C. Morehead, for the State, testified that about a month before the homicide he paid $20 to the deceased for cattle, and there were three five-dollar bills in the amount. Witness had a five-dollar bill with a hole punched in it, and similar to the bill now shown him in court. Witness got the bill from his meat-market, and kept his money derived from that source separate from his other money. He paid Munroe out of the market-money, but could not say that the bill in question was part of the money he paid him. Knows, however, that he paid out the punched bill about that time, and does not remember of then having made any payments out of his market-money other than the payment to Munroe. On cross-examination, he stated that his only reason for saying that he paid the punched bill to Munroe was that he bought all his cattle from Munroe.</p> <p>Mrs. Marstraudt, for the State, testified that in 1876 she was merchandising in Bremond, and saw the defendant in her store at sunrise the Sunday morning when Munroe was killed. Defendant woke up witness’s husband, to sell him some goods. Witness was called by her husband to come and get some goods which he could not find. She sold the defendant a dress, an underskirt, hat, shoes, ruffled-bosom shirt, and gray jeans pants. When he came he had on ragged pants and shirt, and witness saw that he needed others. The whole bill amounted to $11. Witness asked him why he came that time of day; and he replied that he could not come sooner, for he did not have any money.</p> <p>George Brown, for the State, testified that he was at Munroe’s the morning of the homicide, and found Munroe still breathing. Witness was shown some tracks which led off through the orchard and cotton-field, Witness being informed that some bloody clothes had been found in the woods, some two hundred yards from where the defendant lived on Graves’s place, he arrested the defendant on the Tuesday after the murder. When arrested, he was wearing a white shirt and blue pants, being the clothing which was identified by Mrs. Marstrandt as the same she sold to him. Seven dollars were found on his person, of which a five-dollar bill with a hole in it was part, — the same bill being here shown to witness and identified by him. Witness was present at the examining trial of the defendant before Judge -Joiner for the murder of Munroe. The defendant made a confession at that time. He was cautioned by Judge Joiner that such confession would be used against him on the final trial. He confessed that he and Green Patterson had laid the plan to kill Munroe ; that he went with Patterson and peeped through.the crack, but did not go in; and that Patterson did the killing. Their object was money, to enable him to carry off Patterson’s sister. Witness does not remember whether the defendant said he got any money or not.</p> <p>On his cross-examination, this witness stated that he knew part of the defendant’s confession to be false; but the record does not show to what part of it he had reference. After the confession before the examining ■ court, the defendant made other statements, which implicated different persons with himself. The defendant may have known of threats which had been made.</p> <p>The defence introduced Mr. Graves, who testified that the defendant was living on his place at the time Munroe was killed, and left there on the Thursday preceding the killing, saying that he was going to Bryan after some clothing and would be back in about a week. Witness had paid him some money, but not more than $2 or $3, and thought he could not have had as much as $20.</p> <p>Mr. Nash, for the defence, stated that he knew nothing particular about threats, but that the defendant was somewhat roughly treated and made a confession prior to the confession at Joiner’s office.</p> <p>The jury, as already stated, found the defendant guilty of murder in the first degree. He moved for a new trial, on grounds which are sufficiently indicated in the opinion.</p>

<p>Theft of Cattle.— Note evidence held to be too indeterminate and inconclusive to identify the accused as the person by whom the theft of a cow was perpetrated.</p>

Tried below before the Hon. G. H. Noonan. At the April term, 1878, of the District Court of Bexar County, the appellant was indicted for the murder of Charles Mueller, on the 18th of March, 1878, by shooting him with a gun. At the April term, 1879, a trial was had, and he was found guilty of murder in the second degree. His punishment was assessed and adjudged at twenty years’ confinement in the penitentiary.

<p>1. Burglary—Indictment. — The intent being of the essence of the offence of burglary, and a fact which is to be proved by the State, it should be expressly alleged in an indictment for that offence.</p> <p>2. Hearsay Evidence is none the less incompetent because no other or better evidence is possibly to be found or obtained.</p>

Tried below before the Hon. D. C. Barmore, County Judge. The bail-bond was dated November 3, 1875, and was conditioned for the appearance of the principal obligor before the District Court of Brazos County on the 8th of November, 1875, to answer an indictment for adultery.

<p>Appeal from the District Court of Wise. Tried below before the Hon. J. A. Carroll.</p> <p>The opinion gives a clear statement of the case.</p>

<p>Appeal from the County Court of Kaufman. Tried below before the Hon. H. P. Teague.</p>

Habeas corpus on appeal from an order in chambers of the Hon. S. Ford, Judge of the Ninth Judicial District. A comprehensive and clear statement of the case will be found in the opinion. As will be there seen, the order below allowed bail to the appellant pending his appeal, and he availed himself, of the privilege by executing bond to the satisfaction of the officer to whose custody he was remanded by the final order below.

Tried below before the Hon. G-. J. Clark. The rulings call for no detail of the evidence. Blake, of whom mention is made in the opinion, was the principal witness for the State. The punishment assessed and adjudged against the appellant, was confinement in the penitentiary for three years.

<p>1. Aggravated Assault — Penalty. — The Revised Penal Code having ameliorated the penalty for aggravated assault, it was error, in a trial since it took effect, for an aggravated assault committed prior thereto, to give in charge to the jury the penalty prescribed by the original Code, unless the accused elected to receive that penalty.</p> <p>2. Former Conviction before a Justice’s Court for a r-i mple assault constituted, under the old Code, no bar to a subsequent prosecution for aggravated assault, though both prosecutions were based on the same breach of the peace. And the Revised Code of Criminal Procedure explicitly provides for this character of defence in future. Art. 553.</p> <p>3. “Child,” as used in the definition of aggravated assault, is not synonymous with minor, or one under twenty-one years of age, but is used in its ordinary signification.</p>

Tried below before the Hon. J. A. Carroll. The indictment charged Noffcsinger, the appellant, with the murder of Willis Cline, on August 7, 1878, by shooting him with a gun. The trial was had in August, 1879. The defendant filed a “ motion ” in which he declared his election to be tried under the law in force before the Revised Codes took effect.

<p>Appeal from the District Court of Smith." Tried below before the Hon. J. C. Robertson.</p> <p>The opinion sufficiently indicates the case.</p>

<p>Appeal from the District Court of Fayette. Tried below before the Hon. L. W. Moore.</p>

<p>Assault with Intent to Murder.—To charge an assault with an intent to murder, the indictment must expressly allege whom the accused intended to murder. This cannot be left to inference that he intended to murder the person alleged to have been assaulted.</p>

<p>1. Privilege oe Witness.—In the trial of a husband for an aggravated assault on his wife, she, on her cross-examination by the defence, was .asked whether on a former trial she did not testify that she had told the defendant that two men, to whom he forbade her to speak, were in the habit of having sexual intercourse with her. The State objected for irrelevancy. Held, that the objection was properly sustained for the reason assigned; and that the question was also objectionable because it tended to degrade the witness, and, if answered affirmatively, might have subjected her to civil suit, wherefore she should have been apprised by the court of her privilege not to answer. Note the opinion in extenso on the subject.</p> <p>2. Misnomee—Yaeiance.— Indictment described the assaulted party as Sofia O., and she so gave her Christian name on her direct examination; but on cross-examination she gave it as Sofira, and when reexamined stated that she was called Sofia as much as Sofira, or more. Held, no misnomer or variance, inasmuch as she was known and called as well by the one as the other name. See authorities reviewed in the opinion.</p> <p>■8. Chastisement of the wife by the husband is not permitted by the law of this country, however it may formerly have been in England.</p>

<p>Theft—Penalty—Charge of the Court. — In a trial for a felony, it is the duty of the judge, whether asked or not, to charge the jury correctly on the penalty prescribed for the offence, as part of the law applicable to the case. It was error fatal to the conviction, in a case of hog-theft, to give as the penalty that which is prescribed for theft in general by arts. 785 and 736 of the Revised Penal Code, instead of that specially prescribed by art. 748, for theft of hogs, sheep, and goats; and the conviction cannot he sustained, though the punishment assessed is one which might lawfully have been assessed under a correct charge of the court.</p>

<p>Theft. —In view of the prerogative of juries to weigh the evidence and pass upon the credibility of witnesses, a conviction for theft of a colt is sustained in the present case, notwithstanding that the only State’s witness who positively identified the animal was contradicted by several witnesses for the defence, — a suggestive though negative feature of the case being that the defendant made no effort to show what had become of the colt seen in his possession but asserted by him to have been a different one than the colt described in the indictment.</p>

<p>1. Indictment. — Under the Code of this State, an indictment is good in substance if, eliminating surplusage, it so avers the constituents of the offence as to apprise the defendant of the charge against him, and to enable him to plead the judgment in bar of another prosecution for the same offence. That which it is not necessary to prove need not be alleged in an indictment.</p> <p>2. Same—Misnomer. —If a misnomer occurs in an allegation which is immaterial and may be rejected as surplusage, it does not vitiate the indictment.</p> <p>3. Rape. — Sexual intercourse with a female under the age of ten is rape in this State, no matter what the circumstances; and the question of consent, or whether the intercourse was obtained by force, threats, or fraud, is wholly immaterial.</p> <p>4. Case Stated. —-Indictment of one Eli Mayo for rape of a female under ten 3-ears of age alleged that he, the said Eli Mayo, did make an assault, etc., and that he, by force, threats, and fraud, “by him, the said Eli Ma3-,” used, etc., and without her consent, did ravish, etc. Defendant moved to quash for the reason, substantially, that the rape was not -charged against him. but against a different man, to wit, Eli Hay. But held, that the allegation excepted to is immaterial and surplusage, and the indictment, eliminating that allegation, remains sufficient to charge the defendant with rape of a female under ten years of age.</p> <p>5. Attempt to Commit Rape. — Under the Code of this State, the offence of an attempt to commit rape on a female under ten years of age may be perpetrated with her consent, and without force, threats, or fraud.</p> <p>6. Evidence. —In a trial for rape, the prosecutrix cannot be required to testify to illicit intercourse between herself and any one othpr than the defendant.</p> <p>7. Practice.—Art. 729 of the Revised Code of Criminal Procedure introduces a new rule of practice by providing that the judge, in ruling upon the admissibility of evidence, shall not comment on its weight or bearing, but simply pass on its admissibility. Under this rule, it seems that objections to evidence which are not assigned at the time should be considered waived.</p>

Tried below before the Hon. R. S. Walker. Held: which said pistol was then and there loaded with gunpowder and leaden balls, in and upon Hulen H. Crain, in the peace of God and the said State then and there being, unlawfully, wilfully, and feloniously an assault did make, and that the said Thomas R. Jennings did then and there unlawfully, wilfully, and feloniously shoot off and…

Tried below before the Hon. L. C. Alexander. The indictment and conviction were for theft of two oxen, and two years’ confinement in. the penitentiary was the punishment awarded.

Tried below before the Hon. J. A. Hood. The case is sufficiently disclosed in the opinion and head-notes. Appellant was allotted fifteen years in the penitentiary

<p>Appeal from the District Court of Kaufman. Tried below before the Hon. G. J. Clark.</p> <p>The opinion sufficiently indicates the case.</p>

Habeas corpus on appeal from a judgment in chambers, rendered by the Hon. S. Ford, Judge of the Ninth Judicial District. The offence alleged against the appellants and one James Stearnes was the murder of Greorge T. Morse, in Robertson County, on March 25, 1879.

<p>Appeal from the District Court of Menard. Tried below before the Hon. W. A. Blackburn.</p> <p>The case is disclosed in the opinion.</p>

Tried below before the Hon. G. J. Clark. The indictment and conviction were for the theft of a watch worth more than $20, and two years in the penitentiary the punishment assessed.

<p>Appeal from the District Court of Hunt. Tried below before the Hon. G. J. Clark.</p> <p>The opinion discloses the case. The jury found the appellant guilty, and assessed his punishment at five years in the penitentiary.</p>

<p>1. Verdict. —It is now elementary that bad spelling does not vitiate a verdict which has the requisites of certainty and intelligibility; and the rule is well established that verdicts are to have a reasonable intendment and to receive a reasonable construction, and are not to be avoided save from necessity originating in doubt of their import, or immateriality of the issue found, or their manifest tendency to work injustice.</p> <p>2. Same. — In a verdict of conviction for rape the punishment was assessed at “a five years in the State prisin.” Held, a sufficient verdict. The word “a” may be eliminated as surplusage without vitiating the verdict, and the “ State prison ” necessarily means the State penitentiary.</p> <p>3. Charge of the Court.—In its introductory clause the charge inadvertently stated that the offence was alleged to have been committed in 1879, whereas the indictment laid the year as 1878. Subsequent clauses, however, repeatedly referred the jury to the indictment for the time alleged therein. Held, that the mistake could not possibly have misled the jury, or in any wise have prejudiced any right of the defendant.</p>

<p>1. Theft—Intent — Charge of the Court.—When, in a trial for theft, there was evidence, though vague, which tended to show a bond fide purchase of the property by the defendant, it was the duty of the court below, whether asked or not, to have submitted that issue in the charge to the jury; and this court will take cognizance of omissions of this character, though not assigned as error nor urged here as cause for reversal.</p> <p>2. Surplusage.—Indictment for theft of a mule alleged that it was the property of an owner unknown, and was taken from the possession of one D.j who had estrayed it and was holding it for the owner, and was taken without the consent of D. Held, that the material and issuable matter in this allegation was that the animal was a mule which was an estray, and was in the possession of D., and taken therefrom without his consent. That D. had estrayed the animal was not a descriptive or material averment, but surplusage.</p> <p>3. Variance is a disagreement between the allegation and the proof in some matter legally essential to the charge.</p> <p>4. Charge of the Court. — When, as in this case, the inculpatory evidence was in the main circumstantial, the law governing that character of evidence should have been given in charge to the jury.</p>

<p>Appeal from the District Court of Navarro. Tried below before the Hon. D. M. Prendergast.</p> <p>The indictment charged the appellant with the murder of William Fitzsimmons, on June 1, 1879, by stabbing him with a knife. All matters of any present signification are clearly disclosed in the opinion. If credence be allowable to the unsigned document called a statement of facts, the fatal, assault upon the deceased was utterly without provocation or premonition on his part, but ensued promptly upon a woman’s expression of her preference for the deceased as her companion for the night, rather than the defendant.</p>

<p>1. Indictment must set out the name of the injured party, if known; but certainty to a common intent suffices in this feature of an indictment. It is sufficient if the party be designated by his Christian and surname, or by a name acquired by reputation; or if the name alleged be idem sonans with the true name, though differently spelled, it is sufficient.</p> <p>2. Idem Sonans. —A stringent rule is not applied on this subject. If, without doing violence to the orthography, the names may be sounded alike, the discrepancy is immaterial.</p> <p>3. Same—Case Stated.—Indictment for murder charged that the accused made an assault on one Whitman, by shooting the said Whitman, and thereby wounded “him, the said Whiteman,” in the breast and face of him, the said Whitman, by giving him, the said Whitman, two mortal wounds, • of which the said Whitman instantly died. Defence moved to quash, and in arrest-of judgment,’because of uncertainty resulting from the discrepancy between "Whiteman and Whitman. Held, that the allegations of the indictment preclude any uncertainty, and' the name# are idem ' sonans and the same.</p> <p>4. Same—Allegata et Probata—Charge of the Court.—There was evidence that the deceased was called Whitman by some people and Whiteman by others, and answered to either name. Held, not error to instruct the jury that if the deceased was known by the one as well as the other name the difference between them was immaterial.</p>

<p>1. Perjury.—The Penal Code expressly provides that the “statement of any . circumstance wholly immaterial to the matter in respect to which the declaration is made is not perjury.” Art. 193.</p> <p>2. Same. —Indictment alleged that a material inquiry in the trial of one H. for theft was whether said H. or one W. killed a certain steer, and charged that the accused swore that he “ saw W. kill the steer about four months ago.” The traverse of this statement of the accused averred that the said W. “did not kill said steer at the time and place alleged” by the accused. Meld, that the traverse negatives the time but not the fact that W. killed the steer; andas the time stated (viz., “about four months ago”) was immaterial in the trial of H. for theft, this indictment assigns the perjury on a statement which was not material to the matter in respect to which it was made.</p>

<p>1. Murder—Manslaughter — Charge of the Court.—If in a trial for - murder the evidence tends, by any legitimate deduction, to prove that the homicide, though voluntary, was committed under the immediate influence of sudden passion, arising from a serious personal conflict, in which great injury was inflicted by the deceased, with weapons or by great superiority of strength, it is incumbent on the court to give in charge to the jury the law of manslaughter, even though the accused was the aggressor, provided the aggression was not with intent to bring about a conflict and kill the deceased. And if the court is in doubt respecting the necessity of such a charge, the doubt should be resolved in favor of the accused, and the charge be given.</p> <p>2. Same. — "Whether the injury inflicted by the deceased upon the accused constituted “adequate cause” is a question of fact for the jury to determine, under proper instructions from the court.</p> <p>3. Same.—See evidence in a trial for murder requiring that the law of manslaughter should have been given in charge to the jury.</p>

Tried below, before the Hon. L. C. Alexander. The trial and conviction were for assault with intent to murder, and the punishment was assessed at two years in the penitentiary.

<p>Appeal from the District Court of Burleson. Tried below before the Hon. A. S. Broaddus.</p> <p>The indictment charged the appellant with the murder of one Sam Doss, by cutting him with a knife, on December 17, 1877. The conviction was for murder in the second degree, and ninety-nine years in the penitentiary the punishment assessed.</p> <p>According to the testimony of the principal witness for the State, the homicide was wholly unprovoked, and apparently objectless. According to the defendant’s application for a continuance, however, his absent witnesses would testify to facts clearly making a case of self-defence. The matters involved in the rulings are disclosed in the opinion.</p>

<p>Appeal from the District Court of Bosque. Tried below before the Hon. J. Abbott.</p> <p>The indictment charged that Samuel Lacy, and his son, George Lacy, the appellant, did, on April 1, 1877, murder William H. Swank, by shooting him with a gun, in the back, arm, and back of the head. Appellant was alone on trial.</p> <p>The evidence discloses a somewhat peculiar state of facts. The deceased ivas an entire stranger to all of the witnesses who saw him in Bosque County, but, by his physical characteristics, clothing, and a singular way of talking, the testimony adduced by the State satisfied the jury that he was the man named in the indictment.</p> <p>S. J. King, for the State, testified that he was sent for by Samuel Lacy to come to his house, as a man had been killed there. Witness got there between nine and ten o’clock in the forenoon, and found a dead man lying in the yard near a cabin, stretched out on his belly, but lying a little on his left side, with his right arm under him, and an old gray blanket wrapped around his head and shoulders. Sam Lacy said the body lay just as it fell. There were two wounds in the back on the left of the spine, one under the left ear, one above on the left side of the head, one on the right arm, entering from the rear, and one on the little finger of the left hand. The shots seemed to have entered direct. A six-shooter lay about two feet to the right of the body, with the muzzle towards it. The pistol had made no indentation on the ash-bank it lay upon, though there had been a rain the preceding night. Sam Lacy met witness and told him an unfortunate occurrence had happened there that morning; that about sunrise the man had come to his house on foot, having previously been seen coming out of the brakes, riding one horse and leading another. The man left his horses where they were out of sight from the house, and walked up and asked if he could warm. Being invited in to the fire, he entered and sat down, pulled off his shoes, and after awhile asked if he could get breakfast. Mr. Lacy told him he could, and, while the man sat there and ate his breakfast, asked him where he lived and where he had been, and he said he lived in Coleman County, and had been in Bell County and was going to Coleman County. Lacy told him he was a long way out of the route from Bell to Coleman County. The man said that he was going to Meridian (in Bosque County), and that his name was Wallace. Lacy then said to him, “ I will go with you to Meridian ; from your appearance, and the manner you come up here, I think there is something wrong with you, and that you have stolen property in your possession.” The man said, “ Come on, then,” and started off in the direction of his horses. Lacy told him to wait until he (Lacy) got ready, and he would go with him to Meridian, and “if you are all right with the authorities you are all right with me.” The man did not stop, and Lacy told him a second time to stop ; and as the man still went on, got his gun, and for the third time told him to stop. The man then stopped, and Lacy told him to come back and take a seat in the house; that he should not be hurt, but to wait until he (Lacy) got ready, and he would go with him to Meridian. The man came back until he got near the door, and there broke and ran around the house, and he (Lacy) hobbled along after him, and, while passing the corner of the house, heard a gun fire from the opposite side of the house, and soon found that it was fired by George Lacy, though he (Mr. Lacy) did not know that George was then in the yard. The man’s horses were a roan paint pony, with a bald face, and the other a sorrel horse. One of them was hobbled, and to him the other one was necked. They were about two hundred yards from the house, and a saddle was on the rock fence near them.</p> <p>Other witnesses for the State gave substantially the same version of Samuel Lacy’.s account of the matter. One, however, added that Lacy said the man got his pistol out as he turned around the house; and another stated that Lacy showed him George Lacy’s position when he fired, which was eighty feet from the body, and the two points were not in sight of each other by a foot, — owing, presumably, to the interposition of the house or cabin. This witness was a doctor, and said that the shot in the neck could not have made its exit at the wound in the back of the head, which entered the brain and killed the man ; and that a shot in the brain would cause instant contraction of the muscles of the hand upon any thing therein, whereas a shot in the body would relax the muscles, and any thing in the hand would drop therefrom. Another doctor, testifying for the defence, exactly reversed this theory of the muscular effect of such wounds, and said the wound in the back of the deceased’s head might have been made by the exit of the shot which entered the side of the neck. The wounds, he said, were not probed.</p> <p>Among the witnesses for the defence were the mother, sister, and brother-in-law of the appellant, and a cousin of the brother-in-law, each of whom saw and heard more or less of what transpired previous to and at the moment of the homicide. George Lacy, the appellant, had, with one of these witnesses, gone out to examine the horses of the deceased while the latter was in the house, and returned about the time Samuel Lacy, his father, was endeavoring to detain the deceased. Up to the time the deceased turned the corner of the house, their account of what passed between him and Samuel Lacy accords in substance with the latter’s version of it to the State’s witnesses. According to their testimony, George Lacy, as the deceased came round the house, stepped into a room and took a gun from a rack, stepped into the door of the room, or into the yard, and as the deceased turned the corner of the house with his pistol presented at George, the latter fired upon him with the gun. Two of the witnesses heard some one exclaim, “ The man will kill George.” The entire testimony denies, by implication, that any shot was fired except the one by the appellant. .Doubtless the practical difficulty encountered by the defence was to explain, by the evidence, how the deceased came to be shot in the back.</p> <p>The jury found the appellant guilty of murder in the second degree, and assessed his punishment at fifteen years in the penitentiary.</p>

<p>1. Charge of the Court.—If the law applicable to every legitimate deduction which the jury may draw from the evidence be given to the jury, the charge is sufficient, and the duty of the court discharged in this respect.</p> <p>2. Fact Case. — See evidence held sufficient to support a conviction for murder in the first degree.</p> <p>3. Penalty. — Within the limits prescribed by law, the amount of the punishment is for the consideration of the jury, and not for that of the court.</p>

<p>Appeal from, the District Court of Tarrant. Tried below before the Hon. A. J. Hood.</p> <p>The gravamen of the indictment is set out in the opinion originally rendered in this well-contested and instructive case; and in that and the opinion delivered on the motion for a rehearing the leading facts underlying the rulings are indicated. The most material of the testimony, however, may be useful.</p> <p>M. B. Loyd, for the State, testified that ever since the organization of the First National Bank of Fort Worth, as authorized by virtue of the certificate of the United States comptroller of the currency, dated March 21, 1877, and which he identified, he had been the president and C. H. Higbee the cashier of the bank, and they had transacted about all its business. On December 1, 1877, Joseph A. Leonard, the defendant, was, and for some months previous had been, engaged in the business of keeping a cotton-yard in the city of Fort Worth, and the said bank had some cotton transactions with him. A number of receipts, partly in print and partly in writing, were identified by the witness as cotton-receipts held by said bank for cotton stored in the defendant’s yard. The bank held the cotton by virtue of these receipts, having paid the money, for the cotton represented by them, to any party who presented a check from Leatherwood, a cotton-buyer, with the defendant’s storage-receipt attached to the check. The bank did not buy any cotton, nor was any cotton delivered to the defendant by it or its officers. It was only by the receipts that the witness could identify the cotton mentioned in the indictment, and only by the balance due the bank from Leatherwood (a buyer who operated in connection with the defendant) that he knew the deficit of the defendant in the amount of cotton represented by the receipts.</p> <p>J. D. Jeffries, for the State, testified that he was the defendant’s book-keeper and cashier from August, 1877, to December of the same year, the time of the “break-up,” when the defendant left. The cotton-receipts shown to the previous witness were identified by this witness as the receipts of the defendant, whose signatures were signed by witness to them and to the indorsements thereon, with the knowledge and by order of the defendant. Each of these receipts represented a bale of cotton of the description and weight set forth in the receipt; and the cotton so represented was received in the defendant’s yard at the date of the corresponding receipt. Whoever held the receipt had a right to the bale of cotton it represented. The indorsement on each of these receipts, viz.: “Held subject to the order of 1st Nat. Bank upon return of this receipt,” was not put on the defendant’s receipts in general, but only on those for which the bank paid the money ; and the words, “ 1st Nat. Bank,” mean “ the First National Bank of Fort Worth.” What became of the cotton represented by these receipts held by the bank the witness did not know. Leatherwood and three others were buying cotton for the defendant. On December 1, 1877, the defendant left, and his cotton-yard closed. Witness did not know where the defendant went to, and saw him no more until the fall of 1878. Just before he left, he sold to Gr. T. Potter, by classification, about one hundred bales in marks not known to witness. There was on the yard, when the defendant left, some cotton marked BOB (in which mark eight of the missing bales appear by the receipt) ; and Potter’s cotton was on the yard when defendant left, but whether the latter included the former, the witness does not state; nor could he say whether any of the receipts identified as the bank’s were returned, or that the corresponding cotton had ever been delivered to any one. Witness never knew of any cotton being delivered from the yard without a return of the receipts ; and no order from the bank about the cotton represented by the receipts it held was received by him, or, so far as he knew, by the defendant. The fifty cents charge noted in the receipts was for storage, but the real charge made was thirty-five cents ; the fifty cents was put in the receipts to show to other cotton-yard keepers. The charges had to be paid when the cotton was taken out of the yard. Defendant and Leatherwood agreed to buy cotton and divide the profits ; the defendant gave Leather-wood $1,000 to put up as a margin, and Leatherwood made an arrangement with the First National Bank to pay the checks, Leatherwood paying the storage. Including the cotton sold to Potter, there were more than one hundred and fifty bales on the yard when the defendant left.</p> <p>In connection with this testimony the State put in evidence the receipts held by the bank, each of which bore the signature of the defendant, and purported the delivery tO' him on a certain day, by W. S. Leatherwood (except two by A. G. Wood), of one bale of cotton, in a designated mark, and of a stated weight and number; which bale, by stipulation on the margin, was “ to be delivered on return of this receipt.” Each receipt bore, over the' defendant’s signature, the indorsement, “Held subject to order of 1st Nat. Bank on return of this receipt.”</p> <p>John Nichols, president of the City National Bank of Fort Worth, testifying for the prosecution, stated that on December 1, 1877, the defendant owed that bank $2,335 for advances on cotton, and witness told him it must be settled. On that day the defendant and G-. T. Potter came to the bank, and the latter checked on it for $5,000 in favor of the defendant; and the bank, on cashing the check, deducted from its amount the indebtedness of the defendant and paid him the balance. The check was given by Potter for cotton sold him by the defendant; and the latter, on receiving the balance paid him by the bank, absconded, and was afterwards brought back in arrest. The bank, on thus collecting its dues from the defendant, at his request transferred to Potter the cotton-receipts it held for the amount which the defendant had been indebted to it.</p> <p>M. B. Loyd, recalled by the State, testified that the defendant, when he left the country, was short to the First National Bank of Fort Worth not less than ten bales of cotton, represented by the receipts in evidence, and worth at least $40 per bale. . The indorsement on the receipts was put there in accordance with an arrangement between the bank and the defendant, and in order to hold him directly responsible to the bank for the safe-keeping of the cotton. Witness never authorized him to dispose of the cotton in any manner. The bank had no other connection with him except as a warehouseman; and he never accounted to the bank for the cotton represented by the receipts in evidence. On cross-examination, the witness stated that the cotton-buyer would check on the bank for the price of the cotton, attaching to his check the receipt of the defendant, showing that the cotton was in his yard. Leatherwood, whose name appears in most of the receipts, put with the bank a margin of $1,000 to secure it against loss by a fall in the cotton-market. The bank paid the money to those from whom he bought the cotton, and held it as collateral security, paying no storage on it. Witness, when he heard that the defendant had absconded, took the receipts to the cotton-yard, and had a man to examine the cotton still there for any of the Leatherwood cotton, and only five or seven bales of it were found, and they were reclaimed for the bank. Some weeks before the defendant left, he brought $2,000 to the bank, and with it took up Leather-wood’s receipts to that amount. Witness supposed the defendant got the money by selling the cotton. Both the defendant and Leatherwood were requested by witness to find a purchaser for the cotton represented by the receipts held by the bank; but witness did not remember telling Jeffries that he (the witness) wanted the defendant to sell the cotton.</p> <p>J. M. Henderson, sheriff of Tarrant County, testifying for the prosecution, stated that about December 1, 1877, he made diligent search in that county for the defendant, and failed to find him. In July, 1878, witness arrested the defendant in San Antonio, where he was passing under the name of W. L. Smith.</p> <p>C. H. Higbee, cashier of the First National Bank of Fort Worth, testified for the State. His evidence is, in substance, included in that of Mr. Loyd.</p> <p>By J. Samuels and A. Mandlebaum the State proved that when the defendant absconded they went to his cotton-yard to get cotton for which they held his receipts. Samuels got none of the eleven bales to which his firm was entitled; Mandlebaum got sixteen out of fifty-one, and left no cotton on the yard.</p> <p>For the defence, J. S. Jeffries testified that he was employed by defendant to receive and weigh the cotton stored .in the latter’s yard, from August 1, 1877, to December 1 of the same year. Neither the First National Bank of Fort Worth, nor any of its officers, ever delivered any cotton there. On the last Tuesday of November, 1877, Mr. Loyd, president of the said bank, came to the yard, and told Leatherwood and the defendant that he wanted them to sell the cotton and close up Leatherwood’s account. The next day Loyd came again, and told witness to tell the defendant that he (Loyd) wanted the cotton sold and the Leatherwood account closed; and witness.told the defendant what Loyd said. Mr. Higbee, the cashier, came down the same week, and said he wanted them to sell the cotton. The Leatherwood cotton was bought by Leatherwood, and came to the yard as his cotton. He and the defendant had an agreement that they would put up $1,000 as a margin, and Leatherwood was to buy cotton and store it in defends ant’s yard, and they were to divide profits. Defendant was to control and sell the cotton. On December 1, when the defendant left, there were over one hundred and eighty bales on the yard; of which Potter took one hundred and nineteen, Mordecai thirty or forty, Mandlebaum & Etheridge sixteen, Forsythe two or three, and Gibbons some. There was considerable excitement, and witness could not control the cotton. The last that witness saw of the defendant, the latter was going to the City National Bank. Neither witness nor his family, though defendant was his son-in-law, knew where he went to when he left. On his cross-examination, the witness recognized the receipts in evidence, and verified the weights and description of the bales mentioned therein. The defendant knew of the receipt of those bales, and the receipts were signed with his name by his authority, The indorsements were put on the receipts by the defendant’s order. Whoever held one of the receipts, and came by it honestly, owned the cotton described in it. Witness did not pretend to say that all the cotton- described in the receipts was on the yard when the defendant left, but there was some of the Leatherwood. cotton there.</p> <p>J. D. Jeffries, for the defence, stated that the sale by the defendant to Potter was for one hundred bales, and that the Leatherwood cotton was delivered at the yard by Leatherwood, and not by the First National Bank of Fort Worth.</p> <p>M. B. Loyd, recalled by the State in rebuttal, denied that he ever authorized the defendant to sell the cotton described in the receipts held by the bank, but only authorized him to negotiate a sale or find a purchaser for it; nor did he remember sending word to the defendant, by J. S. Jeffries, to sell it.</p> <p>The record contains seven bills of exception, covering ten pages, reserved by the defence ; but they, and all other matters immediately involved in the rulings made, are sufficiently noticed in the opinions. The jury found the defendant guilty, and assessed his punishment at five years in the penitentiary.</p>

<p>1. Evidence. — In a trial for murder, the State having been allowed, without objection, to prove what the defendant, after his arrest, and uncautioned, said respecting his possession of the deceased’s pistol, the defendant should have been permitted to prove any fact or circumstance, or any declaration made by himself at the time or immediately afterwards, tending to explain, impair, or destroy the evidence thus adduced by the State. To render his own declarations competent, however, it must appear that they come within the exceptions to the rule that á party cannot make evidence for himself. . . .</p> <p>2. Confessions.—Statements of an uncautioned .prisoner cannot be made evidence against him by proving that they were repeated in his presence, while he was still in custody, and that he made no reply.</p> <p>3. Charge on Murder-in the second degree is erroneous if it permits the jury to convict of murder in the second degree without finding that the killing was on implied malice.</p> <p>4. Manslaughter. — Note evidence in a trial for murder making 'a charge on manslaughter requisite.</p>

<p>1. Proof of Handwriting by comparison is expressly authorized by the Code of Criminal Procedure; but this does not change the intrinsic value of such evidence, which has always been considered feeble, and in some of the States held to be unsafe.</p> <p>2. Murder—Evidence. — To support a conviction for a capital offence, more is demanded by the law than a strong suspicion or strong probabilities of the guilt of the accused. The evidence must, to a moral certainty, lead to the conclusion of his guilt beyond every, other reasonable hypothesis.</p> <p>3. Accomplice Testimony—Corroboration.—In the trial of a defendant indicted as an accomplice to a murder alleged to have been committed by three principals, the only witness for the State who implicated the defendant was a self-confessed accomplice. Many of his statements were strongly corroborated, but they related to the acts and conduct, not of the defendant, but of the witness himself and the persons indicted as principals. Of his statements inculpatory of the defendant, many were directly contradicted, and but one in any degree corroborated,—the corroboration consisting of expert evidence of the handwriting of a paper which was affixed to the coat of the deceased, and which, according to the testimony of the accomplice, was furnished for that purpose by the defendant prior to the commission of the offence. Held, that the evidence is not sufficient to support a capital conviction.</p>

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

Tried below before the'Hon. Gr. L. Aldredge. The offence charged being a felony punishable by the penitentiary not less than two nor more than seven years, the jury assessed the appellant’s term at three years.

Tried below before the Hon. G. J. Clark. Jointly with the appellant, the indictment charged D. C. Moore, B. B. Kaufman, and Buck Smith with the theft of a steer, the property .of H. T. Nash. The two latter defendants were examined by the State, and the conviction' was obviously attributable to their testimony, which implicated themselves at least as clearly as it did the appellant, who was alone upon trial.

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

<p>Theft of Estrays — Charge of the Court. — An estray animal is under the protection of the law, and may he the subject of theft if the accused, knowing it to be an estray and its owner unknown, and without compliance with the laws regulating estrays, takes and appropriates it to his own use without the owner’s consent and with intent to deprive him of its value. It is no defence that the estray was delivered to the accused by a person who had taken it up but had not estrayed it. See instructions held correct and sufficient on this state of case.</p>

Tried below before the Hon. J. Abbott. By the indictment, the appellant, Henry M. Pharr, was charged with the murder of an unknown white man, on July 14,1877, by shooting him with a gun. The case came to trial at the June term, 1879, when the jury found the defendant guilty of murder .in the first degree, and judgment of death was rendered thereon in accordance with the law before the Revised Codes took effect.

Tried below before the Hon. G. J. Clark. The trial and conviction were for theft of a horse, and the punishment assessed was five years in the penitentiary.

<p>1. Practice in the Court of Appeals. — An appeal was dismissed because no final judgment appeared in the record; but the appellant, at a subsequent day of the term, filed a certified copy of a final judgment which was rendered by the court below, and moved for a rehearing and that the cause be reinstated. The motion is sustained.</p> <p>2. Bail-Bond.—In August, 1876, the appellant, as a surety, executed a bail-bond conditioned for the appearance of his principal before the “ Criminal Court of McLennan County.” Held, that neither at nor since the date of the bond has there been a “Criminal Court'of McLennan County” known to the laws of this State; wherefore the judgment below is set aside and the cause dismissed.</p>

<p>Appeal from the County Court of Delta. Tried below before the Hon. S. M. Grant, County Judge.</p>

Tried below before the Hon. J. C. Robertson. Appellant was indicted for the murder of Michael See, by shooting him with a gun on the 7th of August, 1873. The trial was had at the September term, 1879, of the court below, and resulted in his conviction of murder in the first degree, and the assessment of his punishment at death.

Tried below before the Hon. L. C. Alexander. The indictment and conviction were for theft of a steer. All facts relevant to the rulings appear in the opinion. The assistant attorney-general moved for a rehearing; pending which motion the appellant made his escape, and. the appeal was dismissed.

Tried below before the Hon. E. B. Turner. The indictment charged the appellant with the forgery of a transfer from William Smith to E. W. Bell of a land-certificate issued to one John Todd. The offence was alleged to have been committed in Eobertson County, on April 20, 1877. In a second count, which was abandoned by the prosecution, the appellant was charged with uttering and passing as true the said forged transfer.

<p>Appeal from the District Court of Goliad. Tried below before the Hon. H. C. Pleasants.</p> <p>The conviction was for theft of a gelding.</p>

Tried below before the Hon. A. J. Booty. The indictment charged that the appellant, on January 21, 1877, in the county of Marion, did with a pistol and of express malice aforethought kill and murder a “ certain white woman whose Christian and surname is to the grand jurors aforesaid unknown, but whom the grand jurors aforesaid do name and call Bessie Rothschild, alias Bessie Moore, alias Diamond Bessie.” The venue was changed from Marion to Harrison County, where, in…

Tried below before Hon. R. S. Walker. The midnight assassination of Dr. E. P. Grayson and his wife, at their home in Anderson County, on April 23, 1878, was a deed characterized by circumstances of unsurpassed atrocity. Eoland Eucker, the appellant, is one of the seven persons to whom it was imputed by the grand jury of that county, where the several parties charged, as well as the deceased, had their homes.

<p>Appeal from the County Court of De Witt. Tried below before the Hon. O. L. Threlkeld, County Judge.</p> <p>The opinion sufficiently discloses the case.</p>

Tried below before the Hon. J. C. Russell. The indictment was for an assault with intent to commit rape. The court instructed the jury that they could convict for an attempt to commit rape if they found that no assault was committed, but that stupefying potions were the means used to effect the purpose. There is no statement of facts. The jury found the defendant guilty of an attempt to commit rape, and assessed his punishment at five years in the penitentiary.

Tried below before the Hon. L. C. Alexander. The indictment charged that the appellant, on March 21, 1879, and immediately after the birth of her female infant) strangled it to death by tying a string around its throat. About sunset on the day prior to the infanticide, the defendant, a negress, came to the house of Ctesar Williams, a negro who lived about six miles south of Waco in Mc-Lennan County.

Tried below before the Hon. J. C. Russell. .The trial and conviction were for the theft of a beef, the property of W. W. Wright. M. C. Holden, the principal witness for the State, testified that for about a month in the year 1878 he worked for the defendant in gathering and driving cattle, and while so employed saw the defendant change into his own brand the brand, upon a beef branded in the brand of W. W. Wright.

<p>Appeal from the District Court of Menard. Tried below before the Hon. W. A. Blackburn.</p>

<p>Appeal from the District Court of Fayette. Tried below before the Hon. L. W. Moore.</p> <p>The opinion sufficiently indicates the case.</p>

<p>Appeal from the District Court of Starr. Tried below before the Hon. J. C. Russell.</p> <p>The opinion indicates every thing disclosed by the record.</p>

Tried below before the Hon. H. C. Pleasants. The offence charged was the defacing the brand upon a certain steer yearling, the property of Free Green, without his consent and with intent to defraud him, etc. The verdict and judgment consigned the defendant to the penitentiary for two years. The evidence involved in the rulings is stated in the opinion.

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

<p>1. Theft — Evidence.—In a trial for theft, the want of the o„wner’s consent to the taking of his property by the accused may be shown by circumstances which absolutely exclude every reasonable presumption that the owner gave Ms consent. That the owner caused search to be made for the property is a .cogent circumstance to show the want of his consent to the taking. . ...</p> <p>2. Practice.—Judges are expressly inhibited by the Code from summing up, discussing, or commenting on the evidence when ruling on a motion for a new trial. This inhibition should, in the interest of justice upon a new trial, be strictly observed; but a disregard of it does not necessitate the reversal of a conviction on appeal, when no error to the appellant’s prejudice is discoverable.</p>

Tried below before the Hon. J C. Russell. The conviction was for theft of a gelding, and five years in the penitentiary the punishment assessed. As originally drawn, the indictment did not show on its face the court or term to which it was presented; and, pending a motion to quash, the court allowed the prosecuting attorney to amend it in this respect. The defence reserved exceptions.

<p>Appeal from the District Court of Shackelford. Tried below before the Hon. J. E. Fleming.</p> <p>The case is indicated in the opinion.</p>

Tried below before the Hon. W. A. Blackburn. The case is indicated in the opinion of the court. The punishment assessed was two years in the penitentiary.

Tried below before the Hon. J. C. Russell. The indictment and conviction were for assault with intent to murder, and five years in the penitentiary the punishment assessed and adjudged. As the opinion states all necessary matters of fact, there is no occasion to detail the evidence.

Tried below before the Hon. B. T. Estes. The charging part of the indictment alleged that “ Mary Moore, late of said county, on the 1st day of September, A. d. 1878, and in said county of Marion and State of Texas, did then and there unlawfully, knowingly, and feloniously continue, in the State of Texas and in Marion County, to cohabit with a negro, to wit, one Henry Moore, she, the said Mary Moore, having married him, the said Henry Moore, a negro as aforesaid, and she, the…

<p>Appeal from the District Court of Uvalde. Tried below before the Hon. T. M. Paschal.</p> <p>The trial was for theft of a cow. Frank West and other witnesses for the State testified that the appellant killed the animal and disposed of the beef. Two witnesses for the defence testified that she was killed and disposed of by Frank West, and that the appellant, though present, had nothing to do with it.</p>

<p>Appeal from the District Court of Johnson. Tried below before the Hon. J. Abbott.</p> <p>The case is substantially stated in the opinion.</p>

<p>1. Imformations — File-Mark. — If an information and its supporting affidavit be attached to each other, or if both be written on the same sheet of paper, and the clerk’s file-mark be put upon the outside fold, it is a substantial compliance with the statutory requirement that the affidavit “shall be filed with the information.”</p> <p>2. Same — Practice. — Objection that the affidavit was not filed must be taken in limine; when primarily raised by motion in arrest of judgment, it is not available.</p> <p>8. Road-Law. — Overseers of first-class public roads are not only authorized, but it is their legal duty, under penalty for its neglect, to remove from the roadway any fence or other obstruction.</p> <p>4'. Same. — Being prosecuted for pulling down another’s fence without the owner’s consent, the defendant proposed to prove that he was the overseer of a certain first-class public road, and in the discharge of his duty removed the fence, which had been placed in the roadway. Held, error to exclude the evidence.</p>

<p>1. Burglary.—Indictment for burglary must allege that the entry was effected by force, threats, or fraud, and without the free consent of the occupant, or of some one authorized to give such consent. Averment that the entry was “with force and arms” does not supply these allegations; nor, under the Code of this State, are those words necessary in the indictment.</p> <p>2. Same. — Indictment for burglary must set forthwith certainty the offence with intent to commit which the burglarious entry was effected.</p> <p>3. Special Plea—Verdict. — When the accused has specially pleaded former conviction or acquittal, as well as not guilty, the verdict must expressly find whether the special plea is true or untrue.</p>

<p>1. Charge of the Court.—In a trial for conveying into a jail articles useful to aid the escape of prisoners therefrom (Pasc. Dig., art. 1948), the court below gave in charge to the jury art. 1950, Paschal’s Digest, which defines and punishes the offence of aiding prisoners to escape from an officer. Held, error.</p> <p>2. Evidence. — A State’s witness having testified to a confession of the accused, and having stated that her feelings towards him were unkind, the defence asked her if she had not on that day, and at a place stated, said that the accused was a rascal, and that she wanted to see him go to the penitentiary; to which the court sustained the objection that she had already testified that her feelings were unkind towards the accused. Held, error; the question was legitimate to probe the animus of the witness, and also to lay the predicate for conflicting proof.</p>

Tried below before the Hon. L. C. Alexander. There is no occasion for a detail of the evidence. The appellant was found guilty of rape, and his punishment was assessed at five years in the penitentiary. A motion for a rehearing was made and overruled. The female witness alluded to in the opinion was the lady upon whom the outrage was perpetrated. The youth of the appellant doubtless accounts for the lenity of the jury.

<p>Appeal from the District Court of Johnson. Tried below before the Hon. J. Abbott.</p> <p>The opinion states the material facts.</p>

Tried below before the Hon. A. J. Hood. This is part and parcel of the same copartnership transaction involved in the case of Scales v. The State, ante, p. 361. The opinion gives a clear though brief recapitulation of the material facts. Ten years in the penitentiary were allotted to this party by the jury.

<p>Appeal from the District Court of San Jacinto. Tried below before the Hon. E. Hobby.</p> <p>The facts germane to the rulings are stated in the opinion.</p>

Tried below before the Hon. D. M. Prendergast. The indictment and conviction were for the murder of Mrs. Mary Ann Hester, on February 21, 1877, by shooting her with a gun. Thomas J. Myers, who is a half-brother of the appellant, and James M. Bowden, who is a brother-in-law, were separately indicted for the murder.

<p>1. Theft of the Taker’s own Property. — At common-law the taking of one’s own goods could not be larceny, unless they were taken from a bailee and the taking operated to charge the bailee with their value. Under the Code of this State, however, it seems immaterial whether or not the bailee would be so affected by the taking.</p> <p>2. Same—Evidence. —In a trial for theft of his own property, the defendant should be allowed to prove any and every fact which may legitimately tend to show his animus in the taking, and serve to disprove a fraudulent intent therein, — as, for instance, the discharge of a debt for which he had pledged the property as security.</p> <p>3. Same.—Declarations of the defendant made at the time of the taking of the property, and explanatory of his motive for taking it, were res gestee, and are evidence in his behalf.</p>

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