Volume 9 — Texas Court of Appeals Reports

Tried below before the Hon. E. B. Turner. By authority of the act of 1876, “to provide for the detection and conviction of all forgers of land-titles,” the grand jury of Travis County, on June 19, 1879, presented against the appellant an indictment containing two counts.

.Tried below before the Hon. B. T. Estes. The indictment charged the appellant with the murder of one James A. McCoy, by stabbing him with a knife, on December 20, 1879, and inflicting a wound of which said! McCoy died on January 5, 1880.. The rencontre in which the deceased received the mortal' wound was the- result of a fight, a few hours previously,, between the defendant and a nephew of the deceased, named. Johnson, who seems to have got the worst of.it.

Tried below before the Hon. T. L. Nugent. The indictment charged the appellant with the murder of one A. T. Francis, on May 1, 1879, by shooting him with a pistol. The jury found the appellant guilty of murder in the second degree, and assessed his punishment at a term of sixty years in the penitentiary. The homicide occurred in the town of Stephenville, county of Erath, late in the afternoon of May 1,1879.

Tried below before the Hon. W. D. Wood. The indictment charged the appellant with the theft of a case of shoes and some other merchandise, the property of J. S. Shivers and W. J. Foster, from the possession of one Wright, who was holding the same for the said owners. Finding a verdict of guilty, the jury assessed the punishment at five years in the penitentiary.

<p>1. Continuance. — A defendant’s application for a continuance on account of absent witnesses must allege that they are not absent by his procurement or consent, and that the application is not made for delay.</p> <p>2. Same on Appeal. — The materiality of the desired testimony must be made to appear in the record sent up on appeal. If no statement of facts is Sent up, the bill of exceptions to the refusal of the continuance must embody all facts and matters requisite to a complete understanding of the nature, character, and bearing of the desired testimony, and of the ruling complained of; otherwise, the ruling cannot be intelligibly revised, and the presumption in its favor must prevail.</p> <p>8. Statement op Facts. — Without the signature of the presiding judge there can be no statement of facts. A document signed only by counsel for the State and the defence, though purporting to be a statement, is of no avail for any purpose.</p> <p>4. Chabse op Coubt.—Nor, without a statement of facts, can this court revise the applicability of the charge given to the jury, or the refusal of requested instructions. Its action, under such circumstances, is ordinarily limited to a revision of the indictment and of the charge in the abstract.</p>

<p>Appeal from the County Court of Lampasas. Tried below before the Hon. W. P. Beal, County Judge.</p> <p>The opinion sufficiently indicates the case.</p>

Tried below before the Hon. A. J. Hood. The opinion states the case. A term of four years in the-penitentiary was assessed against the appellant.

Tried below before the Hon. S. W. Moore. The theft was committed and the indictment found before the revision of the Codes. The opinion sufficiently indi- . cotes the material facts. A term of two years in the penitentiary was the punishment assessed against the appellant.

<p>Appeal from the District Court of Uvalde. Tried below before the Hon. T. M. Paschal.</p> <p>The indictment was for cattle-theft.</p>

Tried below before the Hon. A. J. Hood. A term of seven years in the penitentiary was the punishment assessed against the appellant. The opinion gives a condensed, but clear and comprehensive statement of the evidence for the State.

Tried below before the Hon. T. L. Nugent. The material facts are stated in the opinion. A term of four years in the penitentiary was the punishment assessed against the appellant. 0

Tried below before the Hon. J. C. Bussell. The matters involved in the ruling are disclosed in the opinion. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. J. C. Russell. A clear exposition of the case will be found in the opinion.

Tried below before the Hon. D. M. Prende blast. The gist of the evidence appears in the opinion. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. T. M, Paschal. The conviction was for theft of a gelding, and a term of five years in the penitentiary the punishment assessed. The appellant’s brother and one Booth, testifying in his behalf, stated that they and one Lane were present when the horse was traded to the appellant by a negro. Lane was the witness on account of whose absence the continuance was asked, in an application which alleged that he would testify to the same effect.

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

<p>1. Ex Post Facto Law. — A law which purports to warrant a conviction on different evidence than was requisite when the offence was committed is ex post facto as to such past offences.</p> <p>2. Same — Theft of Animals. — Prior to the revision of the Codes, a conviction for theft of a “horse ” could not be had on proof of the theft of a gelding. Art. 746 of the Revised Penal Code provides otherwise, by using the word “ horse ” in a generic sense, instead of its specific signification under the previous law; but the application of this new provision in a trial for horse-theft committed before the Revised Codes took effect would be ex post facto.</p> <p>3. Same—Variance.—Indictment charged theft of a “horse” at a date prior to the time the Revised Codes took effect. The evidence sustained the allegation as to the time of the offence, but proved that the stolen animal was a gelding. Held, that the variance is fatal to the conviction, notwithstanding that the trial was had since the Revised Codes took effect.</p>

Tried below before the Hon. W. J. Ewing, County Judge. The indictment charged that the appellant “ did, from the first day of April, 1878, up to and until the first day of November, 1878, unlawfully pursue and follow the occupation of selling vinous, malt, spirituous, and intoxicating liquors in quantities less than a quart, without having obtained a license therefor, and without having paid the occupation tax levied by the' laws of Texas on said business ; contrary,” etc.

Tried below before the Hon. E. B. Turner. The indictment charged the appellant, and also Bud Plumley and A. J. Rhoades, with the theft of a heifer yearling, the property of Hardin Walsh. The appellant, who was separately tried, was found guilty, and a term of two years in the penitentiary was assessed as his punishment. Bud Plumley had been previously convicted, and his case, on appeal, is reported in 8 Texas Ct. App. 529.

<p>Appeal from the District Court of Navarro. Tried below before the Hon. D. M. Prendergast.</p> <p>The case is sufficiently stated in the opinion.</p>

Tried below before the Hon. A. J. Hood. Everything relevant to the ruling will be found in the opinion of the court and the dissenting opinion of the presiding judge. Thomas Ball, Assistant Attorney-General, moved to dismiss the appeal.

<p>Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>The report of this ease on a former appeal will be found in 8 Texas Ct. App. 49.</p>

<p>Appeal from the District Court of Young. Tried below before the Hon. J. R. Fleming.</p> <p>A term of three years in the penitentiary was the punishment assessed.</p>

Tried below before the Hón. D. M. Prendergast. The indictment charged the appellant with an assault with intent to murder one Matt Matthews, by shooting him with a gun. The jury found the appellant guilty, and assessed his punishment at three years in the penitentiary.

Tried below before the Hon. J. A. Carroll. The appellant was charged by the indictment with the murder of one J. S. Beard, on December 27, 1879, by shooting him with a pistol. The jury convicted him of murder in the second degree, and assessed as his punishment a term of ten years in the penitentiary.

Tried below before the Hon. W. A. Blackburn. The testimony in this case was elicited from many witnesses, and is elaborate. So far as it involves the rulings of this court, it is sufficiently summed up in the opinion, and no purpose would be served by a detailed account of it. It was in proof that the appellant was greatly incensed at the theft of his favorite horse, and started in hot pursuit immediately on ascertaining his loss.

<p>1. Indictment designated the defendant as “one Ben, whose name other than Ben is to the grand jurors unknown, and who is known and described as Negro Ben, and who is a colored man.” Held, sufficient. If not the true name of the defendant, he should have suggested his true name in limine, and thus had the error corrected.</p> <p>2. Gaming.—Indictment charged the defendant with betting at a “ten-ball alley ” kept and exhibited by one O., but did not allege that the alley was kept or exhibited “ for the purpose of gaming.” Seld, that, as a “ten-ball alley” is not one of the games or devices specifically denounced by the Penal Code, it was necessary that the indictment should allege that the alley in question was kept or exhibited for the purpose of gaming.</p>

Tried below before the Hon. L. C. Alexander. The case is sufficiently stated in the opinion of the court. The jury assessed the appellant’s punishment at two years in the penitentiary.

Tried- below before the Hon. P. F. Edwards. The indictment charged the appellant with the murder of Henry Eeynolds, December 8, 1879, by means of a mortal wound inflicted on the head with a blunt and heavy instrument, which was a deadly weapon. The jury found the appellant guilty of murder in the second degree, and assessed his punishment at fifteen years in the penitentiary. The defendant, the deceased, and most of the witnesses were negroes.

Tried below before the Hon. J. C. Russell. The indictment charged the appellant with theft of eleven horses. A term of five years in the penitentiary was the punishment awarded him. The matters immediately germane to the rulings are disclosed in the opinion.

Tried below before the Hon. L. C. Alexander. The indictment charged that the appellant and one Dr. Goodnight, on May 16, 1878, did unlawfully, fraudulently, and feloniously, in and upon the body of E. F. Davidson, . make an assault, and did tie the said Davidson with a rope, and by violence, and by putting in fear the life of said Davidson, did fraudulently take from his possession, with intent to appropriate the same to their use and benefit, one gold watch of the value of…

Tried below before the Hon. J. Abbott. This is a second appeal from convictions of the appellant for murder. In 7 Texas Court of Appeals Reports, at p. 472, will be found a report of the appeal resulting from the first trial in the court below, when the conviction was for murder in the first degree. On the appeal, that conviction was set aside because of error in the charge of the court, and the cause was remanded for a new trial.

<p>Appeal from the District Court of Tarrant. Tried below before the Hon. A. J. Hood.</p> <p>The punishment assessed was six years and a half in the penitentiary.</p>

Tried below before the Hon. D. M. Prendergast. The material facts appear in the opinion. A term of five years in the penitentiary was the punishment assessed by the jury. ?

Tried below before the Hon. S. Ford. A term of ten years in the penitentiary was the punishment assessed against the appellant, who, it appears, pursued one W. F. Terrell from the town of Hearne, and, having overtaken him, threw him down and choked him until he disgorged the ten-dollar note alluded to in the indictment. Terrell’s evidence was as indefinite as the indictment, with respect to the description of the note.

Tried below before the Hon. E. B. Turner. A term of five years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. L. W. Moore. The indictment charged the appellant and one Nick Thompson with an assault with intent to murder W. P. Miles. The appellant alone was on trial. Being found guilty as charged in the indictment, his punishment was assessed by the jury at two years in the penitentiary.

<p>Petit Theft — Penalty—Verdict. — Theft of property worth less than $20 is punishable by fine and imprisonment in the county jail, or by such imprisonment without fine, but not by fine alone; and a verdict assessing a fine alone will not support a conviction.</p>

Tried below before the Hon. L. C. Alexander. The indictment charged the appellant with having received certain oxen, knowing them to have been stolen. The jury found him guilty and assessed his punishment at three years in the penitentiary.

Tried below before A. W. Mouksund, Esq., Special Judge. A clear statement of the material facts will be found in the opinion of the court. A term of two years in the penitentiary was the penalty assessed against the appellant.

Tried below before the Hon. A. S. Broaddus. The indictment and conviction were for theft of cattle. The opinion sufficiently states the case.

<p>Appeal from the County Court of Lamar. Tried below before the Hon. W. S. Moore, County Judge.</p> <p>The jury assessed a fine of $250 against each of the appellants.</p>

Tried below before the Hon. A. S. Broadjdus. The opinion sufficiently states the case. A term of five years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. E. Lewis. The indictment charged the theft of two oxen, the property of Harry Willis. Finding the appellant guilty, the jury assessed his punishment at two years in the penitentiary. The material facts are indicated in the opinion and the last head-note.

Tried below before the Hon. W. A. Blackburn. This appeal is from the third trial of the appellant upon an indictment which charges him with the murder of Harvey Carter, on September 28, 1877, in Williamson County. The first trial was had at the Spring term, 1878, and resulted in the disagreement of the jury. The second was had at the ensuing Autumn term, and resulted in the conviction of the appellant for murder in the first degree, and judgment of death.

<p>Evidence — Special acts of the Legislature are not judicially cognizable. When involved in the issue, they must be introduced in evidence.</p>

Tried below before the Hon. W. A. Blackburn. The perjury charged in the indictment consisted in the appellant’s denial, when a witness before the grand jury, that he had seen any gaming in Lampasas County during the preceding six months. Being found guilty, his punishment was assessed at five years in the penitentiary.

Tried below before the Hon. E. Lewis. The appellant and one Lewis Kay were jointly indicted for theft of a gelding belonging to G. W. Carraway. The indictment charged both defendants as principal offenders. Ray, it appears, pleaded guilty.

<p>Penalty— Charge oe the Court. —The Revised Penal Code having ameliorated the penalty for aggravated assault, it was error, in a trial since it took effect, for an aggravated assault committed prior thereto, to give in charge to the jury the penalty prescribed by the original Code, unless the accused elected to receive that penalty.</p>

<p>Appeal from the County Court of Hood. Tried below before the Hon. J. Hiner, County Judge.</p>

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

<p>Malicious Mischief. —In a trial for the wilful and wanton killing of a dumb animal, the trial court instructed the jury to convict the accused if they believed that he “ unlawfully ” killed the animal. Held, error, because the killing might have been unlawful, but not wilful and wahton.</p>

Tried below before the Hon. P. F. Edwards. The indictment charged the appellant with the murder of Walter Cobbs, by cutting him with a knife, on July 12, 1879. The jury found him guilty of murder in the first degree, and assessed his punishment at confinement for life in the penitentiary. The. defendant and the deceased were negroes, as also was Martha Fisher, one of the principal witnesses for the prosecution.

Tried below before the Hon. S. Ford. The indictment charged the appellant with the theft of a bale of cotton belonging to the Houston and Texas Central Railway Company, on Décember 5, 1879. The jury found him guilty, and assessed his punishment at five years’ confinement in the penitentiary.

<p>Appeal from the District Court of Johnson. Tried below before the Hon. J. Abbott. j</p>

<p>Practice. — Bills of exception taken to the exclusion of evidence should disclose everything necessary to exhibit the relevancy and materiality of the excluded proof. Inferences will not be indulged to supply the omission of such matters. See the illustration in the present case.</p>

<p>1. Indictment — Certainty. — Though usually sufficient to charge an offence in the language of the statute, there are cases in which more certainty is required. All circumstances necessary to constitute the offence must be alleged, and cannot be supplied by mere argument or inference.</p> <p>2. Election Law. — Indictment for keeping open a bar-room on an election-day should allege what the election was for. It is not sufficient to aver that “ an election ” was then and there held.</p>

<p>Variance. —Information charged that the defendant committed the offence “by striking him, the said M., with a certain whip, and by attempting then and there to shoot the said M. with a certain pistol, the same being a deadly weapon.” The supporting affidavit charged the defendant with “striking and attempting to shoot him, the said M., with a pistol, the same being a deadly weapon.” Reid, that the variance between the affidavit and the information was fatal, and the defendant’s motion in arrest of judgment should have been sustained.</p>

<p>Information was filed on a defective affidavit, and subsequently a new and sufficient affidavit was filed. Being found guilty, the defendant moved in arrest of judgment because the information was not based on a sufficient affidavit. Held, that the defect in the original affidavit could not be obviated by filing a new one after the presentment of the information. A new information should also have been filed.</p>

<p>Appeal from the County Court of Johnson. Tried below before the Hon. W. J. Ewing, County Judge.</p> <p>A fine of $10 was the punishment assessed against the appellant.</p>

<p>Appeal from the County Court of Lamar. Tried below before J. P. G-raham, Esq., Special Judge.</p> <p>By an information filed in the County Court, the appellant was charged with exhibiting a pool-table for the purpose of gaming. Being found guilty, a fine of $25 was assessed against him.</p>

<p>“ Reasonable Doubt ” — Charge or the Court.—The language of the Code of Procedure on the doctrine of reasonable doubt needs no elucidation, and attempts to explain it usually beget error. An instruction is erroneous which conditions an acquittal upon the jury’s belief in the innocence of the accused. The case of Smith v. The State, ante, p. 150, cited on this subject with approval.</p>

<p>Appeal from the District Court of Falls. Tried below before the Hon. L. C. Alexander.</p> <p>The case is sufficiently Stated in the opinion of the court.</p>

<p>Charge of the Court. — The jury being the exclusive judges of the sufficiency of evidence, it is never legitimate for the court to instruct them that any evidence before them is sufficient.</p>

Tried below before the Hon. S. Ford. This appeal is from the conviction of the appellant for an assault with intent to murder one J. C. Yarborough. A term of five years in the penitentiary was the punishment allotted the appellant. Inferentially it appears from the evidence that ill-will had arisen between Yarborough and the appellant on account of some dealings between the latter and a tenant of Yarborough with reference to the crop on the rented land.

Tried below before the Hon. W. A. Blackburn. By the first count in the indictment the appellant was charged with removing a certain cow, the property of some person unknown to the grand jury, from its accustomed range, without the consent of the owner, etc. The second charged him with the theft of the cow ; and upon this count he was found guilty by the jury, and his punishment assessed at three years in the penitentiary.

<p>Appeal from the County Court of Grayson. Tried below before the Hon. S. D. Steedman, County Judge.</p>

<p>1. Evidence—Practice. — To show animosity in the prosecuting witness towards the accused, counsel for the defence asked the witness, “Don’t you love the defendant?” and the court below refused to compelan answer. Held, that, notwithstanding the great latitude allowable in cross-examination, the question was not a proper one, and the action of the court was not erroneous. See the opinion in extenso on the scope of a cross-examination to show bias or animus.</p> <p>2. Charge of the court instructed the jury to acquit unless they.were convinced of the defendant’s guilt “ beyond absolute certainty.” Held, that the instruction, though erroneous, was not to the prejudice of the defendant.</p> <p>3. Hog-Theft — Jurisdiction — Evidence. — Inasmuch as the County Courts have no jurisdiction to try accusations of the theft of hogs worth $20 or more, the question of value is one of jurisdiction in cases of hog-theft pending in those courts. Proof, therefore, that the value was less than $20 is necessary to warrant or sustain their judgments of conviction in such cases.</p>

Tried below before the Hon. E. C. Stuart, County Judge. The appellant was charged by information with having, on September 10, 1879, attempted to produce an abortion on one Mattie Shook, a pregnant female, by designedly administering to her, with her consent, a certain drug and medicine calculated to produce abortion.

Tried below before the Hon. A. J. Hood. The indictment charged appellant with the theft of a cow worth $6.. He was found guilty, and a fine of $497.50 assessed against him., This conviction was held by a majority of this court to be one for the misdemeanor of driving cattle from accustomed range. See Sisk v. The State,' ante, p. 90.

Tried below before the Hon. E. B. Turner. Early in January, 1877, according to the evidence, the defendant, as attorney in fact of J. L. Smith, conveyed to Mrs. H. C. Collins, wife of F. F. Collins, a section of land in Palo Pinto County, Texas, in part consideration for a house and lot in the city of Dallas, conveyed by Collins and wife to the wife of the defendant.

Tried below before the Hon. W. H. Bullock, County Judge. The appellant was found guilty as charged in the information, and a fine of $25 was assessed against him.

<p>Appeal from the District Court of Dallas. Tried below before the Hon. Gr. ¡N. Aldbedge.</p> <p>The conviction was for theft of cattle, and two years in the penitentiary the punishment assessed.</p>

<p>Appeal from the District Court of Bexar. Tried below before the Hon. G. H. Noonan.</p> <p>Reference may be had to 4 Texas Ct. App. 631, for the facts of this peculiar case. In the opinion now reported will be found such other matters as are germane to the rulings.</p>

Tried below before the Hon. W. L. Faulk, County Judge. The conviction was for the theft of three hogs, alleged to be worth $15 in the aggregate. A fine of $25 and confinement in the county jail for twenty-four hours were assessed as the punishment.

<p>Appeal from the County Court of Gregg. Tried below before the Hon. L. G. Jackson, County Judge.</p> <p>The opinion and head-notes indicate the material facts. A fine of $100 was the punishment assessed against the appellant.</p>

Tried below before the Hon. J. M. Logah, County Judge. According to the testimony adduced by the State, the owner of the money dropped it inadvertently in the presence of the appellant, who put his foot upon it until the owner turned away, and then picked it up. Imprisonment in the county jail for one day and a fine of $100 were assessed as the punishment of the appellant.

Tried- below before the Hon. J. M. Logan, County Judge. The conviction was for theft of a plough, alleged to be worth $8. The punishment was assessed at two months’ imprisonment in the county jail and a fine of $50.

Tried below before the Hon. L. G. Jackson, County Judge. A fine of $100 was the punishment assessed by the jury against the appellant.

Tried below before the Hon. L. G. Jackson, County Judge. The trial was for aggravated assault and battery. In empaneling the jury the county attorney objected to such of the jurors as had served in a case previously tried, and which was based on the same affair. The court sustained the objection, and some of the jurors were set aside and talesmen summoned in their stead. The defence reserved a bill of exceptions.

Tried below before the Hon. L. C. Alexander. The conviction was for burglary, and a term of two years in the penitentiary was assessed against the appellant.

Tried below before the Hon. S. Ford. The indictment charged the appellant and one E. Crews with the murder of one Manuel, a Mexican, whose name was otherwise unknown. The deed was alleged to have been done on June 7, 1880, by shooting the deceased with a gun. Appellant was tried separately, found guilty of murder in the first degree, and his punishment assessed at confinement in the penitentiary for the term of his natural life.

Tried below before, the Hon. W. A. Blackburn. The opinion discloses.' the case. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. L. W. Moore. The indictment charged the appellant with the theft of a mare belonging to P. T. Bost. The jury found a verdict of guilty, and assessed the punishment at ten years in the penitentiary. Bost, the owner of the mare, testifying for the State, said that about eight o’clock in the night of June 27, 1880, he turned the mare into his horse-lot, and the next morning she was gone. Witness and his brother at once went in search of her.

Tried below before the Hon. W. A. Blackburn. The indictment charged the appellant with an assault with intent to murder one R. W. Thomas. The jury found him guilty, and assessed his punishment at two years in the penitentiary. The opinion states the facts relevant to the ruling made.

Tried below before the Hon. J. C. Robertson. The conviction was for cattle-theft, and four years in the penitentiary the punishment assessed.

<p>Appeal from the County Court of Gregg. Tried below before the Hon. L. G. Jackson, County Judge.</p>

Tried below before the Hon. L. C. Alexander. This appeal is from a second conviction for the crime of infanticide. The case on a former appeal will be found at p. 570 of 7 Texas Court of Appeals Reports. ■ At the last trial, as upon the first, the conviction was for murder in the second degree, and five years in the penitentiary the punishment awarded the appellant.

Tried below before the Hon. J. Abbott. The opinion shows the material facts. A term of five years in the penitentiary was the punishment assessed.

<p>1. Practice — Charge of the Court. — If an erroneous charge was not excepted to, nor a proper instruction requested, the error in the charge is not cause for reversal unless it was, under all the circumstances, calculated to injure the rights of the defendant.</p> <p>2. Same. — Per contra, if an erroneous charge was duly excepted to, or if a proper charge was requested and refused, the judgment will be reversed, though the tendency of the error to injure the defendant was but slight and the proof of the defence but vague.</p> <p>3. Same. —In atrial for theft, the defence stood upon a claim of bona fide purchase of the property, and adduced testimony which tended directly to prove that defence. The charge of the court wholly ignored the issue, but no objection was taken to it until the motion for a new trial was presented. Held, that the defect in the charge was necessarily prejudicial to the rights of the defendant, and is therefore material error.</p>

<p>Appeal from the District Court of Clay. Tried below before W. J. Sparks, Esq., Special Judge.</p>

Tried below before the Hon. W. J. Jones, County Judge. The case is disclosed in the opinion. A fine of $25 was assessed against the appellant in the court below.

Tried below before the Hon. H. Manet. On February 12, 1873, the appellant, J. F. Holmes, alias J. T. Jackson, was jointly indicted with one John Davidson for the theft of a gelding. They were jointly tried on the 18th of February, 1873, found guilty, and the punishment of each assessed by the verdict of the jury at confinement in the penitentiary for the period of fifteen years.

Tried below before the Hon. W. J. Jones, County Judge. The fine imposed on the appellant was for $50. On the final hearing in this court the conviction was sustained, without a written opinion.

Tried below before the Hon. J. A. Carroll. The opinion of the court will be found to state the case as fully as there is any occasion for.

Tried below before the Hon. B. T. Estes. The indictment and conviction were for the theft of a certain steer belonging to S. C. Choat. The punishment assessed was a term of two years in the penitentiary. The opinion discloses the facts relevant to the rulings.

<p>Appeal from the District Court of Milam. Tried below before the Hon. S. Ford.</p> <p>The conviction was for cattle-theft, and a term of two years in the penitentiary the punishment assessed.</p>

Tried below before the Hon. B. T. Estes, The indictment charged the appellant, together with Robert Black and two others, with an assault with intent to murder one J. M. Martin. A severance of the defendants was had, and on the separate trial of the appellant he was convicted of aggravated assault and battery, and a fine of $100 was assessed as his punishment. In the opinion rendered by this court in the companion case of Robert Black, to be found in 8 Texas Ct.

Ajppeal from the District Court of Lavaca. Tried below before the Hon. E. Lewis. The indictment charged the theft of a pistol, and also of “ several fifty-dollar bills, United States paper currency money, each of the value of fifty dollars,” etc. A term of six years in the penitentiary was the punishment assessed. The conviction was on the charge of theft.

Tried below ' before the Hon. A. J. Hood. The opinion and head-notes indicate the material facts. The testimony concurred in describing the animal as a “ two-year-old,” and not a beef-steer, which, as known among cattle-dealers, must be at least three years of age. A term oí two years in the penitentiary vvas the punishment assessed against the appellant.

Tried below before the Hon. A. J. Hood. The opinion of the court sufficiently states the facts upon which this appeal was predicated. The appellant was placed on trial under the second indictment on the 14th of July, 1880, and was convicted and sentenced to the penitentiary for the period of ten years, from which judgment of conviction he prosecutes this appeal.

Tried below before the Hon. A. J. Hood. On the 29th of May, 1879, the appellant was indicted by the grand jury of Tarrant County for robbery, and was placed on trial July 16, 1880, which resulted in his conviction and being sentenced to the penitentiary for ten years ; from which judgment he prosecuted this appeal. There is no occasion for a statement of facts.

■ Tried below before the Hon. E. B. Turner. The indictment charged the appellant with the murder of John Townsley, on. April 19,1877, by shooting him with a pistol. The jury found him guilty of murder in the second degree, and assessed his punishment at twenty years in the penitentiary.

Tried below before the Hon. S. Ford. The conviction was for the theft of a horse belonging to one J. D. Sherman, and a term of five years in the penitentiary was the punishment awarded. The opinion gives the substance of the facts.

Tried below before the Hon. J. R. Fleming. The appellant was charged by indictment with the burglary of a storehouse near Sepe Springs, in Comanche County, alleged to have been committed on the 15th of February, a. d. 1878, at which time a Henry riñe, some twenty pounds of coffee, and some tobacco were taken from the store. The rifle was afterwards recovered by the owner from a party who testified to having purchased it from the accused a short time after the burglary.

Tried below before the Hon. W. A. Blackburn. The opinion discloses the material facts. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. W. L. Faulk, County Judge. The conviction was for a misdemeanor. See the opinion for the status of the case in this court.

Tried below before the Hon. A. J. Hood. The general. character of this case is indicated in the opinion of the court. According to testimony adduced by the State, pills compounded of blue mass and calomel were the nostrum administered to produce abortion. The female involved in the investigation was introduced as a witness by the State, and she said that two of the pills were made of quinine, and that the remaining one was a cathartic.

Tried below before the Hon. J. C. Russell. The charge against the appellant was that, well knowing that certain property of J. C. North rap had been stolen by John Raymond and F. Gonzales, he received and concealed the same. The property consisted of a ship’s chronometer, worth $200, and a quantity of clothing. Appellant was found guilty as charged, and a term of two years in the penitentiary was assessed as his punishment.

Tried below before the Hon. J. M. Logan, County Judge. The appellant and one M. Litman were jointly charged by an information with swindling Priscilla Hall by means of a false and fraudulent pretence.

Habeas Corpus, on appeal from a judgment in chambers rendered by the Hon. T. B. Cox, County Judge of the county of Fannin. A clear and comprehensive statement of the case will be found in the opinion.

Tried below before the Hon. G. Lane, County Judge. The opinion discloses all material facts. The jury found the appellant guilty, and assessed against him a fine of $100.

<p>Appeal from the County Court of Delta. Tried below before the Hon. C. S. Nidever, County Judge.</p> <p>The opinion states the case.</p>

Tried below before the Hon. A. J. Hood. The opinion fully states the case. A term of two years in the penitentiary was the punishment assessed against the appellant.

Tried below before the Hon. A. J. Booty. There is no occasion for a statement of facts, as the opinion of the court sufficiently indicates the questions raised on the appeal.

Tried below before the Hon. C. S. Nidever, County Judge. The facts upon which the rulings are based are sufficiently indicated in the opinion of the court.

Tried below before the Hon. E. P. Kearby, County Judge. The conviction was for aggravated assault and battery, and the punishment assessed was a fine of $100.

<p>Jurisdiction. — Under sect. 22, Art. V., of the present Constitution of the State, it is competent for the Legislature to divest the civil and criminal jurisdiction of the County Courts and to transfer the same to the District Courts.</p>

Tried below before the Hon. E. Lewis. The appellant was indicted by the grand jury of Lavaca County, Texas, charged with the murder of Henry Griffith. There have now been four trials and appeals in the case. Vide 8 Texas Ct. App. 183; 6 Texas Ct. App. 42, and 3 Texas Ct. App. 558, where the material facts will be found. There is no occasion for a further statement of°the facts in ■order to an understanding of the opinion now reported.

Tried below before the Hon. A. J. Booty. As indicated by this court in its opinion, this was a case of infanticide upon the new-born child of a negro girl. The revolting details, as they appear in the unauthenticated statement of facts, are not material to the ruling made. The conviction was for murder in the second degree, and a term of four years in the penitentiary was the punishment assessed.

Tried below before the Hon. W. L. Faulk, County Judge. See ante, p. 371, for an important ruling on practice made in this case on a motion to reinstate it after an affirmance on certificate, which is held not now to be allowable.

<p>1. Theft. —Privately stealing from the person of another is specifically defined by the Penal Code as an offence. To constitute it, the theft must be from the person, and not merely in the presence of the dispossessed party, and be committed without his knowledge, or so suddenly as to preclude resistance before asportation. If an indictment contains these allegations, in addition to those necessary to charge theft in general, it is substantially sufficient to charge “theft from the person.”</p> <p>2. Continúan ce. —Under the Revised Code of Procedure, all applications in limine for continuances are subjected to the discretion of the trial judge, and the refusal of even a first application will not be revised on appeal when no abuse of that discretion to the prejudice of the defendant is apparent.</p> <p>S. Jury Law. — Recourse is to be had to the Revised Civil Statutes for the general rules regulating the organization of juries, and by those regulations much is practically confided to the trial courts. On appeal, the primary inquiry is whether a fair and impartial jury tried the case, and not whether every ruling of the trial court in forming the jury was correct. Note the facts of this case in illustration of these rulings.</p> <p>4. Challenge to the Array. — Only upon the grounds and in the manner prescribed in the Code of Procedure does a challenge lie to the array of petit jurors:</p>

<p>1. Jury Law.—Among the causes for challenge of a petit juror prescribed by the Code of Procedure is his inability to read and write, provided a sufficient number of jurors not thus disqualified can be obtained. Qucere: whether this disqualification has reference to inability to read and write the English language, or, on the other hand, whether a juror who could read and write German and speak English is a qualified juror? Note the collocation in the opinion of authorities bearing on the question, and the suggestion of considerations which affect it pro and core.</p> <p>2. Costessious Made ret Arrest.—In a trial for murder, the State was allowed, over objection by the defence, to prove certain of the defendant’s statements in the nature of confessions —the objection being that the defendant was in arrest when he made them. See the predicate on which the court below overruled tbe objection, but from which this court concludes that the defendant was actually in arrest at the time, whether he knew it or not, and that his statements were therefore improperly admitted in evidence.</p>

Tried below before the Hou. J. A. Carroll. Iu 7 Texas Ct. App. 283 will be found a report of this cáse upon an appeal from a former conviction of the appellant upon the same indictment, and there will also be found a sufficient statement of the material facts. At the trial from which the present appeal results, the testimony of the defendant’s wife, excluded at the former trial, was admitted in behalf of the defence. Its purport appears in the report above referred to.

Tried below before the Hon. H. C. Pleasants. The indictment was found by the grand jury of Live Oak County, and charged the appellant and his brother, Victoriano Greta, with the murder of Julian Andreda, by shooting him, in the said county of Live Oak, on August 10, 1879.

' Tried below before the Hon. Gr. Lane, County Judge. The conviction was for unlawfully pulling down the fence of another, and a fine of $10 was assessed against the appellant.

Tried below before the Hon. W. A. Blackburn. Late in the afternoon of Sunday, the 30th of January, 1876, as one N. A. Fetner and an old man named P. H. Littlefield were travelling in a wagon on a public road leading to the town of Lampasas, they were fired upon and instantly killed.

Tried below before the Hon. E. Hobby. The appellant was convicted of the unnatural and shocking crime of parricide. The jury, though finding the of-fence to be murder in the first degree, assessed the penalty at confinement in the penitentiary for life, the appellant having been but sixteen years old when he committed the deed. C. C. Snell, for the State, testified that in October, 1878, he lived with and worked for W. A. Stagner, the father of the appellant.

<p>Appeal from the District Court of Parker. Tried below before the Hon. A. J. Hood.</p> <p>The indictment referred to in the opinion was for cattle-theft.</p>

<p>Fobeeituke oe Bail-Bond. —Final judgment against one of the sureties on a bail-bond cannot be rendered unless some disposition of the case as to other sureties is made by the court. See this ease for example.</p>

Tried below before the Hon. J. M. Logan, County Judge. A statement of this case is fully set forth in that of his co-defendant, Marwilsky y. The State, ante, p. 377, to which reference is made.

<p>Appeal from the District Court of Montgomery. Tried below before the Hon. J. Masterson.</p> <p>The opinion sufficiently discloses the case.</p>

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

<p>Appeal from the District Court of Navarro. Tried below before the Hon. D. M. Prendergast.</p> <p>The opinion discloses the case.</p>

Tried below before the Hon. L. G. Jackson, County Judge. The appeal in this case is taken by Page and his sureties from a judgment final for $100, rendered by the County Court upon their bond executed in furtherance of Page’s appeal from his conviction in a justice’s court of the offence of unlawfully carrying a pistol. The finé imposed on Page in the justice’s court was $25. The material facts are indicated in the opinion.

<p>BAIL-bosti was signed by “J. T. Crabtree ” as principal, and J. L. Crabtree as a surety. Indictment was subsequently returned against “John Crab-tree ” and another. On default of John Crabtree to appear, judgment nisi was rendered on the bond. Scire facias issued, but failed to allege that John Crabtree was the same person who signed the bond as J. T. Crabtree. The surety, J. L. Crahtree, moved to quash scire facias. Held, that the scire facias was fatally defective.</p>

<p>Appeal from the County Court of Rains. Tried below before the Hon. E. P. Kearby, County Judge.</p> <p>The information charged the defendant with an apprao oo voted assault and battery upon the person of A. Hunt, and the use of a deadly weapon was alleged as the means of aggravation-. The trial, at the August term, 1880, of the County Court, resulted in a verdict of guilty, and a fine of $35 was imposed.</p> <p>This prosecution was the result of a dispute between the accused and Andrew Hunt, the prosecuting witness, regarding the ownership of a saddle-blanket. It was shown for the prosecution, in substance, that Andrew Hunt, having found, in a road, a blanket which had been lost by a Mr. Stockton, used it on the morning of the difficulty in riding over a pasture in search of a pony. On his return from the pasture to a lot owned by W. Fitzgerald, where the difficulty is shown to have taken place, the defendant asked him if he had his (defendant’s) blanket. He responded that he had a blanket he had found in the road, which had been lost by Col. Stockton, and that Stockton had told him to keep it for him, and that it belonged to Kit Reid, defendant’s brother. The defendant claimed the blanket as his, or his brother’s, when Hunt called him a “ d—d liar.” The defendant replied, “ You are another; it is mine, and I’m going to have it;” at the same time advancing. He drew a pocket-knife, and opening, waived it as he advanced, saying, “ I am the man that can call you a d—d black son of a b—h.” Hunt disclaims having advanced a step towards defendant, but testifies that he had a large wagon-whip in his hand, with which he struck defendant when in striking distance, under the impression that defendant intended to cut him, which he subsequently did in four or five places. Hunt, according to his own testimony, threw down his whip and drew a pocket-knife, and in the difficulty inflicted a wound upon the defendant.</p> <p>Fitzgerald, for the prosecution, did not hear the first words addressed to Hunt by the defendant, but heard Hunt respond, “ You are a d—d liar.” He did not understand the reply made by defendant, but heard Hunt say in response, “ If you do, I’ll burst your d—d brains out with this whip.” Hunt, according to this witness, was advancing upon defendant, grasping the whip about the middle, and holding it down, though possibly shaking it. Having advanced ten or twelve feet, Hunt stopped and placed his hand on his hip, when the defendant commenced to advance, waiving his knife. From this point, this witness gives substantially the same account of the difficulty as that given by Hunt. He does not know which of the parties struck first. Hunt did not advance on defendant after he stopped and put his hand on his hip.</p> <p>The testimony for the defence identified the blanket as the property of the defendant’s brother, reiterated the conversation between the parties as detailed by the State’s witness Fitzgerald, and tended to prove that when Hunt threatened, in reply to some remark made by defendant, to burst his brains out with the whip, he started towards defendant, and both parties continued to advance upon each other, neither stopping until the fight was over; also, that Hunt, using a whip large enough to fell a man, struck the first blow, hitting defendant on the head. Two blows were struck defendant by Hunt, according to the testimony for the defence, before defendant struck Hunt, and the latter is testified to have advanced the greater distance.</p>

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

Tried below before the Hon. W. H. Andrews, Special Judge. This is the second appeal from a conviction of Early in the court below, of murder in the first degree. See 1 Texas Ct. App. 249. The indictment charged the appellant with the murder of Charles M. Winters, in Cooke County, February 24, 1873.

Tried below before the Hon. W. H. Burkhart. The indictment charged the appellant with the murder of Charles B. Foster, in Galveston County, on September 2, 1876. The venue was first changed to Brazoria County, at the instance of the defendant. At a trial there a conviction was had for murder in the second degree, with forty years in the penitentiary assessed as the punishment. That conviction was set aside by this court, on appeal, for reasons disclosed in 5 Texas Ct.

Tried below before the Hon. J. C. Robertson. The indictment charged the appellant with the murder .of H. W. Harrington, on March 22, 1880, by shooting him with a gun. The jury returned a verdict convicting the appellant of murder in the first degree, and assessing his punishment at death. The deceased was a physician in Wood County, and was assassinated within a short distance of his house, about nine o’clock in the night of the day alleged in the indictment.

<p>Appeal from the District Court of Brazos. Tried below before the Hon. S. Ford.</p>

Tried below before the Hon. S. Ford. The indictment charged the defendant with the robbery of Alfred Moore, on the twenty-fourth day of November, 1879, in Brazos County, Texas. He was tried at the ensuing October term of the District Court of Brazos County, found guilty, and his punishment fixed at confinement in the penitentiary for the term of two years. From this judgment he prosecutes this appeal.

.ppeal from the District Court of Tarrant. Tried below before the Hon. J. J. Jarvis, Special Judge.

Tried below before the Hon. J. J. Jarvis, Special Judge. This is a second appeal from a conviction for assault with intent to rape. See ante, p. 53. The facts proved on the last are identical with those proved at the former trial.

<p>Plea. — The record must show that the accused pleaded to the information, or that, failing or refusing to do so, a plea of not guilty was entered for him; otherwise, the conviction will be set aside.</p>

Tried below before the Hon. J. A. Carroll. In the town of Pilot Point, in Denton County, on the fifteenth day of August, 1863, one Beard, a prisoner at that time confined in a house, was most foully assassinated. On the twenty-second day of March, 1879, nearly sixteen years later, the grand jury of Denton County found an indictment charging the appellant with the commission of the crime.

Tried below before the Hon. L. C. Alexander. The indictment charged the appellant with the murder of James Mellon, in McLennan County, Texas, on the twenty-ninth day of September, 1877. The trial, at the May term, 1879, resulted in a verdict of guilty of murder in the second degree, and the punishment was assessed at thirty-five years in the penitentiary.

Tried below before the Hon. H. Gr. Robertson, Special Judge. The conviction was for assault with intent to kill one William Gross, the father-in-law of accused, and the penalty assessed was four years’ confinement in the penitentiary. The opinion discloses the case.

Tried below before the Hon. A. J. Hood. The indictment charged the appellant with the murder of Jack Rush, on May 14, 1880, by shooting him with a gun. The jury found appellant guilty of murder in the first degree, and assessed his punishment at death. The homicide was perpetrated by assassination, about four o’clock in the morning of the day alleged in the indictment.

Habeas Corpus, oil appeal from an order in chambers of the Hon. W. A. Blackburn, District Judge. Held: and while the body was still there. He saw a negro there, but noticed no arms. The first shots he heard in the evening appeared to be pistol-shots, and the one after supper a gunshot. Had not seen the relator since that occurrence until he appeared in court upon this examination.

<p>Appeal from the District Court of Smith. Tried below before the Hon. J. C- Robertson.</p> <p>The indictment was for the murder of Michael Seay, in Smith Count)'', August 7, 1873. This is the second appeal from a judgment of conviction, the first being of murder in the first degree with the death-penalty assessed, and the present- of murder in the second degree with the penalty assessed at thirty years in the penitentiary. The evidence adduced on this last trial is substantially the same as that adduced on the first, and reported in 7 Texas Ct. App. 486.</p>

<p>1. Declarations as Res Gestie. —In a trial for murder, a State’s witness was allowed to testify that from a distance of a hundred and fifty yards he saw the deceased when he was shot and fell, and that he went immediately to the deceased and inquired how he shot himself, and deceased replied, “ I did not do it; I was shot from up yonder,” and indicated by a motion that he meant from an adjacent mountain. Held, that this testimony was legitimate as proof of res gestee, and was therefore admissible without the predicate necessary to the introduction of dying declarations.</p> <p>2. Dying declarations may be communicated by the deceased otherwise than by articulate speech; but, however expressed, they must relate facts which the deceased, if himself the witness, would be competent to attest.</p> <p>3. Same. —It is only ex necessitate that dying declarations are held admissible to prove such facts as the res gestee, the identity of the culprit, and the like. They are not competent to prove former or extrinsic transactions, nor to show the mere opinion or belief of the deceased; and, a fortiori, a witness’s opinion as to what the deceased meant by an indefinite expression is not competent evidence. See the opinion for illustrations of these rulings.</p> <p>4. Separation oe a jury before verdict, after it has been sworn and empanelled to try a felony case, is positively prohibited by the Code of Procedure, unless by permission of the court, with the consent of the State’s counsel and the defendant, and in charge of an officer. It is the officer’s duty to supply their necessary food and lodging.</p> <p>5. Verdict —New Trial. — The jury found the accused guilty of murder in the second degree, and assessed the term of his confinement in the penitentiary at the average of their several assessments. It does not appear that the jurors agreed in advance to abide the result of the computation. Held, not a verdict “ decided by lot,” nor cause for new trial, but not a commendable procedure.</p> <p>6. Insanity.—In criminal cases a higher degree of insanity is requisite to exculpation than that necessary to avoid contracts. Ability to distinguish right from wrong as to the act in question is the general test of amenability.</p> <p>7. Same — Evidence — Charge oe the Court.—Evidence of the state of the defendant’s mind since the commission of the act is competent; and, in a trial for murder, when such evidence was adduced, but was ignored in the general charge, it was error to refuse a special instruction which would have correctly submitted the evidence to the jury.</p>

Tried below before the Hon. R. R. Gaines. The indictment charged the defendant with an assault with intent to murder, upon the person of Orange Gray. His trial resulted in a verdict of guilty, and his punishment was assessed at three years’ confinement in the State penitentiary.

Tried below before the Hon. L/C. Alexander. The indictment charged the appellant with an assault with intent to murder J. T. Halbert, in Bell County, on the thirty-first day of March, 1880. The trial resulted in a verdict of guilty, and the penalty assessed was two years in the penitentiary.

Tried below I before the Hon. A. J. Hood. The indictment charged the defendant with the murder of Jack Rush, in Parker County, Texas, on the fourteenth day of May, 1880. The trial resulted in a verdict of guilty of murder in the first degree, and his punishment was assessed at confinement in the State penitentiary for life. An outline of the case is given in the report of the case of Burton v. The Stale, ante, p. 606, indicted and convicted for the same offence.

Tried below before the Hon. A. J. Hood. The appellant was charged by bill of indictment with the theft of two steers, the property of Bill Douglass, and one steer, the property of Isaac Hudson, in Tarrant County, on the fifteenth day of June, 1880.

Tried below before the Hon. S. Robertson, Special Judge. The appellant and one Wesley Pollard were jointly indicted for the murder of Joseph Shoemaker, in Dallas County, on the night of July 1, 1876. This is the second appeal from a conviction, with the death-penalty attached. The first is reported in 4 Texas Ct. App. 44. The record in this last appeal comes up without a statement of facts. That appended is taken from the record on the first appeal.

Tried below before the Hon. H. G. Robertson, Special Judge. The indictment charged the appellant with the murder, upon implied malice, of Hope Millenium, in Smith County, on the seventh day of September, 1880. She was found guilty of manslaughter, and her punishment assessed at two years in the penitentiary. The appellant and the deceased were negroes, as were also the witnesses to the facts. The opinion discloses the material facts in the case.

Tried below before the Hon. J. C. Robertson. The indictment was for the murder, upon implied malice, of Hope Millennium, on September 7, 1880, it being the same offence for which Callie Robins was indicted and convicted of manslaughter. See ante, p. 666. The verdict in this case was similar, and based upon substantially the same evidence.