Volume 8 — Texas Court of Appeals Reports

Tried below before the Hon. J. A. Carroll. In the night of August 26, 1876, William England, his wife, and two of her children were assassinated at their home in the county of Montague. In the ensuing October the grand jury presented a number of indictments against A. K. Taylor, James Preston, and Krebs, the appellant. In one of them Taylor was separately charged with the murder of Mrs. England, and in another Prestoii and Krebs were jointly charged with the same offence.

Tried below before the Hon. J. A. Carroll. This is the fifth and last of the series of appeals to this court from convictions for murder in the first degree resulting from the midnight massacre of William England, his wife and two. of her children, on August 26, 1876. It is the second appeal of Preston from convictions in the District Court of Cooke County, to which the venue of the cause was changed from Montague County, in which the savage tragedy was enacted.

<p>Accomplice Testimony.—In a trial for theft, the evidence for the State showed that the stolen watch was found at the boarding-house of one S. and in the pocket of a coat belonging to him. The State introduced S. as a witness, who testified that he did not know how the watch got into the pocket of his coat, but that he saw it in the defendant’s possession shortly after the theft. And it was further proved that the defendant, prior to his arrest and after the theft, stated that S. had stolen a watch from him. The evidence, irrespective of the testimony of S., is ample to sustain the conviction. Held, that S. was not an accomplice witness, as nothing implicated him in the original taking; and therefore the court did not err in omitting to instruct the jury on the infirmity of uncorroborated testimony of an accomplice.</p>

Tried below before the Hon. J. Bledsoe. The material facts are summarily but clearly stated in the opinion. The jury assessed the punishment at four years in the penitentiary.

<p>1. Malicious Mischief—Variance.—Defendant was prosecuted under art. 684, Penal Code, for knowingly causing his horse to go within the enclosure of one Vinson, without the latter’s consent. The proof showed that Vinson and one Vaughn, the defendant’s employer, separately rented and cultivated distinct parts of the same field, and that the defendant, in disregard of repeated warnings, turned his horse loose on his employer’s part of the field, whence it passed to and trespassed upon Vinson’s crop. Held, that there was no variance between the information and the proof; and the conviction is sustained.</p> <p>2. Same. — Art. 684 of the Penal Code is designed for the better .protection of agriculturists against wanton or reckless depredation of live-stock upon their crops, by'furnishing to them another and more efiieient remedy than a suit for damages. The wise and commendable purpose of the enactment should he vigorously effectuated by the courts.</p>

<p>Oath to Sheriff—Practice. — The omission of the court to administer to the sheriff and his deputies the oath prescribed by sect. 12 of the jury law of 1876 was assigned as cause for new trial, but not otherwise verified as a fact. Meld, not properly authenticated for revision. The omission should have been made to appear affirmatively by hill of exception or otherwise.</p>

<p>1. Indictment—Joinder of Offences. — Two or more offences may he charged in separate counts of the same indictment.</p> <p>2. Same. — By one count of an indictment the defendant was charged with theft of money belonging to one P., and by another count with theft of the same kind and amount of money, at the same time and place, from an owner unknown to the grand jury. Held, that both counts charge hut one offence.</p>

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

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

Tried below before the Hon. G. N. Aldredqe. The indictment and conviction were for theft of a mare. The instruction asked and refused was for acquittal in case the jury believed the accused “traded for the mare without notice that she was stolen.” Two witnesses for the defence testified that they saw the accused give his horse and $3 for a mare, which, if their evidence was true, may have been the stolen animal.

L. W. Moore. Alexander Farmer was found dead on the prairie on the 1st of June, 1878, about a mile west of the town of Paige in the county of Bastrop. Nine buckshot had penetrated his body, and were extracted from his heart and lungs. On the preceding day he had started to the town of Bastrop from his home, which was about three miles north-east from Paige, and was not again seen alive by any of the witnesses.

Tried below before the Hon. S. Ford. The opinion sufficiently indicates the facts. The indictment and conviction were for assault to murder one George Sharp, and two years in the penitentiary were assessed as the punishment. The parties were negroes.

Tried below before the Hon. J. S. Conway, County Judge The appellant, it appears, received from the mayor of the town of Gonzales an appointment as city marshal, and in that capacity acted and was generally recognized. The appointing power, however, was not vested in the mayor alone, but in the mayor and council, and the council had not participated in the appointment of the appellant.

<p>Appeal from the District Court of Madison. Tried below before the Hon. W. D. Wood.</p> <p>The opinion indicates the case.</p>

<p>Appeal from the District Court of Tarrant, Tried below before the Hon. J. A. Carroll.</p> <p>The material facts appear in the opinion.</p>

Tried below before the Hon. G. Cook. The verdict and judgment consigned the appellant to the penitentiary for the term of his natural life. There is no statement of the facts.

Tried below before the Hon. W. D. Wood. The indictment charged the appellant and Milton Rhodes with the murder of Nathan Rhodes. On the separate trial of the appellant, the jury found him guilty of aggravated assault and battery, and assessed his punishment at a fine of $100.

<p>Appeal from the District Court of Tarrant. Tried b.e!ow before the Hon. A. J. Hood.</p> <p>The appellant was indicted and tried for the murder of William Redus, by shooting him with a pistol on December 24, 1878. He was found guilty of murder in the second degree, and awarded thirteen years in the penitentiary.</p> <p>The appellant, it appears, was dealing monte, when the-deceased, who was looking on but not betting, interfered in the game and took from a card a stake placed on it- by one • Ford. This brought on an altercation, which resulted in the appellant shooting the deceased three times .with a pistol, and causing his death. All parties, it seems, were negroes. The deceased was known by the name of Redus as well as by that of Reder, which, according to some of the witnesses, was his true name. The opinion discloses all other requisite facts.</p>

<p>Appeal nr Misdemeastobs. —To support an appeal to this court from a conviction for misdemeanor, the record must affirmatively show that the appellant is either in jail or under proper recognizance; otherwise the appeal will be dismissed. If, after conviction, he was arrested and imprisoned, -the copias and the return upon it should be copied into the record. See the collocation, in the opinion, of the articles of the Revised Code of Criminal Procedure bearing on this subject.</p>

<p>1. Bsdictment. — The Code of Criminal Procedure, in art. 420, directs that an indictment “shall he signed officially by the foreman of the grand jury,” but in art. 629 expressly provides that “the want of the signature of the foreman of the grand jury ” shall not constitute cause of exception to the form of an indictment. Held, that this latter provision, in effect, makes the foreman’s signature unnecessary to the validity of an indictment.</p> <p>2. Evedeitce.—In a trial for murder, the prosecution elicited from a witness a statement of the defendant imputing to the deceased an outrage on the defendant’s daughter, and then was allowed, over objections by the defence, to draw out the reply and advice of the witness to the defendant, to the effect that defendant’s neighbors disbelieved the imputed outrage, and that defendant had better drop the matter, etc. Held, that the reply and advice of the witness were not legitimate evidence against the defendant, and may have prejudiced his rights.</p> <p>8. Same. — Over objection by the defence, the prosecution was allowed to prove certain statements of the deceased, made a day or two before the homicide and in the absence of the defendant, to the effect that he, the deceased, had not been in the county for a year previous to that occasion, —which, if true, exonerated him as the perpetrator of the outrage on the defendant’s daughter. Held, that the statements were but hearsay, and should have been excluded.</p> <p>4. Same. — The deceased was found dead, but was not recognized by any one who saw his corpse, and the prosecution, for the purpose of identifying him, was allowed to prove not only the apparel and appearance of the body, but also the description and contents of a valise found a short distance from it. Held, correct.</p>

Tried below before the Hon. E. B. Turner. The indictment charged the appellant with the murder of E. Olenick, December 12, 1877,- by shooting him with a pistol.

Tried below before the Hon. A. J. Booty. The indictment charged the appellant with the murder of Lou Dones, on June 14, 1879, by striking her on the head with a glass tumbler, and inflicting a wound of which she died on June 28, 1879. The defendant and the deceased were negroes, and husband and wife.

<p>1. Theft—Evidence. — The defendant’s contemporaneous possession of other stolen property besides that described in the indictment is a circumstance provable by the prosecution for the purpose of strengthening the inculpatory inference invoiced from his possession of the latter; but proof that he had, at a different time, possession of other stolen property is not competent for this purpose.</p> <p>2. Same.—A defendant cannot make evidence for himself by his declarations which were not part of the res gestos.</p> <p>3. Charge oe the Court. — A charge is erroneous which assumes the truth of the inculpatory evidence adduced by the State.</p>

Tried below before the Hon. T. M. Paschal. The indictment was founded on testimony of the appellant before the grand jury. It is quite lengthy, and as it. could serve no good purpose as a precedent, no occasion for its insertion is perceived. Five years in the penitentiary were allotted as the punishment of the appellant.

Tried below before the Hon. T. M. Paschal. Theft of two cows belonging to one Henry Fabian was the offence of which the appellant was convicted, and two years in the penitentiary the punishment assessed against him.

Tried below before the Hon. G. N. Aldredge. After the usual preliminaries, the indictment alleged that the defendant, “ being then and there the bailee and in possession of a certain gelding, said gelding being then and there the corporeal personal property of one John H. Goble, and of the value of $30, which said gelding the said Goble, prior thereto, to wit, on the thirteenth day of March, a. d. 1879, did intrust to the said S. T. Gaddy as bailee, to be by him, the said…

<p>1. Charge of the Court — Self-Defence. —A charge on the right of self-defence was erroneous which, ignoring appearances of danger, tested the justification by the reality of the danger which menaced the life of the defendant or threatened him with serious bodily injury. See in this case a charge held defective in this respect, and a state of proof which required a correct instruction on the subject.</p> <p>2. Same—Penalty. — A charge must correctly state the penalty of the offence.</p>

Tried below before the Hon. G. H. Noonan. Appellant was tried and convicted of assault with intent to commit rape upon a girl under the age of ten years. The child had been sent by her mother on a message to a neighbor, who lived about half a mile distant. On her way back home she passed through woods near the residence of the defendant’s parents, when, according to her evidence, she was assailed by him, thrown down, and so maltreated as to leave no doubt of his purpose.

Appeals from the District Court of Burleson. Tried below before the Hon. A. S. Bboaddtts. - By separate indictments, the appellants were charged with the theft of a large amount of money in silver half-dollars and United States currency, alleged to be the property of James L. Dean and J. C. Wamble, and to have been taken from their possession on November 20, 1879, by force and arms and fraudulently.

Tried below before the Hon. T. L. Nugent. The appellant was found guilty of theft of a yearling, and his punishment was assessed at two years in the penitentiary.

<p>Charge or the Court — “Adequate Cause.”—In a trial for murder, the evidence showed that the defendant, immediately before he cut the deceased, was knocked to his knees by the deceased, who was the larger and stouter man of the two. The jury convicted the defendant of murder in the second degree, and assessed his punishment at the lowest penalty for that offence. Held, that the evidence required not merely the general law of manslaughter to be given in charge to the jury, but also that provision of the Penal Code which declares an “ assault and battery causing pain ” to be adequate cause to reduce a culpable homicide from murder to manslaughter.</p>

Tried beloxv before the Hon. A. J. Hood. The appellant, it was alleged in the indictment, was the commission-merchant of one K. J. Kirlen, and in that capacity received from Kirlen, in 1878, a consignment of a number of barrels and kegs, worth $111, with instructions to sell them for cash. The grounds of objection urged against the indictment are sufficiently indicated in the opinion and the head-notes.

Tried below before the Hon. J. Abbott. The indictment charged the appellant and one Dailey with the theft of a cow belonging to J. M. Baker. Appellant was alone upon trial, and being found guilty by the jury, his punishment was assessed at a term of two and a half years in the penitentiary. The opinion indicates the material facts.

Tried below before the Hon. E. Hobby. The appellants in this case are Morgan Eye», Sr., Morgan Eye, Jr., Eandolph Fields, and William Owens. They were tried at the December term, 1879, of the court below, on an indictment which charged them, together with one Frank Snell, with the murder, by hanging, of “ one certain adult male white person, whose name is to the grand jury unknown,’’ on February 17, 1877.

Tried below before the Hon. E. Hobby. This is the companion case of the one which immediately precedes it. The only differences between the two are disclosed in the opinion. As will be seen, a motion for rehearing was filed, and elicited an opinion which, though not delivered until the ensuing Austin term, is embodied in the present report.

Tried below before the Hon. A. S. Broaddus. The indictment charged the appellant with the murder of Milton McGrowan, on August 10, 1879, by shooting him with a shot-gun. The jury found him guilty of murder in the second degree, and assessed his punishment at a term of fifty years in the penitentiary.

Tried below before the Hon. Gr. Cook. The appellant, who was a bar-keeper, was charged by indictment with a violation of art. 186 of’ the Revised Penal Code.

<p>1. Charge of the Court must not invade the province of the jury, and should not extend beyond a plain statement of the law applicable to the case. It is not intended as a vent for philosophic disquisition on the nature of evidence, or dissertation upon processes of reasoning. And not only should it abstain from positive expression as to the weight of evidence, and from any discussion of the facts of the case, hut so guarded should be its language that no inference of fact, however remote or obscure, can.be drawn by the jury from the instructions given them.</p> <p>■2. Same—Practice nr this Court. — Whether a charge on the weight of evidence prejudiced the defendant or not, it is error, by express provision of the Code, provided he excepted to it at the time of the trial.</p> <p>3. Privilege of Counsel. — The manner and extent of argument by counsel to the jury are in great measure confided to the discretion of the trial judge; and his exercise of that discretion will not be revised on appeal, except in a clear case of its abuse.</p>

<p>1. Murder — Charge of the Court. — In a trial for murder, the corpus delicti and the agency of the defendant in firing the fatal shot were established by the concurrent testimony of witnesses, who further proved that the homicide was the concluding incident of a rencontre which, originating in a difficulty between the defendant’s brother and the deceased, in the defendant’s absence, resulted in the deceased killing the defendant’s brother and being instantly shot down by the defendant. But in the circumstances preceding and attending the rencontre there were such discrepancies in the testimony as might, on the one hand, have warranted the acquittal of the defendant on the ground of self-defence, or, on the other hand, his conviction for murder in either degree or for manslaughter. Held, that this state of case made it incumbent on the court to give in charge to the jury the law applicable to every' deduction they might draw from the evidence.</p> <p>2. Murder in the First Degree. —If the homicide was the consummation of a preconceived conspiracy and cooperation between the defendant and his brother, it was murder in the first degree.</p> <p>3. Same. — Or if the defendant, without preconcert with his brother, but in resentment of the difficulty pending between his brother and the deceased, did, with sedate and deliberate mind, form the design to slay the deceased, and in pursuance thereof proceeded to the scene of the difficulty, and, without fresh provocation, executed his design by killing the deceased his offence was murder in the first degree, irrespective of what transpired between his brother and the deceased in the course of the difficulty.</p> <p>4. Same. — Or if the defendant’s brother brought on the" difficulty with express malice and with intent to kill or seriously injure the deceased, and the defendant, when apprised of the difficulty, went to the scene; and, know- ■ ing the unlawful purpose of his brother, aided him in its prosecution, or encouraged him therein by words or gestures, and the deceased was killed in its progress, then the defendant was as culpable as his brother, and the homicide was murder in the first degree.</p> <p>6. Murder nr the Second Degree.—If, however, the defendant’s brother’ brought on the difficulty without express malice, but in sudden passion . without adequate cause, and in its progress-conceived the purpose to slay the deceased, and the defendant, incited by like passion at seeing his brother engaged in the difficulty, joined in the latter’s purpose, and aided or encouraged him in its prosecution, and the deceased was slain therein, the defendant’s brother, had he survived, would have been guilty of murder in the second degree, and the defendant could not have been guilty of a higher degree.</p> <p>6. Same. — Or if, without preconceived design against the deceased, the defendant, on learning of the danger threatening his brother, went to his relief with the sole purpose of averting his danger, and without intent to take part in any unlawful attack upon the deceased, and, after he had arrived at the scene of the difficulty, his brother, without defendant’s complicity, renewed the difficulty and was killed by the deceased, and thereupon the defendant, actuated by revenge and not by sudden passion, conceived and instantly executed the design of killing the deceased, his offence was murder in the second degree.</p> <p>7. Same. — Or if the defendant, after reaching the scene of the difficulty, and after its renewal by his brother and the deceased, and without complicity in any wrongful act or purpose of his brother, conceived the design of killing the deceased in case the deceased should kill or injure his brother, and such design was not that of a sedate and deliberate mind, and, without sufficient cooling-time between its conception and execution, he carried it into effect in consequence of the killing of his brother, his offence was not of a higher grade than murder in the second degree.</p> <p>8. Manslaughter—Adequate Cause. —It is well settled that, to excite the sudden passion which mitigates culpable homicide from murder to manslaughter, there may be other “ adequate causes ” besides those instanced in the Penal Code. If in one’s presence his brother be killed, this may constitute such adequate cause, provided they were not jointly engaged in some unlawful act.</p> <p>9. Same. — Or if the defendant in this case, without malice at the deceased, and in ignorance of any unlawful design of his brother against the deceased, but expecting a necessity for his interference to protect his brother from death or serious bodily injury at the hands of the deceased, fired upon the deceased when the latter shot or -was in the act of shooting his brother, his offence was not of a higher grade than manslaughter, notwithstanding his brother may have brought on the conflict with malicious intent.</p> <p>10. Same. — Or if the deceased, after once firing upon the defendant’s brother, immediately prepared his pistol with apparent intent to fire at him again, and the defendant, without fault or negligence on his part, and with the sole and honest purpose of protecting his brother, immediately shot and killed the deceased, his offence could not be greater than manslaughter.</p> <p>11. Justifiable Homicide. — If the deceased, before the defendant took any part in the difficulty, shot the defendant’s brother and then cocked and presented his pistol at the defendant, with the apparent intention of shooting him, the defendant’s right of self-defence justified him in immediately firing upon and killing the deceased.</p> <p>12. Same. — Or if the deceased and the defendant’s brother were separated, and thereupon the latter abandoned all hostile design against the former, and did and said nothing indicative of an intent to renew the difficulty, and the deceased, without new provocation, drew his pistol and indicated an immediate purpose to shoot the defendant’s brother, then the latter had the right to defend himself in any necessary manner, even by stabbing the deceased; and if at this juncture the defendant, without previous connection with the difficulty, shot-and killed the deceased to save his brother’s life, and such action appeared reasonably necessary for that purpose, then the defendant was also justifiable, even though his action failed to save the life of his brother.</p> <p>13. Intent. — If one, knowing the unlawful intent of another, joins him in the commission of an offence, both are principal offenders, no matter what degree of consanguinity or what relation exists between them. But if one brother, finding another engaged, in an affray, goes to his aid and takes part in the conflict, his amenability to the law is dependent upon his own acts and intent, and not upon the intent with which his brother, without his knowledge, engaged in or prosecuted the difficulty.</p> <p>14. Burden of Proof. —It is never incumbent on a defendant to show mitigating facts unless they fail to appear from the evidence adduced against him, nor unless the evidence for the State has made a primtt facie case of guilt beyond a reasonable doubt.</p>

Tried below before the Hon. T. L. Nugent. The indictment and conviction were for burglary, and the punishment assessed was for a term of five years in the penitentiary.

Tried below before the Hon. J. Abbott. The indictment charged the appellant with the murder of William Henderson, on August 11, 1879, by shooting him with a pistol. The jury found him guilty of murder in the second degree, and assessed his punishment at six years in the penitentiary. A clear and comprehensive statement of the facts will be found in the opinion.

Tried below before the Hon. Gr. Cook. By the indictment in this case it is charged that, on October 16,1879, in the County of Harris, the appellant, “being then and there á duly and legally licensed dealer in spirituous, vinous, and malt liquors in quantities less than a quart, then and there had permanently attached to his counter the register provided by law, marked ‘ Malt,’ which said register had been obtained by him from the tax-collector of Harris County as provided…

Tried below before the Hon. D. M. Prendergast. The appeal in this case is from a capital conviction for murder in the first degree. The deceased, William Simms, was a brother of the appellant, and was killed at his own house, in Limestone County, early in the night of May 31, 1878. Accordingto the testimony he was a single man, and lived by himself on a stock-farm.

Tried below before the Hon. L. W. Moore. The indictment charged the appellant with the murder of Nicholas Umland, October 13, 1878, by shooting him with a gun. He was found guilty of murder in the second degree, and his punishment was assessed at five years’ confinement in the penitentiary.

Tried below before the Hon. G. H. Noonan. The appeal in this important, interesting, and well-contested case is from a capital conviction of each of the appellants, William Cox, Jake Byan, and Joe Sitterlie, for the murder of George Brazell, in the county of DeWitt, on Tuesday, September 19, 1876.

Tided below before the Hon. J. Abbott. The opinion states concisely but completely the character of the indictment and the controlling facts in this case. A term of two years in the penitentiary was the punishment assessed and adjudged against the appellant.

Tried below before the Hon. G. Cook. The indictment charged that the defendant, being a trader, etc., “unlawfully and wilfully did barter and sell, to divers persons to the grand jury unknown, beer on Sunday, the twenty-eighth day of September, a. d. 1879,” etc. The defendant excepted to the indictment generally, as not charging an offence, and especially as not being sufficiently certain and specific to require him to answer thereto. His exceptions were overruled.

Tried below before the Hon. J. Masterson. The indictment charged the appellant with the murder of George W. Norris, December 7,1878, by shooting him with a pistol. The verdict convicted him of murder in the second degree, and assessed his punishment at five years in the penitentiary.

Tried below before the Hon. J. Abbott. This appeal is from a second conviction of the appellant for the murder of Mrs. Mary Ann Hester, on February 21, 1877.' At the trial below the jury returned a verdict of murder in the first degree, but assessed the punishment at the penitentiary for life. In the sixth volume of these Reports, page 1, will be found the appeal of this same appellant from his first conviction, on which he was adjudged to suffer death.

Tried below before the Hon. B. T. Estes. The opinion narrates the evidence on which the appellant was found guilty of an assault with intent to murder, and adjudged to a term of two years in the penitentiary. The second head-note embodies the substance of the excluded evidence referred to in the opinion.

Tried below before the Hon. E. Lewis. The appellant was charged with the murder of one Jerry Lyons, on September 10,1879, by shooting him with a gun. He was found guilty of murder in the first degree, and his punishment was assessed at confinement in the penitentiary for life.

Tried below before the Hon. L. C. Alexander. This appeal is from a capital conviction for rape upon Sarah McBee, a child of less than ten years of age. Fortunately for the credit of human nature, atrocities like that detailed in this record are as rare as they are revolting, lío circumstance in the case tends to mitigate the infamy of the crime, or to suggest a possibility of the innocence of the appellant.

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

Appeals from the Criminal District Court of Galveston. Tried below before the Hon. G. Cook. The appellants were jointly indicted, but separately tried and found guilty of burglary. A term of two years in the penitentiary was assessed and adjudged against each of them ; from which judgments they appealed.

<p>Appeal from the District Court of Jasper. Tried below before the Hon. H. C. Pedigo.</p> <p>The opinion sufficiently states the case.</p>

Tried below before the Hon. W. H. Burkhart The indictment charged the appellant with the murder of Grabe Leonard, on March 2, 1878, by shooting him with a gun. The jury found him guilty of murder in the second degree, and assessed his punishment at confinement in the penitentiary for seven years. This is a “ nest-hiding ” case of pronounced character. There was no room for controversy over the corpus delicti, or the appellant’s sole instrumentality in its commission.

Tried below before the Hon. L. W. Moore. Appellant was found guilty of the theft of a heifer belonging to one Ancly Foster, and his punishment was assessed at five years in the penitentiary. The brand as delineated in the indictment was an encircled cross, and this was found to be the brand of Andy Foster.

Tried below before the Hon. J. C. Williams, County Judge. C. Davis, Z. Bailey, and the appellant were jointly charged by information with the false imprisonment of Ferris Pharr, by threats, for one hour, on May 12, 1877. Ferris Pharr, it appears, lived with his brother Walter, and early on the day alleged, Davis, Bailey, and the appellant came together to Walter Pharr’s and inquired for Ferris Pharr.

<p>1. RECOQHizAiraE. — A recognizance given under art. 853 of the Revised Code of Criminal Procedure, to sustain an appeal from a judgment of conviction of a misdemeanor, must not only show that the appellant stands charged in the court below with the commission of some offence, but also that he has been convicted.</p> <p>2. Same.—-A party prosecuting an appeal from a judgment of conviction of a misdemeanor, which is of less grade than the offence charged in the indictment, must, in his recognizance for appeal, state the offence of which he was convicted; otherwise this court will not take jurisdiction of the appeal.</p>

<p>Appeal from the County Court of Fort Bend. Tried below before the Hon. J. C. Williams, County Judge.</p>

<p>Appeal from the County Court of Fort Bend. Tried below before the Hon. J. C. Williams, County Judge.</p>

<p>1. Thept op Cattle — Indictment. — “One beef cattle” is a sufficient description of a stolen bovine, in an indictment for its theft.</p> <p>2. Newly Discovered Evidence, to warrant a new trial, must have been discovered since the former trial, and be such as could not then have been secured by reasonable diligence; must be material in its object, and not merely cumulative or collateral, nor simply to impeach a witness; and must be such as will be likely, on another trial, to produce a different result.</p>

Tried below before the Hon. W. D. Wood. • This appeal is from the capital conviction of the appellant for the murder of W. K. Spaulding, on July 25,1879. The evidence is unusually concise, consistent, and conclusive.

Tried below before the Hon. A. J. Booty. The opinion in this case gives a full and clear statement of the material facts.

Tried below before the Hon. A. S. Bkoaddds. The indictment charged the appellant with the murder of William Sprein, on July 8, 1879, by shooting him with a shot-gun. • On the 9th of June, 1879, the deceased was found dead in his field, having obviously been assassinated by a gunshot wound which passed entirely through his body. His head also was injured by blows, and the appearances and circumstances concurred in showing that he had been killed the day previous.

Tried below before the Hon. G. Cook. Upon an indictment which charged the appellant with the murder of Joseph W. Brown, on May 25, 1877, by shooting him with a pistol, he has been twice tried, convicted, and appealed. At his first trial he was found guilty of murder in the first degree, and adjudged to suffer death. On his appeal from that conviction, reported in 4 Texas Ct. App. 374, it was set aside and a new trial awarded because of a separation of the jury.

<p>Judgment against Joint Offenders.—In a trial of co-defendants for a misdemeanor, the jury found them guilty and assessed “the punishment at $250 fine and six months’ imprisonment in the county jail.” The judgment imposed on each defendant separately the punishment assessed by the verdict. Meld, that the verdict and judgment are erroneous. The verdict should have assessed against each defendant a separate fine. The case of Bennett et al. v. The State, 30 Texas, 530, overruled upon this question.</p>

Tried below before the Hon. E. B. Turner. The indictment was found in May, 1878, and charged that the appellant, on July 1, 1873, forged the certificate of a certain notary-public of Cameron County to a transfer of a land-certificate for three hundred and twenty acres. The jury found the appellant guilty, and assessed his punishment at two years in the penitentiary.

Tried below before the Hon. J. A. Carroll. The indictment was found in May, 1879, and charged the appellant with the theft, December 28, 1878, of a wagon, horse, and mule, the property of P. D. Williamson. The jury found him guilty of embezzlement of property over the value of $20, and assessed his punishment at eight years in the penitentiary.

Ox habeas corpus awarded on original application to the Court of Appeals. At p. 187 of this volume will be found the report of the appeal of this applicant from his conviction of murder in the first degree, upon which appeal the judgment below was reversed and the case remanded for a new trial.

Tried below before the Hon. T. L. Nugent. This appeal is from a conviction for burglary, committed October 18, 1879, by breaking and entering the dwelling-house of John Whisenant, with intent to commit theft. The punishment allotted to the appellant was a term of five years in the penitentiary. John Whisenant and his wife, as appears by the evidence for the State, left their home in the evening of the day alleged in the indictment, to pay a visit in the neighborhood.

Tried below before the Hon. E. B. Turner. This appeal is from the second conviction of the appellant for uttering a forged instrument. A report of his first appeal will be found in 6 Texas Ct. App. 384, and in that report a statement of the material facts on which the prosecution is based. The judgment below was reversed on that appeal, and a new trial awarded.

Error from the District Court of Burleson. Tried below before the Hon. A. S. Broaddus. The plaintiff in error was the surety duly served on the scire facias.

Appeal- from the District Court of Ellis. Tried below before the Hon. Gr. N. Aldredge. The indictment charged the appellant with assault with intent to murder J. B. Allen, on October 29, 1877. The verdict was, guilty of aggravated assault, and a fine of $1,000 the punishment assessed.

<p>Malicious Mischief—Yaisiance.— Indictment charged that the defendant did “wound and kill ” a certain mule. The proof showed that the mule, though .wounded, was not killed. Held, a fatal variance between the allegation and the proof.</p>

Tried below before the Hon. W. H. Bullock, County Judge. The complaint, it appears, was filed by a party who was arrested for drunkenness in the town of Decatur, by the appellant, who was marshal of the town. The arrest was made late in the evening, and it seems that the prisoner “ sobered up ” enough in a few hours to send for a friend, who told the appellant he would procure any bail required to release the prisoner.

Tried below before the Hon. C. C. Cummings, County Judge. ' The amendment of the recognizance was applied for and ordered at the term succeeding that at which the conviction was had. The nature of the amendment is indicated in the second head-note.

Tried below before the Hon. H. W. Moore. On July 9, 1879, Reuben Morris, driving in a buggy on a public road in the county of Waller, was fired upon and killed. The grand jury of Waller County, at the October term, 1879, of the District Court, presented an indictment for the murder against Reuben Loggins, Williford Loggins, and Henry Loggins, the appellant.

Tried below before the Hon. J. A. Cabboll; The stolen animals were found in Tarrant County, where the prosecution was had. Their owner, however, lived in Navarro County, and testified at the trial but neither his testimony, nor any other, states directly in what county the animals — amare and a gelding—were taken. From the facts stated, it appears reasonable to infer that they were taken in Navarro County. The jury allotted the appellant fifteen years in the penitentiary.

<p>1. Theft — Burglary—Former Conviction. — To an indictment for theft the defendant pleaded former conviction on an indictment for burglary, alleging the burglary and the theft to be parts of the same transaction and offence. As part of the plea he exhibited the indictment for burglary, which charged him with burglary with intent to commit theft, but not with actual commission of theft. Held, that the plea was properly-stricken out, on exception by the State. The burglary of which the defendant had been convicted was not the same offence as the theft for which he was on trial, though both may have been committed in the same criminal enterprise; and therefore a conviction for the burglary could not bar a prosecution" for the theft. If the indictment for the burglary had also charged the theft, the case would have been different.</p> <p>2. Conjoint Offences — Practice. — When, besides burglary, another of-fence was committed in connection with it, separate prosecutions for each offence is the proper practice.</p>

Appeals from the District Court of Dallas. Tried below before the Hon. G-. N. Aleredge. By separate indictments the appellant was charged with the theft of a horse and a mare, belonging to different owners. In each case he was found guilty, and a term of five years in the penitentiary awarded him. The animals were stolen from the same neighborhood in Denton County, and were found in possession of the appellant in Dallas County.

Tried below before the Hon. A. J. Hood. In 5 Texas Ct. App. 163, will be found a report of this •case on a former appeal, and a detailed statement of the material facts. The judgment of conviction was then xeversed on account of error in the charge to the jury, and the case was remanded for a new trial, which has resulted in the second conviction of the appellant for murder in the first degree, and in the reappearance here of the cause on appeal.

Tried below before the Hón. W. P. H. Douglass, County Judge. The information charged that the appellant, on September 3, 1879, in the county of Guadalupe, “ did wilfully, and unlawfully, and wantonly maim, wound, and disfigure a dumb animal, to wit, a cow, of the species of neat cattle; contrary,” etc. The opinion gives the gist of the proof on the venue of the offence.

<p>Time — Evidence. —It is generally sufficient to allege and prove the commission of the offence at any date anterior to the inception of the prosecution and within the period of limitation; hut when, as in the present case, the proof shows that the offence was committed subsequent to the presentment of the indictment, the prosecution must fail.</p>

<p>Appeal from the County Court of Comal. Tried below before the Hon. Gr. Pfeuffer, County Judge.</p>

<p>1. Territorial Jurisdiction of Texas.—Inasmuch as the United States and Spain, by the treaty of 1819, adopted Red River as a conterminous boundary, without designating either of its banks, it must, under the general rule, be held that the channel or middle of the river was the line intended; whence it follows that the jurisdiction of Texas extends to that line at least.</p> <p>2. Penalty. —Misdirection of the jury as to the penalty of the offence is material error, though not excepted to in the court below.</p> <p>3. Pursuing a Taxable Occupation without License is punishable by fine not less than the taxes due nor more than double their amount. When one factor in the penalty is a county occupation-tax, not fixed by general law, but levied by the County Commissioners, the amount of such a levy is not a matter of judicial knowledge, but should he alleged and proved, for the purpose of enabling the jury to assess the fine within the limits prescribed bylaw,—as, for instance, in prosecutions for retailing liquors without license.</p>

<p>1. Presumption oe Innocence — Charge of the Court. — The Code of Procedure enacts that “ a defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence; and in case of reasonable doubt as to his guilt, he is entitled to be acquitted.” The language of this long-standing provision was advisedly selected to express the precise meaning of the law-maker. Its entire context should be preserved, and attempts to paraphrase or supplement it tend to beget perplexity and breed error.</p> <p>2. Same — The following instruction is not tantamount to the said provision of the Code of Procedure: “A defendant in a criminal prosecution is presumed to be innocent till he is proved to be guilty by legal evidence, and all the evidence admitted to the jury by the court is deemed legal evidence.” By this instruction a jury may well be misled into concluding that the evidence submitted to them by the court suffices to destroy the presumption of innocence and to establish the defendant’s guilt. The law, upon the contrary, preserves the presumption of innocence throughout the trial, and until the jury in their retirement find that the entire evidence, notwithstanding the presumption of his innocence, establishes his guilt beyond a reasonable doubt, and return their verdict of conviction.</p> <p>S. Practice in the Court of Appeals.—If an erroneous charge was duly excepted to in the court below, this court cannot consider whether the error was prejudicial to the appellant, but must set aside the conviction, in conformity to art. 685 of the Code of Procedure.</p>

Tried below before the Hon. A. Langley, County Judge. The appellant was indicted by the grand jury of Ellis County on the twelfth day of June, a. d. 1879, charged with the commission of an aggravated assault and battery upon a female on the second day of December, 1878. On the twelfth day of August, 1879, he was tried under the indictment, found guilty, and his punishment assessed at a fine of $1,000 ; from which judgment of conviction he prosecuted this appeal.

<p>1. Murdee. — By art. 606 of the Penal Oode, all murder committed by the specified means of poison, starving, or torture, or committed in the perpetration or in the attempt at the perpetration of arson, rape, robbery, or burglary, is made murder in the first degree. If an indictment charges a murder to have been so committed, the evidence and the instructions to the jury must be confined to the case thus specifically made by the indictnent. The rulings to this effect in Tooney v. The State, 5 Texas Ct. App. 163, approved.</p> <p>2. Same.—Nevertheless, on the trial of an indictment in the common form for murder, the State may, as evidence of the malice aforethought, prove that the homicide was committed by poison, starving, or torture, or that the defendant’s motive in perpetrating it was to commit arson, rape, robbery, or burglary; and the instructions to the jury should be commensurate with the case made by the indictment and the facts in proof.</p> <p>3. Same — Charge of the Court. — In the trial of an indictment which in customary form charged a murder upon express malice aforethought, the evidence tended to prove that robbery was the motive which actuated the perpetrator. The court below gave in charge to the jury the general definition of murder and of “ express malice,” and also instructed them that all murder committed in the perpetration or in the attempted perpetration of robbery is murder in the first degree. Held, correct. Note the distinctions between this case and Tooney v. The State, 5 Texas Ct. App. 163.</p> <p>4. Accomplice Testimony. — To allow a conviction to stand upon testimony of an accomplice not corroborated by any other evidence tending to connect the defendant with the offence committed, would be in direct violation both of the letter and the spirit of art. 741, Revised Code of Criminal Procedure. The requirement of the law in this respect cannot be satisfied with any degree of credence accorded to the accomplice by the jury, nor by any amount of corroborative evidence which does not tend to connect the defendant with the offence committed. Note in the present case evidence held insufficient for such purpose.</p>

<p>Appeal from the District Court of Erath. Tried below before the Hon. T. L. Nugent.</p> <p>This is the companion case of the one reported at p. 412 ante. The opinion clearly discloses the differences in the evidence. The booty in the present case comprised quite an assortment of household and kitchen furniture, besides female apparel and baby-clothes. Seven years in the penitentiary were assessed by the jury as the penalty.</p>

Tried below before the Hon. L. W. Moore. Wyatt, the alleged owner, testified that the mare, when stolen, was his property, having been raised by him, and stated various acts of control, care, and ownership, as well as of actual possession, exercised by. him. He had turned her out on the range, and she was taken therefrom without his consent.

Tried below before the Hon. E. Hobby. The indictment charged that the appellant, “ in said county of Chambers, did, on or about the eleventh day of February, 1880, wilfully burn two certain houses, the property of Emeri Reaume, against the peace and dignity of the State.” The jury found a verdict of guilty, and assessed as the punishment a term of five years in the penitentiary.

Tried below before the Hon. P. F. Edwards. The indictment charged the appellant with the theft of a horse from Alfred Wade, the owner, on February 10, 1880. The jury found him guilty, and assessed his punishment at five years in the penitentiary.

<p>Appeal from the District Court of Travis. Tried below before the Hon. E. B. Turner.</p> <p>This appeal is from a conviction of murder in the second degree upon an indictment which charged the appellant and Ben Wright with the murder of one Garlop Edmasd on July 2, 1878, by shooting him.</p> <p>All the parties were colored. Wright made his escape before he could be arrested, and the appellant alone was on trial. The jury found him guilty of murder in the second degree, and assessed his punishment at sixteen years in the penitentiary.</p> <p>The evidence shows hostility and previous threats of the appellant against the deceased, inspired apparently by jealousy springing from their rivalry for the favor of the same girl. The shooting was done with little or no ceremony, and without immediate provocation or occasion of any kind, so far as the evidence discloses. It occurred at Webberville, in Travis County.</p>

<p>1. Charge oe the Court. —A correct exposition of the law called for by the evidence cannot be impugned upon any assumption that it misled the jury into finding as facts the hypotheses on which it was based,—as, for instance, in a trial for murder, an instruction detailing the well-established indicia of express malice.</p> <p>2. Same—Murder in the Second Degree. — Since the earliest adjudications-in Texas upon felonious homicide it has been uniformly held that from an-intentional homicide, not committed with express, malice nor under circumstances of justification, excuse, or mitigation, the law implies malice and the offence is murder in the second degree.</p> <p>3. Practice. — Defects in the minutes of the court respecting the presentment of the indictment are not primarily available after verdict.</p> <p>4. Practice in this Court.—It is not the practice of this court to disturb the finding of a jury upon conflicting evidence.</p>

Tried below before the Hon. E. B. Turner. The appellant, under the name of Bud Plumley, was jointly indicted with two other persons for the theft of a cow. The defence relied on was that he acted in good faith as a hired hand, and took the cow believing it to be the property of his employer, and that he took the cow for the benefit of his employer, who he believed had a right to it. There is no occasion for a statement of the evidence.

Tried below before the Hon. W. D. Wood. The indictment charged the appellant with the murder of Alford Lenard, by shooting him with a pistol, December 23, 1878. The jury found the appellant guilty of 'murder in the second degree, and assessed his punishment at a term of nineteen years in the penitentiary.

<p>1. Informations.—All informations shall be presented in the name and by authority of the State of Texas, and shall conclude, “ against the peace and dignity of the State.”</p> <p>2. Same. — The rules prescribed in chap. 3 of the Revised Code of Criminal Procedure with respect to the allegations in indictments, and the certainty required, are also applicable to informations.</p> <p>.3. Variance. —Variance between the allegations of the affidavit upon which an information is predicated, and the information itself, with reference to the ownership of land from which accused is charged with having taken timber without consent of the owner, is fatal to the information.</p>

Tried below before the Hon. E. B. Turner. The indictment charged the theft of a gelding, the property of a person to the grand jurors unknown. A former conviction of the appellant upon the same indictment was set aside by this court on account of variance between the allegation respecting the ownership, and the proof at the trial. Jorasco v. The State, 6 Texas Ct. App. 238.

Tried below before the Hon. T. L. Nugent. The case is sufficiently stated in the opinion of the court. A term of seven years ill the penitentiary was the punishment assessed and adjudged against the appellant.

Tried below before the Hon. A. J. Hood. The appellant and Mace Alford and William Lytle were jointly indicted for the murder of George White, on August 2, 1879, by shooting him with a gun. Held: and George Alford, the appellant, was present in person and by attorney. White testified at that investigation, and his testimony having been then reduced to writing, was introduced by the State at the trial in the District Court.

Tried below before the Hon. W. A. Blackburn. The indictment charges the appellant with the murder of William A. Brown, on May 21, 1878, by shooting him with a pistol. The verdict found the appellant guilty of murder in the second degree, and assessed his punishment at a term of five years in the penitentiary. The court-house of San Saba County was the scene of the tragic occurrence related in this record.

Tried below before the Hon. T. M. Paschal. The appeal in this case is from a conviction for murder in the second degree, had upon an indictment which charged the appellant with the murder of one Sandy Winn, on April 6, 1879. A term of twenty years in the penitentiary was the punishment assessed and adjudged against the appellant. On the 6th, 7th, or 8th of April, 1879, the dead body of a man was found on a rocky hill in the county of Medina.

Tried below ' before the .Hon. S. Ford. The appellant was indicted by the grand jury of Milam County for the murder of W. H. Gardner on the twenty-seventh day of May, a. d. 1879. On the nineteenth day of November, a. d. 1879, he was tried and found guilty of murder in the first degree, and his punishment affixed at death.

Tried below before the Hon. W. L. Worsham, County Judge. The offence charged was aggravated assault and battery, the minimum penalty for which has been reduced by the Revised Code from $100 to $25. The conviction was for simple assault and battery, the maximum penalty for which i is reduced from $100 to $25.

Tried below before the Hon. J. W. Smith. The material facts are sufficiently indicated in the opinion for present purposes. The punishment assessed and adjudged was six months’ imprisonment in the county jail.

Tried below before the Hon. T. M. Paschal. This case is a companion of that of P. S. Nolen, reported at page 585 of the present volume. The indictments were separate, but each charged the defendant as ii principal in the murder of Sandy Winn. In Nolen’s case a full abstract of the main facts will be found. The present appellant was found guilty of murder in the second degree, - and his punishment was assessed at five years in the penitentiary. ’

Tried below before the Hon. J. Hiner, County Judge. The information and trial were for assault and battery. A jury was waived, and the cause submitted to the judge on the facts as well as the law. He found the appellant guilty, and assessed against him a fine of $50.

Tried below before the Hon. T. L. Nugent. The indictment charged the appellant with the murder of George Montgomery, March 23, 1878, b}' shooting him with a pistol. The jury found him guilty of murder in the second degree, and assessed his punishment at thirty years in the penitentiary. It appears from the evidence that the deceased and the defendant, who were related to each other, were at a schoolhouse where a debate was going on, the night of the difficulty.

Tried below before the Hon. E. B. Turner. The opinion sufficiently indicates the character of the case. The punishment assessed by the jury was a term of five years in the penitentiary.

Tried below before the Hon. E. B. Turner. The appellant, Stephen A. McKinney, and one Gentry Bailey were on the twenty-first day of November, a. d. 1878, jointly indicted by the grand jury of Travis County for the murder of Gus Porter.

Tried below before the Hon. W. A. Blackburn. The indictment charged the appellant with the theft of a horse belonging to Isaac Prewitt and T. Anderson, on April 1, 1879. The indictment alleged, in the usual form, that the taking was without the consent of the owners. The jury found a verdict of guilty, and assessed the punishment at five years in the penitentiary. The evidence is quite prolix and there is no occasion to give it in detail.

Tried below before the Hon. A. S. Walker, Special Judge. The appellant and J. T. Hardin were charged by the indictment with the theft of a gelding belonging to J. T. Huggins, on April 16, 1876. At the July term, 1879, the appellant was separately tried, convicted, and allotted a term of six years in the penitentiary.

Tried below before the Hon. W. Steadman, Special Judge. This appeal is from a conviction of murder in the first degree, and an assessment of the penitentiary for the life of the appellant. The indictment was filed in August, 1878, and charged that the appellant, on July 29, 1875, murdered “ a certain man whose name is to the grand jurors unknown.” The instruments alleged were a gun, a pistol, and a knife.