Volume 82 — Texas Criminal Reports

<p>1. —Sunday Law—Information—Statute Construed—Motion Pictures.</p> <p>Where, upon trial of a violation of article 302, Penal Code, for permitting a performance on Sunday by displaying motion pictures for public amusement, and for admission to which a fee was charged, the information followed approved precedent and the evidence supported the allegations therein, there was no reversible error. Following Ex parte Lingenfelter, -64 Texas Crim. Pep., 30. Davidson, Presiding Judge, dissenting.</p> <p>2. —Same—Statute Construed—Moving Picture Shows.</p> <p>Article 302, Penal Code, which provides that the place of public amusement shall he construed to mean circuses, theaters, variety theaters, and such ■other amusements as are exhibited and for which an admission fee is charged, includes moving picture shows exhibited and for which an admission fee is charged. Davidson, Presiding Judge, dissenting.</p> <p>3. —Same—Rule of Construction—Statute Construed—Ejusdem Generis—</p> <p>Words and Phrases.</p> <p>In the construction of statutes of this kind, the general words such as ■“such other amusements” will not he rejected as too general, nor interpreted to include all kinds of amusements, and the rule of ejusdem generis that the particular words are presumed to describe certain species and the general words to he used for the purpose of including other species of the same genus, applies. Following Ex parte Muckenfuss, 52 Texas Crim. Pep., 467. Distinguishing Ex parte Roquemore, 60 Texas Crim. Rep., 282. Davidson, Presiding Judge, dissenting.</p> <p>4. —Same—Statute Construed—Rule Stated.</p> <p>. The rule, which requires criminal statutes to he construed strictly applies to those only of a highly penal character, not to mere misdemeanors, and statutes should not, in any cases, be so strictly construed as to defeat the obvious intention of the Legislature. Following Randolph v. State, 9 Texas, 521, and other cases.</p> <p>5. —Same—Statute Construed—Subsequent Legislation.</p> <p>This court must conclude that the fact that a moving picture show was invented subsequent to the passage of the statute would not preclude the statute prohibiting it, provided it comes within the classification found in the statute, which, in the opinion of the court, it does. Davidson, Presiding Judge, dissenting.</p> <p>6. '—Same—Statute Construed—Repeal.</p> <p>Article 1480 of the Penal Code, which deals with buildings constructed, fitted and equipped for certain purposes named therein as to public houses of amusement, subject to regulations, etc., is not in conflict with article 302 of the Penal Code-providing for the violation of the Sunday law, and does' not repeal it, which deals with the business conducted and not the structure in which the business is situated. If, however, article 1480, supra, is construed to apply to the exhibitions as well as the houses in which they occur, its effect is to declare a moving picture show a public house of amusement, subject to regulation by statute.</p> <p>7.—Same—City Ordinance—State Law.</p> <p>The contention that an ordinance of the city of Fort Worth, Texas, made it lawful for the defendant to conduct his business within the hours permitted on Sunday, etc., is untenable, as it conflicts with the State law, article 302, Penal Code, which it can not suspend or restrict. Following Fay v. State, 44 Texas Crim. Hep., 381, and other cases.</p>

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

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

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

Tried below before the Hon. Hugh L. Umphres. > Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.

<p>1. —Bigamy—Leading Questions—Evidence—Marriage.</p> <p>Where, upon trial of bigamy, defendant raised the question as to the manner of examination of witnesses with reference to the first marriage, hut this point was not questioned and defendant and his former wife were recognized as husband and wife, and both marriages' were proved by license, etc., the exception to the leading questions is unimportant.</p> <p>2. —Same—Continuance—Duress—Other Witnesses.</p> <p>Where, upon trial of bigamy, the defendant contended in his application for continuance that he could prove by his brother, the absent witness, that the second marriage was consummated under duress, but the evidence on the trial gave no intimation of duress, and other witnesses were present on the trial by -whom he could have shown this fact, if true, there was no error in overruling the motion for continuance and that for new trial.</p> <p>3. —Same—Evidence—Other Offenses.</p> <p>Where, upon trial of bigamy, the defendant undertook to prove by his witness that he had voluntarily surrendered for the offense, and on cross-examination the witness testified that at the time the defendant surrendered the witness, who was sheriff, had other papers for the arrest of the defendant, to all of which the.court promptly sustained an objection and instructed the jury not to consider same, there was no reversible error.</p>

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

<p>1. —Occupation—gelling Intoxicating Liquors—Evidence—Date of Offense.</p> <p>Where, upon trial of following the occupation of selling intoxicating liquors in prohibition territory, the State’s witnesses fixed the date of the different sales within three years next preceding the filing of the indictment, there was no error in permitting the district attorney in asking the witness how many times he had bought whisky from defendant, and to approximate how many times, etc. Following Cole v. State, 72 Texas Crim. Rep., 282.</p> <p>2. —Same—Evidence—Impeaching Witness.</p> <p>Where, upon trial of following the occupation of selling intoxicating liquors in prohibition territory, defendant on cross-examination of the State’s witness, asked him if he had not .been drunk in t'he negro town trying to buy whisky, etc., which the, witness denied, this was conclusive against the defendant, as the matter was collateral to the issue and his answer can not be subsequently contradicted by the party putting the question, or contradicted by other evidence.</p> <p>3. —Same—Evidence—Witness—Moral Turpitude.</p> <p>Upon trial of pursuing the occupation of selling intoxicating liquors in prohibition territory, where the defendant introduced several witnesses who disputed one of the State’s witnesses on some collateral matters, there was no error in permitting the State on cross-examination to prove by each one of the witnesses, in substance, that he himself had been indicted in the District Court, and had pending therein an indictment for bootlegging and, in one instance that he had been convicted.</p> <p>4. —Same—Rule Statéd—Impeachment of Witness.</p> <p>A witness can unquestionably be asked and made to answer, for the purpose of impeaching him, if he has not then pending against him an indictment charging him with a felony or has been convicted of a felony; the question of remoteness in no way appearing. ■</p> <p>5. —Same—Evidence—Credibility of Witness.</p> <p>Where the defendant attacked one of the main State’s witnesses who made one of the purchases of liquor from defendant, to show that his testimony was false and attempted to impeach him by asking him why he had not produced said liquor, there was no error in permitting the State to introduce a witness to show that the State’s witness delivered said whisky as he had testified.</p> <p>6. —Same—Accomplice Testimony—Charge of Court.</p> <p>Where the testimony in no way shows or tended to show that the leading State’s witness, who purchased intoxicating liquors from the defendant, was an accomplice,- there was no error in the court’s refusal to submit a charge on accomplice testimony. Following Ray v. State, 60 Texas Crim. Rep., 138, and other eases.</p> <p>7. —Same—Charge of Court—Bill of Exception.</p> <p>Where the court gave a full, clear and apt charge submitting properly all the -questions raised in a form approved by precedent, there is no reversible error.</p> <p>8. —Same—Argument of Counsel—Bill of Exceptions.</p> <p>Where upon trial of pursuing the occupation of selling intoxicating liquors in prohibition territory, State’s counsel’s argument confined itself to the record, there was no reversible error.</p> <p>9. —Same—Limiting Argument—Practice in District Court—Discretion of Court.</p> <p>Where the bill of exception® complained that the court limited the argument of counsel to twenty minutes to each side, but the record showed that the defendant’s counsel was given twenty-five minutes to argue the case; that the testimony was brief upon the disputed issues, and that the time allotted for argument was not unreasonable, there was no reversible error.</p> <p>10. —Same—Buie Stated—Limiting Argument.</p> <p>The statute vests in the trial judge discretion with reference to the argument of counsel in criminal eases, and unless the discretion is shown to have been abused, the-judgment will not be reversed. Following Bailey v. State, 37 Texas Crim. Rep., 579, and other cases.</p> <p>11. —Same—Misconduct of Jury—Statement of Facts.</p> <p>Where the statement of facts, on motion for new trial on account of the misconduct of the jury, as well as the defendant’s bill of exceptions, were fi-led long after t'he adjournment of the term of court during which defendant was convicted, the same can not be considered on appeal.</p> <p>12. —Same—Charge of Court-—Humber of Sales of Liquor.</p> <p>Where, upon trial of pursuing the occupation, etc., the separate sales of the intoxicating liquors where alleged to have been made to two different persons, and the evidence showed that two separate and distinct sales were made to each of these persons, and did not tend to show that any other sales were made to any other person, although the indictment alleged that other sales were made to -other unknown persons also, and the court’s charge required the jury to find in ease they found defendant guilty, that he made as many as two separate sales within-three years before the indictment was found in the county of the prosecution, there was no reversible error. Distinguishing Fisher v. State and Robinson v. State, recently decided.</p>

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

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

<p>1. —Local Option—Indictment.</p> <p>Where, upon trial of a violation of the local option law, the indictment followed approved precedent, the same was sufficient. Hollowing Coursey v. State, recently decided.</p> <p>2. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of a violation of the local option law, t'he evidence sustained a conviction there was no reversible error.</p> <p>3. —Same—Evidence—Bill of Exceptions.</p> <p>Upon trial of a violation of the local option law, there was no error in introducing in evidence the order of the Commissioners’ Court ordering a prohibition election, and the order showing the publication of the result of said election; besides, the bills of exception in which defendant claimed a variance with the allegation in the indictment is not set forth therein. Hollowing Doyle v. State, 59 Texas Crim. Rep., 60, and other cases.</p> <p>4. —Same—Continuance—Want of Diligence.</p> <p>Where, upon trial of a violation of the local option law, the application for continuance showed a want of diligence and that the absent witness could have been easily obtained, there was no error in overruling the same.</p> <p>5. —Same—Affidavits—Motion for New Trial.</p> <p>Where defendant filed affidavits after his motion for new trial was overruled and notice of appeal was duly entered, they must be stricken out on motion of the State.</p> <p>6. —Same—Affidavit—Substitution of Lost Affidavit.</p> <p>The State could not substitute the affidavit made by one- of defendant’s witnesses which was lost by having said witness make another affidavit. Therefore, appellant’s motion to strike out said affidavit must be granted.</p> <p>7. —Same—Argument of Counsel—Requested Charge.</p> <p>Where, upon trial of a violation of the local option law, the county attorney indulged in some illegitimate argument, referring to defendant’s reputation which was not in evidence, and to which the court promptly sustained objection, there was no reversible error in the absence of a requested charge to withdraw s-aid argument.</p>

Tried below before the Hon. J. A. Ward. Appeal from a conviction of a violation of the local option law; penalty, one year imprisonment in the penitentiary. The testimony for the State showed substantially that, while the prosecuting witness did not exactly buy the whisky from defendant, he sent another negro to him, who got the whisky from him, and told the prosecuting witness that he got it from the defendant and to pay him for it, which the prosecuting witness did.

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

<p>Appeal from the Criminal District Court of Dallas. Tried below before the Hon. Robert B. Seay.</p> <p>Appeal from a conviction of pandering; penalty, seven years imprisonment in the penitentiary.</p> <p>The opinion states the c'ase.</p>

<p>1. —Occupation—Intoxicating Liquors—Evidence—Reputation.</p> <p>Where, upon trial of pursuing the occupation of selling intoxicating liquors in prohibition territory, the evidence as to the pursuit of the occupation of selling intoxicating liquors was quite meager, and there was evidence introduced as to defendant’s reputation as a bootlegger, presumably on the issue of suspended sentence, the court should have submitted a requested charge that proof of general reputation alone was not sufficient to prove that defendant was engaged in t'he business of unlawful sale of intoxicating liquors. It is only in prosecutions for keeping a disorderly house that such testimony can be introduced and even there it is not sufficient to convict.</p> <p>2. —Same—Rule Stated—Character Evidence—General Reputation.</p> <p>The general rule is that where character evidence is introduced it should be restricted to the purpose for which it is admissible, and in the instant case in view of the meager evidence tending to s'how the pursuit of the occupation it was error to refuse the requested charge. Following Clifford v. State, 178 S. W. Rep., 765,</p>

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

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

<p>1. —Local Option—Sufficiency of the Evidence.</p> <p>Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no reversible error.</p> <p>2. —Same—Indictment—Misspelling.</p> <p>In the absence of any doubt that defendant was in any way misled by the misspelling of the word “February,” there was no reversible error in overruling a motion to quash the indictment. Besides, the bill of exceptions is insufficient.</p> <p>3. —Same—Evidence—Orders of Commissioners Court.</p> <p>Upon trial of a violation of the local option law, there was no error in admitting in evidence the various orders of the Commissioners Court declaring the result of the election, etc.</p> <p>4. —Same—Evidence—Publication—County Judge—Contest.</p> <p>Where the local option election had not been contested within thirty days after the declaration of the result, there was no error in introducing in . evidence the certificate of publication by the county judge, etc. Following Doyle v. State, 59 Texas Crim. Hep., 60, and other cases.</p> <p>5. —Same—Evidence—Bill of Exceptions.</p> <p>Where the bill of exceptions did not show what the answer was to the question propounded by the Sttae, the same can not be considered on appeal.</p> <p>6. —Same—Continuance—Want of Diligence—Impeaching Testimony—Second Application.</p> <p>Where defendant’s application for continuance was a subsequent application and did not comply with the statute, showed a want of diligence, and that the absent testimony was of an impeaching character, the same was correctly overruled. Following Griffith v. State, 62 Texas Crim. Rep., 642, and other cases.</p> <p>7. —Same—Jury and Jury Law—Talesmen.</p> <p>Where a list of the jury was given out to the attorneys and after they exercised their challenges a list was made out by the clerk of the jurors not challenged, only eight having been chosen, and the sheriff was then instructed to bring in the said talesmen to complete the jury, there was no reversible error, although the said eight jurors had been permitted to separate without instructions from the court, in the absence of a shoving what such instruction should have been.</p> <p>8. —Same—Statutes Construed—Separation of Jurors.</p> <p>. There is no statute in this State requiring that jurors who have been preliminarily selected shall be kept together, or that t'he court shall' give them instructions, although this may be the better practice under article 745, C. C. P., and in the absence of any showing that any of said jurors had in any way been approached by anyone or anything was said to them, or that they were incompetent or that they were not fair and impartial, there was no reversible error.</p>

<p>Assault With Intent to Murder—Charge of Court—Instruments Used— Intent.</p> <p>Where, upon trial of assault with intent to murder, the court failed to submit in his charge, which was duly objected, to, articles 1147 and 1149, of the Penal Code, the same was reversible error, where the evidence raised the issue of a sharp conflict as to whether defendant used a small pocket knife or a razor, and the question of intent to kill was also an issue in the case. Prendergast, Judge, dissenting.</p>

<p>1.—Occupation—Kinetoscope—License—Information.</p> <p>Where the information, charging defendant with following the occupation of keeping a kinetoscope, etc., without first obtaining a license, failed to charge ás required by statute, the annual tax, or t'hat defendant had been running the occupation for more than one year, etc., the same was insufficient.</p> <p>3.—Same—Rule Stated.</p> <p>Where the statute provides the manner and means, the pleadings must follow these definitions and requirements.</p>

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

<p>1. —Murder—Evidence—Expert Testimony—Circumstantial Evidence.</p> <p>Where, upon trial of murder, the State sought to prove that a certain ax was used, in committing the homicide and dependent upon the surrounding circumstances including the wounds inflicted, it was reversible error to reject testimony of a physician who had examined the character of the wound and also the ax in question; that under the circumstances the ax would not have been the instrument with which the wounds on the deceased had been inflicted. Following Betts v. State, 60 Texas Crim. Bep., 631, and other cases.</p> <p>2. —Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify.</p> <p>Where the motion for new trial alleged misconduct of the jury in alludihg to defendant’s failure to testify, and it appeared from the record that such comment was made by some of the jurors in considering their verdict and before the same was rendered, and that such an allusion evidently made an impression or tended to do the same, a new trial should have been granted.</p>

<p>1. —Aggravated Assault—Evidence—Ees Gestae.</p> <p>Upon trial of aggravated assault, the statements made by the injured party to ethers as to the assault upon 'her, some ten or fifteen minutes thereafter while she was still bleeding freely, etc., from the wound, was res gestae and admissible in evidence. Following Gillespie v. State, 190 S. W. Rep., 146.</p> <p>2. —Same—Argument of Counsel.</p> <p>Where the trial court promptly sustained an objection to the argument of State’s counsel alluding to defendant’s wife and daughter as “cattle,” reprimanded the State’s counsel, and withdrew the same orally by agreement from the jury, there was no reversible error.</p> <p>8.—Same—Bills of Exception.</p> <p>Where bills of exception were not approved by the trial judge, or in effect explained away, there was no reversible error.</p> <p>4.—Same—Motion for New Trial—Ees Gestae.</p> <p>Where the conviction depended not only upon res gestae testimony but was corroborated by the physical facts, and other testimony, the conviction for aggravated assault is sustained.</p>

<p>1.—Arson—Severance—Dismissal—Codefendant.</p> <p>Where another party was indicted with the defendant for arson, hut iu separate indictments, and defendant sought a severance and asked that his co-defendant be first tried, whereupon the State dismissed as to him, but the court declined to grant said eodefendant immunity against a subsequent prosecution, whereupon defendant insisted that said codefendant should be placed upon the witness stand by the State so he could cross-examine him, which the court refused, there was no reversible error. Following Hobbs v. State, 53 Texas Crim. Rep., 71, and other cases. Overruling Puryear v. State, 50 Texas Crim. Rep., 454.</p> <p>3.—Same—Evidence—Confession—Charge of Court.</p> <p>Where, upon trial of arson, defendant’s written confession was admitted in evidence and defendant sought to prove that improper influences or promises were made to him at the time to induce him to make said confession, which question the court properly submitted in his charge to the jury, refusing a requested charge because it is covered by the court’s main' charge, there was no reversible error.</p> <p>3.—Same—-Insanity—Charge of Court.</p> <p>Where, upon trial of arson, defendant pleaded insanity which the court properly submitted to the jury who found against him, there is no reversible error.</p> <p>4.—Same—Penalty—Subsequent Act of Legislature.</p> <p>Where, upon trial of arson, by the owner of the house situated in the city of Georgetown, the evidence showed that said burned house was in the city of Georgetown in the county of the prosecution at the time alleged in the indictment and defendant was convicted on the 11th of January, 1917, and he appealed in the same month, and the record was filed in this court on May 4, 1917, he could not claim the minimum penalty of the Ac-t of June 19, 1917. Following Walker v. State, 7 Texas Crim. App., 245, and other cases.</p> <p>5.—Same—Town—City—Owner of House.</p> <p>Upon trial of arson, under article 1208, Penal Code, which prohibits the owner of a house in a town or city from setting fire to it, where the evidence showed that said house was situated in the town or city of Georgetown, he had no right to burn it either by himself or agent, and the conviction is sustained.</p>

Prom Smith County. Original habeas corpus proceeding asking discharge of relator from arrest under the Act of the Thirty-third Legislature, Second Called Session, known as the Warehouse and Marketing Law. The opinion states the case.

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

<p>1. —Horse Theft—Postponement—Practice in District Court.</p> <p>Where defendant by inadvertence was misled to summon the wrong party as a witness, and immediately upon ascertaining the fact before the trial was completed asked for a postponement of the trial until 'lie could secure the presence of the witness who could establish his alibi, etc, the court should have granted the postponement although the absent testimony was not newly discovered evidence in the strict sense, of the term.</p> <p>2. —Same—Alibi—Charge of Court—Burden—Circumstantial Evidence.</p> <p>Where, upon trial of theft of a 'horse, the evidence was entirely circumstantial and there was testimony of an alibi, the court should have charged the reasonable doubt so that the burden was not upon the defendant and should have charged on circumstantial evidence, and the judgment must be reversed and the cause remanded.</p>

<p>Burglary—Sufficiency of tb.e Evidence—Date of Offense—Limitation.</p> <p>Where, upon trial of burglary, the evidence sustained a conviction, the allegation that the burglary was committed on a certain day would not preclude the State from proving that it was on some other day within the period of limitation from the time the indictment was found, and we must assume that there was nothing in the record to show the contrary, that the defendant’s, claimed alibi was not established.</p>

<p>Vagrancy—Corporation Court—County Court—Jurisdiction.</p> <p>Where, upon trial of vagrancy, defendant was convicted in the Corporation Court, and appealed to the County Court, where be was again convicted, and fined less than $100, 'he could not appeal to this court, and the same must be dismissed.</p>

<p>Habeas Corpus—Misdemeanor—Pauper’s Affidavit—Punishment.</p> <p>Where defendant was convicted of a misdemeanor and a fine and costs were assessed against him, whereupon he filed a pauper’s affidavit, sued out a writ of habeas corpus nineteen days thereafter claiming a discharge, and the facts showed on appeal from the record that he had been confined in jail for a sufficient length of time at the rate of $3 a day to be discharged, he not having been hired out or required to do work as stipulated in the statute, he was entitled to a discharge, and this although he had objected to being hired out and that another pay his fine.</p>

<p>1. —Aggravated Assault—Recognizance—Practice on Appeal.</p> <p>Where the appeal was dismissed for want of a sufficient recognizance and a proper recognizance was thereafter filed in the lower court, .the cause is reinstated. ,</p> <p>2. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of assault to murder, and a conviction of aggravated assault, the evidence supported a conviction although conflicting, there was no reversible error.</p> <p>3. —Same—Evidence—Motive.</p> <p>Where the defendant sought to connect the prosecuting witness as the party Who was responsible for his being shot on a former occasion, there was no error in permitting the State to prove a motive by the defendant for shooting prosecuting witness on said occasion, and also to show animus of defendant towards said prosecuting witness.</p> <p>4. —Same—Evidence—Conversation—Impeaching Witness.</p> <p>Where, upon trial of assault to murder, the defendant denied that the prosecuting witness told defendant that 'he did not want any more trouble over a former killing of witness’ cousin by defendant’s brother-in-law, there waa no error in permitting the State to show that such conversation with defendant had taken place.</p> <p>5. —Same—Evidence—Testimony by Other Witness.</p> <p>Upon trial of assault to murder, there was no error in admitting testimony by an expert as to whether the pistol of prosecuting witness had been fired, but even if it be held that such testimony was erroneously admitted, the same was not reversible error because another witness had testified to the same fact without objection.</p> <p>6. —Same—Evidence—Animus of Witness—Motive.</p> <p>Upon trial of assault with intent to murder, where defendant’s brother-in-law had testified to a material fact in his defense, there was no error in permitting the State on cross-examination to show that the witness had some time-before s'hot and killed the cousin of the prosecuting witness in the instant case and had been convicted thereon, and was then under suspended sentence; besides, the same fact was proved by defendant himself.</p>

<p>1. —Cow Theft—Punishment—Motion for New Trial.</p> <p>Where, upon trial of theft of a cow, the court erroneously instructed the jury that in case they found defendant guilty to assess the punishment for any term of years not less than two nor more than five years, intead as the statute provides, not more than four years, and the jury assessed his punishment at three years, and no objection was made at the proper time, but the defendant alleged error on this ground in his motion for new trial, the same was too late, and can not be considered on appeal. Following Manning v. State, 46 Texas Crim. Rep., 326, and other eases.</p> <p>2. -—Same—Charge of Court—Statute Construed.</p> <p>Since the amendment of the statute, objections to the charge of the court must be made before the same is read to the jury; otherwise they can not be considered by this court. Following Crossett v. State, 74 Texas Crim. Rep., 440, and other cases.</p>

<p>Theft—Two Days—Written. Pleadings.</p> <p>Where the first complaint and information were dismissed, defendant was no longer held thereby, and as he had not been arrested subsequently he had the^ right to claim the two days when put on trial, and the fact that the complaint was filed six days before would have no effect as to his right.</p>

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

<p>^Failure to Have Cattle Dipped—Written Notice—Insufficiency of the Evidence.</p> <p>Where the written notice, if any was given, showed that it was given nearly a year after the complaint and information were filed a conviction for failing to have cattle dipped could not be sustained.</p>

<p>1.—Unlawfully Driving Buggy—Sufficiency of the Evidence.</p> <p>Where, upon trial of purposely taking and driving upon a public street ai buggy belonging to another without his consent, the evidence sustained a conviction, there was no reversible error.</p> <p>2. —Same—Jury and Jury Law—Jury Commission.</p> <p>Where, upon appeal from a conviction of a misdemeanor, the record • shows that at a previous term of the County Court, the judge accidentally and not deliberately failed to have a jury commission empaneled to draw a jury for the term during which defendant was tried, and. that thereafter he directed the sheriff to summon qualified jurors, some of whom tried the defendant, there was no error on that ground. Following Cox v. State, 71 Texas Crim. Bep., 236.</p> <p>3. —Same—Evidence—V alue.</p> <p>Where defendant was convicted for purposely taking and driving upon the public streets a buggy belonging to another without his consent under the Act of 1915, where the value of the buggy is an essential element in the offense, and the owner testified that he knew the market value of said buggy in the community in which he lived and that it was $35, and that he did not know the market value thereof in the place where the buggy was driven on the street» there was no reversible error.</p> <p>4. —Same—Witness Tinder Buie—Discretion of Court.</p> <p>Where it was not shown that the witness not under the rule had heard any particular statement of other witnesses, or remembered any particular answer, and that the court had not abused his discretipn in permitting the witness to testify, there was no reversible error.</p>

<p>1. —Theft—Circumstantial Evidence—Sufficiency of the Evidence.</p> <p>Where, upon the trial of theft of property under the value of $50, the'evidence although circumstantial was sufficient to sustain the conviction, there was no reversible error.-</p> <p>2. —Same—Special Owner—Allegation—Proof.</p> <p>Where, upon trial of misdemeanor theft, the evidence was sufficient to show that the alleged party from whom the property was taken had exclusive control of the same and care and management- thereof to make him the s-pecial owner, the allegation of ownership was properly allegéd and proved.</p> <p>3. —Same—Statement in Opinion—Motion for Rehearing—Ownership— Practice on Appeal.</p> <p>Where defendant in bis motion for rehearing in this court contended that this court passed the cate off on the sufficiency of the evidence and that such is not his contention, but the record clearly raises the sufficiency of the evidence as to the ownership alleged and proved, there was no reversible error.</p>

<p>1. —Unlawfully Carrying a Pistol—Sufficiency of the Evidence—Charge of Court.</p> <p>Where, upon trial of unlawfully carrying a pistol, the evidence was sufficient to sustain a conviction under a proper charge of the court, there was no reversible error.</p> <p>2. —Same—Imminent Danger—Rule Stated.</p> <p>The accused can not justify carrying a pistol on the ground of imminent danger when he had no such apprehension at the time he armed himself. Following Darby v. State, 23 Texas Crim. App., 407, and other cases. Besides, the court submitted this question to the jury, who found against defendant.</p> <p>3. —Same—Remarks by ’Court.</p> <p>Upon trial of unlawfully carrying a pistol, the court admonished the defendant, who was a witness, that he must answer the questions propounded to him by the State’s counsel without any other statement, there was no reversible error on this ground.</p> <p>4. —Same—Traveler—Charge of Court—Question of Pact.</p> <p>Where, upon trial of unlawfully carrying a pistol, the defendant contended, that he was a traveler and this question was submitted by the court to the jury in every way favorable to the defendant, and to which 'he did not object, this was a question of fact for the jury, and there was no error on that ground. Following Campbell v. State, 58 Texas Crim. Rep., 349, and other cases.</p> <p>5. —Same—Traveller—Rule Stated.</p> <p>Even though the accused may he a traveler, if he deflects and turns aside from his journey, the fact that he may he a traveler originally does not exempt him from punishment.</p>

<p>I-—Drunkenness at a Private House—Information—Election by State.</p> <p>Where the information contained three counts charging defendant with drunkenness and he had been tried previously on the first count, which was for being intoxicated in a private 'house, tins' was an election by the State, and he could not again be tried on the other two counts.</p> <p>2. —Same—Evidence—Declarations by the Defendant.</p> <p>Upon trial of defendant for being drunk at a private residence, declarations by the defendant to the officers after being arrested without being warned were inadmissible, nor could such declarations be introduced in evidence to show that defendant was drunk in a public road, as that charge had passed out, and besides he was under arrest.</p> <p>3. —Same—Argument of Counsel.</p> <p>Where, upon trial of being drunk in a private house, State’s counsel de nouneed the defendant as a liar and a t'hief, it was error to refuse a special charge withdrawing said matter from the jury, especially the reference to being a thief.</p> <p>4. —Same—Conduct of State’s Counsel—Manner of Examination.</p> <p>Where, upon trial of a misdemeanor, defendant had not placed his character m issue, the State’s counsel should not have been permitted to ask defendant while on the witness stand whether he had not been previously indicted at different times, and why he left a certain county, etc. Following Bullington v. State, 180 S. W. Rep., 679, and other eases.</p>

<p>1 —Burglary—Exculpatory Statement—Charge of Court.</p> <p>Where, upon trial of burglary, the State introduced in evidence the confessions of defendant, in which were contained the exculpatory statement of defendant that he entered the house alleged to 'have been burglarized through an open door, the court’s failure to instruct the jury that the State must show the exculpatory statements to be false is reversible error.</p> <p>2. —Same—Allusion to Defendant’s Failure to Testify.</p> <p>The misconduct of the jury in alluding to and partially discussing the fact that defendant had failed to testify is not reviewed, as the ease is reversed on other grounds.</p> <p>3. —Same—Evidence—Circumstances.</p> <p>Where, upon trial of burglary, the defendant in his confessions claimed that he had entered the house through an open door he should have been permitted to introduce testimony that the doors of the said burglarized house were in such condition that they might be opened at any time, and that they would not remain closed, etc</p>

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

<p>Keeping Bawdy House—Objections to Charge of Court.</p> <p>Where the charge of the court was not objected to until motion for new trial was filed, the judgment must be afiSrmed in the absence of a statement of facts and bills of exception.</p>

<p>1. Criminal Law <§=31092(7) — Appeal—Bill of Exceptions — Time of Filing.</p> <p>A 'bill of exceptions, not filed in the time prescribed by Vernon’s Ann. Code Cr. Proc. 1916, art. 845, as extended by the district court by an order appearing in the record, must be disregarded.</p> <p>2. Criminal Law <§=31098 — Appeal—“Statement of Facts.”</p> <p>A statement of facts in question and answer form is not a statement of facts, within ■Vernon’s Ann. Code Cr. Proc. 1916, art. 844c, and cannot be considered on appeal.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Statement of Fact.]</p>

<p>Appeal from El Paso County Court; E. B. McClintoek, Judge.</p> <p>E. L. Ligón was convicted of the offense of unlawful assembly, and he appeals.</p>

<p>Appeal from Rockwall County Court; J. W. Reese, Judge.</p> <p>J. A. Harper was convicted of drunkenness in a public place, and lie appeals.</p>

<p>Appeal from District Court, Red River County; Ben H. Denton, Judge.</p> <p>Jake Brinkley was convicted of an offense, and be appeals.</p>

<p>1. Husband and'Wife <§=>302 — Wins Desertion — Willfulness.</p> <p>To convict a husband under the wife desertion statute, he must not only have deserted his wife, or have failed to support her, but it must have been willfully done.</p> <p>2. Husband and Wife <§=>313 — Desertion— Sufficiency of Evidence.</p> <p>In a prosecution for wife desertion, evidence held insufficient to support conviction, defendant having been penniless, to his wife’s knowledge, when he married her, and his failure to send Her money when they were separated by agreement while he was seeking employment having been due solely to inability.</p> <p>On Motion for Rehearing.</p> <p>3. Bail <§=>64 — Appeal — Recognizance as Bail Bond.</p> <p>The mere fact that to the end of appellant’s recognizance were signed the names of appellant and his sureties, under the circumstances that the judgment entering the recognizance recited appellant and his sureties came into open court and were properly recognized, as required by statute, did not constitute it a bail bond.</p> <p>4. Bail <§=>64 — Appeal—Recognizance.</p> <p>If defendant’s recognizance was taken and approved by the trial judge, it was not changed into a bail bond, because the judge required defendant’s sureties on appeal to sign it; it being a sufficient compliance with the law where taken and approved in open court, though it is unnecessary that the sureties should sign a recognizance so taken and approved, or that it be written at all.</p>

<p>1. —Embezzlement—Principal and Agent—Subagent—Rule Stated.</p> <p>While it is the general rule of the law that in the absence of any authority, express or implied, an agent has no authority to employ a subagent, there are however, exceptions and modifications of the rule growing out of the necessity and exigencies of t'he case, or based upon the custom or usage of trade in like cases. Following Eastland v. Maney, 36 Texas Civ. App., 147, and other cases.</p> <p>2. —Same—Rule Stated— Subagent—Principal and Agent.</p> <p>The general rule is that in the appointment of an agent by a principal to do a given thing for him the authority is personal and can not he delegated to a subagent, unless from the express language used or from their presumption growing out of the particular transaction or of the usage of trade a broader power was to be conferred upon the agent. Following Smith v. Sublett, 28 Texas, 170, and other cases.</p> <p>3. —Same—Case Stated— Subagent—Embezzlement—Charge of Court.</p> <p>Where, upon trial of embezzlement, defendant claimed that he was the sub-agent of the principal agent and therefore not the agent of the principal when he received the alleged embezzled money, but the evidence showed that the principal and her principal agent contemplated and intended that the said principal agent should employ a subagent to collect a certain note and interest for the principal at a certain distant place, and the circumstances excluded the idea that the principal agent was to go there in person to make the collection and implied the right to employ the defendant as subagent to make the collection, this made the defendant the agent of the principal, and the conviction for embezzlement is sustained under a proper charge of the court.</p> <p>4. —Same—Principal and Agent—iSubagent—Implied Authority.</p> <p>Where, upon trial of embezzlement, the evidence was sufficient to ¿how that the principal agent had the express power and authority from his principal to employ' defendant to collect and receive the alleged money for the principal, or that if said authority was not express, the same was implied and that therefore defendant was the employee and the agent of the principal, notwithstanding that the said principal did not make the appointment in person and may not have Known thereof at the time when the principal agent appointed the subagent, the conviction was sustained.</p> <p>5. —Same—Lawful Money—Check—Variance.</p> <p>Where, upon trial of embezzlement, the defendant contended that as the indictment alleged that t'he $373.75, in money, collected and received by him on the alleged note and which he embezzled was lawful money of the United States of America, that the State had to prove literally that he received the money and that it was lawful money of the United States of America, and that the evidence showed that defendant 'had not received physically the money but a check therefor and that therefore this was a case of variance between the allegation and proof, the same is untenable. Following Medders v. State, 54 Texas' Crim. Rep., 494, and other cases.</p> <p>6. —Same—Motion for Rehearing—Statement in Original Opinion.</p> <p>Where appellant in his motion for rehearing contended that the court did not correctly quote the evidence in the original opinion, and that there was in fact no testimony that he ever drew out of the bank in small checks all the money of his principal which he had collected for her and deposited it in his own name or that he in fact, drew out any of said money, but the record showed the reverse of said contention, there was no reversible error.</p> <p>7. —Same—Rule Stated—Conversion—Defensive Theory.</p> <p>The correct legal principle applicable to this character of ease is' that when the State has shown by competent evidence the receipt of money or other property by the carrier, to be carried and disposed of in a particular way, and the State shows that it was not delivered and disposed of in the way and manner as agreed upon, and this is established beyond a reasonable doubt, then if the party intrusted with the property had made some other disposition thereof, not criminal, he must in order to relieve himself of conversion introduce proof of such disposition. Following Evans v. State, 40 Texas Crim. Rep., 54, and other cases.</p> <p>8. —Same—Rule Stated—Embezzlement—Conversion.</p> <p>A conviction for embezzlement will be sustained where defendant was intrusted with money or property to be disposed Of in a particular way and the proof shows he did not do this, and defendant fails to show an honest disposition thereof. Following Hamer v. State, 60 Texas Crim. Rep., 341, and other cases.</p> <p>9. —Same—Embezzlement—Felony—Misdemeanor.</p> <p>Appellant’s contention that the State must prove he cheeked out of said deposit he made, at least more than $50 at one time, in order to show he was guilty of felony embezzlement, has been expressly and repeatedly held against him by this court. Following Lawshe v. State, 57 Texas Crim. Rep., 32, and other cases.</p>

From El Paso County. Original proceeding under writ of habeas corpus asking release from arrest under an ordinance of the City of El Paso preventing the picketing of streets and sidewalks of said city.

Erom. Wichita County. Original application for writ of habeas corpus, asking relief from ■conviction of an attempt to commit burglary, because defendant was not represented by counsel, and was not permitted by the trial conrt to file a motion for new trial and enter notice of appeal.

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

<p>1. —Gaming—Insufficiency of the Evidence—Circumstantial Evidence.</p> <p>Where, upon trial of gaming, the evidence was purely circumstantial, and that of the State entirely consistent with that of the defendant to the effect that he was expecting to play a game of cards on the coming of certain other parties' but that it had not begun, and besides the court failed to charge on circumstantial evidence as requested, the conviction could not be sustained. Following Falhvell v. State, 48 Texas Crim. Rep., 35, and other cases.</p> <p>2. —Same—Severance—Bill of Exceptions.</p> <p>Where the motion for severance whs apparently sufficient and should have-been granted, yet as presented by the bill of exceptions as qualified by the court, this court is unable to determine whether there was reversibe error -in refusing the motion for a severance.</p>

<p>1.—Arson—Accomplice—Suspended Sentence—Reforming Judgment and Sentence—Statutes Construed.</p> <p>Article 865b, Vernon’s Criminal Statutes, does not except an accomplice to any offense with reference to suspended sentence, and an accomplice to arson is an entirely separate and distinct offense, and is not one of the excepted felonies where a suspended sentence is not applicable, and the court was in error in not suspending defendant’s sentence. Distinguishing Carlisle v. State, 31 Texas Crim. Eep., 537.</p> <p>3.—Same—Practice on Appeal—Reforming Sentence.</p> <p>When the lower court has wrongfully refused to suspend a sentence in accordance with the verdict, the judgment below will be reversed with instructions to enter- the judgment suspending the sentence, take the accused’s recognizance and discharge him. Following Baker v. State, 70 Texas Crim. Eep., 618, and other eases.</p>

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

<p>1. —Robbery—Sufficiency of the Evidence.</p> <p>Where, upon trial of robbery by the use of firearms, the evidence sustained a conviction, there was no error on that ground.</p> <p>2. —Same—Indictment—Motion in Arrest of Judgment—Pleading.</p> <p>Where, upon trial of robbery by the use of firearms, etc., the indictment alleged that defendants did then and there unlawfully and wilfully make an assault upon the person of S. and then and there by said assault and by violence to the said S. and by putting the said S. in fear of life and bodily injury, and then and there by using and exhibiting a firearm, towit, a pistol, the defendants did fradulently take from the person and possession and without the consent and against the will of the said S. $30 in money, current money of the United States of America, of the value of $30, the said property then and there being the corporeal personal property of the said S., with a fradulent intent then and there of them (naming the defendants) to deprive the said S. of the value of the same and to appropriate the same to the use and benefit of them the said (naming the defendants), the same was sufficient.</p> <p>3. —Same—Rule Stated—Duplicity.</p> <p>An indictment for robbery is not bad for duplicity because in the same count with the allegation of ordinary robbery it is alleged that a firearm was used in the commission of the offense. Following Beaumont v. State, 1 Texas Crim. App., 533, and other cases.</p> <p>4. —Same—Robbery—Pleading—Indictment—Rule Stated.</p> <p>An indictment merely alleging that robbery has been eommitteed by the use or exhibition of firearms or other deadly weapon, without also alleging that it was committed in one or the other or all of the ways, that is, of by assault, or violence, or by putting in fear of life or bodily injury, would charge no offense at all. Following Green v. State, 66 Texas Crim. Rep., 452, and other eases.</p> <p>5. —Same—Bill of Exceptions.</p> <p>.In the absence of a sufficient showing for not filing bills of exception in time, they can not be considered on appeal. Following Turner v. State, 22 Texas Crim. App., 42, and other cases.</p>

<p>Misdemeanor Theft—Evidence—Moral Turpitude—Impeachment.</p> <p>Upon trial of theft of some automobile fixtures,.it was reversible error to permit the State to introduce testimony that defendant had testified on a former trial that he had been convicted of misdemeanors not involving moral turpitude, and this is especially so as defendant failed to testify in the instant ease, and the State could not thus impeach his credibility, which was not placed in issue.</p>

R. Warren, Judge. Jim Head was convicted for pursuing the business of unlawfully selling intoxicating liquors in prohibited territory, and appeals.

<p>Aggravated Assault—Recognizance—Punishment.</p> <p>Where the recognizance fails to set out the amount of the punishment as required by statute, the appeal must be dismissed.</p>

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

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

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

Prom Travis County. Original habeas corpus' proceeding asking relief from arrest under an indictment found when the court was not in legal session.

<p>Petty Theft—Bill of Exceptions—Judgment—Date.</p> <p>In the absence of a proper bill of exceptions, where it appeared from the record that the court heard evidence on defendant’s motion as to the date of the judgment, the matter can not be considered on appeal.</p>

<p>1.—Local Option—Sufficiency of the Evidence.</p> <p>Where, upon trial of a violation of the local option law, the evidence sustained the conviction, there was no reversible error.</p> <p>&—Same—Motion for New Trial—Bills of Exception—Appeal.</p> <p>In the absence of a bill of exception to the introduction of testimony, etc., the motion for new trial can not be considered; besides, the latter is not essential as a basis for appeal. Eollowing Sessions v. State, recently decided.</p>

<p>1.—Perjury—Sufficiency of the Evidence.</p> <p>Where, upon trial of perjury, the evidence is sufficient to sustain a conviction, there was no reversible error.</p> <p>3.—Same—Indictment—Name of Injured Party—Name of Defendant..</p> <p>Where, upon trial of perjury, the first count in the indictment was dismissed the objections to the first count as to the names of the injured parties and of the defendant could have no application to the second count in which there was no such defect; besides, taking the indictment as a whole, it is certain that the alleged owners were the same in both counts of the indictment, and the defendant could not have been misled.</p> <p>3. —Same—Indictment—Words and Phrases.</p> <p>Where, upon trial of perjury, the indictment is based on false testimony given in another ease, which was for arson, an objection to said arson indictment that it omitted the word wilful, and that therefore perjury could not be based upon a trial thereon, is untenable. Following Kelley v. State, 51 Texas Crim. Rep., 507, and other cases.</p> <p>4. —Same—Preliminary Statement—Prosecuting Attorney.</p> <p>Under Article 717, Subdivision S, C. C. P., the prosecuting attorney is authorized to make a preliminary statement to the jury as to the accusation against defendant and the facts he expects to prove, and his reference to a written statement by the defendant and which he expected to prove and which was not introduced in evidence did not constitute reversible error; besides, the exceptions thereto were defective. Following Himmelfarb v. State, 76 Texas Crim. Hep., 173.</p> <p>5. —Same—Evidence—Indictment.</p> <p>Upon trial of perjury, there was no error in admitting in evidence the indictment for arson, upon trial of which the perjury arose in the instant case.</p> <p>6. —Same—Stenographic FT otes—Evidence.</p> <p>Upon trial of perjury, there was no error in permitting the court reporter to testify both from his recollections and from his stenographic notes written at the time as to what defendant swore to upon the trial of the case in which the alleged perjury testimony was given.</p> <p>7. —Same—Evidence—Possession—Ownership.</p> <p>Where the indictment for perjury alleged that the house which was burned and upon trial of which the alleged perjury testimony arose was in possession of. certain parties, there was no error in permitting testimony of one of the joint owners of said house that it was in possession of said parties.</p> <p>8. —Same—Evidence—Circumstances.</p> <p>Where the alleged perjury was based upon testimony given by the defendant in the trial of another person for arson, there was no error in admitting testimony that some of the property belonging to the person charged with arson was found in the debris of the burned house and was saturated with oil.</p> <p>9. —Same—Accomplice Testimony—Charge of Court—Credible Witness.</p> <p>Where, upon trial of perjury, based upon testimony given by defendant in an arson ease, the defendant claimed on appeal in his motion for rehearing for the first time that a State’s witness was an accomplice in the original arson case, and that therefore he could not be a credible witness in the perjury ease, but there was no evidence that said witness was an accomplice of defendant to either the arson or perjury case, such contention was untenable, and the mere knowledge of said witness that defendant was going to commit arson would in no sense make him an accomplice so as to make him an incredible, witness in the perjury case of defendant. x</p>

<p>Robbery—Misconduct of Jury—Charge of Court—Insufficiency of the Evidence.</p> <p>Where, upon, trial of robbery, by putting the injured party in fear of life or bodily injury, the defendant testified that he was charged'with murder, and the jury discussed the charge of murder, and it appeared from the record, that he was not indicted therefor, but at the time of his trial was held therefor on complaint and was subsequently discharged, and the evidence failed to show an assault and only showed that he had a stick in his hand which was not described either as to its size, its weight or its length or the material from which it was made, and the evidence was very meager as ' to putting the injured party in fear of life or bodily injury, etc., the court thinks under all circumstances, that a new trial should have been granted. Hollowing Turner v. State, 61 Texas Grim. Hep., 103.</p>

<p>Hog Theft—Insufficiency of the Evidence.</p> <p>Where, upon trial of theft of a hog, there was no evidence connecting the defendant with the killing of the hog, or that the original taking thereof was fraudulent, the conviction could not be sustained.</p>

<p>1.—Unlawfully Carrying a Pistol—Notice of Appeal—Statement of Pacts.</p> <p>Where the record fails to contain a notice of appeal, this court has no jurisdiction; besides, the transcript fails to show an order of the court allowing the filing of a statement of facts and bills of exception. However, the defects having been remedied the appeal is reinstated.</p> <p>3.—Same—Evidence—Impeaching Witness—Ill-will.</p> <p>Where the principal State’s witness testified that no ill-feeling existed between him and the defendant, it is reversible error to refuse the defendant to show that such feeling did exist, and he should have been permitted to show for the purpose of impeaching State’s witness his ill-will against the defendant; although the State might have shown the contrary.</p>

<p>1.—Manslaughter—Plea of Guilty—IVToton for New Trial.</p> <p>The law would not permit impeachment of the record on appeal on consideration of a motion for new trial which was neither verified hy affidavit nor proof, and the proceedings being otherwise regular, and the homicide unjustifiable, to which defendant pleads guilty, there is no reversible error. Following Barber v. State, 35 Texas Crim. Rep., 70, and other eases.</p> <p>2.—Same—Affidavit—Examining Trial—Testimony.</p> <p>Where appellant claimed that he acted in self-defense although he pleaded guilty to manslaughter, this court can not review the action of the trial court in -overruling the motion for new trial on this ground in the absence of the necessary evidence thereunder. Following Black v. State, 41 Texas Crim. Rep., 185, and other cases, and this although the evidence on self-defense might have had its weight in the trial.</p>

From Coleman County. Original habeas corpus proceedings asking relief of relator from •arrest under a conviction of an ordinance for speeding which had been repealed by the Act of the Legislature. The opinion states the case.

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

<p>1. —Wilfully Obstructing Public Ditch—Insufficiency of the Evidence.</p> <p>Where, upon trial of wilfully obstructing a public ditch, etc., the evidence did not show any wilful obstruction, a conviction could not be sustained. Following Richardson v. State, 85 S. W. Rep., 282, and other cases.</p> <p>2. —Same—Evidence—Declarations of Defendant.</p> <p>Upon trial of wilfully obstructing a public ditch, etc., testimony that defendant built a levee on his land, and thereafter had a conversation with one of the county commissioners in which he declared that he was unwilling to open the drain through his premises or permit it to be done, was inadmissible. Following iMeMillen v. State, 77 S. W. Rep., 790, and other eases.</p>

<p>1.—Unlawfully Carrying a Pistol—Appeal Bond—Recognizance.</p> <p>Where, upon appeal from a conviction of unlawfully carrying a pistol, the appellant filed an appeal bond instead of a recognizance, the appeal must be dismissed for want of jurisdiction. Following Palmer v. State, 63 Texas Crim. Rep., 614, and other cases.</p> <p>8.—Same—Suggestions to Legislature.</p> <p>See opinion for suggestion to Legislature to amend the law so as to permit the filing of an appeal bond as in case of felonies.</p>

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

<p>1.—Robbery—Reproduction, of Testimony—Examining Court.</p> <p>Where, upon trial of robbery, it was shown that one of the main State’s witnesses had left this State and was beyond the jurisdiction of the court, there was no error in permitting the county attorney who had reduced the testimony of the absent witness to writing during the examining trial of defendant, and who testified upon tne instant trial that to give the details of said examining-court testimony he would have to read the written statement of said witness, which, over the objections of defendant, the court permitted, there was no reversible error. Davidson, Presiding Judge, dissenting.</p> <p>8.—Same—Constitutional- Law—Reproduction of Testimony—Statutes Construed.</p> <p>The contention that the reproduction of testimony under the circumstances defined in Article 834, C. C. P., is violative of the Bill of Rights of the Constitution of Texas, Article 1, Section 10, is not well taken. Following Porch v.- State, 179, and other eases.</p> <p>3.—Same—Examining Court Testimony—Statutes Construed—Presumption.</p> <p>Where, upon trial of robbery, one of the main State’s witnesses was shown to be permanently beyond the limits of the State, and all the papers in the examining court were before the court in the instant trial, who permitted a witness to. read from the statement of the absent witness made in said examining court to refresh his memory, there was no error, and the contention that under Articles 300 and 832, C. C. P., that said testimony was not properly reduced to writing as required, was untenable, and it must be presumed that such evidence was secondary and permissible, as such testimony of the absent witness could have been reproduced by oral proof. Following Dunlap v. State, 9 Texas Crim. App., 51 Texas Crim. Rep., 7, and other cases.</p> <p>4. —Same—Evidence—Confessions.</p> <p>Where, upon trial of robbery, the State introduced the confession of the defendant which was in writing and in due form in every respect, to which he objected oh the ground that it was not voluntary, but this issue was submitted in a proper charge to the jury, there was no reversible error. Following Brown v. State, 45 Texas Crim. Rep., 139, and other cases.</p> <p>5. —Same—Rehearing—Reproduction of Testimony.</p> <p>Where appellant, on rehearing, complained that this court committed error in deciding that the court below properly admitted in evidence the written statement of an absent witness made during an examining trial, and who was then beyond the jurisdiction of the court, but the record showed on appeal that the-State’s witness who testified to such reproduction of testimony, testified that he could reproduce it better by reading the notes he had made than by reciting it without said notes, there was no reversible error.</p>

<p>1.—Perjury—Indictment—Local Option.</p> <p>Upon trial of perjury, where the indictment alleged that the defendant swore falsely, before the grand jury, who were investigating a charge of a violation of the local option law, and- that the election, in which the sale of intoxicating liquors was prohibited took place some three years prior to said investigation, it was not necessary to specifically allege that such sale was unlawful in said county, at the time of said investigation, or fail to negative the fact that the prohibition of the sale of intoxicating liquors had been repealed by a snhsequent election. Following Nobles v. State, 71 Texas Crim. Rep., 121, and other cases.</p> <p>3.—iSame—Indictment—Grand Jury—Venue.</p> <p>Upon trial of perjury, which was based on false testimony before the grand jury, during its investigation of a violation of the local option law, it was not necessary to allege that the inquiry of said grand jury was confined to transactions taking place in the county of the prosecution. Following McDonough v.. State, 47 Texas Crim. Hep., 227, and other eases.</p> <p>3. —Same—Sufficiency of the Evidence—Credible Witnesses—Corroboration.</p> <p>Where, upon trial of perjury, 'the testimony of two State’s witnesses, both of whom were competent, testified to the alleged false testimony, and there were other circumstances in evidence detailed by other witnesses, corroborating the testimony of the other two witnesses, the conviction was sufficiently sustained.</p> <p>4. —Same—Credible Witness—Immunity from Punishment.</p> <p>Where appellant contended that the conviction for perjury was not sustained by the evidence of two credible witnesses, because one of them had been charged with a felony, and tendered immunity by the State, in consideration of his giving testimony against the appellant, such contention was untenable and there was no reversible error. Following Anderson v. State, 56 Texas Crim. Rep., 360, and other cases.</p> <p>5. —Impeachment of Witness—Predicate—Hearsay.</p> <p>Where appellant contended that one of the State’s witnesses had been promised immunity from prosecution for felony by agreement with State’s counsel and attempted to attack the credit of said witness by trying to impeach him, but had laid no predicate for so doing, and, besides, the proferred testimony was hearsay, there was no reversible error.</p> <p>6.—Same—Charge of Court.</p> <p>Where appellant contended that his requested charge instructing acquittal if the jury found that he by reason of intoxication was unable to remember the facts with reference to the transactions testified to by him before the grand jury, and upon which the perjury was based, should have been submitted, but the record showed that the court’s main charge sufficiently guarded the appellant’s theory in this respect, there was no reversible error.</p> <p>[This ease reached hands of Reporter December, 1917.]</p>

<p>1.—Murder—Misconduct of Jury—Presumption—Practice on Appeal.</p> <p>Where, upon appeal from a conviction of manslaughter, the record showed that the trial court heard evidence under the motion for new trial on account of the misconduct of the jury and overruled said motion, the presumption is that the lower court ruled correctly, in the absence of other testimony.</p> <p>3.—Same—Bill of Exception—Filing—.Order of Extension.</p> <p>Where the bill of exception was not filed in proper time the same can not be heard on appeal, notwithstanding the appellant secured a five-day order of extension, after the time for filing said bills of exception had expired, as the continuity of time can not be broken by such order.</p> <p>[This case reached Eeporter December, 1917.]</p>

<p>Threatening Life—Statement of Facts—Bill of Exceptions.</p> <p>In the County Court, it is necessary, in order to file a statement of facts and bills of exceptions in vacation, to have an order entered for that purpose, and where this.is not done, these papers can not be considered on appeal.</p> <p>[This ease reached Beporter December, 1917.]</p>

<p>1. —Local Option—Indictment—Publication of Order.</p> <p>Where, upon trial of a violation of the local option law, the indictment alleged that the Commissioners Court of said county did pass and publish an order, declaring the result of said election, etc., and that thereupon said order was published for the time and in the manner required by law, the same was sufficient. Following Watson v. State, 52 Texas Crim. Eep., 551, and other cases. Distinguishing Smithham v. State, 53 Texas Crim. Eep., 173.</p> <p>2. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of a violation of the local option law, the evidence was sufficient to sustain the conviction, there was no reversible error.</p> <p>3. —Same—Newly Discovered Evidence.</p> <p>Where the alleged newly discovered evidence did not come within the rule, in that it must have been known to defendant before trial, there was no reversible error.</p>

<p>1. —Speeding—Allegations—Proof.</p> <p>Where, upon trial of unlawfully speeding an automobile on a street in a city, the information alleged that this was upon a certain street, the allegation, although unnecessary, must be proved.</p> <p>2. —Same—Evidence—Bias—Interest of Witness.</p> <p>Upon trial of unlawfully speeding on a street in a city, defendant should have been permitted on cross-examination to prove that the State’s main witness was employed by the officers of the city and the county for apprehending speeders for which 'he expected to be paid, to show his bias, interest, and prejudice in' the matter.</p> <p>3. —Same-—Evidence—Speedometer—Hearsay.</p> <p>Upon trial of unlawfully speeding an automobile, there was no error in admitting testimony as to the rate of speed of the automobile indicated by the speedometer, as this was not hearsay.</p> <p>4. —Same—City Ordinance—Evidence—Judicial Knowledge.</p> <p>Courts can not take judicial knowledge that any city ha» a given ordinance, and such ordinance must be proved properly as any other fact and it was error to-permit the county attorney in his argument to tell the jury such an ordinance-had been passed by the city council, or to so charge the jury. Following Karchmer v. State, 61 Texas Crim. Rep., 221, and other eases.</p> <p>[This case reached Beporter December, 1917.]</p>

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

<p>1.—Manslaughter—Charge of Court—Self-defense—Defendant’s Standpoint.</p> <p>Where, upon trial of murder and a conviction of manslaughter, the court’s charge on self-defense sufficiently informed the jury that they must view the ■danger only from the defendant’s standpoint, giving defendant the benefit of the reasonable doubt, etc., there was no reversible error.</p> <p>2. —Same—Manslaughter—Charge of Court.</p> <p>Where, upon trial of murder and a conviction of manslaughter, the objections to the court’s charge on manslaughter were not of sufficient merit to justify reversal of the case, there is no reversible error.</p> <p>3. —Same—Argument of Counsel—Requested Charge.</p> <p>In the absence of a requested charge, objections to the argument of State’s counsel, while the language of the State’s counsel was probably improper, yet as shown by'the bill of exceptions, there is not sufficient cause for reversal. Following House v. State, 19 Texas Crim. Rep., 227.</p> <p>[This case reached Reporter December, 1917.]</p>

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

From the District. Court of Ellis. Tried below before the Hon. F. L. Hawkins. Appeal from a conviction of murder; penalty, five years imprisonment in the penitentiary.

<p>1. —Occupation—Intoxicating Liquors—Indictment—Limitation.</p> <p>Where, upon trial of following the occupation of selling intoxicating liquors in prohibited territory, the indictment followed approved precedent, the same was sufficient, and was preferred within the period of limitation.</p> <p>2. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of following the occupation and business of selling intoxicating liquors in prohibited territory, the evidence sustaining conviction,, there was no reversible error.</p> <p>3. —Same—Evidence—Internal Revenue License.</p> <p>Where, upon trial of following t'he occupation of selling intoxicating liquors, etc., the State introduced an examined copy of the internal revenue license issued to defendant, there was no reversible error. Following Novy v. State, 62 Texas Crim. Rep., 492, and other cases.</p> <p>4. —Same—Continuance—Impeachment—Practice on Appeal.</p> <p>Where the alleged absent testimony was either inadmissible or could only have been used for impeachment purposes, the application for continuance was correctly overruled; besides, the diligence was insufficient. Following Trinkle v. State, 59 Texas Crim. Rep., 257, and other eases.</p> <p>5. —Same—Argument of Counsel—Bootlegging.</p> <p>Where, upon trial óf following the occupation of selling intoxicating liquors, etc., there was evidence about bootlegging, there was no reversible error in State counsel’s argument in discussing this evidence.</p> <p>6. —Same—Evidence—General Reputation—Charge of Court.</p> <p>' Upon trial of following the occupation of selling intoxicating liquors, etc, there was no error in permitting testimony that the reputation of defendant in the community in which he lived was that of a man that deals in and sells intoxicating liquor, as defendant pleaded for a suspended sentence, which wa3 properly limited by the court; besides, other like testimony was admitted without objection. Following Williamson v. State, 74 Texas Crim. Rep., 289, and other cases.</p> <p>7. —Same—Evidence—Contradicting Witness.</p> <p>Where a witness for the State was assailed by many questions attacking his credibility there was no error in admitting testimony with reference to witness’ reputation, and that he did not stand well with the bootleggers. Following Goode v. State, 57 Texas Crim. Rep., 220, and other eases.</p> <p>8. —Same—Charge of Court.</p> <p>Where, upon the trial of following the occupation, etc., the court gave a full charge, there was no error in refusing other requested charges, which were either not applicable to the facts or were not presented to the judge at the proper time.</p> <p>9. —Same—Misconduct of Jury—Misconduct of Officer.</p> <p>Where, upon an appeal from a conviction of following the occupation of selling intoxicating liquors, etc., appellant claimed the misconduct of the deputy sheriff, who was in charge of the jury, and also misconduct of the jury, and the record showed that the trial court heard evidence upon the motion for new trial upon this question and thereupon overruled the motion, his action will not be disturbed. Following Lamb v. State, 75 Texas Crim. Rep., 75, and other eases.</p> <p>jThis case reached Reporter December, 1917.]</p>

<p>Prom Harris County.</p> <p>Original habeas corpus proceeding asking release from a committal under a judgment of the County Court, confining relator to the custody of the mother superior of the Sisters of the Good Shepherd, Dallas, Texas.</p> <p>The opinion states the case.</p>

<p>1.—Forgery—Evidence—Collateral Offenses—Bill of Exceptions.</p> <p>Where appellant complained of evidence as to alleged collateral forgery because defendants had not been connected therewith, but the record on appeal showed that there was evidence from which the jury was authorized to form a conclusion that the various instruments mentioned above were in possession of the defendants, in connection with the note upon which the prosecution was founded and that they were all put to a common use, and the court limited such testimony properly, there was no reversible error; besides, the bill of exception was defective. Following Ham v. State, 4 Texas Crim. App., and other cases.</p> <p>2. —Same—Misconduct of Jury—Allusion to Defendant’s Failure to Testify.</p> <p>Where, upon trial of forgery, the evidence before the court was such that the comment by the jurors upon defendant’s failure to testify was controverted, and the court found that there was no such misconduct and that no inhibited misuse of said defendant’s failure to testify entered into or affected the verdict, there was no reversible error.</p> <p>3. —Same—Separation of Jury—Practice on Appeal.</p> <p>Where it was affirmatively shown that in a casual separation of the jury there was no influence brought to bear upon them in consequence thereof, and no opportunity given, and that such separation did not effect the verdict or impartiality of the trial, there was no reversible error. Following Robinson v. State, 58 Texas Crim. Rep., 550, and other cases.</p> <p>4. —Same—Misconduct of Jury—Evidence De Hors the Record.</p> <p>Where the contention of the receipt of other testimony reflecting upon tho character of defendant was disproved, there was no reversible error.</p> <p>5. —Same—Misconduct of Jury—Retraction—Public Policy.</p> <p>It is contrary to public policy to permit a juror in attacking a verdict to testify that he retracted his acquiesence therein. Besides, this matter was controverted and there was no error in overruling the motion for new trial upon this ground. Following Turner v. State, 61 Texas Crim. Bep., 97.</p> <p>6. —Same—Sufficiency of the Evidence—Insufficiency of the Evidence-Practice on Appeal—Handwriting.</p> <p>Where, upon trial of forgery of two defendants, there was evidence that one of the defendants committed the alleged forgery, and this was not dependent on comparison of handwriting, but upon direct testimony, the evidence was sufficient to sustain a conviction as against him, but the evidence being insufficient to support the conviction of the other defendant, the judgment is reversed and the cause remanded as to him. Following Hughes v. State, 59 Texas Crim. Rep., 294.</p> <p>[This case reached Reporter December, 1917.]</p>

<p>1. —Burglary—Sufficiency of tlie Evidence.</p> <p>Where, upon trial of burglary, the evidence sustained the conviction under a proper charge of the court, there was no reversible error.</p> <p>2. —Same—Continuance—Insanity—Want of Diligence.</p> <p>Where, upon trial of burglary, the defendant claimed insanity at the time of the commission of the- offense, but the application for continuance for absence of witnesses showed no diligence, there was no error in overruling the same.</p> <p>3. —Same—Evidence—Insanity—Bill of Exceptions.</p> <p>Where, upon trial of burglary, defendant claimed insanity, the State admitted testimony with reference to such question, to which the defendant objeeted, but the bill of exceptions did not show such testimony, there was no reversible error.</p> <p>4. —Same—Evidence—Opinion of Witness—Insanity.</p> <p>Where, upon trial of burglary, the defendant claimed insanity at the time of the commission of the offense, produced by the recent use of morphine, etc., there was no error in admitting testimony of the opinion of witnesses that defendant was not insane, the record showing that they were qualified to do so; besides, the bill of exceptions was defective. Following Brice v. State, 72 Texas Crim. Rep., 221, and other cases.</p> <p>5. —Same—Rule Stated—Opinion Testimony.</p> <p>The rule is that a witness must have some special practical knowledge of the subject in order to enable the court to determine his competency, and the determination of this question is largely in the discretion of the trial court to permit the witness as qualified to give his opinion. Following Holder v. State, 194 S. W. Rep., 1G4.</p> <p>6. —Same—Evidence—Bill of Exceptions.</p> <p>In the absence of sufficient bill of exceptions, the objections to the testimony can not be reviewed on appeal.</p> <p>7. —Same—Argument of Counsel.</p> <p>Where, upon trial of burglary, defendant objected to argument of State’s counsel, but the reeorde showed that the same was in reply to and caused by defendant’s attorneys in discussing the subject, there was no reversible error.</p> <p>8. —Same—Witness—Practice in the District Court.</p> <p>Where defendant objected to the testimony of the witness because he had previously testified differently, there was no error in overruling his objections, as this would be a matter of comment before the jury.</p> <p>[This case reached the Beporter December, 1917.]</p>

<p>1.—Burglary—Circumstantial Evidence—Confession.</p> <p>Where, upon trial of burglary, the alleged confessions of the defendant failed to show that ‘he broke .and entered the house alleged to have been burglarized the court should have submitted a charge on circumstantial evidence. Following Beason v. State, 43 Texas Crim. Rep., 442.</p> <p>3.—Same—B.ule Stated—Confessions—Circumstantial Evidence.</p> <p>The factum probandum of burglary, the main fact to be proved, is the breaking and entering, and if there is no direct evidence of the main fact, a charge on circumstantial evidence is demanded.</p> <p>3. —Same—Bill of Exception—Statement of Facts—Practice on Appeal.</p> <p>Where the record was without a statement of facts, but embraced a bill of exceptions which brought the question in review, the matter will be considered on appeal.</p> <p>4. —Saíne—Presumption of Innocence—Seasonable Doubt—Eule Stated.</p> <p>Wherever there is a doubt arising from the facts, the issues of the law must be favorably presented by the court for the consideration of the jury with reference to the fact, and the presumpt:on of innocence and reasonable doubt obtain, and where the issue of circumstantial evidence arises, the court must charge thereon.</p> <p>[This case reached Eeporter December, 1917.]</p>

<p>1. —Murder—Continuance—Eirst Application.</p> <p>Where the crucial points in the case, on a trial of murder, revolved around the pistol and the horse tracks made and introduced in evidence an application for continuance, the diligence of which was not controverted, should have been granted for the absent testimony, which excluded possession of the pistol by the defendant, and the testimony of the other absent witness would have shown that the horse tracks did not fit in as contended by the testimony of the State.</p> <p>2. —Same—Constable—Serving Process.</p> <p>A constable is legally authorized to serve process, and the State’s contention that the diligence is not sufficient because process was placed in the hands of a constable instead of the sheriff is untenable.</p> <p>3. —Same—Evidence—Bloody Clothes—Practice.</p> <p>Where, upon trial of murder, there was no question of the fact that deceased had been shot in the manner indicated by the testimony, and the clothes of deceased could have served no useful purpose, it was reversible error to introduce them in evidence, and this by bringing them before the jury and having them explained at length by the district attorney, although they were not in fact bodily introduced in evidence.</p> <p>4. —Same—Evidence—Checks—Eocketbook—Circumstances.</p> <p>Where, upon trial of murder, the State contended that a check which defendant had given deceased could not be found on the body of deceased, and there was an issue as to whether other cheeks were forgeries, and that defendant and deceased had had various business transactions before the shooting, there was no error in permitting the State to introduce in evidence checks given by defendant to deceased and by deceased to defendant, and the circumstances surrounding them.</p> <p>[This case reached Beporter December, 1917.]</p>

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

<p>Murder—Former Jeopardy—Practice in District Court.</p> <p>Where, upon trial of murder, the jury was empanelled, a plea of not guilty entered, and the State bad advanced far enough in the introduction of testimony to place on the stand a witness by whom it was expected to lay the predicate for the introduction of dying declarations, whereupon the district attorney withdrew the case from the jury and continued the case, over the defendant’s objection but by approval of the court, because State’s counsel' claimed surprise in not being able to lay the predicate by said witness, and defendant interposed his plea of former jeopardy at the next trial and introduced testimony thereunder upon which the court refused to charge, the same was reversible error. Following Vestal v. State, 3 Texas Crim. App., 648, and other cases. Prendergast, Judge, dissenting.</p>

<p>1. —Horse Theft—Charge of Court—Circumstantial Evidence.</p> <p>See opinion with reference to the charge of the court involving the possession of recently stolen property, circumstantial evidence, original taking, exculpatory testimony, etc.</p> <p>2. —iSame—General Reputation—Veracity—'Honesty—Preliminary Cross-examination.</p> <p>Where, upon trial of theft of a horse, defendant put his reputation for truth and veracity and honesty in evidence, and the State undertook to combat this hy witnesses who stated that they knew the defendant’s general reputation for truth and veracity, etc., the defendant should have then been permitted the right to examine the witnesess as to their means of knowledge before they were permitted to answer the general question that such general reputation was bad. Following Warren, Executors, v. Brown, 51 Texas, 65, and other cases.</p> <p>3. —Same—Rule Stated—General Reputation.</p> <p>The first question to be asked appears to be “Are you acquainted with the general reputation for veracity or honesty of the. witness?” and, if yes, the witness may then be interrogated as to the means of obtaining his knowledge, and such knowledge must be based upon general reputation and not upon personal knowledge.</p> <p>4. —Same—Examination of Witness—Conduct of Prosecuting Attorney.</p> <p>Where it appeared from the record on appeal, from a conviction of theft, that the witness’ mind, after talking with the county attorney and after he had been placed in jail by the court after testifying for the defendant, seems to have been impressed with the idea that unless he changed his testimony he would be sent to the penitentiary, such examination is condemned by the decisions of this court.</p>

<p>1. —Incest—Argument of Counsel—Letter—Practice in District Court.</p> <p>Where, upon trial of incest, in which there had been a former trial and appeal to this court, and which was reversed partly on the error of the court below in permitting a certain letter written by prosecutrix to defendant to be introduced in evidence, and which was therefore not introduced in evidence in the instant case, it was reversible error to permit the district attorney in his closing argument to say to the jury, “Now suppose that said prosecutrix did answer said letter and said to him in answer to his letter,” then reading from a paper lying before him on the table in the presence and sight of the jury a purported copy of said letter, supposed to have been written by the prosecutrix to the defendant, and which had not been offered in evidence and could not be introduced under the ruling of this court, and to which the defendant excepted in due form. Prendergast, Judge, dissenting.</p> <p>2. —Same—Invited Argument—Rule Stated.</p> <p>If the argument of State’s counsel was permissible under the rule of invited argument,' that is, occasioned by an improper argument of counsel for defendant, no just complaint would arise, but this is not the ease, and the State’s counsel was not justified in detailing facts to the jury not in evidence and relevant to the case in making response to defendant’s counsel, which was damaging in its effect, nor could he do so by legitimate inference or deduction from the evidence. Following Vick v. State, 71 Texas Crim. Rep., 50, and other cases. Prendergast, Judge, dissenting.</p> <p>3. —Same—Letters in Evidence—Relation of Parties.</p> <p>On trial of incest there was no reversible error in admitting in evidence ' the correspondence between the defendant and prosecutrix to show the intimate relation of the parties.</p> <p>4.—Same—Evidence—Other Acts of Sexual Intercourse.</p> <p>Where, upon trial of incest, the fact of sexual intercourse was a controverted one, there was no error in admitting in evidence a series of acts of sexual intercourse between the defendant and prosecutrix. Following Bradshaw v. State recently decided.</p>

<p>1. —Gaming—Dice—Statutes Construed.</p> <p>Article 557, P. C., makes it an offense for any person to bet at any game played with dice anywhere. Following Scott v. State, 59 Texas Crim. Rep., 15, and other cases.</p> <p>2. —Same—Remaining in Place of Gaming.</p> <p>Article 563, P. C., makes it an offense for any person to remain in any place where any such game with dice is played, and where defendant was charged with this offense and the evidence sustained a conviction, there was no reversible error.</p> <p>3. —Same—Evidence—Bill of Exceptions—Res Gestae.</p> <p>Where the bills of exception to the introduction of testimony were entirely insufficient, they can not be considered on appeal. However, if they are considered in the light of the record this testimony was admissible as res gestae. Following Best v. State, 72 Texas Crim. Rep., 201.</p> <p>4. —Same—Evidence—Witness—Disqualification—Harmless Error.</p> <p>Under article 791, C. C. P., persons charged as principals, accomplices or accessories, whether in the same or different indictments, can not be introduced as witnesses for one another; besides, the same testimony was introduced by other witnesses, and the error, if any, will be, at most, harmless.</p> <p>5.—iSame—-Statute Construed—Dice—Gaming.</p> <p>Under article 563, P. C., it is an offense for a person to go into and remain in any place where a game with dice is being played, and it is not necessary that the place be a gambling house, or is commonly resorted to for gaming. Distinguishing Walters v. State, 58 Texas Crim. Rep., 240, and other cases.</p>

<p>1. —Gaining—Common Resort for Gaming—Sufficiency of the Evidence.</p> <p>While proof of only one game of cards would not be sufficient to show that a place was commonly resorted to for gaming, yet where such place was resorted to twice within a reasonably short space of time for gambling, and the proof tended to show strongly that the place was commonly resorted to for gaming, the evidence was sufficient to sustain the conviction, where the defendant was charged with the violation of article 557, P. C. Distinguishing Purvis v. State, 62 Texas Crim. Pep., 302.</p> <p>2. —Same—Evidence—Circumstances—Gambling Resort.</p> <p>Where defendant was charged with the violation of article 557, P. C., under the gaming law, there was no error in permitting testimony that the witness had watched a bunch going up that way, to show that the place was resorted to for gaming; neither did the court err in admitting other circumstances of this kind in evidence. Besides the bill of exceptions was defective.</p> <p>8.—Same—Argument of Counsel—Discretion of Court.</p> <p>The manner of argument by the attorneys is a matter within the discretion of the court, and in the absence of a bill of exceptions showing what the concluding argument of the county attorney was, there was no reversible error.</p> <p>4.—Same—Argument of Counsel—Requested Charge.</p> <p>Where the argument of State’s counsel was a proper comment on the evidence, there was no reversible error; besides, there was no requested charge to withdraw the same.</p>

<p>1. —Incest—Other Acts of Carnal Intercourse.</p> <p>Where, upon trial of incest, the testimony of the alleged female was severely attacked on cross-examination there was no error to admit, as tending to solve the issue as to whether defendant had intercourse with said female at the time she claimed lie did, other acts of carnal intercourse with defendant occurring prior to the date alleged in the indictment. Following Cain v. State, 68 Texas Crim. Rep., 507, 153 S. ,W. Rep., 147, and other eases.</p> <p>2. —Same—Accomplice—Corroboration—Offspring.</p> <p>Upon trial of incest, the alleged female is an accomplice and corroboration of her testimony is essential, and where the testimony as to flight, confessions, etc., was insufficient to corroborate the testimony of the accomplice, the conviction can not be sustained. Prendergast, Judge, dissenting.</p>

<p>1. —Constitutional Daw—Dicense—Non-intoxicating Malt Diquor—Police Power.</p> <p>Article 157, Penal Code, Vernon’s Texas Criminal Statutes, concerning the authority of the Legislature to pass an Act levying and collecting a State and county tax on the business of selling non-intoxicating malt liquors, is constitutional. Eollowing Ex parte Townsend, 64 Texas Crim. Rep., 350.</p> <p>2. —Same—Police Power—Rule Stated.</p> <p>The police power is not an arbitrary one, but has its limitations. It is commensurate with but does not exceed the duty to provide for the Teal needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. Eollowing H. & T. C. Ry. Co. v. Dallas, 98 Texas, 415, and other eases.</p> <p>3. —Same—Police Power—Statutes Construed.</p> <p>Since there is no precise limit laid down in advance, and each case must be determined upon its own merits, the precedents furnished by the decisions of the courts of Texas and other States, in passing upon the validity of a like or similar law, would be the best guide to a correct conclusion.</p> <p>4. —Same—Constitutional Daw—Prohibition Daw.</p> <p>Appellant’s contention that if this law is intended to aid the enforcement of the laws of the State relating to the prohibition of the sale of intoxicating liquors, it is rendered void by section 20, article 16, of the Constitution, is untenable. Eollowing Eitch v. State, 58 Texas Crim. Rep., 366, and other cases.</p> <p>5. —Same—Statutes Construed—Non-intoxicating Malt Diquors.</p> <p>Statutes and ordinances bringing the sale of non-intoxicating malt liquors' within the control of the police power of the State have been upheld on numerous occasions. Eollowing Purity Extract and Tonic Co. v. Lynch, 229 U. S., 192, and other cases.</p> <p>6. —Same—Constitutional Daw—Uniform Taxation.</p> <p>Article 157, P. C., Eirst Vernon’s Texas Criminal Statutes, page 92, is not ¡void and does not conflict with section 2, article 5, of the Constitution of Texas, requiring equal and uniform taxation. Eollowing Jolilf v. State, 53 Texas Crim. Rep., 61, and other cases.</p> <p>7. —Same—Practice on Appeal.</p> <p>In the absence of bills of exceptions and statement of facts, the law being constitutional and the information sufficient upon which to base a conviction, there was no reversible error.</p>

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

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

<p>Appeal from the Criminal District Court Ho. 2 of Dallas. Tried "below before the Hon. C. A. Pippen.,</p> <p>Appeal from a conviction of aggravated assault; penalty, a fine of fifty dollars.</p>

<p>1.—Rape—Penetration—Insufficiency of the Evidence—Rule Stated.</p> <p>Penetration is an element of rape and must be proved beyond a reasonable doubt, though such penetration need not be of any particular depth. Following Jobson v. State, 27 Texas Crim App., 163. And where, in tKe instant case, the evidence as to penetration was insufficient to support the verdict the judgment must be reversed and the cause remanded. Following Draper v. State, 57 S. W. Rep., 556, and other eases. Prendergast, Judge, dissenting.</p> <p>2. —Same—Bills of Exception—Eiling.</p> <p>. Where the bills of exception were filed too late they can not be considered on appeal.</p> <p>3. —Same—Statement of Eacts—Agreed Statement.</p> <p>The statutes relating to the preparation of statements of fact by the court stenographer in express terms declares that it is not to annul the privilege accorded by article 2068, Rev. Civ. Stats., to prepare an agreed statement of facts, signed by the attorneys and approved by the judge. Following Railway v. Prasak, 170 S. W. Rep., 859, and other cases.</p>

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

<p>Petty Theft—Statement of Facts—Bills of Exception.</p> <p>Where appellant was deprived of a statement of facts and bills of exception without any fault on his part, the judgment must be reversed and the cause remanded.</p>

<p>1. —Murder—Charge of Court—Self-defense—Intent to Will.</p> <p>The accused does not forfeit bis right of self-defense by simply having an intent to kill or to do serious bodily injury; there must be some act done or words spoken indicating his purpose, and in addition he must execute that purpose or provoke the other party to do something that he may execute it, and it is not every act done by the accused which forfeits his right of self-defense. And a charge of the court failing to apply this law to the faets upon trial of murder is reversible error. Prendergast, Judge, dissenting.</p> <p>2. —Same—Provoking Difficulty—Charge of Court—Imperfect Self-defense.</p> <p>If the act done or wtords spoken is to provoke the difficulty with the ulterior view of killing or inflicting serious bodily injury and the defendant does the act or utters the provoking words the killing might be murder, but if the purpose be less than that of killing, etc., the law of imperfect self-defense would. arise and the charge of the court should so apply the law. Prendergast, Judge, dissenting.</p> <p>3. —Same—Provoking Difficulty—Charge of Court—Converse Proposition.</p> <p>Upon trial of murder the evidence suggested provoking the difficulty, the court having charged thereon, the converse of the proposition, that if the purpose of defendant was less than to kill or inflict serious bodily injury, then imperfect self-defense would he in the ease, and an appropriate charge should have been submitted presenting that theory as suggested by the testimony. Prendergast, Judge, dissenting.</p> <p>4. —Same—Declarations of Deceased—Evidence—Res Gestae.</p> <p>Where, upon trial of murder, the declarations of deceased were admitted in evidence, and the matter was so close in time to the transaction as to bring it within the rule of res gestae, there was no reversible error.</p>

<p>Murder—Charge of Court—Manslaughter.</p> <p>Where appellant claimed that the issue of murder did not arise from the evidence and he could only be convicted of manslaughter, and the evidence in the case, as it appeared from the record on appeal, showed that appellant’s contention was correct, the judgment is reversed and the cause remanded. Prendergast, Judge, dissenting.</p>

<p>1.—Delinquent Child—Statutes Construed.</p> <p>The delinquent child statute, title 17, page 985, et seq., in the main is valid, although some of its parts are more or less vague and may not be enforceable, and the laws relating to the subject of juvenile delinquents, while modern in their development, are founded upon ancient principles, and are a proper subject for the exercise of legislative authority.</p> <p>2.—Same—Statutes Construed—Bight of Trial by Jury.</p> <p>The law giving the right of trial by jury implies and requires that the jury shall fix the punishment, and the terms of article 1195, C. C. P., are conclusive that the amount of the punishment within the limits named is for the jury and not the court, and where relator, who was a boy under 17 years of age, was tried in the juvenile court and was found guilty of being a delinquent child, but no punishment was fixed by the jury, a judgment of the court that he be punished by confinement in the Texas Training School, etc., for Boys is void, and relator is discharged. Following Marshall v. State, 73 Texas Crim. Bep., 531, and other cases.</p>

<p>1. —Robbery—Firearms—Sufficiency of the Evidence.</p> <p>Where, upon trial of robbery with firearms, the evidence sustained the conviction, there was no reversible error.</p> <p>2. —Same—Practice on Appeal—Newly Discovered Evidence.</p> <p>Where, upon trial of robbery with firearms, the record upon appeal showed that a co-defendant was acquitted of this offense, after defendant had been convicted, and had appealed to this court, the record of said acquittal could not be considered in this court to give the defendant the benefit of said acquittal of his co-defendant upon another trial, as the decision of this court must be made-from the record brought up in the transcript on the trial of appellant.</p> <p>3. —Saíne—Newly Discovered Evidence—Discretion of Court.</p> <p>Where the alleged newly discovered evidence could be used simply and solely for the purpose of impeachment, and the trial judge had heard all the testimony, and there was no abuse of discretion shown, there was no reversible error.</p>

<p>Pandering—Insufficiency of the Evidence.</p> <p>Where, upon trial of pandering, the evidence showed a ease where defendant had knowledge ,of the fact that his wife had sexual intercourse with other men and that he did not protest, yet there was nothing to show that defendant induced these men to visit his wife, the conviction could not he sus tained.</p>

<p>Contempt—Witness—Right of Appeal—Habeas Corpus.</p> <p>Where the appellant was subpoenaed as a witness in a criminal case and fined for contempt for failure to obey the same, and appealed to this court, the appeal must be dismissed, as this court can give relief only on writ of habeas corpus when the relator is in custody.</p>

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

<p>Burglary—Practice on Appeal.</p> <p>Where, upon trial of burglary, the record on. appeal failed to contain a statement of facts and bills of exception, and the indictment is sufficient, the judgment must be affirmed.</p>

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

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

<p>1. —Embezzlement—Indictment—Ownership.</p> <p>Where the allegation of ownership is laid in other than a natural person, it is essential‘that it show whether the owner is a corporation or not, and an allegation of ownership in Mesquite Camp No. 575, Woodmen of the World, a fraternal order and society, is not sufficient in alleging ownership of the personal property embezzled. Following Leonard v. State, 7 Texas Crim. App., 417, and other cases.</p> <p>2. —Same—Evidence—Lodge—Expulsion of Members.</p> <p>Upon trial of embezzlement it was error to introduce in evidence the minutes of the lodge showing that defendant had been expelled therefrom, and that the lodge had offered a reward for his arrest, and which was passed in tiie absence of the defendant. Following Tippens v. State, 43 S. W. Rep., 1000, and other cases.</p>

<p>1. —Murder—Preliminary Statement—Rule Stated.</p> <p>The practice of allowing the defendant in a criminal case, preliminary to introducing his evidence, to make through his counsel an opening statement outlining his defense and the evidence thereof appears to have been followed from time immemorial, and is to put the jury to understand and apply the evidence as delivered. Following House v. State, 171 S. W. Rep., 206.</p> <p>2. —Same—Case Stated—Practice in District Court.</p> <p>Where, upon .trial of murder, the defendant before he introduced his evidence and when the State had rested, filed a written motion for permission of stating to the jury through his counsel the nature of the defenses relied upon by him and the facts to be proved in support thereof, the-motion should have been granted.</p> <p>3. —Same—Rule Stated—Discretion of Court.</p> <p>The correct rule is that there rests in the court the judicial discretion to control the preliminary statement and limit it to its proper scope, that when the accused in a timely manner seeks to avail himself of the privilege of making an opening statement, and does not seek to abuse the privilege by commenting upon improper or inadmissible facts or otherwise abusing it, it should be granted. Following White v. State, 181 S. W. Rep., 193.</p> <p>4. —Same—Charge of Court—Aggravated Assault.</p> <p>Where, upon trial of murder, the facts showed that the homicide took place in a sudden quarrel, that the poeketlcnife used was not in itself a deadly weapon and the intent of the defendant was a question of fact, the court should have submitted a charge under the law 'of aggravated assault. Following Bolden v. State, 73 Texas Crim. Rep., 577, and other cases.</p> <p>5. —Same—Evidence—Motive.</p> <p>Upon trial of murder where a witness for the defendant had given important testimony in his behalf, there was no error in permitting the State on cross-examination to show by the witness that he had manifested activity in trying to bring about a condition whereby two women who were State’s witnesses were to he made drunk and thereby discredited to the advantage of the defendant, to show the motive of the witness. Following Mason v. State, 7 Texas Crim. App., 623, and other cases.</p> <p>6. —Same—Rule Stated—Impeaching Witness.</p> <p>The rule is settled that in a criminal prosecution the State may show for the purpose of impeaching a witness for defendant that said witness has attempted to influence a witness for the State in favor of the defendant. Following Lowry v. State, 53 Texas Crim. Rep., 562, and other cases.</p> <p>7.—Same—Evidence—Bloody Clothing—Rule Stated.</p> <p>The rules of evidence exclude the bloody clothing where they tend to solve no controverted issue, but do not reject them where the contrary is true, and where such was the ease in the instant trial, there was no error, but no inflamatory argument with reference thereto should be made. Following Hubby v. State, 8 Texas Crim. App., 597, and other cases.</p>

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

<p>Disorderly House—Information—Names not Necessary.</p> <p>It is not necessary to allege tlie names or give any description of the women who were prostitutes employed in the said disorderly house, where spirituous liquors, etc., are kept for sale, and the information following approved precedent, t'he same was sufficient. Hollowing Harrell v. State, 64 Texas Grim. Rep., 200, and other eases.</p>

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

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

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

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

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

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

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

<p>1. —Forgery—Indictment—Delivery.</p> <p>In an indictment for forgery which shows on its face that the forged instrument is payable to a certain bank, and that the name of the drawer is forged, it is not necessary to allege the delivery of the alleged note to said bank, as it is not necessary in forgery to perpetrate the fraud in order to constitute this offense.</p> <p>2. —Same—Indictment—Partnership—Corporation—Pleading.</p> <p>Where the indictment set out the note alleged to have been forged by its tenor, it was not necessary to allege that the bank to which it was payable was a partnership, joint stock company or a corporation. Following Lucas v. State, 39 Texas Crim. Rep., 48, and other eases.</p> <p>3. —Same—Rule Stated—Forged Instrument.</p> <p>When t'he alleged forged instrument is an ordinary bank check, draft, promissory note, or other ordinary commercial instrument importing a pecuniary obligation on its face, it is not necessary to allege that the payee is a firm, partnership or corporation. ,</p> <p>4. —Same—Rule Stated—Incorporation.</p> <p>Where the check or draft alleged to be forged is drawn on a bank it is not necessary to allege that the bank is incorporated or unincorporated, the bank, not being the injured party.</p> <p>5. —Same—Extrinsic Averments—Indictment—Pleading.</p> <p>In an indictment for forgery additional averments of extrinsic facts are only necessary when t'he alleged forged instrument on its face does not create, increase, diminish or discharge any pecuniary obligation. Following Lynch v.. State, 41 Texas Crim. Rep., 209.</p> <p>6. —Same—Jury and Jury Law—Practice in District Court—Statutes Construed.</p> <p>Article 751, C. C. P., is not mandatory, and it is not error not to send the papers admitted in evidence out with the jury unless the jury calls for them, and there is no reversible error that the trial court did not permit the jurors to take the alleged forged instrument with them in their retirement, they not having called therefor. Following Wragge v. State, 65 Texas Crim. Rep., 131, and other cases.</p> <p>7. —Same—Jury and Jury Law—Motion for a New Trial.</p> <p>There was no error in overruling a motion for new trial on the ground that one of the jurors was not a householder or a freeholder, in which t'he idea was conveyed that defendant did not know this at the time he accepted the juror. Following Leeper v. State, 29 Texas Crim. App., 63, and other cases.</p> <p>8. —Same—Jury and Jury Law—Disqualified Juror.</p> <p>Where defendant in the motion for new trial alleged that a juror was prejudiced against him, and had so expressed himself prior to being taken upon the jury, but it appeared from the record on appeal that defendant does not undertake to say that he was unaware of the prejudice or partiality of this juror before accepting him, there was no reversible error. Following Daugherty v. State, 59 Texas Crim. Rep., 464.</p> <p>9. —Same—Jury and Jury Law—Insanity—Rehearing.</p> <p>Where the question of the insanity of one of the jurors in the court below was not raised therein, the matter can not be considered in this court, as this would involve an inquiry into a question of fact upon the sanity or insanity of the juror.</p> <p>10. —Same—Rule Stated—Practice on Appeal—Judgment.</p> <p>Relief against a void judgment, upon matters not contained in the record on appeal, must be sought in the trial court which is equipped to determine! the fact, and from its judgment upon such proceeding only will appeal lie to this court.</p>

<p>1.—Theft—Sufficiency of the Evidence—Turkeys.</p> <p>Where, upon trial of theft of turkeys, the testimony of an accomplice was suffieientlv corroborated, the defendant pleading an alibi, the conviction was sustained.</p> <p>3.—Same—Jury and Jury Law—Bill of Exceptions.</p> <p>Where appellant complained that he was not permitted to ask a juror on his voir dire whether he would convict 'defendant solely on the testimony of an accomplice, but the hill of exceptions did not show that said juror was on the juy that tried the case, the same can not be reviewed; besides, the record showed that the juror had told the court that he would decide the case according to law as instructed by the court in regard to the testimony of an accomplice, as well as all other testimony. Following Poulter v. State, 70 Texas Crim., Rep., 197, and other eases.</p> <p>3. —Same—Jury and Jury Law—Bill of Exceptions.</p> <p>Where appellant complained that he was compelled to accept a certain, juror, who was objectionable, but the bill of exceptions failed to show that the question to said juror and the proposed inquiry of other jurors would have elicited an answer disqualifying them or rendering them objectionable to defendant, the matter can- not be reviewed; besides the record showed that this particular juror was not disqualified, nor that the exhaustion of peremptory challenges on other veniremen was due to any action of the court. Following Catón v. State, 66 Texas Crim. Rep., 473, 147 S. W. Rep., 590.</p> <p>4. —Same—Jury and Jury Law—Bias—Prejudice—Voire Dire.</p> <p>The bias or prejudice referred to in the statute is against the person of the accused or against his ease, and not that he formed a prejudice against the offense with which the accused is charged, especially so where the juror stated that he would try the case solely according to the law as given in charge bv the court, and the evidence submitted under the rulings of the court; besides, the matter is largely in the discretion of the court, and where the record showed the juror is not disqualified under the statute, there was no reversible error. Following Pierson v. State, 21 Texas Crim. App., 14, and other cases.</p> <p>5. —Same—Bill of Exceptions—Practice on Appeal—Filing.</p> <p>Where the bill of exceptions, which is copied in the record, failed to show its filing, the same can not be considered on appeal.</p> <p>[Behearing denied February 12, 1918.—-Beporter.]</p>

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

<p>1. —Bobbery—Other Offenses—Identification.</p> <p>Where, upon trial of robbery, the Identification of defendant was not strong, and the State was permitted to introduce testimony of another robbery oceursing some time thereafter on the same night, but no connection was shown between the two offenses, and the fact that the second robbery occurred did not serve to identify the parties who committed the first robbery, the same was inadmissible in evidence and reversible error. Following Hill v. State, 44 Texas Crim. Rep., 603, and other eases. Prendergast, Judge, dissenting.</p> <p>2. —Same—Argument of Counsel—Practice on Appeal.</p> <p>While it is not necessary in the instant case to decide the question of objectionable argument on part of the State’s counsel, yet it is suggested that this character of argument is unwarranted, and which bantered the defendant’s counsel before the jury to submit the case to the jury without argument. Prendergast, Judge, dissenting.</p>

From El Raso County. Original habeas corpus proceeding asking a release from arrest under a city ordinance, charging relator for having failed and refused to furnish a daily report to the chief of police, etc. The opinion states the case.

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

<p>1.—Murder—Continuance—Second Application.</p> <p>Where, upon trial of murder, defendant filed his second application for continuance, which failed to allege that the testimony of the absent witnesses could not be produced from any other source, and also showed a lack of diligence, and moreover the alleged testimony was only cumulative, there was no error in overruling the motion. Following Bosley v. State, 69 Texas Crim. Hep., 100, and other cases.</p> <p>3.—Same—Substituting Indictment—Practice in District Court.</p> <p>Where the record on appeal showed an order of the court substituting the indictment in the case, and conformed to article 482, C. O. P., there was no-error.</p> <p>3. —Same—Evidence—Harmless Error—Bill of Exceptions.</p> <p>Where the bill of exceptions did not show that the cross-examination of defendant’s witness by the State, although improper, was in any way harmful to the defendant, there is no reversible error. Following Huggins v. State, 60 Texas Crim. Rep., 214, and other cases.</p> <p>4. —Same—Arrest of Witness during Trial.</p> <p>Where the circumstances did not bring it within the rule which requires the case to be reversed, where the court by having a witness arrested or taken in custody indicates his view of his testimony, there is no reversible error.</p> <p>5. —Same—Jury and Jury Law—Return of -Verdict.</p> <p>Where appellant complained that the jury did not give sufficient consideration to his case, in that it brought in a verdict in about twenty minutes, but the. bill of exceptions did not verify this, there is no reversible error, even assuming the fact that it did.</p> <p>6. —Same—Self-defense—Charge of Court—Actual Danger—Apparent Danger.</p> <p>Where the court’s charge on self-defense is criticised that it submitted the issue of actual danger alone, but the record showed that the court also submitted a special charge submitting the law of apparent danger, there is no-reversible error.</p> <p>7. —Same—Manslaughter—-Charge of Court.</p> <p>Where, upon trial of murder, the evidence did not raise the issue of manslaughter, and the objections to the court’s charge were of general character, there is no reversible error. Following Ford v. State, 40 Texas Crim. Rep., 280, and other eases.</p>

<p>1. —Murder—Bills of Exception—Misconduct of Jury.</p> <p>Bills of exception preserving facts relating to testimony heard on motion for new trial must he filed during the term of court, otherwise they will not be considered on appeal. Following Black v. State, 41 Texas Crim. Rep., 185.</p> <p>2. —Same—Statement of Facts—Precedent.</p> <p>Where the assistant attorney general moved to strike out the statement of facts, hut the same was similar to one which the court considered on appeal, the motion to strike out is overrruled. Following Serop v. State, 69 Texas Crim. Rep., 399. '</p> <p>3. —Same—Murder—Manslaughter.</p> <p>Where, upon trial of murder, the court charged the jury on murder, self-defense, manslaughter, aggravated and simple assault, and appellant insisted that the issue of murder should not have been submitted, and the record on appeal showed that the homicide was in- a sudden quarrel, under circumstances sufficient to show adequate cause and to produce a state of mind, such as to reduce the homicide to manslaughter, held, that the issue of murder should not have been submitted. Prendergast, Judge, dissenting.</p>

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

<p>1. —Occupation—Selling Intoxicating Liquors—Becognizance.</p> <p>A recognizance which was taken in open court and required that the appelland appear before that court instanter from day to day, and from term to term,, etc., is sufficient. Following Fentress v. State, 16 Texas Crim. App., 79, and other cases.</p> <p>2. —Same—Continuance—Motion for New Trial.</p> <p>Where, upon trial of pursuing the business of selling intoxicating liquors,, etc., defendant filed his first application for cpntinuance, which complied with the statutory requirements, and it was shown on motion for new trial that.the evidence was material, the same should have been granted; however, if timely exception had been made by the State that the supporting affidavits were sworn to before one of the attorneys of the defendant, the court would 'have been warranted in overruling the motion for new trial. Following Maples v. State, 60 Texas Crim. Bep., 169, and other cases.</p> <p>3. —Same—Postponement—Practice on Appeal.</p> <p>The overruling of an application for a postponement need not be considered where the judgment is reversed and the cause is remanded for other reasons.</p> <p>4. —Same—Evidence—Bill of Exceptions.</p> <p>Where the bill of exceptions failed to show that the testimony objected to was inadmissible as sustaining testimony, there is no reversible error.</p>

<p>1. —Local Option—Sufficiency of Evidence—Alibi.</p> <p>Where, upon trial of a violation of the local option, law, defendant pleaded an alibi and the testimony was conflicting, but these issues were submitted to the jury without complaint, there was no reversible error on that ground.</p> <p>2. —Same—Evidence—Impeachment—Moral Turpitude.</p> <p>The offense of pursuing the business of selling intoxicating liquors in prohibited territory being a felony, there was no error in permittng the State on cross-examination of defendant to show that he had been indicted for such ■offense.</p> <p>3. —Same—Evidence—Misdemeanor—Moral Turpitude.</p> <p>The sale of intoxicating liquors without a license being a misdemeanor in the federal courts, and not imputing moral turpitude, proof that such prosecution was had against the defendant was inadmissible. Following Kirksey v. State, 61 Texas Crim. Rep., 298, and other cases.</p> <p>4. —Same—Moral Turpitude—Misdemeanor.</p> <p>While charges preferred in a legal manner, which imply moral turpitude, are admissible-in evidence as affecting the credibility of a witness this does not apply to offenses which do not involve moral turpitude, and which are not of the grade of felony.</p>

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

<p>1. —Sunday Daw—Exemptions—Statutes Construed—Ejusdem Generis.</p> <p>The exemptions in article 302, P. C., are not applicable where the information charged that defendant was a merchant, etc., -and sold a quart of engine “oil on Sunday, and therefore the rule of ejusdem generis does not apply. Besides, a garage and a livery stable could hardly be considered things of like or similar kind, but even if they were, under the allegations in the information, that he was a merchant, etc., he could not claim such exemption, as they would not be in the scope of his business.</p> <p>2. —Same—Necessity—Charity—Rule iStated.</p> <p>The exemptions contained in article 300, P. C., relating to works of necessity and charity are not contained in article 303, P. C., with reference to selling goods on Sunday, but even if such construction was a matter of doubt, the sale of oil under the circumstances was not shown to be necessary within the legal sense, and a necessity voluntarily brought about is no defense. Following Ex parte Kennedy, 42 Texas Crim. Rep., 148, and other cases.</p>

<p>Appeal from the District Court of Cherokee. Tried below before the,Hon. L. D. Guinn.</p>

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

From Bexar County. Original habeas corpus proceedings asking release from arrest under a city ordinance requiring the payment of a license fee, etc. The opinion states the case.

<p>1. —Barratry—Statutes Construed—Constitutional Law.</p> <p>The Act of March 29, 1917, amending article 421 of the Penal Code, so as to include the fomenting of litigation for profit, by any person in addition to the attorneys at law, by soliciting the employment or advancing money, etc., or who practice law without license, and further defining barratry, is valid and constitutional.</p> <p>2. —Same—Case Stated—Barratry—Person not Attorney at Law.</p> <p>Where relator, who was not an attorney at law, solicited another person who was injured in an automobile wreck to permit him to prosecute and present, and to collect his claim against the party against whom he entered such claim, and also solicited another party to employ him to present and collect an open account against another party, etc., the same was a violation of the Act of March 29, 1917, further defining barratry and amending article 421, P. C., and upon writ of habeas corpus to this court upon an agreed statement of facts is remanded to custody.</p> <p>3. —Same—Statutes Defined—Constitutional Law.</p> <p>Article 421, Penal Code, amended by the Act of March 29, 1917, further defining barratry, provides that if any person shall seek to obtain employment in any claim, to prosecute, present or collect the same by means of personal solicitation of such employment shall be deemed guilty of barratry and fined, etc., and the contention that it is too indefinite to be operative under article 6, Penal Code, is untenable, nor is it violative of sections 3 and 19, article 1, of the Constitution of Texas, or section 1 of the Fourteenth Amendment to the Constitution of the United States. Distinguishing McCloskey v. State, 192 S. W. Rep., 1117.</p> <p>4. —Same—Statutes Construed—Amendment—Legislative Intent.</p> <p>In passing the Act of March 29, 1917, amending article 421, Penal Code, and further defining the offense of barratry, it was the intention of the Legislature to so amend said article that it would not only include attorneys at law, but any other person who was guilty of any of the things set forth in this Act, which is not violative of any constitutional law, is not discriminatory and is by due course of the law of the land.</p> <p>5. —Same—Police Regulation.</p> <p>The possession and enjoyment of all rights is subject to such reasonable conditions as may be deemed by the governing authorities of the country essential to the safety, health, peace, good order and morals of the community. Following Crowley v. Christensen, 137 U. S., 86, and other cases.</p> <p>6. —Same—Rule Stated—Legislative Authority—Police Power.</p> <p>It is also well established that when a State exerting its recognized authority undertakes to suppress what it is free to regard as a public evil it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action protective. Following Purity Extract & P. Co. v. Lynch, 226 U. S., 192, and other cases.</p> <p>7. —Same—Rule Stated—Police Power.</p> <p>All property within the jurisdiction of the State, however unqualified may he the title of the owner, is held on the implied condition or obligation that it shall not be injurious to the equal right of others, to the use and benefit of their own property, and is held subject to the general police power of the State.</p> <p>8. —Same—Legislative Authority—Police Power.</p> <p>It is clearly shown that the business followed by relator, and doubtless by others, who have followed the same business, was most pernicious and vicious, and there can be no doubt that the Legislature had the right to enact the law of barratry as above defined, and that it is valid and constitutionl.</p> <p>9. —Same—Original Opinion—-Words and Phrases—Assignment.</p> <p>While the statements in the court’s original opinion as to assignments of claims may have been too, broad, yet this can not materially affect the conclusions reached in the original opinion.</p>

<p>1. —-Theft—Automobile-—Bill of Exceptions—Evidence.</p> <p>Upon trial of theft of an automobile there was no error in admitting testimony of the person who purchased the automobile as to said number of -said automobile, which was the same as the number on the one which was stolen.</p> <p>2. —Same—Evidence-—Identification.</p> <p>Upon trial of the theft of an automobile, which at the time of its theft 'contained certain papers and other articles, which were afterwards recovered by parties who found them along the roadside, there was no error in admitting testimony that the owner himself and others found these articles, and which testimony corroborated the written confessions of the defendant.</p> <p>'■3.—Same—Principals—Charge of Court.</p> <p>Where, upon trial- of the theft of an antomobile, the confession of the defendant showed that other parties assisted him in the theft, there was no error in the court’s charge on the law of principals.</p> <p>4. —Same—Confessions—Charge of Court.</p> <p>Where, upon trial of the theft of an automobile, the defendant claimed that be did not make the confession introduced by the State voluntarily and willingly, and there was evidence pro and con. and the court submitted the issue to the jury, there was no reversible error.</p> <p>5. —Same—Alibi—Charge of Court.</p> <p>Where, upon trial of the theft of an automobile, the evidence raised the issue of an alibi, the court properly submitted a charge thereon.</p> <p>6. —Same—Principals—-Alibi—Conflict of Charge.</p> <p>Where, upon rehearing, the appellant contended that there was a direct conflict-between the charge of the court on the subject of principals and that of alibi, but the record showed that the defendant’s objections did not point out a conflict when the charge was submitted to him befo2-e the same was read to the jury, hut objected only thereto because the evidence did not raise the issue of principals, the same can not be considered on appeal. Besides the appellant took no hill of exceptions at the time.</p> <p>7. —game—Article 743, Code Criminal Procedure—Objections to Charge of Court.</p> <p>Under article 743, C. C. P., amending article 723, C. C. P., it is necessary that an objection to the charge of the court must he made before the same is read to the jury, and that otherwise this court will not consider the same. Following Holder v. State, 194 S. W. Rep., 163, and other cases.</p>

<p>1.—Murder—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder, the evidence was sufficient to sustain the conviction on a proper charge of the court, there was no reversible error.</p> <p>2.—Same—Specific Intent to Kill—Charge of Court.</p> <p>Where, upon trial of murder, the court in his charge on said offense instructed the jury that they must find that the defendant had a specific intent to kill the deceased before they convict, there was no error in refusing a special charge on that question.</p> <p>3. —Same—Manslaughter—Charge of Court—Estoppel.</p> <p>Where, upon trial of murder and conviction, thereof, the evidence did not raise the issue of manslaughter, there was no error in the court’s failure to charge thereon; besides, the defendant estopped himself from such a charge by reason of his special charge on murder.</p> <p>4. —Same—Manslaughter—Definition—Charge of Court.</p> <p>To constitute manslaughter two things are absolutely necessary, first, sudden passion, and, second, that said passion must arise upon an adequate cause, and if either of these requisites are wanting an unlawful homicide can not be manslaughter. Following Davis v. State, 70 Texas Crim. Rep., 37, and other eases. And where the evidence excluded the theory of adequate cause, there was no error in the court’s failure to charge on manslaughter. Following Wilson v. State, 71 Texas Crim. Rep., 399; qualifying Johnson v. State, 42 Texas Crim. Rep., 377.</p> <p>5. —Same—Deadly Weapon—Rule Stated—Charge of Court.</p> <p>A charge is correct which informs the jury that a deadly weapon is one which, from the manner used, is calculated or likely to produce death or serious bodily injury, and where, as in the instant case, the homicide was committed by one stroke of an ax handle in the hands of the defendant, and the issue of fact was properly submitted by the court, there was no reversible error. Following Prescott v. State, 54 Texas Crim. Rep., 485, and other cases.</p> <p>6. —Same—Intent to Kill—Charge of Court.</p> <p>The statute, article 1149, P. C., on the question of intent, being expressly submitted to the jury on the facts of the ease, leaving it to them as a matter of fact, applying the reasonable doubt, and the evidence sustained the verdict of murder, there is no reversible error.</p> <p>7. —Same—Negligent Homicide—Requested Charge.</p> <p>Where, upon trial of murder, the evidence did not raise the issue of negligent homicide in the second degree, there was no error in the court’s refusal to submit a requested charge thereon.</p> <p>8. —Same—Hule Stated—Negligent Homicide.</p> <p>Where the facts show an intentional blow without negligence, the issue of negligent homicide is not raised, as intentional killing is not negligent homicide. Hollowing Thomason v. State, 2 Texas Crim. 'App., 550, and other cases.</p> <p>9. —Same—Aggravated Assault—Charge of Court.</p> <p>Where, upon trial of murder, the evidence may have raised the issue of aggravated assault, and it would have been proper for the court to have charged thereon, yet where the defendant did not object to the court’s charge when it was submitted to him, and did not raise this issue until the State’s attorney was about to conclude his final argument, there was not reversible error.</p> <p>10. —Same—Adequate Cause—Statutes Construed—Rehearing.</p> <p>The theory that the issue of manslaughter would exist without proof of adequate cause is erroneous, under articles 1147, 1148 and 1149, Penal Code, and is no doubt founded upon the decisions of this court, in the cases of Johnson v. State, 42 Texas Crim. Hep., 377; Taylor v. State, 41 id., 148; Lee v. State, 44 id., 460; Betts v. State, 60 id., 635, and others, which are hereby qualified.</p> <p>11. —Same—Deadly Weapon—Aggravated Assault—Practice on Appeal.</p> <p>Upon trial of murder, where the evidence showed that the homicide was committed with one stroke of an ax handle, which was not per se a deadly weapon, it became a question of fact for the jury, whether from the manner in which it was used the intent to kill evidently appeared, and where the court’s charge submitted article 1147, P. C., he should have charged also on aggravated assault; however, in the absence of a requested charge in due time, and a delay thereof until the argument was practically completed, its refusal is not available for review.</p> <p>12. —Same—Manslaughter—Obiter Dicta.</p> <p>The opinion in Johnson v. State, 42 Texas Crim. Hep., 377, and other cases, to the effect that if there was no intent to kill the court should submit the issue of aggravated assault or manslaughter is obiter dicta, and these decisions misconceive the purpose and effect of the statute. Hollowing Hill v. State, 11 Texas Crim. App., 470.</p> <p>13. —Same—Intent to Kill—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder and a conviction of suoh offense, the evidence showed that the manner in which the blow was struck with the ax handle, in connection with circumstances and the effect of the blow which crushed the skull of the deceased and killed him, this court is not justified in holding the evidence insufficient to sustain the finding of intent to kill, there is no reversible error.</p> <p>14. —Same—Stating Eaets in Opinion.</p> <p>Where the mistake in stating the facts in the original opinion was immaterial as to the result, there was no reversible error.</p>

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

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

<p>1. —Forgery—Circumstantial Evidence—Charge of Court.</p> <p>Where, upon trial of forgery, there was no evidence that the defendant wrote the cheek; that it was in his handwriting, and the evidence as to passing the check was wholly circumstantial, the court’s failure to charge upon circumstantial evidence is reversible error. Following Dysart v. State, 46 Texas Crim. Rep., 52, and other cases.</p> <p>2. —Same—Rule Stated—Circumstantial Evidence—Juxtaposition.</p> <p>Passing a forged check with a knowledge of its forgery is circumstantial against an accused charged with forgery, and in some instances facts surrounding a fraudulent passing brings the accused in such juxtaposition to the forgery as to take the case out of the rule requiring a charge on circumstantial evidence, but this is not the rule applicable to the instant ease. Following Gaut v. State, 49 Texas Crim. Rep., 493, and other cases.</p>

<p>1. —Murder—Manslaughter—Charge of Court.</p> <p>Where, upon trial of murder and a conviction of manslaughter, appellant objected to the charge of the court in his motion for new trial for the first time, the matter can not be considered on appeal. Besides, there was no error in the court’s charge.</p> <p>2. —Same—Newly Discovered Evidence—Practice on Appeal.</p> <p>Where the motion for new trial alleged newly discovered testimony, but was not sworn to by the defendant or his attorneys, and there was nothing in the motion that appellant was not aware before trial of the facts set up as newly discovered evidence and the record showed that he could easily have been apprised of same by slight diligence, there was no reversible error.</p>

<p>1. —Murder—Principals—Charge of Court.</p> <p>Where, upon trial of murder, the evidence did not suggest the idea of conspiracy, nor that defendant aided or acted with others under circumstances which would render him responsible for their acts, or that of either of them in killing the deceased, and that the same was an independent act of another, and not one for which the defendant would he responsible as a principal, it was reversible error to submit a charge on the law of principals.</p> <p>2. —Same—Evidence—Res Gestae—Conversation.</p> <p>Upon trial of murder the court should not have admitted in evidence the conversations between deceased and his father some time after the difficulty; they were not res gestae and we're so disconnected from the main transaction that the elements of res gestae were wanting. Following Deneaner v. State, 58 Texas Crim Rep., 624.</p> <p>3. —Same—Dying Declarations—Evidence—Predicate.</p> <p>Where, upon trial of murder, the record on appeal disclosed the absence of any legal predicate for the admission in evidence of the conversation with the deceased after he had reached his home upon the theory that they were dying declarations, they should not have been admitted in evidence. Following Phillips v. State, 50 Texas Crim. Rep., 127, and other eases.</p> <p>4. —Same—Evidence—Declarations and Acts of Third Parties.</p> <p>Upon trial of murder the testimony of the father of the deceased as to the details of his business transactions with the father of the defendant, should not have been admitted in evidence, nor other minor facts, which had no connection with the homicide.</p> <p>5. —Same—Impeaching Witness—Moral Turpitude.</p> <p>Where defendant’s witness was discredited by proof of an indictment for perjury, he should have been allowed to explain that he was not guilty of such charge. Following Cowart v. State, 71 Texas Crim. Rep., 116, and other cases.</p>

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

<p>1. —Murder—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder, the evidence, although conflicting, sustained, the conviction, there is no reversible error.</p> <p>2. —Same—Bills of Exception—Practice on Appeal.</p> <p>Where several bills of exception were prepared by the defense and refused by the court on the ground that they embodied matters entirely contrary to the record of the trial, they can not be considered on appeal, as only matters presented for review in the manner required by law can be considered on appeal.</p> <p>3. —Same—Evidence—Practice in District Court.</p> <p>Where, upon trial of murder, the evidence had been closed and an effort was made the next morning by the defendant to introduce in evidence the knife found in possession of the defendant, and the description of the knife testified to by the wife of the defendant was not controverted, there was no abuse of the court’s discretion to refuse to reopen the evidence.</p> <p>4. —Same—Evidence—Expert Testimony—Opinion of Witness—Harmless</p> <p>Error.</p> <p>Where, upon trial of murder, the undertaker testified that the wound inflicted on the deceased caused his death, or that he bled to death therefrom, first having qualified himself as an expert to give testimony, there was no reversible error. Besides, substantially the same testimony had already been introduced without objection, and if there was error, the same was harmless. Following Holder v. State, recently decided.</p> <p>5. —Same—Evidence—Identification of Defendant.</p> <p>Where the criticism of the testimony of a State’s witness as to the identity of the defendant went to its weight and not to -its admissibility, and this fact was not controverted in any event, there was no reversible error.</p>

<p>1. —Burglary—Insufficiency of Evidence—Finger Prints.</p> <p>Where, upon trial of burglary, there was no evidence identifying the property which was alleged to have been stolen and found in possession of the defendant, and there was no other evidence, except certain finger prints found upon a window, which were identified by an expert as identical with the finger prints made by the defendant on a piece of paper after his arrest, but the window was so situated so as to make it accessible to the general public, and there were other finger prints upon the window pane, etc., the evidence was insufficient to support the verdict.</p> <p>2. —Same—Evidence—Registering at Hotel—Identity.</p> <p>Where, upon trial of burglary, the evidence was entirely circumstantial, there was no error in admitting testimony that the defendant registered under a certain name at a certain hotel as res gestae of his identification at the time and place mentioned.</p> <p>3. —Same—Evidence—Finger Prints—Bill of Rights.</p> <p>Upon trial iof burglary where the evidence was entirely circumstantial, there was no error in permitting the State to prove that defendant, after his arrest, made finger prints upon a paper to be compared with finger prints found upon a window pane of the house alleged to have been burglarized, and this was not violative of the Bill of Rights, providing that an accused is not required to give evidence against himself. Following Pitts v. State, 60 Texas Crim. Rep., 524, and other cases.</p> <p>4. —Same—Evidence—Character of Defendant.</p> <p>Upon trial of burglary depending upon circumstantial evidence, it was improper to introduce in evidence tile documents found in the book or wallet belonging to defendant, which constituted certificates that the name under which he went was a deaf mute worthy of assistance, etc.</p> <p>5. —Same—Evidence—Finger Prints—Expert Testimony.</p> <p>Where, upon trial of burglary depending upon circumstantial evidence, certain finger prints were found on a window pane of the alleged burglarized house, there was no error in permitting the part of the window, on which there were hnger prints, and the paper upon which the defendant had made finger prints, to be takeiq to an expert on finger prints, who testified in detail, as to his study of an inquiry into the subject of finger prints as a means of identification, the witness having qualified as an expert on the subject. Following People v. Jennings, 252 111., 534.</p>

<p>1.—Assault to Murder—Sufficiency of the Evidence.</p> <p>Where, upon trial of assault -with intent to murder, the evidence sustained the conviction under a proper charge of the court, there was no reversible error.</p> <p>3.—Same—Newly Discovered Evidence—Motion for New Trial.</p> <p>Where the statement of facts, heard on motion for new trial because of newly discovered evidence,- was not filed until after the adjournment of the trial court, the same can not be considered on appeal; however, if considered, there is no reversible error. Hollowing Eeyes v. State, 196 S. W. Eep., 532.</p>

<p>Murder—Death Penalty—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder and a conviction of said offense assessing the death penalty, the evidence sustained the conviction under a proper charge of the court, there is no reversible rror.</p>

<p>1. —Local Option—Evidence—Moral Turpitude—Gaming.</p> <p>Gaining is not within the category of crimes involving legal or moral turpitude. Nor is a single act of sexual intercourse, pandering under the law, and in an effort to impeach the witness these matters should not have been introduced in evidence.</p> <p>2. —Same—Evidence—Contradicting Witness.</p> <p>The written statement of the prosecuting wiiness, which was in conflict with his testimony on trial, should have been admitted in evidence.</p>

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

<p>Giving Intoxicating Liquors to Minor—Transfer of Indictment.</p> <p>Where the indictment was returned in the District Court and there was no order of transfer from the District to the County Court in the record, the judgment must be reversed and the cause remanded.</p>

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

2. Tried helow before the Hon. O. A. Pippin. Appeal from a conviction of passing a forged instrument; penalty, two years imprisonment in the penitentiary. The opinion states the case.

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

<p>1. —Bobbery—Sufficiency of the Evidence.</p> <p>Where, upon trial of robbery, the evidence, although conflicting, was sufficient to sustain the conviction, there is no reversible error.</p> <p>2. —Same—Continuance—Immateriality of Testimony—Want of Diligence.</p> <p>Where the application for continuance did not show the materiality of the absent testimony and, besides, there was a want of diligence to secure the same, there was no reversible error in overruling it. Following Bowman v. State, 40 Texas, 8, and other eases.</p> <p>3. —Same—Diligence—Practice in District Court.</p> <p>It is the uniform rule that an application for a continuance must show what was done with the process; that is, whether it was served and'when, it was returned. Following Mitchell v. State, 36 Texas Crim. Rep., 278.</p> <p>4. —Same—Evidence—Witness—Pardon—Bill of Exception.</p> <p>Where the bill of exceptions disclosed that a State’s witness was asked by defendant’s attorney, as a preliminary to an objection to his testimony, if he had not been to the penitentiary and had been pardoned, to which the witness answered in the affirmative, whereupon it was insisted that he was disqualified, hut the bill failed to show that the witness gave any testmony, there was no reversible error. Following Hunger v. State, 57 Texas Crim. Rep., 3S4, and other eases.</p> <p>5. —Same—Rule Stated—Pardon—Disqualification of Witness.</p> <p>Where the right is asserted in a timely way the party offering the witness may demand that his disqualification must be proved by the record of the judgment of conviction, but this right is waived by failing to assert it at the proper time, and this rule is applied with reference to proof ‘of pardon. Following Perry v. State, 69 Texas Crim. Rep., 644, 155 S. W. Rep., 263, and other eases.</p> <p>6. —Same—Rule Stated—Pardon.</p> <p>To prove orally that the witness has been pardoned waived the defendant’s right to demand that the opposite party produce the pardon as a predicate for the witness’ testimony on the facts of the ease.</p>

<p>1. —Extradition—Eugitive from Justice—Practice on Appeal.</p> <p>Where, upon appeal from a judgment remanding relator to custody to be exiradieted, the record showed that the appellant in his application for the writ of habeas corpus did not allege that he was not in said county of the demanding State when the alleged crime was committed, nor does the record show such claim, hut showed that he offered no testimony from any source on this point, there was nothing in his contention to the contrary.</p> <p>2. —Same—Affidavit—Statutes Construed—Eugitive from Justice.</p> <p>Where appellant contended that the affidavit in this State was wholly insufficient and charged no offense, but the record showed that it was in strict compliance with the statute and approved precedent, the same was sufficient, and was such as may be filed against a fugitive from justice to support a warrant of arrest thereunder.</p> <p>3. —Same—Certificate—Governor of Demanding State.</p> <p>Where appellant contended that the certificate of the Governor of the de- ■ manding State did not properly authenticate the complaint or affidavit made against him before a justice of the peace in said demanding State, and a warrant of arrest thereunder, but the record showed to the contrary, there was no reversible error.</p> <p>4. —Same—Eugitive from Justice—Extradition Warrant—Rule Stated.</p> <p>Where appellant contended that a person is not a fugitive from justice, unless he has been in the demanding State, etc., yet where the statement in the requisition of the Governor of the demanding State shows that relator is a. fugitive from justice, and the recitation in the proclamation of the Governor upon whom demand is made declares that he is a fugitive from justice, this makes a prima facie ease that relator is a fugitive from justice, and the burden is upon him to show that the warrant i? not legally issued. Following Ex parte Faihtingei-, 72 Texas Crim. Rep., 632, and other eases.</p> <p>5. —Same—Rule Stated—Prima Eacie Case.</p> <p>The evidence must be conclusive, which is introduced by the prisoner, to refute the prima facie ease made by the executive.</p> <p>6. —Same—Burden of Proof—Extradition.</p> <p>The burden of proof is upon the accused to show that he has not been in the demanding State, and was not upon the surrendering State to show that he had been, and it was entirely immaterial that the trial court may have improperly admitted hearsay testimony.</p>

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

<p>Robbery—Bills of Exception—Affidavit—Motion for New Trial.</p> <p>While the bills of exception were filed too late to be considered on appeal, but it appeared from t'he record that the court tried the motion for new trial on affidavits, and it appeared therefrom on appeal that the prosecuting witness had made an affidavit retracting the inculpatory testimony that he gave at the trial against the defendant, and that said witness had been convicted of forgery, and these .facts were unknown to the defendant at the time of the trial, the judgment must be reversed and the cause remanded.</p>

<p>Misdemeanor Theft—Identity—Becent Possession—Presumption—Insufficiency of the Evidence.</p> <p>Where, upon trjal of misdemeanor theft, there was no proof of the identity of the property alleged to have been stolen, and the State relied upon circumstances and recent possession, the presumption of guilt can not prevail against the presumption of innocence in view of the failure of the evidence to identify the alleged stolen property as coming from the possession of the party from whom it was alleged to have been taken. Hollowing Cline v. State, 43 Texas, 494, and other cases.</p>

<p>Unlawfully Practicing Medicine—Information—Joint Charge.</p> <p>The offense of unlawfully practicing medicine without obtaining a license is personal to the individual, who so nractices, and not one that he can commit in eonneetion with another, and where the information alleged that defendant and another practiced medicine without license, thus making a joint charge against both, the same is insufficient. following State v. Hendricks, 1S7 S. W. llep., 272, and other cases.</p>

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

From Payette County. Original habeas corpus proceeding, asking release from arrest under a conviction in the District Court as a delinquent child.

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

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

<p>Habeas Corpus—-Rape—Bail—Practice on Appeal.</p> <p>Where relator was refused bail under a. charge of rape and appealed to this court, this court after a careful review of the testimony considers him entitled to bail, which' is fixed at $3000.</p>

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

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

<p>Horse Theft—Sufficiency of the Evidence—Alibi—Charge of Court.</p> <p>Where, upon trial of the theft of a horse, the defendant pleaded an alibi, hut the evidence was sufficient under a proper charge of the court to sustain •a conviction, there was no reversible error.</p>

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

<p>Carrying Pistol—Insufficiency of the Evidence.</p> <p>Where, upon trial of unlawfully carrying a pistol, the evidence showed that another party had borrowed the pistol and was carrying it home, 'and while on the way handed it momentarily to the defendant to hold until he returned from a short deflection of their path, the conviction could not he sustained.</p>

<p>Habeas Corpus—Murder—Bail.</p> <p>Where, in the light of the testimony relator is entitled to bail, the judgment of the lower court denying him bail, is reversed and the cause remanded, and bail fixed at $25,000.</p>