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^^'^ REPORTS / ^

CASES ARGUED AND ADJUDGED

COURT OF APPEALS OF TEXAS

DURINO THB

eAXiVBSTON TERM, 1889, AND THE FIRST TWO M0NTH3
OF THB AUSTIN TERM, 1889.

BBPOBTBD BT

JACKSON & JACKSON.

VOLUME XXVII.

AUSTIN, TEXAS:

HDTOHINeS PRINTING HOUIB.

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Entffvd MOMdlBf to Aot of Oongnm, in the jmt effhtoMi handNd and ilclily-iite%

BT THB 8TATI OF TIEXAB^

iBfh^oOMofttM IibrarteBorOOB<rMi^«ftWaihlagton,]I.Cl

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COURT OF APPEALS OP THE STATE OP TBXAa

PBBSmiKG JUDOB:

Hon. JOHN P. WHITE.

JUDGES:

Hon. JAMES M. HURT.
Hon. SAMUEL A. WHiLSON.

ATTORNBT GENERAL:

JAMES S. HOGG, Es<j.

ASSISTANT ATTORNEY GBNBRAIi:

W. L. DAVmSON, Esij.

CLERKS:

P. WALTON, AT Austin.

K P. SMITH, at Tyler.

H. A. MORSE, AT Galveston,
reporters:
A. M. JACKSON.*
A. M. JACKSON, Jb.

^Died July 11, 1889.

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NOTE.

In the report of the case of Hughes v. The State, beginning
on page 127 of this volume, the name of F. M. Etheridge, Esq.,
of the Corsicana bar, should appear, associated with that of the
Assistant Attorney General, as representing the State on Ap-
peal.—Reporters.

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A TABLE

or THE

NAMES OF THE CASES

Reported in this Volume.

PAGE

Alexander y. The State 94

Alexander v. The State 583

Anderson and Wood v. The State 177

ArmstronK ▼. The State 462

Aston V. The State. 574

Bantsch V. The State 842

BawcooiT. The State 620

Berry V. The State 488

Bird V. The State 685

Black V. The State 496

Blocker T. The State. 16

Brackenridge v. The State 518

Briscoe T. The State 198

Brookin Y. The State. 701

Brown T. The State 880

Cahn ▼. The State 709

Chance v. The State 441

ObappellY. The State 810

Clark V. The State 405

Coffelt V. The State 608

Coetello T. The State 188

Crook vr The State 198

Canninirham t. The State 479

Bailey ▼. The State 569

PAoe

Davidson v. The State 262

Day V. The State... 143

Dempsey V. The State 269

Dagger v. The State 95

Duncan ex parte 485

Ellis V. The State 190

Ex Parte Duncan , 485

Ex Parte Hanson 591

Ex Parte Murphy 492

Ex Parte Robertson 628

Pahey T. The State 146

Pranklin T. The State 186

Greeny. The State 244

Green V. The State 570

Hannah v. The State 628

Hanson V. The State 140

Hanson Ex Parte 591

Hawkins V. The State 278

Henkel V. The State 510

Hill and Medis v. The SUte 194

Hines v. The State 104

Hughes V. The State 127

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27 Texas Court of Appeals.

Table of cases.

Jamison v. The State 442

Johnson t. The State 185

Johnson T. 'Hie State 168

Jump ▼• The State 450

Jonipery. The State 478

Kegausv.TheState 708

EeUey V. The State 562

King T. The State 667

Knowles y. The State 503

Koretzy. The State 53

Langan et al. y. The State. 598

Lee V. The State 475

Leonard V. The State. 186

Leeper V. The State 604

Lidtke v. The State 500

Lnoas T. The State 822

Lynn V. The State 500

Mann v. The State 580

Massle V. The State 617

McCoy V. The State 415

McDade V. The State 641

McGowan v. The State 183

Medisaud Hill v. The State 104

Miller V. The State 68

Miller V. The State 407

Monk V. The State 450

Moody V. The State 287

Moore V. The State 430

Mnrphy Ex Parte 402

Neeley V. The State 815

Neeley v. The State 824

Nuckolls y. The State 600

Peace y. The State .
Powers y. The State.

700

O'Brien y. The State 448

O'Bryany. The State 830

Reed y. The State 817

Reyealy. The State 57

Rlgby V. TheState 55

Riley V. The State 606

Robertson Ex Parte 628

Sanchezy. The State 14

Scott V. The State 264

Shelton v. The State 448

Smith y. The State 50

Smith V. The Stare 106

Stevens v. The State . . . .^ 461

Stilly V. The State .' 445

Stone V. The State 576

Stouard V. The Stare 1

Taylor y. The State 44

Taylor v. The State 468

Thurmond y. The State 847

Tracy v. The State 406

Treylnio y. The State 872

West y. The State 472

White V. The State 688

Wilks V. The State 881

Willard v. The State 886

Williams y. The State 258

Williams v. The State 466

Wilson y. The State 47

Wi'son V. The State 577

Wood aod Anderson v. The State . 177

Wood V. The State ... ..^ 808

Wood V. The State .* 538

Wright y. The State 447

Zwicker y. The State 580

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Criminal Cases Decided Without Written Opinions

At the Galybston Tbrm, 1889.

8t9U<^fca$t. Obmlf, QfeMt, PmaUg.

▲nH«oht v. State. Yictorift. Aggr. assault ft battery.. Fine $25 Affirmed.

Alexander y. State. . • .Trayia. .... .Assault to murder 3 jears Affirmed.

Beal, Jr., ▼. State Austin ICisdemeanor theft 30 dajs in jail . . .Affirmed.

Beeman V. State Llano. Felony theft 5 years Dismissed.

Black y. State Wilbarger . . .Aid*g prisoner to escape.. 2 years Affirmed.

Brown y. Stale Fort Bend... .Carrying pistol $26 ft 20 days. . . .Dismistted.

Brown y. State Qalyeston.. . .Assault to murder 2 years Affirmed.

Brwnly ▼. State Brazoria Bobbeiy 6 years DismiHsed.

Campbell y. State McLennan. .Robbery 26 years Dismissed.

Campbell y. Stale McLennan... Felony theft 2 years Dismissed.

Campbell y. State McLennan... Bobbery 26 years Dismissed.

Campbell y. State. . . .McLennan. . .Felony theft 2 years Dismissed.

Collins y. State. DeWitt. Carrying pistol $25 ft 20 days Affirmed.

Dean y. State Bell Murder second deg^^e. .16 years Affirmed.

Diaz y. State Cameron .... Aggr. assault ft battery.. 1 month in jail. . Affirmed.

Do?er y. State Red River. . .Taking mortgaged prop-
erty out of the State. . 2 years Affirmed.

ElUs y. State DeWitt Driy'g stock from ran^e.. 3 years Affirmed.

Ellis y. State Harris Cursing in public place. .Fine $1 Dismissed

Femandes y. State.... Fayette Abduction. 3 years Affirmed.

Finch y. State Llano. Felony theft 2 years Affirmed

Foster y. State Maverick.. . . .Bringing stolen property

into the State 5 years Affirmed.

Fuller y. State Yau Zandt . . .Habeas corpus for bail . . Refused ... .... Affirmed.

0arzay.State Starr Disturbing the peace . . . Fine $25 Dismissed.

Gibaon y. State Wilbarger. . .Felony theft 9 years Dismissed.

Gomes y.State Maverick. ...Felony theft 5 years Affirmed.

Gonsalesy. State Webb Assault to murder 2 years Affirmed.

'y.State Gregg Felony theft 7 years Affirmed.

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viii 27 Texas Coubt of Appeals.

Cases decided without written opinions.

8(y<« of Cam, Oom*$, Offam, PewOtf. DUpotfOm,

Hall y. State Tjler. Murder second defcree. . 6 years Dismissed.

Henderson v. State. . . .Harris Felony theft 2 years Affirmed.

Holbroolcy. State Bee Burglary 2 years Affirmed.

Hufcle V. State Freestone. . . .Playing craps .Fine$10 Affirmed.

Humphries v. State. . . .Navarro Cuttiog fence 3 years Affirmed.

I
Irwin y. State UpRhur. Murder second degree. . . 80 years Affirmed.

Karr y. State .liifilam Felony theft 6 years .Dismissed.

King y. State Red Riyer.. . .Assault to rape 6 years Affirmed.

Lane y. State Mitchell Embezzlement 2 years Affirmed.

Lane y. Slate Mitchell Forgery 2 years Affirm\ed.

[death.

Ledbetter y. State. . .Falls Manslaughter 6 years Abated.

Lunsford y. State BelL Robbery 5 years Affirmed.

Lyons y. State Llanc Felony theft 6 years Dismisaed.

Lyons y. State Llano Felony theft 4 years Dismissed.

Mason y. State Polk Obstruct'g public road . . Fine $10 Dismissed.

Mays V. State Rnsk ?eiony theft. 2 years Affirmed.

Merteos v. State Austin Carrying pistol Fine $50 Dismissed.

McGlow V. State Upshur Burtrlary 2 years Affirmed.

Milby V. State. Jackson Carrying pistol $25 A 20days . . . Dismissed.

Moore y. State McCulloch... Felony theft 12 years Affirmed,

Moore y. State San Saba. . . Manslaughter 2 years Affirmed.

Nail y. State. Bosque Murder second degree . . 12 years Affirmed.

Norman v. State Layaca Assault to murder. 2 years Affirmed.

Padillo V. State Webb Murder second degree . . 20 years Affirmed.

Patterson y. State Fayette. Murder first degree. .... Life Affirmed.

Pool V. State Erath iJolony theft 2 years Affirmed.

Porter y. State Guadalupe. . . Burglary 2 years Affirmed.

Puppo V. State. ...,. . .Galyeston.. . .lUeg^ly selling liquor. $75 Dismissed.

Pursley v. State Jack Felony theft 2 years Affirmed,

Pursley v. State Jack Felony theft 2 years Affirmed.

Riley y. Slate Red River. . . Arson 5 years Affirmed.

Riley v. State Tom Green. . . Felony theft 6 years Affirmed.

Riley y. State Tom Green.. . Felony thefu 2 years Affirmed.

Robbins v. State Trinity Murder second degree. . . 15 years Affirmed.

Roberts y. State Washington. . Carrying pistol $25 A 60 days Dismissed.

Habeas corpus to reduce

Robinson etal.y. State..Lamar bail Refused Affirmed.

Runnells y. State Houston Scire facias $350 judgment. . Dismissed.

Russell y. State Trayis Assault to rape 5 years Affirmed.

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27 Texas Court of Appeals.

Oases decide! without written opinions.

Stgieof Com. County. Ofaur. Pe'ialtg. Din-fwiiUm.

Scarborough v. State. .Trinity Carrying pisioi $26 k 20 days. . . .Dism'ssed.

Shwencke v. State Payetto Slander $250 .Affirmed.

Scott ▼. State Grayson Frloay theft 6 years Affirmed.

Sterling T. State McLennan . . .Felony theft 3 years Affirmed.

Sterling v Siaie MeLcnnun . . .Bur^rlary 3 vears Affirmed.

Stokes T. State Brazos Carrying pistol $25 & 20 dnys Dismissed

T
Taylor v. State Miicholl . . . .Felony ihoft 5 years Affirmed.

Walker v. State Lavaca Arson 5 years Affirmed.

Walker v. State Upshur. Burglary 2 years Affirmed.

While V. State Polk Felony theft 2 years Affirmed.

Williams v. State Red River. . .Burglary 2 years Affirmed.

Williams v. State Cooke Manslaughter 2 years Di.smi;ifled

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Civil Cases Disposed of at the Galveston Term, 1889.

AiBrmed 48

Reversed and remanded 20

Reversed and diBmiBsed 1

Reversed and rendered 4

Reformed and rendered 1

Dismissed 8

Total 70

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ADDITIONAL RULES OF PRACTICE.

It is ordered, That the following additional rules of practice
for the District Courts be adopted, as aiditions to the existing
rules, to be inserted at their appropriate places as indicated by
their respective numbers, and that they take effect as to all
bills of exceptions nnd statements of facts filed on and after
the first day of October, 1889, namely:

72a. When it becomes necessary to insert in a statement of
facts any instrument in writing, the same shall be copied into
the statement of facts before it is signed by the judge, and
itstruments therein only referred to and directe i to be copied
shall not be deemed a part of the record.

?oa. Neither the notes of a stenographer taken upon the
trial, nor a copy thereof made at length, shall be filed as a
statement of facts, but the statement made therefrom shall be
cotiHensed throughout in accordance with the spirit of the
foregoing rules upon the subject.

8v^a. All bills of exceptions and statements of facts shall be
literally transcribed, and the clerks are hereby prohibited from
copying as parts of the same any instrument in writing or
document not originally inserted therein, but merely referred
to and directed to be copied from some other paper in the
case.

Adopted June 29, A. D. 1889.

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COURT OF APPEALS OF TEXAS.

GALVESTON TERM. 1889.

No, 6186.
Jambs Stouabd v. Thb State.

1 Pbaotiob—Gontinuancb.— The statute under whidi on^ of plural de-
fendants, whether jointly or separately indicted, by filing his affidavit
to the e£feojb that he verily believes there is no evidence against his co-
defendant, and that the testimony of his co-defendant is material to
his own defense, may require that his co-defendant be first tried, can
not, independent of other sufficient showing* b^ held to operate a con-
tinuance of his case to secure the testimony of his co-defendant. When
arraigned in the district court of Shacl^elford county, to which the
venue had been changed from Stephens county, the defendant in this
case filed an affidavit setting forth that Jane Stouard was charged by
separate indictment with the same offense; that the indictment against
Jane Stouard was still pending in the district court of Stephens county;
that the testimony of the said Jane Stouard was material to his de-
fense, and that he verily believed there was not sufficient evidence to
convict the said Jane Stouard; upon which affidavit he prayed the
court to order that the said Jane Stouard be first tried, and that his
trial be continued in order to enable him to secure the testimony of
said Jane Stouard, if acquitted. Held, that the court did not err in re-
fusing to continue the case to await the trial of the co-defendant.

t, Bamb — DUiieBNCB.— The application for continuance recited also the
absence of two material witnesses. Overruling the same for the want
of diligence, the trial judge explained that, although confined in the
same jail with one of the absent witnesses for months, the accused had
taken no steps to secure the service of process upon him; and that, al-
though, as shown by a previous application for continuance, the de-
fendant knew that the other witness was an incurable invalid, and un-
likely ever to be able to leave his bed, he had taken no steps to secure
his deposition. Held that the ruling was correct.

H HuRDBR— Corroboration of Accomplicb Tbstimont— Fact Casb.
See the statement of the case for evidence held insufficient to support
a conviction for murder of the second degree because it rests upon the
testimony of an insufficiently corroborated accomplice.

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27 Texas Court op Appeals. [Galveston

Statement of the case.

Appeal from the District Court of Shackelford, on change of
venue from Stephens. Tried below before the Hon. T. H.
Conner.

The conviction was in the second degree for the murder of
W, D. Stouard, in Stephens county, Texas, on the eighth day
of April, 1887. The penalty assessed against the appellant,
who is shown to be the son of the deceased, was a term of sixty
years in the penitentiary.

The trial in the court below was concluded on the ninth day
of May, 1888, and the appeal was prosecuted to the Austin
term, 1888, of this court. The case was submitted at that
branch, but was taken under advisement and transferred to
Tyler for decision. The opinion reversing the judgment of the
court below, and remanding the cause was rendered at Tyler,
on the twenty-first day of November, 1888, but, the State filing
a motion for rehearing, the same was taken under advisement
and the papers in the case were transferred to Galveston, where,
on the twenty -fourth day of January, 1888, the motion was de-
nied without a written opinion. The case is now reported as
of the Galveston term, but, as a matter of convenient refer-
ence, under the Austin number, at which branch the record is
deposited.

R. L. Williams was the first witness for the State. He testi-
fied, in substance, that he was justice of the peace of precinct
No. 3 of Stephens county, Texas, and held that position on the
eighth day of April, 1887. He knew W. D. Stouard in his life
time. The witness, on the said April 8, 1887, held the inquest
upon the dead body of the said W. D. Stouard. It was be-
tween eight and nine o'clock p. m. when witness reached the
body of the said W. D. Stouard. The said body was then lying
in the lot near the house of deceased, — the said lot being about
one hundred yards east of the said house. It lay on the left
side with the back towards the gate, which was on the south
feide of the lot. The jury summoned by the witness removed
the body to the house, where it was examined, the witness par-
ticipating in said examination. Of the two wounds found on the
body, both being gun shot wounds, one entered about two
inches below the right shoulder blade, and passed out about the
same distance below the right nipple. The other wound was in
the head, the ball entering near the right eye and passing out
at the back and near the crown of the head. The opening in

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Term, 1889.] Stouard v. The State. 3

Statement of the case.

■ —— — ■■*

the head caused by the ball was of a size between that of a
fifty cent and a dollar silver piece. Its effect was to shatter the
entire skuU. There was powder bum on the eye brow and
cheek bone. The horse lot in which the body of the deceased
was found was about twelve by fourteen steps in size. Twelve
or fifteen feet west of the gate in the south side of said lot, an
empty cartridge, shell was picked up by Mr. Childress. It was
a forty-four calibre, center fire Winchester rifle cartridge shell,
and it had the appearance of having been recently emptied by
explosion. The ground in the lot was examined by the wit-
ness and his jury, but no indications of a struggle were found.
The residence of the deceased stood about ninety or a hundred
yards distant from the said horse lot gate. A stable stood in
the southeast corner of the said lot, and, adjoining the said lot,
in a southeast direction from the point where the body lay
when witness first saw it, there was another stable. The dis-
tance between the body and the last mentioned stable was be-
tween one hundred and fifty and two hundred yards. The body
was cold and stiff when the witness first saw it, and it was evi-
dent that deceased had been dead some hours. A Winchester
rifie of forty- four calibre was found in the house of the de-
ceased. The magazine of that gun contained a recently ex-
ploded cartridge shell of the same make and calibre as the shell
found in the lot by Childress. The condition of that shell
showed that it had been recently exploded, and the moist pow-
der smut at the muzzle of the rifle showed that it had been re-
cently discharged. The said Winchester rifle was of the calibre
and manufacture in general use in Stephens county, and the
two shells described were of the manufacture commonly used
in that neighborhood. Baird lived on what was known as the
Eevis place, about half a mile southeast of Stouard's residence,
and W. P. Love lived about half a mile southeast of the Revis
place. The distances stated by witness were merely estimates.
J. D. Childress testified, for the State, that at the time men-
tioned by the witness Williams, he found an exploded cartridge
shell in the horse lot of the deceased, at a point about three
steps west from the gate. It was the shell of a forty-four
calibre center fire Winchester rifle cartridge of the Union
Manufacturing Company brand, — such as was in common use in
the country. In the magazine of the forty-four calibre Win-
chester rifle which was found in the house of the deceased was
found a shell of a recently exploded cartridge which corre-

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4 27 Texas Court of Appeals. [GalvestoQ

Statement of the case.

sponded in calibre and brand with the shell found by witness in
the lot.

Elbert C. Crow was the next witness for the State. He testi-
fied that he was the nephew of the deceased, and at the time
of the killing of deceased had been living at deceased's house
about three months and a half. The Stouard family consisted
of deceased and his wife Jane, their three adult and two infant
daughters, and their sons William and James, the defendant.
Witness and all the members of the family except William,
who went to Albany on the seventh day of April, ate breakfast
together at deceased's house on the morning of the fatal April
8, 1887. Nothing transpired at the breakfast table on that
morning to indicate even unpleasant feeling upon the part of
any member of the family towards another. Immediately af-
ter breakfast the witness left deceased's house and went to a
point behind Love's field, about a mile southeast from de-
ceased's house, to cut poles. He remained at that place until
about eleven o'clock, when he returned to deceased's house for
dinner, which was served at an unusally early hour. The de-
ceased, defendant, Mrs. Jane Stouard, the two small children
and the witness were the only parties at dinner, or at the house.
Immediately after dinner the witness left the house to take the
jack to water, leaving deceased, defendant, and Mrs. Jane
Stouard in the kitchen. From the house the witness went to
the outside stable which was between one hundred and fifty
and two hundred yards southeast from the horse lot, got the
jack and led him to the tank, which was about fifty yards north
of the stable lot, and which lot he passed in leading the jack
from the outside stable to the tank, and again in taking the an-
imal back to the outside stable. When he had watered the
jack and put him back in the said stable, the witness started
back to the house. When he had reached a point about fifty
yards distant from the horse lot, he heard the report of a gun.
Looking in the direction whence the report came, he saw the
defendant with a gun in his hands standing at a point a little
west from the horse lot gate. Immediately afterwards the de-
fendant opened the lot gate, passed into the lot, and thence to
the point in the lot where the body of the deceased was subse-
quently found, pointed the muzzle of the gun straight down,
and discharged it. He then sprang over the partition rock
fence and ran toward the house. Immediately after the first
shot was fired, the witness saw Mrs. Jane Stouard, about fifty

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Term, 1889.] Stouard v. The State. 5

statement of the case.

jards distant from the lot fence, runninfz: up the hill towards
the house. Witness then went to the lot gate and from that
point saw the body of the deceased lying on the ground in the
said lot. He then went to the house, where he found the de-
fendant and his mother, Mrs. Jane Stouard. When he stepped
on the gallery witness asked defendant: **What does that
mean?*' Defendant replied: "You stop!" He then seized the
gun which was lying across the bed, and said to witness: "If
you ever tell it I will kill you." Witness replied to that threat:
"I will never tell it unless I have to." Mrs. Jane Stouard then
said to witness: ^'If you will not tell it, I will give you two
ponies, a saddle and bridle and the Revis place." She then di-
rected the witness and the defendant to go at once to the vicin*
ity of Jack Brown's place and hunt some jennets, as a means
of keeping down suspicion against them, and not to return to
the house until night. She directed witness also to tell Brown
that the deceased had charged him, witness, to request him.
Brown, to come to his, deceased's, house, on the morrow, and
go with him to hunt horses on Hubbard creek.

Accordingly the witness and the defendant left Stouard's
house at once and went to Brown's, where they arrived between
one and two o'clock in the afternoon. Witness delivered the
fabricated message to Brown, who asked him what the deceased
was then doing. The witness, in reply, told him that deceased
was at home working or peddling about the place. Witness
then asked Mr. Brown if he had recently seen the Stouard
jennets. Brown replied that he had, and directed witness and
defendant where to find them. Witness and defendant then
went to the place indicated, found the jennets, and drove them
to an old ranch about two miles down the river which belonged
to the deceased. They remained at that ranch until about an
hour before sun down, when they went to the residence of
deceased, arriving about dark. Approaching the house they
saw a light, but no person in or about it. At a point near the
house the defendant dismounted and directed witness to hold
his horse until he could see who was in the house. He then
went to the house and soon returned to witness and said:
"There is not a d— d soul there." They then went to the horse
lot and, after locking about, defendant said to witness: "There
is nobody here; but, d— n him, he is lying out there yet." The
witness and defendant then went off towards Baird's residence,
en route to which they met Mrs. Baird, Mrs. Jones and Mrs.

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6 27 Texas Court of Appeals. [Qalvestoa

Statement of the case.

Ellen Childress, and Pink and Scrap Stouard, all daughters of
deceased. These parties informed them of the death of the
deceased, and directed them to take the news to Mr, Love.
Witness and defendant then went to Love's house and found
Love in his lot trying to catch his horse. Love, they ascer-
tained, had already been informed of Stouard's death by Mrs.
Jane Stouard. He directed that the witness should help him
catch his horse, and that defendant should go at once for the
justice of the peace. Defendant left to summon the justice,
and witness remained aijd helped Love catch his horse.

Cross examined, the witness said that the inquest upon the
body of the deceased was held at the house of the deceased on
the night of the fatal day. The said inquest was held by Jus-
tice of the Peace Williams and several gentlemen who sat as
a coroner's jury. The witness was sworn as a witness by the
said justice, and testified before the said jury that he knew
nothing whatever about the killing of the deceased, and that he
did not know who did it. That testimony was false, and wa&
known by witness to be false when he delivered it. His state-
ment to Jack Brown that deceased had charged him to ask
him, Brown, to come to his house on the next day and go with
him to Hubbard creek horse hunting, was also false, and known
by witness to be false when he made it. He likewise consciously
falsified the facts when, at the same time, he told Brown that
the deceased was then at home, working or peddling about the
place. Will Stouard, who had gone to Albany, was not at the
house of the deceased on the night preceding the killing, and
no person spent that night at that house except the deceased,
his wife, daughters, the defendant and witness. The grown
daughters of the deceased left the house immediately after
breakfast to go to the wash place. Soon after they left, the
witness left the house and went to a point beyond Love's field
to cut poles, leaving only the deceased, his wife, two small
children and the defendant at the house. Will Stouard got
home from Albany after dark on the evening of the fatal day.
Sheriff Douglass came to the house on the morning after the
murder and arrested Mrs. Jane Stouard, one of her grown
daughters, the defendant and witness. After the arrest Mr.
Jack Brown, the gentleman previously mentioned by the wit-
ness, took witness aside and advised him to tell all, if he knew
anything, about the killing. Witness falsely told Brown that
he knew nothing whatever about the matter. Witness and tha

Digitized by VjOOQIC

Term, 1889.] Stouakd v. The State. 7

Statement of the case.

other parties arrested with him were taken to Breckenridge
that night by Sheriff Douglass, and were placed in jail.

At this point the witness was asked the following questions:
" Did not Sheriff Douglass, after you were put in jail, ask you
again if you knew anything about the killing, and try on sev-
eral occasions to get you to tell him what you knew about it?
Did not Deputy Sheriff Add. Sloan and County Attorney Green-
wood also attempt, several times, to get you to tell what you
knew about it?"

The witness replied : " I do not know whether they did or not.
I wiD not deny that each of the persons named asked me the
questions. After we were placed in jail, — I can't say how
long, — Mrs. Stouard was taken out to see about employing
counsel for her defense. I do not know the day on which she
was taken out nor returned to the jail, nor whether it was day
or night, but when she came back I asked her if she had em-
ployed counsel for me too, and she replied that she had not.
Soon after this, — I don't know how long, — Douglass said tome:
* You d—d fool, don't you see they are going to saddle the whole
thing on you? Why don't you tell all you know about it?' I
then told him I was willing to make a statement about it. The
reason I made the statement I did was that I was afraid they
would saddle the whole matter on me. The statement was
made in the presence of County Attorney Greenwood and Jus-
tice of the Peace Boyett. It was reduced to writing and was
read over to me. I do not know whether I put my mark to the
paper shown me or not. I put my mark to some paper. I do
not know whether or not I was sworn, but I suppose I was. I
held up my hand before the justice of the peace." In answer
to a question the witness said that he presumed incarceration
in the penitentiary would be the punishment inflicted for swear-
ing falsely, but he knew of no other. Being shown a written
statement,— the one marked exhibit '*A," — certified by Justice
of the Peace Boyett, the witness said that, being unable to
read, he was unable to identify it as the statement to which he
made his mark. The witness could not remember whether or
not, when he made his mark to the statement, he stated under
oath that the said statement contained all that he knew about
the killing of Stouard. The witness was unable now to state
whether or not, when he made his statement before Justice
Boyett, he said anything about going to Brown's and deliver-
ing the false message, as stated by him on this trial. He could

Digitized by VjOOQIC

8 27 Texas Coubt of Appeals, [Galveston

Statement of the case.

not remember that he had ever before told about defendant,
when at the lot on the night of the fatal day, saying: " There
is nobody here; but, d — n him, he is lying out there yet."

Re-examined, the witness said that on the way home from the
old ranch where they left the jennets, the defendant said to
him: "Dead men tell no tales, do they?" To which he replied:
"I never heard of it." Defendant then said: "If you ever tell
this, I will do you the same way." The witness had his reason
for not disclosing the truth at the coroner's inquest. He was a
comparative stranger in the country; did not know the men
assembled at the said inquest; was afraid, in the first place,
that defendant would kill him if he told the truth, and did not
know but that the men might side with the defendant against
witness for denouncing him. The witness did not intend to
tell the truth about the matter until the arrival of his father
from a distant county, in whose ability to protect him the wit-
ness had confidence. He decided not to wait only when Sheriff
Douglass told him that defendant and Mrs. Sfcouard were try-
ing to saddle the killing on him. If witness did not speak, in
his statement before Justice of the Peace Boyett, about telling
Brown that deceased wanted him to go horse hunting, it was
because he was not asked about it.

The statement of Elbert Crow before Esquire Boyett, marked
exhibit A and certified by E. W. Boyett, justice of the peace,
reads as follows: "Mr. Jim Stouard killed his father. His
mother was in about fifty yards of him. They sent me to
water the jack, and I was in about fifty yards of him when I
saw him. He shot him once when I was in about fifty yards
of him. I was in about twenty-five or thirty yards of him
when he shot next one, and I went to the house and they asked
me if I was going to tell it. Jim said if I did tell it he would kill
me. Aunt Jane told me if I would not tell it she would give
me two ponies, a saddle and the Revis place. She made us go
to the river after some ponies, and told us to go to Mr. Brown's
to keep down suspicion. She told us not to come back until
night. As we came on back Jim told me that a dead man told
no tales, and that if I ever breathed it he would kill me.

his

"Elbert X Crow."

mark.

A. J. Brown testified, for the State, that the defendant and
Elbert Crow came to his house on the fatal day between one
and two o'clock. They came to the witness's house from a mes-

Digitized by VjOOQIC

Term, 1889.] Stouard v. The State. 9

Statement of the case.

quite valley, and said they were hunting the Stouard jennets.
Witness told them where he had seen the animals on that morn-
ing. In the course of the conversation that ensued Crow said
to witness: "Uncle (deceased) says for you to come to his
place to-morrow and go with him down Hubbard, horse hunt-
ing. " Witness asked him : * * What was your uncle doing when
you left him?" Crow replied: " Piddling about the place, not
doing much of anything." Defendant and Crow soon left wit-
ness's place, going towards the place indicated by witness as the
place where they would find the jennets. Fifteen or twenty
minutes later witness saw them driving the jennets towards
Stouard's old river ranch. He did not see them again on that
day. Witness went to Stouard's house on the next morning
and then learned of Stouard's death. Sheriff Douglass and
other parties were present, engaged in an effort to trace the
murderers. The witness took Crow aside and asked him if he
knew anything whatever about the killing or who did it. Crow
said that he knew nothing whatever about it. Douglass, after
arresting Crow and defendant, placed them in witness's charge.
Witness took defendant and Crow to the horse lot. They ap-
peared to be very much "down" and weak in the knees.
Crow appeared to be more excited than defendant.

W. P. Love testified, for the State, that Mrs. James Stouard
came to his house about dusk on the fatal day and told him that
her husband had been killed, and asked witness to go to the
house to attend to matters for her. Soon afterwards, and while
witness was trying to catch his horse, defendant and Crow ar-
rived with the same report. Witness told defendant to go after
the justice of the peace, and he left for that purpose. Crow
helped witness to catch his horse. Witness then went to
Stouard's house, where he found Mrs. Jones, Stouard's
daughter. They went to the lot together, where witness held
the lamp for Mrs. Jones to examine the body of her father.

J. W. Stouard, brother of the defendant and son of the de-
ceased, testified, for the State, that he went to Albany on the
day before the killing and got back about nine o'clock on the
night of the fatal day. Deceased owned a forty-four calibre
Winchester rifle.

Mrs. Jones, the daughter of the deceased and sister of the
defendant, testified, for the State, that at the time of the homi-
cide she lived at the house of Mr. Baird, on the Revis place. It
was about dark when she first saw the body of her father.

Digitized by VjOOQIC

10 27 Texas Court of Appeals. [Galveston

Statement of the case.

Witness and her four sisters, when they heard of the tilling,
started to the house from Baird's. En route they met defend-
ant and Crow. Witness sent them to Love's with the news.
When Love arrived he and witness went to the lot and exam-
ined the body.

The State having closed, the defense called SherilBf Douglass,
of Stephens county, as its first witness. He testified that he
reached Stouard's residence on the morning after the killing,
and during the day arrested the defendant, his mother, one of
his sisters and the State's witness. Crow, and took them to
Breckenridge, where he put them in jail. From the time that
he placed them in jail until the following Monday evening, the
witness, with few and short absences, remained in the jail with
the parties. During this time he did all that he could to induce
Crow to tell what, if anything, he knew about the killing. In
each conversation that he had with Crow he assured him that
if he knew anything, and would tell it truthfully, he would be
protected. Crow refused to tell anything until on Monday
evening. Mrs. Jane Stouard was taken from jail on that even-
ing to enable her to engage counsel for the defense of herself
and her son. On her return Crow asked her if she had also
engaged a lawyer to conduct his defense. Mrs. Stouard replied
that she had not, as he could employ counsel himself. Witness
then said to Crow: "You d — d fool, don't you see they are
going to saddle it all on you? If you know anything you had
better tell it." Crow then agreed to make a statement concern-
ing the killing, which he subsequently did before Esquire Boyett
and County Attorney Greenwood, which statement is contained
in the document in evidence marked Exhibit **A." One John
Essery was in jail at Breckenridge during the time that defend-
ant was confined therein. Essery was charged with horse theft,
and the deceased was one of the witnesses against him. One
Wilcox was also in jail with defendant, but was released on
bail a month or two before the change of venue in this case was
ordered. Wilcox's people lived in Stonewall county. Witness
did not know where Wilcox was at the time of the killing of
Stouard.

Mrs. Ellen Childress, daughter of the deceased, testified, for
the defense, that early on the fatal morning, she and her grown
sisters went from home to the wash place, about a mile distant
from the house of deceased, where they remained all day wash-
ing. About eleven o'clock the witness's mother, Mrs. Jane

Digitized by VjOOQIC

Term, 1889.] Stouard v. The State. 11

Opinion of the court.

Stouard, and her small daughters came to the wash place where
she remained, helping with the wash until nearly night. They
got home between sun down and dark, and discovered the dead
body of W. D. Stouard. Mrs. Stouard went at once to Mr.
Love's, and witness and her sisters to Mr. Baird's to give the
alarm. The witness did not go home from the wash place until
the washing was finished just before night. Witness and her
grown sisters, when they left home, left there the defendant,
the deceased, Mrs. Jane Stouard, the two small children and the
State's witness. Crow.

Veale & Son and DeBerry & Wheeler, for the appellant.

W, L. Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This conviction is for the homicide of W. D.
Stouard, the appellant being convicted of murder in the second
degree, with punishment fixed at sixty years in the peniten-
tiary.

Mrs. Jane Stouard was separately indicted for the same of-
fense, the indictments against each being presented in the dis-
trict court of Stephens county, at the May term, 1887. When
the case was called at the said term, the defendant James
Stouard answered ready. Afterwards, on May 25, 1887, after
having exhausted a venire of two hundred men, the district at-
torney moved for a change of venue to Shackelford county,
because of the failure to procure a jury. Thereupon it was
agreed by the defendant that the case might be sent to Shack-
elford county. At the same term the case of The State v. Jane
Stouard was continued. Now on November 11, 1887, the case
being in the district court of Shackelford county, the defend-
ant filed his first application for continuance for certain wit-
nesses, his mother, Jane Stouard, not being one of the number.
The case was continued at the instance of the defendant.
This case was called for trial on May 4, 1888, in the district
court of Shackelford county, whereupon the defendant pre-
sented his second application for continuance for want of the
testimony of Mrs. Jane Stouard, and because of the absence
of other witnesses. The application was denied and defend-
ant excepted, reserving his bill.

Mrs. Stouard's testimony being material and probably true,
did the court err in refusing to continue the case until she could

Digitized by VjOOQIC

12 27 Tbxas Court of Appeals. [Gtelveston

Opinion of the court.

be tried, and, if acquited, be permitted to testify for the de-
fendant? Whether indicted jointly or separately, if the of-
fense grew out of the same transaction, either defendant, by
making proper aflBdavit, is entitled to have the party for whose
evidence said affidavit is made first tried. (Acts of 1887, p. 33.)
By this article it is also provided that the making of such affi-
davit does not, without other sufficient cause, operate as a con-
tinuance to either party. This would seem to settle the con-
troversy as to a continuance for the want of the testimony of
Mrs. Jane Stouard. Independent of this provision, appellant
is chargeable with the grossest negligence with regard to this
matter, and upon this ground the court acted correctly in de-
nying the application. Appended to the application to con-
tinue there is an explanation of the facts and circumstances
relating to the other parties named in the application, which
completely sustains the court in refusing to continue for the
want of their testimony, and hence there was no error in re-
fusing the application.

The witness Elbert C. Crow was evidently an accomplice, if
not the sole perpetrator of the crime. The law applicable to
the testimony of such a witness was correctly given in charge
to the jury. Crow being an accomplice, the counsel for appel-
lant earnestly contends that he is not corroborated in such
manner as will justify a conviction. We have examined the
statement of facts with great care, and are of the opinion that
the evidence does not sufficiently corroborate the testimony of
the accomplice witness.

Natural affection speaks strongly against such an act as the
one charged — the son slaying his father. There were no for-
mer grudges, no antecedent menaces, no bad blood, no motive
for the crime shown. The deceased's family consisted of his
wife, James the accused, William, three daughters and two
small children. William was at Albany when the killing oc-
curred. The sisters were not at home, but were a mile away,
washing. Crow states that at dinner there were at the house
the deceased, his wife, defendant and two small children. One
of the girls who was washing states that her mother came to
the wash place with the two children about eleven o'clock. If
this is true, the homicide may have occurred after the wife and
two children had left the house for the washing place. Hero
we have a conflict between a daughter of the deceased and an
avowed accomplice.

Digitized by VjOOQIC

Term, 1889.] Sanchez v. The State. 13

Opinion of the court.

But again, Crow was also a member of the family. He had
been living with the deceased about three months, and had ac-
cess to the gun as well as did James Stouard — ^the gun was the
property of the deceased. Grow and defendant lived with de-
ceased. Now let us concede that deceased was shot with his
own gun. Why not infer that Crow shot him? Let it be con-
ceded that there was no motive inducing Crow to commit the
deed, neither is there any shown prompting the son or wife.
Their opportunity was the same, the gun being as convenient
to the one as to the other. Then why infer the son's guilt and
not Crowds? Nature revolts against the crime if committed by
Crow, but tenfold stronger if committed by the son. Then why
infer the unnatural act from facts tending equally to prove the
guilt of another? The accomplice Crow repeatedly denied all
knowledge of the crime. The record shows that he lied most
infanaously. Nor did he charge the appellant with this most
unnatural deed until he was induced to believe that he would
be himself accused by the appellant or his mother. In view of
these facts, and in view of the fact that the accused was the
son of the deceased, we again urge the question, why infer ap-
pellant's guilt and not Crow's? Where the physical facts at-
tending the homicide show that but one party did the killing,
evidence which tends with equal force to criminate several,
without pointing out which, has but little force. Hence, if
Crow is corroborated at all, it is so slight as to render it dan-
gerous to sustain the conviction.

Because the testimony of the accomplice is not sufficiently
corroborated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered November 21, 1888.

Motion for rehearing overruled without written opinion, Jan-
nary 24, 1889.

Digitized by VjOOQIC

14: 27 Texas Court of Appeals. [Galveston

Statement of the case.

No. 2533.
HiPOMTo Sanchez v. The State.

1. Offering for Sa.lb Adulterated Food— Information.— See the

statement of the case for an information held sufficient to char^ the
offense of offering adulterated food for sale.

2. Same— Evidence— Fact Case.— To support a conviction for offering

adulterated food for sale it devolves upon the State to prove not only
that the accused offered such food for sale, but that, when he did so,
he kpew that the said food was adulterated. See the statement of the
case for evidence held insufficient to support a conviction for offering
adulterated food for sale.

Appeal from the County Court of Webb. Tried below before
the Hon. J. M. Rodriguez, County Judge.

A fine of five dollars was assessed against the appellant upon
his conviction for oflfering adulterated food for sale, under an
information which charged him as follows: "In the name and
by the authority of the State of Texas: E. R. Tarver, county
attorney of Webb county, State aforesaid, in behalf of the
State of Texas, presents in the county court, at the August
term, A. D. 1888, of said county, that Ypolito Sanchez, on or
about the eiprhteenth day of August, A. D. 1888, in the county
of Webb and State aforesaid, did then and there unlawfully
and knowingly offer for sale an adulterated article of food, to
wit, milk, against the peace and dignity of the State.''

The case was tried by the judge without the intervention of
a jury, aud the facts proved are certified by the judge as fol-
lows: "The following were the facts and all the facts proved,
to wit: The defendant is in the thirteenth year of his age. At
the time of his arrest, and for two years previous, he was a
vendor of milk in Laredo, Texas. He was arrested on the
morning of the day named in the information, at the usual
time of selling milk, with a can of milk. The milk, when
tested by the lactometer used by the city physician, marked
sixty degrees. The defendant, in the two years he had been
selling milk for his another, had performed his duties well,
always making proper account for the milk he sold."

Digitized by VjOOQIC

Term, 1889.] Sanchez v. The State. 15

Opinion A the ooart.

The lactometer used was the same kind as the one approved
and adopted by the New York Board of Health. The "lacto-*
meter" is a glass tube, graduated with numbers running from
one hundred and twenty degrees downward. When placed in
the finest quality of mUk, this tube floats so as to bring the
number **120" to the surface of the milk. When placed in the
poorest quality of milk, it will so float as to bring the number
*100" to the surface. With Texas range cattle in poor condi-
tion, the lactometer will go something below one hundred de-
grees. The milk of goats running on the range near Laredo
has marked, in one instance, as low as eighty degrees. The
city physician of Laredo, Doctor Arthur, condemned milk in
which the lactometer floated so as to bring the number of de-
grees on the instrument below seventy-flve degrees — allowing
twenty-five degrees for the diflference in the manner of care
between Texas and northern stock. The effect of pouring
water into milk in which a lactometer is fioating is to cause
the instrument to sink deeper in the fiuid. If placed in pure
water, the lactometer will sink until the figure indicating one
degree is on the surface. The defendant was found with the
milk in question on the streets of Laredo, Webb county, Texas.

No brief for the appellant.

W. L. Davidson^ Assistant Attorney General, for the State.

WiLLSON, Judge. This conviction is for the offense de- ,
nounced by the act of April 10, 1883 (Willson's Cr. Stats., sec.
656), the information charging that the defendant **did, unlaw-
fully and knowingly, offer for sale an adulterated article of
food, to wit, milk." A jury was waived and the cause was de-
termined by the judge.

While the information does not follow the statute literally,
and directly charge that the milk was known by the defendant
to be adulterated, we think it substantially sufficient, and that
the court did not err in overruling the exceptions made thereto.

To warrant a conviction of the defendant, however, it was
essential for the prosecution to prove not only that the milk
was adulterated, but that the defendant knew that fact. In
the record before us we find no proof of such knowledge on the
part of the defendant. Nor is there any evidence in the state-

Digitized by VjOOQIC

16 27 Texas Court of Appeals. [Galveston

891

57B

840,

563

658

Syllabus.

meot of facts before us that the defendant offered to sell the
milk.

As presented to us the evidence is manifestly insufficient to
warrant the conviction, and the judgment is therefore reversed
and the cause is remanded for another triaL

Reversed and remanded.

Opinion delivered January 12, 1889.

No. 2769.

B. F. Blocker v. The State.

On Rbhbarino.

1. Practice— Murdbr—Charge op the Court.— It is an established
rule of practice in this State that, upon the trial of an offense which
comprehends different degrees it becomes the imperative duty of the
trial court to instruct the jury upon the law applicable to every de-
gree or gradApf offense indicated by the evidence, however feeble such
evidence may be; that, if there be a doubt as to which of two or more
grades of the offease J^e accused may be guilty, the law as to all of
such grades should be charged, and that the trial court should omit
to charge the law of any particular grade only when it is to no extent
whatever raised by the evideDce. See the statement of the case for
evidence adduced on the trial for murder, which, though sufficient to
establish the express malice essential to constitute murder of the first
degree, is not of such character as to absolutely preclude the jury
from finding therefrom a killing upon implied malice, and, therefore,
murder in the second degree; wherefore the omission of the trial
court to instruct the jury upon the law of murder of the second de-
gree was error.

2. Same.— The accused, being on trial for murder, contends that, under
the law of this State, it is the duty of the trial judge, in murder cases,
without regard to the evidence adduced, to instruct the jury as to the
law of murder of the second degree. But held that, notwithstanding
the apparent plausible construction of the statutes upon which the
proposition is maintained, the doctrine obtains in this State that the
trial court may decline to submit to the jury the issue of murder of
the second degree when the evidence wholly fails to present that
issue. See the opinion in extenso upon the question, and note the
suggestion relative to the charge in trials for murder.

Digitized by VjOOQIC

Term, 1889.] BLOCKiat v. Thb Statu. 17

Statement of thid ceee.

Appeal from the District Court of Bowie. Tried below be-
fore tfae Hon. W. P. HicLean.

The coBTiction in tbia case was in the first degree for the
murder of G. W. Wood, in Bowie county, Texas, on the eighth
day of Mcux^, 1887. The penalty assessed by the verdict was
a life term in the penitentiary.

John W. Glowers was the first witness for the State. He
testified that he knew the defendant, whom he identified in
conrt, and that he knew Wood in his lifetime. Wood met his
death in Bowie county, Texas, in 1887, at about two hours after
sun rise on a day the witness did not remember. He was killed
by a gun shot at or near a shanty which had been constructed
in a lumber camp, and which shanty he was supposed to be
pulling down at the time he was killed. At that time the wit-
ness was about three-quarters of a mile distant from the said
shanty, "getting out" ties for the defendant. The said shanty
was in an east direction from where the witness was at work.
There w^ a road about fifty yards distant from where the wit-
ness was at work. The defendant, riding a chestnut sorrel
horse, and B. F. Pittman, riding a bay horse, and each armed
with a Winchester rifle, came to where the witness was at work
on that morning. When they left, they went through the woods
in a northwest direction. They may or may not have gotten
into the road before reaching the shanty— if they went to it.
About fifteen minutes after they left the witness heard the re-
port of a gun fired from the directibn and about the locality of
the shanty. Soon after the gun shot mentioned, the witness
called the attention of Messrs. L. C. Pope, Peacock, William
Knighton and Neeley Poplin to tracks at the place where he,
witness, was . at work, which tracks were made by the horses
of the defendant and Pittman a quarter of an hout before the
shot was fired. The tracks of those horses were trailed by the
witness and other parties from the place where the witness was
at work to the place where the killing occurred. When the
witness went to the place of the killing, after hearing the shot
as stated, he found the dead body of Wood, lying at the comer
of the shanty.

Cross examined, the witness said that the carrying of guns
in the neighborhood was not unusual. The house in which the
witness lived was about two hundred and fifty yards a little

Digitized by VjOOQIC

18 27 Tbxas Court of Appeals. [Galveston

Statement of the case

north of east from the place where he was at work when he
heard the gun shot, and it was between a half and three-quar-
ters of a mile distant from the place where Wood was killed.
Witness was west from his house and west from the shanty
where Wood was killed. To go direct from where the witness
saw them, to Wood's shanty, the defendant and Pittman would
necessarily pass the witness's house. For a week prior to the
killing Wood had been idle. Prior to that time he worked a
week or two for the defendant. Witness did not know who
Wood was working for when killed. The witness saw no horse
tracks at the place where he was at work when defendant and
Pittman joined him, either before or after that time, except
those made by the horses ridden by the defendant and Pittman.
L. C. Pope was the next witness for the State. He testified,
in substance, that Wood met his death on the morning of
Tuesday, March 8, 1887, in Bowie county, Texas. The witness
saw his dead body on that morning, about an hour and a quar-
ter after the shooting. It lay against the northwest corner of
a pole shanty that had been built for the occupation of tie cut-
tors, partly on the side and back, with the left leg considerably
and the right leg partially drawn up. The arms were also
drawn. Witness found three wounds on the body, one enter-
ing the back to the left of the spinal column, one in the leg,
about three inches above the knee, and the third cutting across
the right thumb. The said wounds appeared to have been
made by medium sized balls. The empty shell of a rifle car-
tridge, No. 38 in size, was found on the ground near the body.
The defendant owned a gun at the time of the killing, but wit-
ness did not know what kind of a gun it was. The witness,
who, with Mr. Knighton, Mr. Poplin and Mr. Pretty, examined
the ground, found, near the body, the tracks of two horses,
one shod and one unshod. The said tracks approached within
twenty steps of the point where the body lay, whence they
went west a short distance, and thence south. The tracks were
very plain at the point, about a hundred steps distant from the
body, where they crossed a branch. The witness and his com-
panions back trailed the said tracks from the point near the
body, to the point in the woods where Mr. Glowers was said to
have been at work when the fatal shot or shots were fired. The
tracks near the body, and along the trails, and at the point
where Glowers was at work, corresponded in size, by measure-
ment, and in appearance. At each of the said places they

Digitized by VjOOQIC

Term, 1889.] Blockbb v. The State, 19

Statement of the case.

showed to have been made by a shod and an unshod horse. The
condition of the pole shanty when the witness reached it, an hour
and a quarter after the killing, indicated that, when killed,
Wood was removing, or preparing to remove the timbers of the
shanty. One side of the shanty had been completely razed,
and between fifteen and twenty boards had been torn from the
other side. The boards taken from the shanty were lying by
the side of the same, and a wagon to which an ox team was
hitched, and which was imderstood to belong to Wood, was
standing near. There was nothing in the hands of deceased
when witness reached the body.

Cross examined, the witness said that he was present at the
inquest upon Wood's body, and saw a member of the jury take
a forty-four calibre repeating pistol from the hip pocket of the
deceased. The witness did not see either a broad ax or pole ax
near the body, but saw a double bladed ax near it. Eight or
ten people, all of them haying come on foot, were at the body
when the witness reached it. He saw no horses there at that
time. The witness was at the body a minute before he saw any
of the horse tracks near the body, and fully thirty minutes
elapsed before he went to the point in the woods where Glowers
claimed to have been at work at the time of the shooting. The
witness had been at the body about fifteen minutes before he
observed Mr. Glowers. The tracks back trailed by witness from
the point near the body to where Glowers claimed to have been
at work, traversed what the witness considered to be a very dim
road. The witness could not say that he saw and examined
eacli consecutive track over that trail, between the two points
meEtioned, but he followed the trail, just as he would follow
the trail of a horse he had lost, and that trail led him from the
point near the dead body to the point where Glowers had been
at work. The witness had never testified on a former trial of
this case that he saw four wounds in the body of deceased; or
if he did, he did so by inadvertence. The witness did not hear
the fatal shots, but was told by Mr. Knighton that he, Knigh-
ton, heard shooting on that morning. Soon afterwards Mr.
Pretty told witness of the killing of Wood. Some of the cham-
bers of the pistol found on the body of the deceased were
loaded, and some were empty. Witness did not remember how
many were loaded nor how m^any were empty. Mr. Pretty's
house, which was the nearest one, was between three and four
hundred yards from the place of the homicide. The witness

Digitized by VjOOQIC

^ 27 Tbxas Court of Appeals. [Galy«6to|[r

statement of the eaie.

measured the several horse traeks mentioned hy him with a
stick, and found them to correspond in size, as they did in ap-
pearance.

T. H. Lenox was l^e next witness for the State. He testified,
on direct examination, as follows: ^'I knew the defendant, and
I knew G. W. Wood in his life time, i saw Wood after his
death at a tie camp about nine miles from De£lalb, in Bowie
county. He was in a wagon when I first saw him; he was
lying in the wagon preparatory to be taken to Mr. Pope's to be
buried. They showed me two wounds on him; one was in his
thigh. I did hot notice particularly, and do not know in which
leg. The other was in this (places his hand on his back) por-
tion of his back. The wounds I saw went in from behind, and
were made with bullets. I noticed his shirt too where it was
shot. The shots were not fired from the largest size Winches-
ter rifle or pistoL I arrested Mr. Blocker and Mr. Pittman. Mr.
Blocker was at home — that is he was in his field. It was just
after dark when we reached his house, and we hallooed for
him two or three times. Mr. Pittman was at Mr. Blocker^s;
we had him there, and he hallooed for Mr. Blocker. Mr.
Blocker was down west of the house; he came from towards
the bam; was walking and leading a small sorrel bob tailed
horse; he had a Winchester rifie, I think it was a thirty-eight.
I had it in my hand. We carried Mr. Blocker into DeKalb and
put him under guard that night at the BuUard hotel. When
we arrested him he had a small sorrel, blazed face, bob tailed
horse. That night in traveling the horse seemed to be crippled
very badly. I asked the cause and he said that 'he interfered.*
The next morning a party of us examined the horse's feet, and
his front feet were trimmed closer than I ever saw a horse's
feet worn or trimmed. I do not think there were any nail holes
in his feet. I noticed that they were trimmed or filed oflf very
close. I made a rapid examination of the ground about the
place of the homicide. I was shown the point, about twelve
steps distant from the shanty, where two horses had stood,
from which point I followed them to where they crossed a
branch sixty or seventy yards distant. One of those horses
was shod in front; the other was barefooted. The bank of the
branch where they mounted it was very nearly perpendicular
and was about three feet high. From the shanty, as far as I
trailed them — to the crossing of the branch — the tracks showed
that the horses traveled on a full run. I saw no weapons on

Digitized by VjOOQIC

TPerm, 1889.] Blookbb v. Thb Statu. 21

Statement of the ease.

er about the person of the deceased. I observed the condition
<>t the shanty while there. The boards on the east side of the
roof had been recently torn oflf. They were torn off, I thought,
from their appearance, on that day. Certainly not more than
two days had elapsed since they were torn off."

On his cross examination, the witness said that his feelings
for the defendant were neither kiod nor unkind. He did not
feel unkindly to him, but did not love him, and entertained a
much more favorable opinion of many other men than he did of
the defendant. Witness and defendant, about four years before
this trial, had a disagreement about a filly. They had no law
suit about it. Witness and defendant each claimed to own the
said filly, and the witness got it. It was about an hour and a
half after dark on the fatal day when the witness, with Officer
Rose, Mr. Chapman and another person, reached the defendant's
house and arrested him. They arrested Pittman at defendant's
house before they made the arrest of defendant. The witness
and his party reached DeKalb with their prisoner between
eleven and twelve o'clock on that night. Witness did not know
what was done with defendant's horse between the hour of their
arrival in DeKalb and nine o'clock on the next morning, when
witness next saw thjit animal. The witness had no recollection
of seeing defendant on the eighth day of March, until he ar-
rested him. He was told that the defendant was in DeKalb on
that day.

Re-examined, the witness described the Winchester rifle which
the defendant had, when arrested, as a gun which chambered
fourteen cartridges. A single movement of a lever would throw
off an exploded shell and place a cartridge In position for shoot-
ing. Some time after the disagreement between witness and
defendant about the filly referred to in the direct examination,
the defendant reported to witness that he had become satisfied
that the animal in dispute belonged to witness, and that he had
found his animal.

W. B. Knighton, the next witness for the State, testified as
follows: "I knew G. W. Wood in his lifetime. When I first
saw him dead he weis up by the comer of a little shanty in an
old tie camp, about nine miles from DeKalb, Bowie county. He
had been shot three times—once in the back, once in the leg
and once in the hand. I guess he had been dead when I got to
him about an hour and a half; it was about that long since I
heard the guns. I heard three shots. I made an investigation

Digitized by VjOOQIC

22 27 Texas Court of Appeals. [Galveston

Statement of the case.

as to tracks around the place, after I got there, and found the
tracks of two horses coming from the way Mr. Wood lived —
one was shod in front and one was barefoot. Wood lived three-
fourths, probably a mile, from the tie camp. The tracks stopped
about nineteen or twenty steps from the dead body; from where
they stopped they ran south across a branch. We tracked them
into the woods a short distance the way they went. When we
came back Mr. Glowers was there, and we took the back track
and tracked them to where Mr. Glowers said he had been at
work making ties, and where we found some ties and tools.
We measured the tracks where the dead man was, and where
Mr. Glowers said he had been at work. We measured them at
both places, and they measured to be the same tracks. At the
camp where the man was killed, and where Mr. Glowers said
he was at work, the tracks measured the same, and at both
places they looked alike. One of the horses was shod in front
and the other was barefooted. In back tracking them to where
Mr. Glowers said he was at work, we took a trail that led out and
from the road and went by Mr. Pretty's. The tracks seemed to
be the same all along. I saw a double billed ax about eight
feet from the shanty, but remember nothing else. The bullets
entered Wood's body from behind."

Gross examined, the witness said that he lived about one mile
distant and a little east of south from Glowers's house, and
about four hundred yards a little west of north from Pope's
house. The place of the homicide was about a mile southeast
from witness's house. The witness reached the place of the
homicide about nine o'clock, as near as he could estimate the
time. He went to tRat place with Mr. Pope and his step son,
and Mr. Pretty and his son, and found there Sam Phillips, Mr.
Poplin and another person whom he did not now remember^
The person last referred to may or may not have been Mr.
Glowers. He saw Glowers perhaps thirty minutes later — ^when
he got back from trailing the horses. Witness, Pope and Phil-
lips carried guns in trailing the horses. Witness's gun was a
seven shooting Spencer rifle; Pope's was an ordinary shot gun,
and Phillips's an old fashioned gun of unknown description.
Witness saw several Winchester rifles in the possession of par-
ties who had reached the ground by noon. Witness saw sev-
eral horses on the ground during the day. It was about eight
o'clock when he heard the report of the guns. Mr. Glowers
conducted the witness and party to the place where he said he

Digitized by VjOOQIC

Term, 1889.] Blocker v. Thb State. 23

Statement of the case.

was at work when he was arrested by defendant and Pittman,
and he pointed out certain horse tracks at that point. The
place where he said he was at work at that time was between
twenty-five and thirty steps from the dim road. * The first two
shots heard by witness on the fatal morning were fired very
nearly together; the third after a short intermission.

J. W. Peacock was the next witness for the State. He testi-
fied that he had seen Wood a few times in his life time. He
last saw him alive a few minutes before his death, on the
morning of March 8, 1887. Passing Wood's shanty, at a dis-
tance of about two hundred yards, with a load of ties, the wit-
ness saw Wood on top of the shanty, removing boards, etc.
While driving along the road a very short time later, the wit-
ness heard three reports of a gun, the first two fired very near
together, and the third after a slight intermission. Witness,
who was then not more than two hundred yards distant, hal-
looed, and presently saw two men running their horses from
the direction of the shanty at or near which the guns were
fired. As nearly as witness could tell the color of the horses
ridden by the men, one was a bay and the other was a sorreL
When witness first saw them, they were between the shanty
and the branch, running from the shanty towards the branch.
The witness supposed that the two men had fired at a deer or a
turkey. He saw no other person at or near the shanty. It was
an hour and a half, or perhaps two hours later, before the wit-
ness went to the shanty and there saw the dead body of Wood,
which, however, he did not examine until the coroner's jury ar-
rived. The witness examined the ground over which he saw
the two men fieeing just after the shooting, and saw the track
of a horse shod in front and the track of an unshod horse.
John Glowers was at the shanty with the body when witness
arrived. Witnef s and others then went to a point in the woods
near Clowers's house, where Glowers showed them certain horse
tracks. Those tracks were back trailed, step by step, from a point
about twenty steps from the body to the point where Glowers
exhibited the tracks, — that being the point where Glowers
claimed to have been at work at the time the shots were fired.
The tracks at that point, and over the trail, and at or near the
shanty, and which led away from the shanty, to and across the
branch, over the route pursued by the men seen by the witness
just after the shooting, corresponded perfectly in size and ap-
pearance. Witness could tell by the falling of boards and

Digitized by VjOOQIC

2i 27 Tbxas Oourt of Api'Sals. [Galrestou

statement of the case.

poles that Wood was tearing off boards and throwing them
down when he was shot. The reports of the gun and the noise
of the boards intermingled.

Cross examined, the witness said that he lived on the Mill
Creek road, a mile or two miles distant from the place of the
homicide. He was hauling his first load of ties at the time
he heard the shots and saw the two men fleeing from the
vicinity of the shanty. There were several tie camps or shan-
ties in the neighborhood of the Wood shanty. There was one
about four or five hundred yards up the branch, and another
four or five hundred yards west from the place of the homi-
cide. The place where Glowers said he was at work when the
shots were fired was five, six or seven hundred yards distant
from the place of the homicide — witness could not state the
exact distance. Clowers's house was about six hundred yards
distant from the Wood shanty, as witness would estimate the
distance — somewhat nearer to the said place than was the place
where Glowers said he was at work on that morning. Witness
did not recognize either of the men he saw on the horses, flee-
ing from the place of the homicide. He knew defendant quite
well, and had often seen Pittman, but did not recognize either
of them as the men whom he saw on that morning. The
growth between the point where the witness was and the
ground over which the two men fled was sparse. Witness did
not observe those parties for the purpose of identifying them.
He merely thought they had shot and were pursuing game of
some kind. They rode hurriedly, and, where the ground ad-
mitted of it, at top speed.

L. G. Pope, recalled by the State, testified that for some
time prior to the killing he had charge and control of the Bob
Lassiter land, as Lassiter's agent. Some time prior to the
killing of Wood, witness contracted to sell him. Wood, the
timber on two hundred acres of the Lassiter land. Defendant
had no interest in any ties on the Bob Lassiter land, so far as
witness knew. He never claimed any interest whatever in or
to anything on the Lassiter land — at least, he never made such
a claim to witness. For a while previous to the homicide, the
deceased worked for the defendant, getting out ties.

Bob Lassiter testified, for the State, that he knew both the
defendant and the State's witness, L. G. Pope. Mr. Pope rep-
resented the witness as agent for land he owned in Bowie
county, in 1887. The witness, in 1887, sold the cross tie timber

Digitized by VjOOQIC

Term, 1889.] Blookbr v. The State. 25

Btatement of the case.

K>n the Bukahn survey in Bowie connty to defftidant and Pitt-
man, as partners. This transaction was had with Pittman,
who represented himself as agent and partner of defendant.
The bill of sale was made to Blocker & Pittman. The witness
afterwards wrote to Pittman that his agent, Pope, had sold
the timber on some of the land to Wood.

J. B. Chapman testified, for the State, that he was a black-
smith by trade, and that he lived in DeKalb, Bowie county,
Texas. Witness shod the front feet of a small white-legged
sorrel horse for defendant, a few days— not more than a week,
and perhaps not so long — ^before the killing of Wood. He next
saw the horse on the night of the fatal day. Witness, Captain
Lenox, Rose, Dock Mills and somebody else went to defendant's
house and arrested him that night, and took him to DeKalb.
The party reached defendant's house after dark. Defendant
came to them from the direction of his lot, bringing with him
the same sorrel horse i\ hich witness had shod a few days be-
fore. The witness saw that horse about twelve o'clock on that
night, and again on the next morning. He examined the
horse on the next morning, and found that the shoes he had
put on the front feet had been recently pulled off, and that the
hoof had been trimmed to the quick — almost spoiling the feet.
The nail holes had been trimmed out. Defendant was in De-
Kalb between eleven and twelve o'clock on the fatal day. He
tied his horse to a tree, and put his gun in witness's shop.
When the witness got back from dinner the gun was gone.
The horse's feet at that time were not in the condition in which
the witness found them next morning. Pittman rode a bay
horse into town after his arrest on the night of the fatal day.

Cross examined, the witness stated that he did not recollect
whether or not he examined the feet of the defendant's horse
on the night of the fatal day or until the next morning. If
he did, it was after reaching DeKalb, and he did no more
than lift up one of the feet. He carefully examined the feet
on the next morning, and called the attention of at least a
dozen people to their then condition. The defendant's horse
was hitohed behind a saloon in DeKalb when witness saw it on
the night of the fatal day, and was at the same place when
witness saw it next morning. Defendant was then under guard
in the BuUard Hotel. Witness and the defendant's brother
once had an insignificant quarrel.

W. B. Presley testified, for the State, that he went to DeKalb

Digitized by VjOOQIC

26 27 Texas Coubt of Appeals. [Galveston

StatemeDt of the casa

on the day of Ihe homicide. He was overtaken on the road
near DeKctlb by the defendant, who was riding a small streak-
faced soriol stallion. They rode into DeKalb together about
eleven o'clock and hitched their horses near Chapman's black-
smith shop. Defendant's horse had shoes on the front feet.
He appeared to have been but recently shod. The defendant
when he overtook witness had a Winchester gun on his saddle,
and his horse was sweating from the girth forward.

Miss Alice Pretty testified, for the State, that she lived at
her father's house, about three hundred yards distant from the
shanty at which Wood was killed. She did not know either the
defendant or Pittman. Early on the morning of March 8, 1887,
Wood, riding in and driving an ox wa^on, passed the witness's
house, going towards the shanty. She afterwards heard a
noise which proceeded from the neighborhood of the said
shanty, and which sounded like some person was violently
tearing boards from the same and throwing them to the
ground. Some time later, witness could not say how long,
but when the sun was about two hours high, two men riding
horseback — one on a small sorrel and the other on a bay
horse — passed the witness's house, going in the direction of
the shanty. They were both armed with guns. Witness did
not then know either of the men, but she thought that she
afterwards, in the court house in Texarkana, saw the man who
was on the bay horse, and, if so, that man was Pittman.
Within two minutes after those men passed beyond the sight
of the witness, she heard three reports of a gun or guns. The
first two shots were fired very nearly at the same time, and
the third after a short intermission. The noise which sounded
to witness like falling boards blended with that of the shoot-
ing. Witness soon afterwards went to the shanty and saw
Wood's dead body.

Cross examined, the witness said she did not know that she
saw the defendant on the fatal morning, unless he was one of
the men who passed her house on horseback, just before the
guns were discharged. Those two men were then strangers to
her. She was not positive, but was confident, that the man
she pointed out at the habeas corpus trial, and who she thought
was Pittman, was one of the men who rode past her house on
that morning. Cass Pope did not, at the request of witness,,
point Pittman out to her at the habeas corpus trial.

George Reed testified, for the State, that, after breakfast on

Digitized by VjOOQIC

Term, 1889.] Blockbb v. The Statb. 27

Statement of the case.

the morning of March 9, 1887, he saw the horse that was said
to have been ridden into DeKalb qn the night before by the
defendant, and, at the instance of defendant, who was then in
jail, took that and another horse to a stable and fed them. The
front feet of the defendant's horse were in a wretched condi-
tion, the result of recent trimming. The hoofs were trimmed
close enough to obliterate all of the nail holes, except perhaps
one or two.

K M. Carpenter testified, for the State, that he lived in a
house on defendant's place at the time of the homicide, and
was then in the employ of the defendant. About sun rise, or a
very little time after, on the fatal morning, the witness went
to defendant's barn. As he stepped into the barn he observed
Pittman squatted near one of the horse stalls. Within a very
short time the defendant came into the barn with his Winches-
ter gun in his hand, which he put down, resting it against the
stall which contained his star faced sorrel horse. The witness
then left the barn and saw Mr. Pittman's bay horse, under
saddle, standing by a wagon in the field. The witness now
lived on the place of Mr. Lenox, at the mouth of Mill creek.

The State closed.

Eddie Van Bibber was the first witness for the defense. He
testified that he was twelve years old. He remembered the
killing of Wood. When the fatal shots were fired the witness
was standing on the big road, about one hundred and twenty or
one hundred and fifty yards distant from Wood's shanty, talking
to Mr. Peacock, and to Charley Phillips, a boy about twelve years
old. InMnediately after the shots were fired the witness ran to the
shanty, and saw Wood lying on the ground, groaning. Two men,
one armed with a shot gun and the other unarmed, so far as the
witness saw, were walking rapidly away from the direction of
the wounded man, towards Blocker's house. One of those men
the witness took to be Mr. Baker, the partner of Wood, and the
other he took to be Mack Lynch. Witness saw no horses about
the shanty. As soon as he realized what had happened, the
witness ran off to the house of his cousin, John Clowers, and
reported the shooting of Wood.

On cross examination the witness said that Mr. Peacock was
on the ground in the road, and not in his wagon at the time of
the shooting. Charley Phillips was in the wagon, holding the
lines. Peacock hallooed when the guns fired. The witness,
who was on his way to his cousin, John Clowers's, house.

Digitized by VjOOQIC

:d8 27 Tbxas Court of Appbals. [Oalvestoa

Btactement of the ease.

ihought that some person was shooting at a deer, and he ran in
the direction of the shots, which was towards the shant;^. The
witness was not absolutely positive that the men he saw going
from the shanty were Baker and Lynch. He, however, was
very confident of that fact, especially as to Baker, as the clothes
worn by that man were similar in every respect to those
habitually worn by Baker. The man who had the shot gun
was the man the witness took to be Lynch. The said two par-
ties were not more than ten steps distant from the shanty when
witness saw them.

S. A. Barton testified, for the defense, that he last saw one
George Baker on the Sunday preceding the Tuesday of Wood's
death. Witness and Buck Blocker, a brother of the defendant,
met Baker on the road in the vicinity of the defendant's plan-
tation, on the morning of the said Sunday. On that occasion
Baker attempted to buy a gun from Buck Blocker, which Buck
declined to sell. Buck soon left the witness and Baker to-
gether, when Baker remarked to witness that Wood had
threatened him several times; that he. Baker, had no ties to
keep him in Bowie county, and that he would be even with
Wood when he. Baker, and witness should next meet; that
Wood recently found him asleep in the shanty, and told him
that the next time he. Wood, caught him, Baker, asleep, he
would kill him; and he, Baker, told witness that Wood had
crowed over him long enough, and he thought it best to get
even with him. Witness had never seen Baker since. Baker
and Wood were partners in getting out and selling tie timber.
On his cross examination the witness declared that he did not
know as a fact that Baker left the vicinity and went to Tex-
arkana, before the killing occurred. He had been told, how-
ever, that Baker went to Texarkana on Monday, the day be-
fore the killing.

M. R. Barton testified, for the defense, that he met George
Baker in DeKalb on Monday, the day before Wood was killed.
When witness got ready to leave that town to go home he re-
marked to Baker: *'I believe I will strike for the western
breezes" — meaning that he would go home. Baker replied that
he was going to strike for the northern breezes. The witness
then asked him if he was going to leave, and he replied that he
was, and in an angry manner said that he and his partner
Wood had had a row on that morning. Witness understood
Baker to mean that he was going north, — bl direction thstt would

Digitized by VjOOQIC

Twrni, 1889.] Blocme v. Thb Btate. 29

statement of the case.

not take him towards the place of the homicide. Witnese had
not seen Bi^er since. On his cross examination the witness
stilted that he did not know that Baker left the country prior
to the killing ot Woodv As stated, he last saw Baker in De
KiUb on tiie day before the killing. Witness felt no especial in-
terest in thfi result of this trial.

R. J. Ellis testified, for the defense, that he lived on the place
of M. P. Blocker at the time Wood was killed. He last saw
Wood alive on the day before he was killed. Wood was then
at the defendant's place. He got some lumber from the de-
fendant, which the witness helped him to load on his wagon.
During the time Wood was at defendant's place on that day he
and defendant spent some time in conversation. Witness did
not hear what ihey said to each other, but they talked in a per-
fectly natural and friendly manner. Baker and Wood were
both at the defendant's house on the previous Friday evening.
They all appeared to be on friendly terms, and defendant
pressed Wood and Baker to remain at the house for supper.

W. W. Pope testified, for the defense, that about ten days or
two weeks after the killing of Wood he saw the Blocker sorrel
stallion in DeKalb, and, having heard reports concerning the
condition of its front feet, he took occasion to examine them.
The condition of the front feet indicated to witness that shoes
had been taken therefrom about ten days before. Witness
found nail holes— he could not say how many — in each of the
front hoofs. Nothing about the said hoofs indicated to wit-
ness's mind that they had been recently trimmed to the quick,
and witness did not think that if the said hoofs, ten days before
that time, were in the condition they were generally reported
to be in, they would be in the condition in which he found
them. Witness could discover nothing more than that a pair
of shoes were torn from the feet about ten days before.

S. P. Phillips testified, for the defense, that about seven days
after the killing of Wood, he traded for the defendant's certain
dark sorrel pony stallion. If anything was the matter with the
front hoofs of that horse when witness got him, witness did not
then, nor has he since detected it. The front feet were unshod,
but there were nail holes in each of the front hoofs, at least one
inch from the edges of the same. Witness had to trim those
hoofs twice before he got the nail holes out.

Reed Phillips testified, for the defense, that he saw the de-
fendant's sorrel stallion pony, on the day of the homicide, but

Digitized by VjOOQIC

30 27 Texas Court op Appeals. [Galveston

statement of the case.

did not then observe his front feet. He next saw that animal
on the second day after the killing, when, having heard talk
about the condition of the front feet, he examined them. He
found that a pair of shoes had been recently removed from the
front feet, but the hoofs were in good condition — not hurt at alL
Witness observed between eight and twelve nail holes in the
two hoofs.

J. H. Eoden testified, for the defense, that he was at the
house of the defendant on the morning of the homicide. Be-
tween seven and eight o'clock — when the sun was about an
hour high— the defendant left his lot, alone, and went west
across his field towards the house of his father, about a mile
distant. He did not start towards Carpenter's house, but could
have left the direction in which he was going, and gone to Car-
penter's. He had his Winchester gun with him. He always
carried his gun when he left home.

George Hamlin testified, for the defense, that he was at the
house of the defendant's father on the fatal morning. De-
fendant reached his father's said house when the sun was about
three quarters of an hour high. It was about that time when
the witness saw him in the lot, northwest of his father's house.
Defendant remained at his father's house about half an hour
and left, going south towards the railroad. Old man Blocker's
said house was about two miles distant from the place of the
killing. Besides the witness, Alfred Barton and Buck Blocker
were at old man Blocker's when defendant reached there on the
fatal morning.

Alfred Barton, recalled by the defense, corroborated the tes-
timony of Hamlin, and added that after talking with defend-
ant at old man Blocker's house for perhaps thirty minutes, he
went with defendant and Buck Blocker to the railroad to count
some ties. They remained there about three hours. When
the defendant left, going towards, and saying that he was go-
ing to DeKalb. The place where they counted the ties was
two.or two and a half miles distant from the place where Wood
was killed. Witness was not questioned about this matter
when previously on the stand. Buck Blocker testified, in
effect, about as did the witnesses Hamlin and Barton. He fixed
the time when defendant reached his father's house on the fatal
morning at an hour or an hour and a half after sun rise, and the
hour at which he left the point on the railroad where the ties
were counted at half past nine o'clock or ten o'clock.

Digitized by VjOOQIC

Term, 1889.] Blockeb v. The State. 31

Argument for the appellant.

■ — < ^ -

M. P. (old man) Blocker, testifying for the defense, located
the hour of the defendant's arrival at his house on the fatal
morning, at about seven o'clock. He left about thirty minutes
later with Buck Blocker and Alfred Barton.

The defense closed.

G. D. Sims testified, for the State, that, about noon of the day
after the killing of Wood, he saw George Baker in Texarkana,
going towards the Arkansas line. He had not seen Baker
since.

Craivford db Craiaford, and R. D. Harrell, for the appellant,
and in support of the motion for rehearing: 1. The evidence
demanded a charge upon murder in the second degree. * * *
5. The court should charge both degrees of murder in all cases,
and leave it to the jury to determine for themselves the degree.
Article 605 of the Penal Code provides that, **Every person
with a sound memory and discretion who shall unlawfully kill
any reasonable creature in being within this State with malice
aforethought, either express or implied, shall be deemed guilty
of murder. Murder is distinguishable from every other species
of homicide by the absence of circumstances which reduce the
offense to negligent homicide or manslaughter, or which excuse
or justify the homicide."

Article 606, Penal Code: "All murder committed by poison,
starving, torture or with express malice, or committed in the
perpetration or in the attempt at the perpetration of arson^
rape, robbery or burglary, is murder in the first degree, and all
murder not of the first degree is murder of the second degree."

The distinction in the degrees of murder is predicated solely
upon the difference between express and implied malice. Im-
plied malice is constructive malice, and is not a fact to be
proved specifically. In order to convict of murder in the second
degree the prosecution is only required to show the unlawful
killing, and from this fact alone malice is implied. The un-
lawful killing having been established, the defendant, if he
would reduce the offense to manslaughter, must show such
facts and circumstances independent of the homicide as would
make the offense manslaughter under the law.

On the other hand if, after showing the unlawful killing, the
prosocution seeks a conviction for the first degree, it must
prove as a fact, independent of the killing, that it was done
with express malice. "While the law implies malice on proof of

Digitized by VjOOQIC

32 27 Tbxas Court of Appeals. [GalvestoDi

Argamant for the i^pelUnt.

yoluixtar7 )i<Mnici4e, it does not impute express malice. This i&
an inference not of law, but a question of fact consisting: of
intention dependent upon the state of the mind. And to war-
rant a conviction of murder in the first degree, it must be
proven like any other fact in the case by such evidence as i&
reasonably sufficient to satisfy the jury (not the court) of its
existence." (Farrar v. The State, 42 Texas, 272.)

The State might prove a clear and conclusive case of murder
in the second degree, and the evidence need not show the exist-
ence of a single isolated fact tending to reduce the offense to
manslaughter. In such a case the court need not and should
not charge i4)on manslaughter, there being an entire absence
of evidence to support such a theory or defense.

But the evidence necessary to establish murder in the first
degree always shows every essential to murder in the second
degree. To establish the second degree, proof of the unlawful
killing alone is necessary. To establish murder in the first de-
gree, you must go one step further— prove one additional fact —
that is that it was with express malice. It is simply impossible
to prove or make out a case of murder in the first degree with-
out proving every essential element in murder in the second de-
gree. In the language of Judc^e Hurt, in McLaughlin v. The
State, 10 Texas Court Appeals, 361: '*It is logically impossible
to prove express malice without proving malice, and if the
killing be upon malice the offense is murder." But not murder
in the first degree. Here is not an absence of evidence neces-
sary to establish a given fact, but a redundancy of proof. In
no case can evidence of express malice— we care not how con-
clusive or convincing the proof may be — disprove implied
malice. In every murder trial, where the testimony is of such
a character that a charge upon murder in the first degree is-
demanded, two theories, that of murder in the first and mur-
der in the second degree, are necessarily presented. To estab-
lish the first, the State must prove the killing, and as an addi-
tional fact must show that it was upon express malice. To
establish the second, the State must prove the unlawful killing,
and, nothing to extenuate or justify the act appearing, the
legal presumption arising from the act of killing alone makes
it murder in the second degree.

Every man is presimied to be innocent until his guilt is estab-
lished by competent evidence. This presumption of innocence
attaches as well to the degrees of murder as to the act of kill-

Digitized by VjOOQIC

Term, 1889.] Blocker v. The State. 38

Argument for tlie appellant.

iag. The plea of not guilty puts iu issue not only the act of kill-
ing but the degree of the offense. The doctrine of reasonable
doubt applies to both, and it is for the jury, and the jury alone,
to determine upon a fair land affirmative presentation of the issues
whether or not the testimony relied upon to establish express
malice overcomes and overwhelms the legal inference arising
from the act of killing, and the presumption of innocence as
well. In no case has the court the right, either directly or in-
directly, to assume that it does. And a failure to charge upon
murder in the second degree virtually assumes that the evi-
dence of express malice overwhelms and destroys the proof of
implied malice. This is an invasion of the province of the
jury. Express malice is a fact — ^it must be established by the
testimony. True, the jury may, from other facts, infer it as a
fact, but the court is not authorized to tell the jury, directly or
indirectly, that from certain established facts they must infer
express malice, or acquit. Negligence is a fact, and its exist-
ence or non-existence must be found by the jury from the other
facts proven in the case. The law has not undertaken to say
what acts are sufficient to constitute negligence, and it matters
not what the act is, the court is not warranted in charging the
jury that it constitutes negligence. (Railroad v. Murphy, 46
Texas, 366-368.)

The Code has not defined express malice, and the court can
not assume that it is proven in any case, no matter what the
testimony may be. And where the killing is not controverted,
we insist that for the court to charge only on murder in the
first degree is virtually to tell the jury that the facts in the case
show express malice, and, notwithstanding a correct definition
of express malice may be given, the practical effect of such a
charge is to direct the minds of the jury to the slayer alone,
and not to the motive which prompted the deed.

In Johnson v. The State, 27 Texas, 766, Judge Moore said:
*lt is only necessary to give such instructions as are applicable
to every legitimate deduction which the jury may draw from
the facts.'* This has been often followed, and we freely admit
that such is the law.

In Johnson's case the court charged on both degrees of mur-
der, but refused to charge the law of manslaughter. The facts
rehed upon to reduce the offense to manslaughter were threats
made by the deceased. There was absolutely no proof that at

Digitized by VjOOQIC

34 27 Texas Cocrt of Appeals. [Galveston

Argament for the appellant.

the time of the killing deceased was attempting to execute the
threats. And to this case and all others where there is abso-
lutely no proof of a fact or theory the rule is applicable, but it
has no application to cases in which there is a redundancy of
proof necessary to establish a fact or theory.

Foster v. The People, 50 New York, 598, is sometimes referred
to as supporting the doctrine that the court need not charge
upon a degree of crime not shown by the evidence. Properly
understood, the case is an authority in support of the proposi-
tion which we assume, and is in harmony with the rule de-
clared in Johnson's case. It was a prosecution for murder (the
famous car hook case). The Xew York Statute divides homi-
cide into murder in the first and second degrees. The New
York Statute declares that such killing, unless it be murder in
the first degree or manslaughter or excusable or justifiable
homicide, or when perpetrated without any design to effect
death by a person engaged in the commission of any felony,
shall be murder in the second degree. Under this statute those
cases only were murder in the second degree in which the kill-
ing was by a person engaged at tlie time in the commission of
a felony. Thus, under that statute, in order to reduce a killing
to murder in the second degree, you must show as a fact, inde-
pendent of the homicide, that it was committed by some one
engaged at the time in the commission of a felony. There be-
ing no evidence tending to show this fact the court correctly re-
fused a charge upon that degree.

Here is a total absence of any proof tending to show that the
homicide was committed in the attempt to commit a felony.
The court charged **that the defendant could not be convicted
of murder in the first degree unless he acted from a premedi-
tated design to effect the death of the deceased, and that in the
absence of such an intent his offense was reduced to man-
slaughter." This charge was correct for the reason that proof
of murder in the first degree includes and necessarily estab-
lishes every essential element in manslaughter under the New
York Code, together with the further and additional fact that
defendant acted from a premeditated design to kill. Here the
facts present not an absence of proof of manslaughter, but a re-
dundancy of evidence. Just as it is in this State, proof of mur-
der in the first degree necessarily establishes murder in the
second degree, and an additional fact, to wit, express malice.

The facts in Foster's case are short. They show a most

Digitized by VjOOQIC

Term, 1889.] Blocker v. The State. 35

Argument for the state.

brutal killing. The victim was an unoffending passenger in a
street car, and was most cruelly murdered without cause, the
instrument being used was an iron car hook. But still the court
did not feel at liberty to take from the jury the question as to
whether or not it was used with a premeditated design to kill.
And we most earnestly insist that in our State it is wrong for
the court to take from the jury the right to determine for them-
selves whether or not the evidence shows a cool, sedate and de-
liberate mind and formed design to kill or, in other words, ex-
press malice. (See Foster v. The People, 50 N. T., 599.)

A refusal to charge, or a negative charge, necessarily im-
presses the jury with the idea that in the opinion of the judge
presiding, the evidence establishes the higher degree. (10
Texas Ct. App., 357.)

Article 607 of the Penal Code is as follows: **If the jury shall
find any person guilty of murder they shall also find by their
verdict whether it is. of the first or second degree, and if any
person shall plead guilty to an indictment for murder a jury
shall be simimoned to find of what degree of murder he is
guilty, and in either case they shall also find the punishment.'*

This is a special provision applicable to this particular offense
and must control every general provision. (See art. 5, Penal
Code.)

We submit that the plain meaning of article 607 is that in all
prosecutions for murder the jury are to determine the degree
from a consideration of all the evidence uninfluenced by any
opinion of the court, no matter how this opinion may be ex-
pressed, and in no case has the court the right to give the jury
a peremptory instruction to find a particular degree or acquit.
And further, the jury have undoubtedly the power to fix a lower
degree to the crime than the statute provides.

TF. L. Davidson, Assistant Attorney General, for the State:
The position assumed by the appellant, in his motion for re-
hearing, that in all trials for murder it devolves upon the trial
court to instruct the jury upon the law applicable to both de-
grees of murder, can not be maintained. On the contrary, the
established rule is that the trial court shall only give in charge
to the jury **the law applicable to the case" as made by the
evidence. (Code Crim. Proc, art. 677.)

By the words "the law applicable to the case," is meant the
"case" made by the allegations and the evidence adduced on

Digitized by VjOOQIC

3G 27 Texas Court op Appeals. [Galvestort

Argument for the state.

the trial. (Kouns v. The State, 3 Texas Ct. App., 13; Stewart
V. The State, 15 Texas Ct. App., 698; Cooper v. The State, 22
Texas Ct. App., 419; Parker v. The State, 22 Texas Ct. App.,
105; Willson's Crim. Proc, sees. 2335, 2336, 2337, and authorities
there cited.)

In Texas a party can only be convicted of the ofifense charged
and proven. If it were otherwise, and defendant be correct in
his assumptions as to murder indictments, the jury could con-
vict of either degree of murder without reference to the facts,
and the courts would be helpless to remedy the evil because
the jury had found the degree, although the testimony might
or would indicate a different or inferior degree. Under his
theory, a defendant being charged with murder, and the testi-
mony proving that murder of the first degree has not been
committed, the court would still be forced to charge upon it^
as well as on the second degree, and if the jury convicted of
the first degree, their verdict must stand' in opposition to the
facts, because the jury had found that degree and the statute
was imperative in that matter. In that event, the court would
be helpless to relieve the party of an unjust punishment.

As insisted upon by defendant, article 607 of the Code, re-
quiring the jury to specify the degree of murder as found by
them in their verdict, would absolutely control the charge of
the court upon the facts as adduced, and also control his action
in passing upon the motion for a new trial.

The fundamental proposition of our system of criminal juris-
prudence is that all parties charged with crime are innocent,
and until this is overcome, no conviction can take place. This
is rooted and grounded in the protection of the citizen against
unjust verdicts and unfair trials. It is above and beyond tes-
timony as a f unciamental idea, and must be overcome by testi-
mony beyond a reasonable doubt. If the testimony fails, the
acquittal follows as a matter of course. If the proof fails ta
show murder in the first degree, a conviction for that degree
will not stand, it is immaterial how often the jury might find
that degree. The verdict can not convict of a degree above
the proof adduced.

Another fundamental proposition with us is that the charge
must conform to, and be limited by, the allegations in the in-
dictment and the evidence thereunder, and the court has no
discretion to avoid this, nor any authority to exceed it. The
law must be given on the case made, and not on account of de-

Digitized by VjOOQIC

Term, 1889.] Blocker v. The State. 87

Argument for the state.

^rees in the offense, nor because the jury shall or shall not
specify certain things in a verdict. That verdict must be gov-
erned by the facts in the case and the charge of the court, and
the law of the case. A defendant's rights and liberty and life
do not depend upon speculation. The charge must be based
upon the case made. Murder in the first degree is fully and
definitely defined, and is susceptible of definite proof; positive
or circumstantial. Murder of the second degree takes in and
includes all other cases of murder not so defined, and this is all
murder committed upon implied malice.

Where murder is proven upon express malice, or the groimds
set out in the definition of murder in the first degree, no charge
is required upon murder in the second degree, because no facts
are proven to require that charge. But should the facts be
shown that require a charge upon the inferior degree, then it
must be given. Then it is the facts of the case that authorize
or demand the charge, and not a requirement at the hands of
the jury to find of which degree they convict. It is immaterial
which degree of murder is charged upon by the court, so far
as the specifying of the degree in the verdict is concerned. If
murder of the second degree alone is submitted to the jury,
and they convict of that degree, still they must specify that
degree, because the statute requires '. t. •

If murder of the first degree only is proven, would it be
necessary to charge upon murder in the second degree? Of
course not. Why? Because that is not the case, under the al-
legations and proof. Should the court charge upon the theory
of murder of the second degree, and a conviction follow, and
there were no facts to authorize the charge, a defendant would
not be heard to complain, because it was beneficial to him, and
the verdict would be sustained upon that theory.

But suppose the indictment was for murder in the second de-
gree, and the court should charge upon murder of the first and
second degrees, and the conviction be for murder of the first
degree, would it be for a moment contended that that verdict
could be sustained? Certainly not. Why? Because no such
oflfehse was charged in the indictment. It would be convicting
and punishing a party for an offense not charged, and would
be depriving him of his life or liberty without **due process of
law." If defendant's theory is correct, the verdict would be
correct, because, as he says, the court would have no discre-
tion to confine the charge to the allegations and proof there-

Digitized by VjOOQIC

»8 27 Texas Court of Appeals. [Galveston

Argument for the state.

under, but must submit both degrees in order that the jury
should have the right to pass on the two degrees. If defend-
ant's position be the law, then the option of the jury to say
which degree of murder should be assessed would override the
Bill of Rights — the due process of law — the guarantee of the
indictment charging the defendant with the offense for which
he is to be tried, the right to be tried for the offense charged,
and the law which says to him he shall be tried under allega-
tions and the proof made in the cg,se against him. And why
and for what purpose? Simply that a jury may have the priv-
ilege of saying of which degree the party shall suffer, although
not charged or proven.

All this confusion on the part of appellant arises because of
his misappreliension of article 607, of the Code. That article
only requires the jury to name in their verdict the degree of
which they convict, whether of the first or second degree. This
they must find under the case as made and given to them, and
does not relate back and control the entire case in order that
the jury may have the privilege of passing on the two degrees.
If so, thep the court would forsooth bo compelled to submit both
degrees, whether the charge was murder of the first or second
degree.

Suppose upon the trial a party is convicted of murder in the
second degree, and a new trial be awarded, would it be incum-
bent upon the court to charge upon murder in the first degree
upon a subsequent trial? Of course not; and not only so, but
it would be fundamental error if he did so, for which the case
would be reversed, if a second conviction should be for murder
in the first degree, although it gave the jury the right to decide
the important question of the degree of murder. Yet it would
be a case of murder charged in the indictment.

The court must charge upon the case at bar, as made by the
allegations and evidence, and this is the entire matter in a nut
shell. If both degrees are submitted, the jury pass thereon
and so say in their verdict, and name the degree of which they
convict. If the court does not properl}^ submit the issues under
the allegations and facts, a reversal follows because of the in-
jury. The jury in this case did specify the degree of which
they convicted. An inspection of the facts will show that the
court submitted the case made by the allegations and the evi-
dence.

Defendant says that in all cases of murder, murder in both

Digitized by VjOOQIC

Term, 1889.] Blocker v. The State. 39

Argament for the state.

degrees must be charged: 1, Because murder is of two der
grees; 2, because the jury must find the degree of murder; and
3, where a defendant pleads guilty of murder the jury must
pass upon the degree of that offense. In addition to what has
been said, I would call attention to article 714 of the Code of
Procedure, wherein it is provided, among other things, that
murder includes all the lesser degrees of culpable homicide,
and also an assault to commit murder.

If defendant's proposition is the law, we would have divers
and sundry degrees of "culpable homicide," and every imag-
inable one of these degrees would have to be submitted, not
because the facts warranted or required, but because of the
degrees, and in order that the jury might find the degree of
the homicide. It is sound and well settled practice that, where
the different degrees are submitted the jury must either acquit
specifically of all the higher degrees, and name the degree of
which they convict, or they must, without naming the higher,
mention the particular degree of which they convict; otherwise
it is not known of what offense the party is convicted. This
holds good through all the degrees from murder to assault to
murder. The naming oi one offense in the verdict acquits of
the higher degrees of that offense.

The broad and unqualifiad proposition announced by defend-
ant would lead to a charge not only upon the two de^^rees of
murder, but would require a charge upon all ** lesser degrees"
of homicide, of every phase and character defined in the code,
without reference to the facts proven or the case made, simply
because under article 714 the same are included as degrees of
murder, under an indictment charging that offense. Defend-
ant attempts to gloss this over and avoid its effect by seeking
to confine the question to articles 606 and 607 of the Code,
where the two degrees of murder are set out and where the
verdict is required to specify the degree. Seeing his proposi-
tion is too broad, he hedges upon these articles and seeks to
control the charge of murder by article 607.

If, as contended, the court has no discretion in the case as
made, because the offense has degrees and he is arbitrarily
bound to charge all degrees of culpable homicide so that the
jury may pass on the same, it would follow that all the " lesser
d^rees of culpable homicide" would not abridge this great
necessity, and the court would be compelled to charge upon
every sucli degree included under the said article 714, where

Digitized by VjOOQIC

40 27 Texas Court of Appeals. [Galveston

Opinion of the court.

murder is charged, and it would be immaterial what the facts
were, and it would be equally immaterial at which end of the
line the charge began, and whether the indictment charged
murder or assault to commit murder. If assault to murder
was charged, then the court must charge upward for that de-
gree, and if murder was alleged then the charge must submit
the degrees downward from that standpoint. This would be
the legitimate deduction from the appellant's broadly stated
proposition.

On Motion for a RBHBARiNe.

WiLLSON, Judge. In this case the appeal is from a convic-
tion of murder in the first degree, the penalty assessed being
confinement for life in the penitentiary.

At our last term at Tyler the cause was submitted on oral ar-
guments and briefs for both parties, and we affirmed the convic-
tion without delivering a written opinion. Counsel for defend-
ant filed a motion for a rehearing and submitted the same upon
oral argument and brief, and said motion was transferred to
this branch of the court for decision.

It is strenuously insisted by counsel for the defendant that
the judgment of conviction should be reversed because the trial
court omitted to submit to the jury the issue and law of mur-
der in the second degree. In our first consideration of the case
our conclusion was that the evidence adduced on the trial did
not present the issue of murder in the second degree, and that
therefore the trial court did not err in omitting to instruct the
jury as to the law of such issue. After a careful re-examina-
tion and reconsideration of the voluminous statement of facts,
in the light of the able argument and briefs of counsel for the
defendant, we entertain very grave doubts of the correctness
of our conclusion.

It is a well settled rule that if from the evidence there is a
doubt as to which of two or more degrees of the oflfense
charged the defendant may be guilty, the law as to such de-
grees should be given in charge of the jury. It is only where
there is no evidence tending to establish a particular grade of
the offense that a charge as to such grade may be omitted.
And in a murder case if, by any possible legitimate construc-
tion of the evidence, the jury might convict of murder in the
second degree, the law of that degree must be given in charge
to the jury. (Willson's Cr. Stats., sees. 10G4, 2337.)

Digitized by VjOOQIC

Term, 1889.] Blocker v. The State. 4:1

Opinion of the court.

In this case there is no direct evidence of express malice on
the part of the defendant towards the deceased. It was not
«hown that the defendant entertained any errudge or any en-
mity whatever against the deceased, nor does the evidence dis-
close any motive actuating the defendant to commit the homi-
cide. The only evidence of express malice consists in the
character of the weapons used; the manner of their use; that
the defendant was accompanied by another person armed with
a gun; that defendant, in company with such other person, fol-
lowed the deceased to the place of the homicide; and that after
the killing the defendant and his companion precipitately fled
from the scene. That the evidence sufficiently establishes ex-
press malice we do not question or doubt, but we are not pre-
pared to say that there is no evidence from which a jury might
not legitimately conclude and find that the homicide was upon
implied and not upon express malice. No witness saw or heard
\\iiat transpired between the parties at the very time of the
killing. It is not known what words, if any, passed between
the parties, or what, if anything, provoked the killing. De-
ceased was armed with a repeating pistol, some of the
chambers of which were found to be empty. Entertaining, as
we do, a serious doubt of the correctness of our first view of
the evidence, and of our conclusion that it did not demand a
charge upon murder in the second degree, we shall grant the
motion for a rehearing, set aside the judgment of affirmance,
reverse the judgment of conviction and remand the cause for
another trial.

Counsel foi: defendant earnestly and ably contend that in all
prosecutions for murder in this State, without regard to what
the evidence adduced may be, it is the imperative duty of the
trial court to submit to the jury the issue and law of murder in
the second degree. We have been profoundly impressed with
the strength of the reasoning advanced in support of this po-
sition. Article 607 of our Penal Code provides: "If the jury
shall find any person guilty of murder, they shall also find by
the verdict whether it is of the first or second degree; and if
any person shall plead guilty to an indictment for murder, a
jury shall be summoned* to find of what degree of murder he
is guilty; and in either case they shall also find the punish-
ment." This provision is imperative, and a verdict of guilty of
murder, without specifying the degree of murder of which the
defendant is found guilty, is a nullity. (Willson's Cr. Stats.,

Digitized by VjOOQIC

42 27 Texas Court of Appeals. [Galveston

Opinion of the court.

sec. 1051.) It unquestionably confers upon the jury the power
to fix the crime in the second degree when it ought, under the
law and the facts, to be fixed in the first. And a verdict of
murder in the second degree will not be set aside upon the
groimd that the testimony showed the homicide to be one of
murder in the first degree. (Monroe v. The State, 23 Texas,
227; Blake v. The State, 3 Texas Ct. App., 581; Parker v. The
State, 22 Texas Ct. App., 105; State v. Lindsey, 19 Nevada, 47;
Baker v. The State, 4 Texas Ct. App., 223; Powell v. The State,
5 Texas Ct. App., 234.) This power of the jury to find the de-
gree is unrestricted, and can not be controlled or abridged by
the charge of the court, or by the omission of the court to sub-
mit the issue of murder in the second degree.

It has been held, however, in this State that if the court
does not instruct upon murder in the second degree, but the
jury finds the defendant guilty of that degree, the conviction
can not stand. (Taylor v. The State, 3 Texas Ct. App., 387;
Garza v. The State, Id., 286.) The writer is inclined to the
opinion that such a verdict must be received by the court and
judgment entered in accordance therewith, and that it would
operate as an acquittal of murder in the first degree. In accord
with the writer's view, it has been held in other States, under
statutes similar to ours, that the court can not deprive the
jury of their power and right to fix the degree by imperatively
instructing them that, if they find him guilty, they must find
him guilty of murder in the first degree. (Rhodes v. Com., 48-
Penn. State., 398; Lane v. Com., 59 Penn. State, 375; Shaffner
V. Com., 72 Penn. State, 61; Robbins v. The State, 8 Ohio
State, 193; Beaudien v. The State, 8 Ohio State, 638; The State
V. Lindsey, 19 Nevada, 47; The People v. Ah Lee, GO Cal., 85;
The State v. Dowel, 19 Conn., 387; Baker v. The People, 40
Michigan, 411; The People v. Williams, 73 Cal., 533; see also
Whart. on Homicide, sees. 186, 198.) Such an imperative in-
struction is regarded as an unwarranted assumption of the
province of the jury, and will vitiate a conviction of murder in
the first degree.

We have found no authority, however, which directly holds
that an omission to submit to the jury the issue and law of
murder in the second degree, where the evidence conclusively
shows murder in the first degree, presenting no facts from
which a jury might legitimately find murder in the second de-
gree, will vitiate a conviction for murder in the first degree.

Digitized by VjOOQIC

Term, 1889.] Blocker v. The State. 43

Opioion of the court.

In this State the decisions are numerous and uniform the other
way, holding that where there is no evidence from which, by
any possible legitimate construction, the jury could conclude
that the homicide was murder in the second degree, the court
may properly decline to submit to the jury the issu j and law
of murder in the second degree. It was so held by lur Su-
preme Court in the early case of O'Connell v. The State, 18
Texas, 343. The rule laid down in that case has been followed
by a long line of decisions. (Washington v. The State, 1 Texas
Ct. App., 647; Taylor v. The State, 3 Texas, Ct. App., 387;
Hubby V. The State, 8 Texas Ct. App., 597; Lum v. The State,
11 Texas Ct. App., 483; Neyland v. The State, 13 Texas Ct.
App., 536; Davis v. The State, 14 Texas Ct. App., 645; Gomez
V. The State, 15 Texas Ct. App., 327; Darnell v. The State, 15
Texas Ct. App., 70; Smith v. The State, 15 Texas Ct. App., 139;
Rhodes v. The State, 17 Texas Ct. App., 579; Jackson v. The
State, 18 Texas Ct. App., 586; Johnson v. The State, 18 Texas
Ct. App., 385; Bryant v. The State, 18 Texas Ct. App., 107;
May V. The State, 21 Texas Ct. App., 595; Henning v. The
State, 24 Texas Ct. App., 315; Trimble v. The State, 25 Texas
Ct. App., 631.) These decisions have been the law of this
State for many years; have met with the tacit sanction and
approval of the bar and the Legislature of the State. We shall
adhere to them as the established law of the land in cases com-
ing within their purview. We take occasion, however, to sug-
gest to trial judges that they should be exceedingly cautious
in murder trials in declining to charge upon murder in the sec-
ond degree. Instances are comparatively rare in which such a
charge may be properly dispensed with. It is only when there
is no evidence tending to present that issue that such a charge
may be safely omitted.

We have not discussed other questions of minor importance
presented in the record, because they are of a character not
likely to occur on another trial.

Upon the ground before stated the rehearing is granted, the
judgment of affirmance is set aside, and the judgment of con-
viction is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

Opinion delivered January. 16, 1889.

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H 27 Texas Court of Appeals. [Galveston

Statement of the case.

No. 2551

William Taylor v. The State.

1. Thkft— Indictment— Variance.— The indictment alleged the name
of the owner of the stolen property to be Burris. The proof showed
it to be Burrows. The conviction is assailed upon the grround of va-
nance between the ownership as alleged and proved. But held that,
as the proof further shows that the owner was commonly known as
Burris, the variance is not material.
Same— Practice— Alibi— New Trial.— The only inculpatory evidence
against the accused was the testimony of two witnesses to the effect
that, subsequent to the theft of the property, they saw the same re-
moved from a place of concealment by three parties, one of whom they
believed, but were not positive, was the defendant. In anticipation of
this evidence, the defendant applied for a continuance to secure a wit-
ness by whom to establish his presence at another place at the time
the property was removed from the place of concealment. Being denied
the continuance, and eonvioted, the defendant asked for new trial be-
cause of the ruling of the court upon his application for continuance.
The new trial was refus^ed upon the ground (as was the continuance)
that the proposed alibi did not cover the time of the thelt of the prop-
erty. Held, that the action of the trial court was error, not only be-
cause of the inherent weakness of the inculpatory proof, but because
an alibi is available, not merely to meet the main issue in the case, but
any criminative fact relied upon by the State.

Appeal from the District Court of McCuUoch. Tried be-
low before the Hon. J. C. Randolph.

The conviction in this case was for the theft of a horse, and
the penalty assessed by the verdict was a term of five years
in the penitentiary.

The only testimony in the record in any way connecting the
defendant with the alleged stolen horse is the testimony of the
State's witnesses Webster and Pride, the substance of whose
narratives is set forth in the opinion of the court. The evi-
dence otherwise discloses the disappearance of the horse from
the possession of the owner and its subsequent recovery by
him.

No brief on file for the appellant

W. L. Davidson, Assistant Attorney General, for the State.

Digitized by VjOOQIC

Term, 1889. J Taylor v. The State. 45

Opinion of the court

Hurt, Judge. This conviction is for the theft of a horse,
the property of one Burris. The indictment alleged that
the horse was the property of Burris, whose first name was
unknown to the grand jurors. The name of the owner
was not Burris, but Burrows. Appellant claims a variance.
Burris being alleged as the owner, this must be proved. How?
Either by proof that the owner's name was in fact Burris,
or that he was commonly known by that name. If com-
monly known by that name, then for the purposes of this pros-
ecution it would be his name, the allegation would be true, and
hence there would be no variance. The record contains ample
proof that the owner of the horse was commonly known by
the name of Burris.

On the twenty-third of January, 1887, on Sunday evening, in
a deep hollow, in a secluded place, the horse alleged to have
been stolen was found, tied to a bush. Witnesses Webster
and Pride, believing that the horse had been stolen and hidden
in this place, concealed themselves in a kind of thicket about
sixty or seventy- five yards from the horse, to watch and detect
the thief. They stated that about sundown of the same even-
ing they saw three men come and get the horse and take him
away. Webster states that he took Lee Anderson to be one of
the party, and that **he took defendant to be one." The other
he did not know. Anderson got the horse. The man he took
to be defendant was riding a sorrel horse pony. Defendant
owned a sorrel pony. The man he took to be defendant was
riding a sorrel pony which he took to be defendant's pony.
Webster had known defendant about six months, and to the
best of his belief defendant was one of the party.

Pride swears to the same facts substantially, with this differ-
ence: He states that he "took" defendant to be one of the
party, but would not be positive. The others he took to be
Richard and Lee Anderson, That he had known defendant
four or five years.

If appellant was one of the three men who were seen by
Webster and Pride on the occasion when the horse was taken
from its place of concealment, on Sunday evening about sun
down, under the facts of this case the verdict of the jury should
be sustained. But the criminative facts, the facts from which
the main fact is to be inferred, must be clearly proven; because,
if a mistake should be made in these (the criminative facts) it

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46 27 Texas Court of Appeals. [Galveston

Opinion of the court.

will be carried into the conclusion, and no conclusion can pos-
sibly be more certain than the facts from which it is drawn.

It is evident that neither Webster nor Pride were certain that
appellant was one of the party; nor were they certain that the
sorrel pony was defendant's pony. Now, it would not be cor-
rect reasoning to presume a certainty, to wit, the guilt of the
accused, from uncertainties. (Burrell on Cir. Ev., 136.) Elimi-
nate this transaction from the case, and there remains no fact
from which anything appears but suspicion.

To show that Webster and Pride were not correct in believ-
ingthat appellant was with the Andersons when the horse was
taken from the place where concealed, on Sunday evening, ap-
pellant moved to continue the case for the want of a witness
by whom he states he could prove that he was at another place
when the horse was taken from the gully on Sunday at sun
down. The learned trial judge refused to continue, and over-
ruled the motion for new trial upon this ground for the reason
that the alibi did not cover the time when the horse was stolen.
This may be true, and would be sound reasoning if the State
had testimony to the actual taking of the horse — the theft.
But the State relies for conviction upon connecting appellant
with the horse at the gully on Sunday evening after the horse
had been stolen. This being the case, clearly appellant should
have the right to meet this matter by showing that he was not
there, but at another place; and this he would have the right
to do if the horse had been stolen long prior to the time when
found concealed in the gully. An alibi can be relied upon to
disprove or surround with doubt, not only the main fact, but
any criminative fact relied upon for conviction.

We are of opinion that a new trial should have been awarded
appellant to enable him to procure the testimony of the wit-
ness, and as he states he can, show that he was not with the
Andersons when they got the horse from its place of concealment

We will not pass upon the suflSciency of the evidence to sup-
port the verdict; holding that its inherent weakness rendered
the action of the court in refusing a new trial based upon the
motion to continue the case, error for which the judgment must
be reversed.

The other grounds relied upon for a reversal of the judgment
are not well taken.

Reversed and remanded.

Opinion delivered January 16, 1889.

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Tenn, 1889.] Wilson v. The State. 47

Statement of the case.

No. 2532.
Albert Wilson v. The State.

L Perjury— Indictbiknt— Evidence.— It is essential in a perjury case
not only that the indictment shall allege that the court before which
the judicial proceediug in which the perjury is charged to have been
committed had jurisdiction of such judicial proceeding, bat that fact
must be established by the proof.

% SABfB— Complaint— Information— Case Stated.- Qnder the law of
this State, an information is insufficient for any purpose unless founded
upon a complaint, filed therewith, charging an offense. The indict-
ment in this case charged that the perjury was committed on the trial
of a judicial proceeding in the county court ''wherein one Bean was
duly and legally charged by information,*' etc. To support the alle-
gation of jurisdiction of the county court, the State Introduced in evi-
dence the information, but not the complaint. Held, that the proof
was insufficient.

8. Same— Practice— Charge op the Court.— To charge the jury, in
felony cases, upon the law applicable to the case, whether asked or
not, is under our law a duty imposed imperatively upon the trial
judge. It is an express provision of our statute that 'in trials for per-
jury no person shall be convicted except upon the testimony of two
credible witnesses, or of one credible witness corroborated strongly by
other evidence, as to the falsity of the defendant's statements under
oath, or upon his own confession in open court." The trial being
upon the plea of not guilty, and not upon confession in open court,
the omission of the trial court to give in charge to the jury the sub-
stance of the above statutory provisions was fundamental error.

4 Same— Term Defined.— A "credible witness," as used in the statute,
means **one who, being competent to give evidence, is worthy of be-
lief."

Appeal from the District Court of Fayette. Tried below be-
fore the Hon. H. Teichmueller.

The conviction in this case was for perjury and the penalty
assessed against the defendant was a term of five years in the
penitentiary.

The indictment alleges, in substance, that on tne seventeenth
day of April, 1888, one William Bean was tried in the county
court of Fayette county, for carrying a pistol on the twenty-
fifth day of February, 1888; that, the State having proved by
several witnesses that a difficulty occurred on the night of said

Digitized by VjOOQIC

48 27 Texas Coubt of Appeals. [Galvestoa

Opinion of the court

day, in a certain room of a certain house, between one W. Du-
lix and one T. Edwards, and that the said Bean, at the time of
the difficulty, was present in the said certain room of the said
certain house, armed with a pistol, the said Bean introduced the
defendant as a witness in his behalf, and the defendant, after
being sworn, testified on the said trial that the said Bean was
not in the said room nor in the said house at the time the diffi-
culty occurred, but was outside of the same, in company with
him, this defendant, and others. This said testimony. of the
defendant is the perjury assigned.

To support the allegation in the indictment that the county
court had jurisdiction of the prosecution against Bean for car-
rying a pistol on the night of February 25, 1888, the State in-
troduced in evidence the information of the county attorney
charging Bean with that offense. The county clerk testified
that he administered to the defendant the witness oath on that
trial, and the attorney who represented the .State testified that,
on that trial, this defendant testified in behalf of Bean as
charged in the indictment, which, upon the question at issue,,
was contradictory of evidence introduced by the prosecution
against Bean. Several witnesses testified that they attended a
dance at the Doss house in LaGrange, on the night of February
25, 1888. During the evening a difficulty occurred in the side
room of the said house between Willis Dulix and Tom Ed-
wards, and during that difficulty Bean was in the said room.
One witness testified positively that Bean had a pistol in hia
hand while in the said room, and another witness stated that he
was unable to determine whether the object Bean had in his
hand at that time was a pistol.

Two witnesses for the defense testified that this defendant's
reputation for truth and veracity was good. Another testified
that, about five minutes before the shot was fired in the Doss
house, he saw the defendant at the fence which surrounded the^
said house.

W. H. Ledhetter, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. In all cases of prosecution for
perjury committed in a judicial proceeding, it must be made to
appear by the allegations of the indictment that the court had

Digitized by VjOOQIC

Terai, 1889.] Wilson v. Thb State. 49

Opinion of the court.

jurisdiction of the judicial proceedings (Willson's Crim. Stats. ,
fiee. 307)» and it is equally important and necessary tiiat tbe
evideiK>e should sustain the allegation in order to warrant a
eoBFiction. It was alleged in the indictment in this case that
the judicial proceeding was a trial in the county court '"'wherein
ooe Bean was duly and legally charged by information" with
uUawfully carrying on or about his person a pistol, etc. To
sustiuB this allegation the prosecution simply introduced in evi-
dence the information. This was not sufficient. An informa-
tion can not be presented until oath has been made by some
credible person charging the defendant with an oflfease. (Code
Crim. Proc, art. 431.) This oath is called a complaint. It is
the basis and foundation upon which the information rests,
and is a necessary part of, and must be filed with, the informa-
tion. (Code Crim. Proc, art. 36.) ^Y^^l^o^^ ^ complaint an
information would be wholly invalid — would confer no juris-
diction upon the court, and would be worthless for any purpose.
(Willson's Crim. Stats., sec. 1999.) It follows, then, that in
order to sustain an allegation of judicial proceeding by infor-
mation, not only must such information be introduced in evi-
dence but the complaint upon which it is based- or founded,
must be also introduced.

Another error, fundamental in character, appears upon this
record. It is a fatal omission in the charge of the court to the
jury. An express provision of our statute with regard to per-
jury and false swearing is that "in trials for perjury no person
shall be convicted except upon the testimony of two credible
witnesses, or one credible witness corroborated strongly by other
evidence, as to the falsity of the defendant's statement imder
oath, or upon his own confession in open court." (Code Crim.
Proc., art. 746; Hernandez v. The State, 18 Texas Ct. App.,
134; Anderson t. The State, 24 Texas Ct. App., 106; Maines v.
The State, 26 Texas Ct. App., 14.)

Article 746, as thus quoted, is as much a part of the law of
perjury as ^y other found in our Penal Code relative to that
crime, and where the accused has not confessed his guilt in
open court, that article, or the substance thereof, should be
given in charge to the jury, it being imperative in felony cases
that the charge "shall distinctly set forth the law applicable to
the case, whether asked or not." (Code jDrim. Proc, art. G77.)
It is fundamental error to fail to give such instruction. (Wash-

Digitized by VjOOQIC

27 BOl
31 520

50 27 Texas Court of Appeals. [Galveston

Syllabus.

ington V. The State, 22 Texas Ct. App., 26; Gartman v. The
State, 16 Texas Ct. App., 215; Willson's Grim. Stats., sec. 818.)

"A credible witness," as used in that article, means "one who,
being competent to give evidence, is worthy of belief.*' (Smith
V. The State, 22 Texas Ct. App., 197.)

For the errors discussed, the judgment is reversed and tha
cause remanded.

Reversed and remanded.

Opinion delivered January 16, 1889.

. No. 2584.
William Smith v. The State.

1. Perjury— Evidence— Case Approved.— Note the approval of Wilson
V. The State, ante, to the effect that without a supporting affidavit aD
information is not sufficient evidence of jurisdiction alleged in the
indictment, and that the omission of the trial court, on trial for per-
jury, to give in charge to the jury the substance of article 746 of the
Code of Criminal Procedure, is fundamental error. But note that the
errors in this respect, committed upon the trial of Wilson's case, were
not committed upon the trial of this case.

9. Same— Indictment which conforms to No. 122 of Willson's Criminal
Forms is sufficient to charge the offense of perjury.

8. Practice— Charge op the Court.— It is a rule of practice in this
State that special instructions, whether given or refused by the trial
judge, must be authenticated by his signature, and if the record fails
to show that such instructions were refused, the Appellate Court will
presume that they were given.

4. Same.— Special instructions are properly refused when it appears that
to the extent they were correct they were embodied in the general
charge.

6. Same.— The materiality of matter assigned as perjury is a question to
be determined by the court, and not by the jury. A special instruction
announcing the converse as the rule was properly refused.

6. Same— Privilege of Counsel— In his concluding argument the coun-
sel for the defense stated to the jury that the State's counsel. In closing
the case, would have something to say about why P. and W. and E. (all
of whom were shown to be indicted for the same offense) were not put
on the stand by the defense, and that the reason they were not called
to the stand was that, if called, the prosecutiqg officer would indiot
them again for perjury. In reference to this matter the State's coon-

Digitized by VjOOQIC

Term, 1889.] Smith v. T^ Statb. 51

Opinion of the court.

sel, in oonclading the argament, stated that all of the parties named,
except W., who had been convicted, could have been called to testify
without danger of indictment if they testified to the truth. Held, that
the remarks of the Staters counsel, being responsive to the argument
for the defense, were legitimate.

Appeal from the District Court of Fayette, Tried below
before the Hon. H. Teichmueller.

This is a companion case to that of Wilson v. The State,
which immediately precedes it. The perjury assigned is the
same in each case, and the penalties assessed by the juries is
the same — confinement in the penitentiary for five years.

The same witness who testified in the Wilson case testified
in this case, proving against this defendant substantially the
same facts that were proved against Wilson. It also appeared
in evidence in this case that Wilson, Phillips and Edwards
were under indictment for the same offense, viz., testifying to
the same false statement on the trial of Bean.

Phelps & LanCy for the appellant.

TT. L, Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. This is a companion case to that
of Albert Wilson v. The State, just decided, and was a pros-
ecution for perjury committed in the same judicial proceeding,
and assigned upon the testimony of this defendant given as to
the same subject matter. But in this case the errors for which
the Wilson case has been reversed have not been committed.
In this case the complaint upon which the information in
Bean's case was based was introduced in evidence, and the
charge of the court substantially complied with the provisions
of article 746, Code Criminal Procedure, relative to the testi-
mony essential to a conviction. Defendant's motion to quash
the indictment was properly overruled, the indictment being
in all essential particulars in substantial compliance with the
law and with the approved forms and previous adjudications
upon the validity of indictments in such cases. (Penal Code,
art. 188; Willson's Orim. Forms, No. 122 and notes 1 and 2;
Willson's Crim. Stats, sec. 308, and especially under the head
"MateriaUty." )

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69 27 Texas Court op Appeals. [Oalvieeton

Opinion of the ooort.

No exception appears to have been taken to the charge of
the court as given, and it does not appear that defendant'a
special requested instructions were either given or refused,
there being no indorsement by the judge upon them. Taken
as a whole, the achrge, in our opinion, sufficiently submitted
the law of the case in regard to the matters complained of,
especially in the absence of exceptions as to any particular
portion, and in fact it could not be said to be defective, even
had such exception been reserved, because in its entirety it pre-
sented the law fully and in a manner so that the jury could
not have been misled, to the prejudice of defendant.

As to defendant's special requested instructions, the rule is^
"If requested instructions are 'given' or 'refused,' they must
be authenticated by the judge's signature; and when nothing
indicates that they were refused, it will be presumed on appeal
that they were given." (Willson's Grim. Stats., sees. 2354, 2355,
2366.) It is true that one of the grounds of defendant's motion
for new trial, and one of the assignments of error, is the re-
fusal of the court to give these special instructions. Suppose
this entitled them to consideration as refused instructions,
then it appears from said instructions that those which were
legal had already been substantially given in and covered by
the general charge, and the others, to wit, the third, fourth
and sixth, should not have been given because the materiality
of the false statement assigned as perjury is a question for the
court and not the jury to determine. (Jackson v. The State, 15
Texas Ct. App., 679; Davidson v. The State, 22 Texas Ct. App.,
372; Donahoe v. The State, 14 Texas Ct. App., 638; Washing-
ton V. The State, 23 Texas Ct. App., 336.) There was no error
in refusing said instructions.

The only remaining supposed error is presented in defend-
ant's bill of exceptions number two, as to remarks made by the
district attorney in his closing argument. These remarks were
in reply to matters commented upon by defendant's counsel,
and were perfectly legitimate under the circumstances; and,
were it otherwise, no harm or prejudice to defendant's rights
is made to appear on account of said remarks. (Bass v. The
State, 16 Texas Ct. App., 62; House v. The State, 19 Texas Ct
App., 227; Pierson v. The State, 18 Texas Ct App., 524.)

We have failed to find any reversible error in this record,
and the judgment is therefore affirmed*

Opinion delivered January 16, 1889. Affirmed.

Digitized by VjOOQIC

Term, 1889.] Koritz v. The State. M

Opinion of the court

No. 2585.

E. KoRiTZ V. The State.

1. Practick— Amendment— Appeal Bond or RsooeinzAFOE for Ap-
peal must be entered into at the trial term, and can not be amended
after an appeal has been perfected.

1 No Such Opfbnsb as Malicious Mischief is known, per se, to the
law of this State, and an appeal from a conviction for unlawfully
breaking and pulliDg down and injuring the fence of another must be
dismissed when the recognizance for appeal describes the offense ae
malicioas mischief.

Appeal from the County Court of Washington. Tried below
before the Hon. Lafayette Kirk, County Judge.

The opinion discloses the case. A fine of five dollars was the
penalty assessed.

Bassett, Muse <k Muse, for the appellant.

W. L. Davidson. Assistant Attorney General, for the State.

White, Presiding Judge. Appellant was convicted in the
court below upon an information charging him with breaking,
pulling down and injuring the fence of another, in violation of
article 684, Penal Code. Judgment was entered against him on
the twenty-first of November, and, his motion for new trial
having been overruled, he gave notice of appeal, and on the
ninth of December entered into recognizance in open court to
perfect his appeal. In this recognizance it was recited that he
was charged in the county court with, and had been convicted
of, "malicious mischief." The county court adjourned its term
on the ninth day of December, the day upon which the recog-
nizance for appeal had been entered into.

On the twenty-eighth of December, after adjournment and
during vacation, defendant filed an application in the nature of
a petition with the county judge to have his recognizance
amended or corrected so as to show that, instead of * 'malicious
mischief,'* the oflfense charged against him, and of which he
had been convicted, was "unlawfully breaking and pulling
down and injuring the fence of another," etc. To this applica-

27 ftSt
82 117

Digitized by VjOOQIC

M 27 Texas Court of Appeals. [Galveston

Opinion of the court.

tion the county attorney filed exceptions, which may be summed
up to the effect, viz., that the county court had no jurisdiction
over the matter, for the reason that the cause had been appealed
to the Court of Appeals and the appeal perfected; that to fillow
a change or correction of the recognizance in the manner sought
would be tantamount to allowing a new recognizance to be
given, and that a recognizance for appeal could only be entered
into during the term at which the conviction was had; and that
the court could not enter nunc pro tunc at a subsequent term a
sufficient recognizance to supply the place of a defective recog-
nizfcnce, after appeal had been perfected. At a hearing of the
application in chambers, the county judge overruled the excep-
tions of the county attorney to defendant's applicatioa or mo-
tion, and then overruled said application and motion, and
refused to amend and correct the recognizance; to all of which
the defendant saved his bill of exceptions, and submits the same
for error to this court.

As we understand it, the question presented has already been
substantially decided by this court in Grant's case (8 Texas Ct.
App., 432), where it was said: "The practice of amending
recognizances after the term would tend to beget laxity and
confusion in the administration of the law, and might often-
times frustrate justice in this class of cases." VThe recognizance
must be perfected during the term, and can not be amended or
entered nunc pro tunc at a subsequent term." ( Willson^s Crim.
Stats., sees. 2648-2650.) And after the appeal has been per-
fected to this court, we know of no authority giving the court
below jurisdiction to amend the recognizance which has been
given to perfect the appeal. The court below did not err in
overruling defendant's application to amend and correct the
recognizance.

A motion is here made by the Assistant Attorney General to
dismiss this appeal because the recognizance states no specific
offiense against the law. The offense stated in the recognizance
is "malicious mischief." There is no such offense per se known
to our law, and the motion must be sustained and the appeal
dismissed. (McLaren v. The State, 3 Texas Ct. App., 680; Kil-
lingworth v. The State, 7 Texas Ct. App., 28; Waterman v. The
State, 8 Texas Ct. App., 671; Morris v. The State, 4 Texas Ct.
App.9 554.) Motion granted and appeal dismissed.

Dismissed.

Opinion 4jBlivered January 18, 1889.

Digitized by VjOOQIC

Term, 1889.] Rigby v. The State. 55

Statement of the case.

No. 2543.

J. 0. RiGBT V. The State.

QFnoiAif PBcuLATiow—IirDicTMKNT— Interpretation of the Codes.
In the construction of a statute, the legislative intent, if that intent
can be ascertaiDed, must govern even over the literal import of words,
and without regard to grammatical rules. Thus constrned, article 250
of the Penal Code inhibits any officer of a county, city or town from
entering into, on account of himself, any kind of financial transaction
with such corporation. The indictment in this case charged the ao-
eused with the violation of said article, in that he sold a mule to the
county of which he was a county commissioner. Held, that such sale
constituted a violation of said article, and the indictment was suffi-
cient.

Appeal from the District Court of Goliad. Tried below be-
fore the Hon. H. C. Pleasants.

The opinion states the nature of the case. The penalty im-
posed by the jury was a fine of fifty dollars.

The proof showed that the commissioners court of Goliad
county, after examining the statutes, and among them article
'260 of the Penal Code, as to its power to appoint an agent to
purchase mules for the use of the county, directed the defend-
ant, one of its members, as its agent to purchase the two mules
for the said county. Defendant purchased one mule from R.
L. Turner, and reported to the commissioners court that he
owned a mule which he was willing to sell the county for the
sum of one hundred dollars. The proposition was accepted by
the commissioners court, and the sale of the mule was ratified,
and the same paid for by the county treasurer upon the order
of the said court. It was proved and not disputed by the State
that the actual value of the mule sold by defendant to the
county was the sum paid for it, — one hundred dollars.

No brief on file for the appellant,

W. L. Davidson, Assistant Attorney General, for the State.

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56 27 Texas Court of Appeals. [Galveston

Opinion of the ooort.

WiLLSON, Judge. Article 250, of the Penal Code is as follows:
**If any ofBcer of any county in this State, or of any city or
town therein, shall become in any- manner pecuniarily inter-
terested in any contract made by such county, city or town,
through its agents or otherwise, for the construction or repair of
any bridge, road, street, alley or house, or any other work under-
taken by such county, city or town, or shall become interested
in any bid or proposal for such work, or in the purchase or sale
of anything made for or on account of such county, city or
town, or who shall contract for or receive any money or prop-
erty, or the representative of either, or any emoluments or ad-*
vantage whatsoever, in consideration of such bid, proposal,
contract, purchase or sale, he shall be fined in a sum not less
than fifty nor more than five hundred dollars."

This appeal is prosecuted from a conviction had under said
article, the indictment charging in substance that the defend-
ant, while a county commissioner of Goliad county, sold to
the said county two mules, and received therefor, from said
county, two hundred dollars. The defendant excepted to the
indictment upon the ground that it did not charge any offense
against the law; which exception the court overruled. It is
contended by the defendant that the article of the Penal Code
above quoted does not inhibit a county officer from sell-
ing property to the county unless such property was made
for or on account of such county; that the word "made"
in said article refers to the word "anything," and not to
the words "purchase or sale." We do not agree to such
construction of the article. We admit that the language
of that portion of said article, when considered without refer-
ence to the context, or without inquiry as to the legislative in-
tent would warrant the interpretation contended for by the de-
fendant.

But, when viewed in connection with the context, and with
reference to the purpose which the Legislature intended to
effect by the enactment of the statute, such an interpretation
would, in our judgment, be too restricted, if not strained and
unreasonable. Manifestly, the Legislature, in enacting the
statute, intended thereby to protect counties, cities and towns
from official peculation. Such peculation was the evil sought
to be suppressed, and the statute strikes at the very root of the
evil, by making it an offense for any officer of a county, city
or town to |jjecome interested pecuniarily in matters wherein

Digitized by VjOOQIC

Term, 18B9.] Rbveal v. The State. 67

Syllabus.

scich corporations are pecuniarily interested. The purpose of
the statute is to prevent official " rings " from being formed and
operated to prey upon the treasuries of counties, cities and
towns; to prevent the officers of such corporations from using
their official knowledge and influence to their individual pe-
eimiary advantage in the financial tran3actions of such corpor-
ations. The objects of the statute would b6 but partially at-
tained if such officers are to be permitted to deal with their cor-
porations in the sale and purchase of property. We can per-
ceive no reason why a county officer should be permitted to sell
a mule to his county, and yet be denied the privilege of making
a wagon or other article of property for the county for a con-
sideration.

In the construction of a statute, the legislative intent, if that
intent can be ascertained, must govern even over the literal im-
port of words, and without regard to grammatical rules,
(Willson's Cr. Stats., sees. 17-26.) Our construction of the
statute is that it inhibits any officer of a county, city or town
from selling to or purchasing from such corporation any prop-
erty whatever. This construction does not, we think, do vio-
lence to the language of the statute, and is the only construc-
tion which will accord with what we believe to be the intent
and purpose of the statute.

We therefore hold that the indictment' charges an offense
against the penal law of this State, and that the exception was
properly overruled. We have found no error in the conviction
and the judgment is affirmed.

Affirme* '

Opinion delivered January 19, 1889.

No. 2626.

Bud Ebveal v. The State.

THBFT—EviDBirc*— Fact Case.— See the statement of the ease for evi-
dence held insafficient to support a conviotion for horse theft, be-
cause it does not overcome the presumption of innocence nor exclude
the reasonable doubt.

Appeal, from the District Court of Milam. Tried before the
Hon. J. N. Henderson.

Digitized by VjOOQIC

^8 27 Texas Court op Appeals. [Galvestoti

Statement of the case.

This conviction was for the theft of a horse, and the penalty
assessed against the defendant was a term of five years in the
penitentiary.

Gordon Cook was the first witness for the State. He testified
that he lived in Milam county, Texas, about three miles tfom
the town of Buckholts, and lived at that place in 1887. His
certain small bay horse disappeared from the range near that
place, in the spring of 1887. That animal was branded BF on
the right shoulder. The witness searched the range three days
but failed to find his horse. He then employed the son of old
man Strickland, from whom he bought the animal, to search
the range, but he, too, failed to find him. The witness in-
quired of his neighbors, including each of the Bryants, but got
no information about his horse. He did not ask the defendant
about the animal. On one Sunday morning in the fall of 1887
one Rudy McDaniel, riding the said horse, passed the witness
and John Bryant, who were traveling together. The point
where McDaniel passed the witness and Bryant was about half
a mile due south from witness's house. The witness claimed
the horse and told McDaniel to take him to his, witness's, house.
Defendant and J. L. Bryant, who were half brothers, knew
witness's said horse. When witness asked J. L. Bryant if he
had seen the animal, he told said Bryant that the brand was
BF on the left shoulder. J. L. Bryant was now in attendance
upon this court as a witness for the defendant.

Cross examined, the witness said that there was no other than
the ?F brand on the horse when it disappeared, so far as he
knew. When McDaniel, riding the horse, passed the witness
and John Bryant, the said Bryant remarked to the witness:
"That is your horse." Witness, who did not observe the ani-
mal as McDaniel passed, stopped him, and, after examining the
horse fully, identified it. The BF brand was still on the right
shoulder, and the letters NS had been branded on the left hip.
Defendant lived in Bell county. McDaniel lived on the edge
of Milam county, about seven miles distant from and across the
river from the defendant. The said horse was the property of
the witness, and was taken from his possession in Milam county
without his consent.

Floyd Bankston was the next witness for the State. He tes-
tified that he knew the animal involved in this prosecution.
He saw that horse, on or about April 25, 1887, staked on a small
prairie about fifty yards distant from the house of Mrs. Syl-

Digitized by VjOOQIC

Term, 1889.] RavBAL v. The State, 59

Statement of the oasa

Tester, which house was situated in Bell county, about half a
mQe distant from the Milam county line. Mrs. Sylvester was
the mother-in-law of the defendant, and he lived at her house.
While the animal was at Mrs. Sylvester's place, the witness
saw the defendant brand a bar across the BF on the right
shoulder, and brand the letters NS, which was Mrs. Sylvester's
brand, on the left hip. There were two BF brands on the right
shoulder, — one immediately above the other. Witness asked
defendant why he was barring out the BF brand, and he re-
plied that it was easier to bar it out than to run a counter
brand. One of the BF brands was much dimmer than the
other, but was plain enough to be seen. The witness afterwards
traded with the defendant for that horse, and after that, traded
it to Joel Reed. Reed subsequently traded the horse off, as he
understood Reed, to John Morris. On his cross examination
the witness said that,^o far as he knew or could observe, the
defendant; while he had the horse at Mrs. Sylvester's,' made no
effort to secrete him. He rode that horse about the country to
the knowledge of the witness, and once, at least, put him into
Mrs. Sylvester's field. When witness first found defendant in
possession of the horse, the defendant, in reply to his question,
told witness that he got the said horse in a trade with a man
across the river. The town of Buckholts was in Milam county,
Dorth of Little river. Defendant lived in Bell county, south of
Little river.

John Morris testified, for the State, that he knew the little
bay horse involved in this prosecution. He saw that horse in
the possession of the defendant on or about April 25, 1887, at
the place where he lived, in Bell county, above a place known
as the '-Nigger Lease." The witness afterwards traded for
that horse with Joel Reed. The horse, when witness first saw
him, had the BF brands on the right shoulder — one brand being
immediately above the other. The lower of the two said
brands was quite plain, but the upper one was diui, and could
be deciphered only at close quarters. When witness next saw
him, on May 3, the BF brands had been barred out, and the let-
ters NS branded on the left hip. When the witness first saw
the horse in the possession of the defendant he told witness
that he got the animal when a colt, from his uncle, — trading
his uncle a yearling; that the horse soon ran away from him,
and that he had just recovered him. Witness traded off the
horse to Zeke Underwood. On cross examination the witness

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W 27 Texas Court of Appbals. [Galveston

statement of the case.

Stated that he did not, on a former trial of this case, testify that
defendant told him he got the horse from "a man across the
river/^ He did not remember whether or not he testified on
that trial that defendaiit told him that he got the horse from
his micle. He did not think he was asked what defendant told
him about how he acquired the horse.

Ned Barrett testified, for the State, that he frequently saw
the Gordon Cook bay horse in defendant's possession, early in
1887. Defendant then kept him staked in a "thickety" place in
Reed's pasture. He had other horses in that pasture, but did
not keep them staked. A number of men worked on Reed's
place and kept their horses in Reed's pasture.

The State closed.

Fayette Bryant was the first witness for the defense. He
testified that he and defendant were half brothers. He knew
one George May. He knew the horse involved in this prosecu-
tion. He first saw that horse about the middle of April, 1887,
in the town of Buckholts, in Milam county. Some horse races
were run at that town on that day. Among the large number
of people who attended that race was George May. He came
to the race track riding a black horse and leading the bay horse
involved in this prosecution. May offered to bet the bay horse
on the races. About three o'clock on that afternoon, in the
presence of the witness, in the town of Buckholts, the defend-
ant traded with May for that horse, giving him the brown pony
which he rode to Buckholts, in exchange. Defendant then
mounted the bay horse, and rode him home. Mack Clark and
a person whom witness could not now name were present and
witnessed the trade.

On his cross examination the witness said that, when ac-
quired by the defendant, the horse was not fat, but was in very
fair condition. He had no swelling on the back nor bruises on
the head that witness observed. Witness did not critically ob-
serve the brown pony. He had seen the brown pony in the
defendant's possession previous to the race. Defendant rode
the said brown pony from his home to the horse race, spend-
ing the night before the race at the house of his half-brother,
Jesse Bryant. Witness did not know where defendant got the
brown horse, nor how long he owned him.

Bud Robinson testified, for the defense, that he saw the de-
fendant and George May in attendance upon the horse race
near Buckholts on the occasion referred to by the preceding

Digitized by VjOOQIC

Tcnm, 1889.] Bsvkal v. The State. 6t

Opinion of the court.

witaess. May came to the race on a blckck horse, leading a bay
pony. May attempted to bet the bay pony on tiie raoes. Fail-
ing, he took the animal back to town where he attempted ta
sell it to witness. Witness declined to buy, when the defend-
ant, who was standing near, said to May: ''I will give you a
trade for the pony." Witness did not stay to witness the ne-
gotiation. The bay pony was in fine condition, and had no
sores or bruises that the witness observed.

The defense closed.

Three witnesses testified, for the State, in rebuttal, that they
knew all of the stock that the defendant owned about his home
at the time of the horse race, and prior thereto. He did not
then own a brown pony. He may have owned a brown pony
that was kept elsewhere. Bankston, recalled for the State,
testified that, when defendant brought the pony home, the
said pony was very poor, had bridle bruises on its head, and
a running sore on its back as large as a man's fist.

jE7. L. Antony y for the appellant

W. Zr. Davidson^ Assistant Attorney General, for the State.

WujiSON, Judge. A witness in behalf of the defendant tes-
tified positively that the defendant acqliired the alleged stolen
horse from one May, by trading to said May therefor a brown
horse; that this occurred prior to the time when the witoess
for the State saw defendant in possession of the stolen horse;
that May brought the said horse to a place where many people
had assembled on the occasion of a horse race, and endeavored
to bet the same on said race, and, failing in this endeavor, pro-
posed to sell or trade said horse, and that defendant traded for
the horse as aforesaid. There is no testimony directly assailing
the credibility of said witness, or directly contradicting any of
his testimony. It was corroborated to some extent by the testi-
mony of another witness, who testified that he saw May at the
race with a horse similar in description to the stolen horse, and
heard May and the defendant discussing a trade about said
horse.

To destroy the effect of this defensive testimony, the State
proved negatively by sevpral witnesses that they were ac-
quainted with the property owned by the defendant,, and he did
not own a brown horse at the time of the alleged trade, within

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62 27 Texas Court op Appeals. [Galveston

Opinion of the court.

their knowledge. It was also proved that on one occasion,
while the defendant had possession of the stolen horse, he
stated that he had got him "from a man over the river/' and
on another occasion he stated that he had got him "from his
uncle." It is shown by the evidence that, if he got the horse
from May, the first statement is true. As to the second state-
ment, the evidence shows it to be untrue. These statements
were casually made by the defendant when he did not know
that he was suspected of the theft of the horse, arid without
his right to said horse being called in question. Having been
made under such circumstances, they can not be regarded as
entitled to much consideration. Their criminative force is
weak — too weak to overcome the presumption of innocence,
when that presumption is supported by positive evidence.

As to the negative testimony that the defendant did not own
a brown horse at the time of his alleged trade with May, it is
entitled to but little, if any, weight. He may have owned such
a horse without the knowledge of the witnesses. He may not
have owned such a horse, and yet he may have traded such a
horse to May. It was incumbent on the State, we think, to
meet the defendant's proof of a lawful acquisition of the stolen
horse by more satisfactory evidence than was adduced. If May
did not in fact trade the horse to the defendant, and did not
have said horse in his possession at the race, it is reasonable to
suppose that these facts could readily be established, as the race
and the alleged trade took place in the county of the prosecu-
tion, and many persons were present at the time and in the
town where the trade is stated to have, occurred.

After a careful consideration of the evidence before us, we
conclude that it does not sustain the conviction. It does not
establish the guilt of the defendant to the exclusion of a reason-
able doubt, in our minds, and we are unwilling to sanction the
conviction upon the evidence.

The judgment is reversed and the cause is remanded for a
new trial.

Reversed and remanded.

Opinion delivered January 19, 1889.

Digitized by VjOOQIC

Term, 1889.] Miller v. The State. 63

Syllabus.

No. 6161 ^f-flS

, 28 472
[28 506

Masok Miller v. The State. ""

t Practicb — Etidencb — Dying Declarations — Predicate.— Ab a
necesBary predicate for the admission iu evidence of dying declarations,
it mast be established that the declarant, when he made them, was
under the sense of impending death, and was sane. Consciousness of
approaching death is provable, not merely by the solemn protestations
of the dyiug person, but by any circumstance which sufficiently shows
that when he made the declaratioils he was under the sense of impend-
ing death. See the opinion and the statement of the case for evidence
field sufficient to establish the necessary predicate for the proof of dy-
ing declarations.

1 Sake — Threats. — The defendant having introduced evidence of threats
against his life, uttered by the deceased, a short time before the homi-
cide, the State, over defendant's objection, was permitted to prove that,
about a year before the homicide, the defendant told a witness that the
'* threats of John Collier (deceased) did not amount to any more than
those of an old woman.'* Held that objection to this proof was prop-
erly overruled.

8. Same— PRiTiLEeE of Counsel.— Special counsel for the State, in the
concluding argument for the prosecution, stated to the jury that '' the
deftose of an insult to a man's wife is setup in two-thirds of the cases in
this county;" that, "when before the grand jury the witness Rose
made no such statement as that he picked a pistol up from the ground;'*
that ''he knew John Collier well, and that he was an honest and
truthful man," and that ** John Collier left a wife and a lot of orphan
children, and in their behalf you should punish the defendant;" with
reference to all of which statements the trial judge instructed the jury
that they were not to be considered, as they rested upon no evidence in
the case. Held that the instruction of the trial court was sufficient to
countervail any prejudicial tendency of the said statements.

4 Charge op the Court— Manslaughter— Adequate Cause— Self
DEFEN8E—'*CooLiNaTiME."— Objection that the trial court charged
the jury abstractly upon the issue of manslaughter can not be enter-
tained, inasmuch as it was not interposed when the charge was given,
and no probable injury to the accused is shown. See the opinion for a
eharge upon homicide in defense of the person against an unlawful at-
tack, and the statement of the case for a charge upon adequate cause,
Tield sufficient, under the facts of the case. And note that the evidence
does not call for a charge upon ** cooling time," nor upon self defense,
wherefore the trial court did not err in omitting to charge upon *^oool-
ing time " nor refusing the special charge as to self defense.

6b Murder— Fact Case.— See the statement of tt^e case for evidenoe J^ML
sufflcieDt to support a conviction for murder of the second degree.

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M 27 TBZiJ9 Court of Appeals. [Oalvertoo

Statemeot of the case.

Appeal from the District Court of Dallas. Tried below before
Hon. George N. Aldridge.

The conviction in this case was in the second degree for the
murder of John Collier, in Dallas county, Texas, on the twen-
ty-eighth day of October, 1886. The penalty assessed against
the appellant was a term of five years in the penitentiary.

John Luck was the first witness for the State. He testified,
in substance, that he was engaged in the mercantile business
at Eagle Ford, Dallas covmty, Texas. He knew the defendant,
and he knew John Collier, the deceased, in his lifetime. Wit-
ness could not state the exact ^ate of John Collier's death, but
it occurred in October, 1886. Collier, in his wood wagon, drove
up to the front of the witness's store, in the afternoon of the
fatal day, and called to witness to bring him five cents worth
of candy for his child. Witness took the candy to him, and
dii^covered that he was very drunk. He produced a bottle of
whisky from which he and the witness, at his invitation, took
a drink. Collier then attempted to get out of his wagon, but
fell out across the doubletree. About that time the defendant,
with Sam Rose and James Wright, each driving a wagon,, ar-
rived at the store, all of said parties, including Collier, having
come from the direction of Dallas. About the time that the
several wagons stopped. Collier remarked that his team **was
the d — dest fastest team on the road." Defendant then said
to Collier: ** You are not the fastest man on the road." Collier
replied to him: " Young man, I want nothing to do with you."
Thereupon the defendant advanced upon Collier with his right
hand on his hip and a little behind him. Collier backed from
and fired upon the defendant as he advanced, missing him.
Defendant then retreated, but continued to quarrel with Collier.
The witness, who had gone into his store, came out, requested
the parties to drop the matter, and to come into the store and
take cigars with him. They presently agreed to do so. and took
cigars. Collier then got into his wagon and drove oflf towards
his home. Thirty minutes later the other parties followed, de-
fendant riding the horse of Lon Barrett, who arrived about the
close of the difficulty, and Barrett driving defendant's team.

Cross examined, the witness stated that he was at and in
charge of his store on the fatal evening, and waited upon all
customers. Defendant and Rose and Wright had not yet
reached the store when the witness and Collier took a drink of

Digitized by VjOOQIC

Tgrm, 1889.] Muxbb v. Thb Statk CS>

statement of the ease.

whisky from ColKer^s bottle. Witness was in his store when
OoUier fired the shot at defendant, but he saw the shooting.
Defendant was then in his shirt sleeves, and had no weapon on
his person that the witness saw. The witness could not now
say whether or not the defendant ran when Collier drew his
pistol, but knew that the defendant did not run into the wit-
ness's store either then or after the shot was fired by Collier.
Witness did not hear defendant tell Collier that he, defendant,
was unarmed, and that he. Collier, might search him to verify
that statement. The defendant lived about a mile and a half
from Eagle Ford, beyond the river. Collier lived on the same
road, about three and a half miles from Eagle Ford— about two
miles beyond the defendant's house.

8. B. Rose was the next witness for the State. He testified,
in substance, that he lived about a mile and a half north from
Eagle Ford, within a very short distance of the house of the
defendant, and between that house and Eagle Ford. Collier,
defendant, James Wright and witness each took a wagon load
of wood to Dallas on the fatal Saturday. Collier was the first .
of the parties to start home on that evening. Witn^s, de-
fendant and James Wright, the one behind the other m the
order named, left Dallas together, each driving his own wagon.
At or near Cottonwood branch, which was about a mile east
from Eagle Ford, they overtook and passed Collier, who was
lying in his wagon, with his hat over his face, and very drunk.
Having passed Collier a short distance, witness, defendant and
Wright stopped their wagons, and defendant said that he
would go back and "cut" Collier a few "licks" with his whip.
Wright and Dan Curtis, who had joined tiie party, were pres-
ent, and heard defendant threaten to go back and strike de-
ceased with his whip. Witness, however, would not permit
defendant to go back to Collier's wagon, but went himself,
waked Collier, and told him to sit up to avoid falling and hurt-
ing hinaself. Witness in his wagon, defendant and Curtis in
defendant's wagon, and Wright in his wagon, then drove on to
Luck's store at Eagle Ford, in the order named, witness reach-
ing the store in advance of his companions, and all of them
getting there before Collier arrived. Witness went into Luck's
store and purchased some candy for his children. Luck being
present and waiting on him. After the other parties arrived,
and while witness was in the store, Collier drove up, passed

Digitized by VjOOQIC

66 27 Texas Coubt op Appeals. [Galveston

Statement of the case.

around the other wagons, and stopped his wagon in front of
the others. The witness presently heard the report of a pistol,
and, upon looking out of the store, saw Collier with one hand
to his head, and smoke as'^ending from a pistol in the other
hand. Witness did not see the pistol, but saw the smoke.
Collier was retreating when he fired the shot. He put his pis-
tol back into his pocket almost immediately after he discharged
it. Luck was in his store waiting on the witness at the time
Collier fired upon defendant, and witness was standing at the
end of the counter nearer the front door than Luck then was.
About that time Luck stepped to the door and called to the par-
ties: ** Drop that matter, and come in and take cigars with me."
The several parties then came into the store and each took a
cigar. About that time Lon Barrett came to the store on
horseback.

A few minutes later Collier got into his wagon and drove
slowly towards his home. Thirty minutes later the witness, in
his wagon, defendant next, Wright next, and Barrett on horse-
. back, following, left Luck's store and traveled rapidly over the
same road in the wake of Collier. Before leaving Luck's store
defendant repeatedly requested Barrett, to drive his wagon and
permit him to ride his, Barrett's horse, but Barrett refused.
The parties reached the west fork of the Trinity river in the
order named, Barrett still on horseback. Collier had then
crossed the river and disappeared. On the south bank of the
said west fork of the Trinity river the parties stopped. The
defendant there laughed and cried alternately in a very ex-
cited manner, and again begged Barrett for his horse for the
purpose of riding hurriedly home to get his pistol and intercept
and kill Collier. Witness and the others strove to quiet de-
fendant, and urged him to let the matter drop. After consid*
erable talk they prevailed upon the defendant to agree to drop
the matter. Defendant then said that he wanted no difSculty
with Collier, and would drop the matter; whereupon the wit-
ness requested Barrett not to change his mind and lend his
horse to defendant, and drove across the river without stopping
to water his horses, and started rapidly to his home, about a
mile distant. At a short distance from the river, it then being
about dark, a man on horseback, and riding rapidly, passed the
witness, going in the same direction that witness was travel-
ing. The witness did not recognize either the horseman or
horse. Just before reaching his house the witness heard a pis-

Digitized by VjOOQIC

Term, 1889. J Millbb v. The State. 67

Statement of the case.

tol shot, and when he got nearer his house he saw a man lyings
near the well, which was near the road, and between the road
and witness's house. He went to that man and found him to be
John Collier. While examining Collier a man rode up and
asked witness: **Is Collier much hurt?" Witness replied:
"Yes; he is killed." The man said: "That is all right," and
rode oflE, It was then too dark to distinguish the man's fea-
tures, but by his voice the witness recognized the defendant

When found by the witness, Collier was lying with his feet
at the well and his head pointing towards witness's house.
Witness's wife presently arrived with a light, and witness
seized Collier's body for the purpose 9f taking him into the
house, but found that he could not move him alone. In
trying to take Collier up, the witness pressed his thigh against
Collier s pocket, and by that means felt Collier's pistol in his
pocket. When he put Collier down he took the pistol out of
his pocket and handed it to his own wife. Witness's wife then
attempted to aid witness to take Collier to the house, but they
were unable to move him. A few minutes later Mr. LeNott,
on his way home in his wagon, appeared in the road, and wit-
ness called upon him for assistance, and with LeNott's aid he
succeeded in getting Collier into the house. A doctor wag
then sent for, but did not reach the house for some time.
This occurred on Saturday, October — , 1886. Collier died at
the witness's house on the following Monday. He died from
the effects of a gun shot which entered his stomach about two
inches from the navel. All of the parties named by the wit-
ness, including himself, were drinking on the fatal Saturday,
but Collier was the only one of the parties who was drunk.

Cross examined, the witness reasserted most positively that
when he, with defendant, Wright and Barrett, left Luck's store
on the fatal evening, the defendant was driving his own
wagon, and Barrett was riding horseback, and that they con-
tinued to travel in that manner until they reached the south
bank of the west fork of the Trinity river, which was about a
mile from Luck's store. The witness left the said parties on
the said bank, at which time defendant had not left his wagon
and mounted Barrett's horse. Witness saw no more that night
of any of the said party except defendant, whom, as stated, he
recognized only by his voice. The witness was equally posi-
tive that Collier was the last of the party to reach Luck's store
on their return from Dallas on the fatal evening. It was get«

Digitized by VjOOQIC

68* 27 Texas Coitbt of Appbals. [G«1v(

statement of the ease.

ting dark when the witness left the river for home. Collier,
who was quite half an hour ahead of witness, had then had ample
time to reach his home, which was but two and a half miles
from the river. The defendant's house was situated about two
hundred yards beyond the house of the witness, which was one
mile from the river— all of the said houses being on the same
road. The witness could not say how long it was after he left
the river when the man on horseback passed him in the bot-
tom, but at least ten minutes had elapsed. He could not say
accurately how far he bad gone when that man passed him,
but he had reached a point not far from his house. It was too
dark to recognize either the man or the horse when they passed,
and, besides, the road was flanked on either side by dense tim-
ber. Witness saw no other person than the said horseman be-
tween his home and the river on that night. Witness's house
stood about forty yards from and to the left of the road. The
well mentioned by witness was about ten yards from the road
and toward the river from the house. The house and well were
in timber on the edge of a glade. Before reaching the well,
on the fatal evening, the witness turned from the road, to the
left, to go to his house. When he stopped near his house he
heard the groaning of a man near the well. He went at once
to the well and found John Collier, wounded, as before stated,
lying on the ground. He did not then nor afterwards on that
night see either Collier's wagon or team, nor Barrett's or any
other horse. Witness did not, on that day, tell defendant
where his, witness's, pistol was kept, or where it was on that
night. Defendant had frequently visited witness's house, and
knew as well as witness did, that he, witness, habitually kept
his pistol under the head of his bed in his sleeping room.

The witness did not, when he reached Collier, a few minutes
after the shooting, find Collier's pistol on the ground by Col-
lier's side, and pick it up, and he denied that he ever, at his
house on that night, or the next morning, or elsewhere at any
other time, tell any person whomsoever that he found and
picked up Collier's pistol from the ground, by Collier's side, as
soon as he reached him. He denied that, at his, witness's,
house on that night he told Mrs. Miller, the wife of defendant,
that he found Collier's pistol on the ground and picked it up.
He denied that, on the same occasion, he told Mrs. Miller that
Collier ran on defendant at Luck's store that evening and de-
fendant had to run from him, and that he ran on defendant

Digitized by VjOOQIC

Tvm, 1889.] Miller v. The State. f^

Statement of the case.

again at his, witness's, house, and defendant had to shoot him.
He denied that on the same or any other occcusion he told Mrs,
Miller that, after the shooting he, witness, gave defendant his,
witness's, pistoL He denied that, on the next morning, at his,
witness's, house, he got John Miller, the brother of defendant,
away from the crowd there assembled, and told him that the
d^endant was not to blame for shooting Collier, but had to do
it, and that he, witness, found Collier's pistol on the ground
Bear where he lay. He denied that, after LeNott arrived, he
called to his wife to bring a light, or that she then brought the
light. He denied that he went to defendant's house on that
night, and particularly did he deny that, going to that house on
that night, he called to defendant, and in the presence of Lon
Barrett told defendant that he, witness, had dropped Collier's
pistol and wanted a light to find it, and that defendant gave
him a light, and he searched for Collier's pistol. He denied that
be took a package of cartridges to defendant's house on that
night after the shooting, and gave them to the defendant
ifi the presence of the said Barrett; nor did he at that time,
nor at any other time, there nor elsewhere, in the presence
of Barrett or any other person, tell defendant that he, de-
fendant, might need his, witness's, pistol, and to keep it; nor
did he ever tell any person that he ever, at any time, gave his
said pistol to defendant. He denied that, in the court house in
the city of Dallas, during the habeas corpus trial of this de-
fendant, he told one Thomas Alford that he, witness, was
present when Collier was shot; that he tried to hold Collier and
keep him off of the defendant, but that Collier pulled loose
from him and rushed upon defendant with his pistol in his
hand, and defendant had to kill him to save his own life. He
did not, at the same time and place, nor elsewhere at any other
time, tell the said Alford that, after the shooting, he found and
picked up Collier's pistol from the ground near where he fell;
Bor did he tell Alford that he gave defendant his, witness's pis-
toL The witness was not an infidel. He believed in religion —
the religion of truth and science.

Mrs. Martha Rose, the wife of the preceding witness, testi-
fied, for the State, that on the fatal night the defendant rushed
into her house and asked her for her husband's pistol. She told
him that she did not know where it was. Defendant then
sprang to the head of the bed, seized her husband's pistol and
rushed out of the house. About ten minutes later tlie witness

Digitized by VjOOQIC

70 27 Texas Court of Appeals. [Galveston

Statement of the case.

heard the report of a pistol, fired outside of the house. Her
husband not being at home the witness became much fright*
ened, and immediately after the pistol fired she blew out the
light and sprang into bed. Her husband soon afterwards
knocked at the door, but witness was too much frightened to
recognize his voice, and she did not open the door until he called
for a light the second time. She then got up, lit the lamp and
went to where her husband was. He told her that Collier had
been shot. She and her husband then went to Collier and at-
tempted to move him into the house, but were unable to do so.
Her husband then said that he felt Collier's pistol pressing
against his thigh. He thereupon took the pistol from Collier's
pocket and gave it to her. LeNott soon arrived and helped
witness's husband remove Collier into the house. Witness took
Collier's pistol into her house and put it on the mantel. Collier
fell about seven steps from witness's house. On her cross ex-
amination this witness denied that she testified on the habeas
corpus trial that defendant fired the pistol as he went out or
immediately after he got out of the house. Witness heard no
voice or voices at the time, nor just before the shot was fired.

The next witness for the State was Mrs. Jane Fleming. She
testified that she was the sister-in-law of John Collier. She
got to Rose's house on Sunday, the day after the shooting.
She found Collier suffering from a gunshot wound in the stom-
ach. He suffered more at intervals than at others. The bow-
els were much swollen and Collier was very sick — ^vomiting at
intervals. He complained of fullness in the bowels. Witness
took a seat by Collier's bed and said to him: "John, do you
know that you are going to die?" He replied: '*Aunt Jane, I
am bound to die." He did not say that he was then dying, nor
when he would die, nor how long he expected to live. Witness
did not tell him that he was dying, nor did she hear any other
person so tell him. Having stated to witness that he was bound
to die, he said: **I was on my way from the well to the house
to get a cup with which to get some water, when Mason Miller
stepped out from the house and shot me. I told Miller not to
shoot me."

P. C. Beard testified, for the State, that he was a deputy
sheriff of Mason county, Texas, and in August, 1887, arrested
the defendant in the said county. Defendant passed under the
name of John Miller in Mason county. The distance from
Dallas to Mason county was about three hundred miles.

Digitized by VjOOQIC

Term, 1889.] Miller v. Thb State. 7X

Statement of the casa

John Doyle, a resident of Mason county, also testified, for the
State, that defendant, in Mason county, passed under the name
of John Miller. He did not know that defendant's full name
was Gteorge Mason Miller, and that his uncle, with whom he
lived in Mason county, had a son named George Miller, and was
in the habit of calling defendant "John" in order to distinguish
him from Gteorge Miller

Sheriff Lewis, of Dallas county, testified that he searched for
the defendant, after the shooting, throughout Dallas county, but
failed to find him.

Lon Barrett testified, for the State, that he reached LucK'a
store on the fatal evening, after Collier had fired the shot at
defendant, and had no personal knowledge of what transpired
at the time. Collier left Luck's store soon after the witness
reached it, and the other parties — Rose, defendant, Wright and
witness — left it about thirty minutes later. When the parties
last named started to leave the store, the defendant asked the
witness to drive his team, and to lend him the horse he, witness,
was riding. He said that he wanted to go to his house, get a
pistol and kill Collier. The witness refused to lend his horse to
the defendant for that purpose, but said to defendant: "We
have had enough trouble; you had better let this matter drop "
After considerable talking and urging, the defendant, who
appeared to be very much excited, agreed to drop the quarrel
and not molest Collier. The witness, who was going home with
defendant to spend the night, then agreed to drive defendant's
team and lend defendant his horse. The parties then left Luck's
store. Rose in his wagon leading, witness driving defendant's
wagon following, Wright following witness with his wagon,
and the defendant riding witness's horse. In the order named
the party traveled slowly to the west fork of the Trinity river.
Throughout the journey to the bank of the river the defendant
appeared to labor under great excitement, weeping and laugh-
ing alternately. The parties stopped on the river bank, and
witness and Wright pleaded a considerable time with defendant
to abandon his designs upon the life of Collier. Defendant be-
came again excited, apparently by brooding over the occurrence
at Luck's store, but was finally a second time prevailed upon to
agree to drop the diflBculty. Rose drove into and out of the
river on the. other side. Then Wright in his wagon, followed
by the defendant on witness's horse, went into the river, leaving
the witness with defendant's wagon and team on the south

Digitized by VjOOQIC

72 27 Tbxas Court of Appeals. [Galveston

Statement of the case.

bank. Witness then drove into the river, watered the team and
then drove out. When he mounted the bank on the other side
neither Wright and his team nor defendant and^witness's horse
were in sight. Witness did not see Wright again on that night.
He next saw defendant when he reached the vicinity of Rose's
house. Defendant was then standing by the witness's horse,
at the edge of a small glade immediately east of and near the
well at Rose's house. Collier's team with the wagon was then
standing in the main road some distance southeast from Rose's
well. Defendant, riding witness's horse, and witness, driving
def endfimt's team, went immediately to defendant's house. After
reaching home the defendant unhitched his horses from his
wagon, saddled one of them and left, going towards the house
of Mrs. Girard, some miles distant, in the^southwest portion of
the county. Witness, riding his own horse, accompanied de-
fendant as far as the house of Mr. Jim Horton, near Mrs.
Girard's, where he passed the night.

Cross examined, the witness said that he did not, when he
reached the vicinity of Rose's house, go to the well where Col-
lier was lying, but went immediately home with defendant.
Very soon after witness and the defendant reached the defend-
ant's house, S. B. Rose came there. He said that he dropped
Collier's pistol in front of defendant's house, and asked for a
light with which to hunt for it. Defendant gave Rose a light
and Rose went down the road towards his house, after which
the witness did not see Rose on that night. While at the
house Rose gave defendant a sack, which he told defendant
contained cartridges, and which, he said, defendant might
need to use in the defense of himself. The defendant owned a
pistol, which he always kept at his house. Defendant's wife
was not at home when witness and defendant got there, but
was said to be visitiog the house of her father, a short distance
off. The witness's present statement was the first full state-
ment of the facts in his knowledge made by witness, although,
when he was before the grand jury, Mr. Clint directed him to
tell all he knew about the occurrences on the fatal evening
and night. .

Henry Brittain testified, for the State, that John Collier was
his half brother, and the wife of the defendant was his sister.
The witness heard of the shooting of Collier on the night that it
happened. He went at once to Rose's house, where Collier was,
and remained there until about four o'clock on the next morn-

Digitized by VjOOQIC

Term, 1889.] Miller v. The State. 78

Statement of the case.

ing. He found Collier shot in the stomach. His bowels were
much swollen, and he told the witness that he was bleeding
internally. It was the recollection of the witness that when, a
few minutes after his arrival, a physician was sent for. Collier
said that it was "of no use to send for a doctor." Witness
asked Collier who shot him, and he replied: ** Mason Miller. "
Witness then asked him how the shooting happened; what he
was doing when shot; where he was, and when he first saw
Miller. Collier said: "I was at the well, drinking, when I
heard the click of a pistol. I turned and saw Miller at the
corner of the house, and asked him not to shoot me, but he
shot me."

The State closed.

James Wright was the first witness for the defense. He tes-
tified that he, with defendant. Rose and Collier went to the city
of Dallas, each with a load of wood. Collier was the first to
start home in the evening. Some time afterwards Rose, de-
fendant and witness, traveling in company in the order named,
left Dallas for home. At Cottonwood branch, about a mile
from Luck's store, the said parties overtook and passed Collier.
Collier, who was very drunk, was sitting in the bed of his
wagon with his hat drawn down over his face, and had dropped
his lines. Rose, defendant and witness stopped their teams
after passing Collier, and about that time Dan Curtis joined
them. Roie went back to Collier's wagon, waked him up and
gave him his lines. It was not true, as testified by Rose, that
then, or at any other time on that evening, defendant expressed
a desire to go to Collier's wagon and strike Collier with his
whip. Just before Luck's store was reached. Collier passed the
wagons of the other parties and reached the said store first.
He was on the ground, standing at the head of his team, when
the other wagons drove up and stopped near the store. De-
fendant then came to witness's wagon and got a small national
flag which had been given to witness in town and attached the
flag to the bridle of one of witness's horses, slapped the horse's
neck, and said: "Here is the fastest d — d horse on the road."
Collier stepped forward and said: **I am the fastest d — d man
on the road." Defendant replied: "John Collier, you are not
the fastest man on the road." Collier replied: "Young man, I
want no truck with you." Defendant said: "That's all right,
but you are not the fastest man on this road." Collier then
started towards defendant, and defendant, who was in his shirt

Digitized by VjOOQIC

74 37 Texas Court op Appeals. [Galveston

StatemeDt of the case.

sleeves, threw down his whip and gloves, pulled up his pr.nts
and started towards Collier, when Collier drew his pistol and
fired at defendant. Defendant ran into Luck's store, but soon
reappeared on the gallery and said to Collier: *'I am unarmed
and you know it. If you will lay down your pistol and fight
me fair, I am ready for you." About this time Luck came out
of the store with a box of cigars and said: **You all dry up;
make friends and I will treat." Each of the parties took a
cigar and Collier soon got into his wagon and left, and about
this time Lon Barrett, on horseback, arrived at the store. De-
fendant then attempted to prevail upon Barrett to' drive his
wagon and lend him his, Barrett's, horse. Barrett at first re-
fused but finally consented, and, about thirty minutes after Col-
lier left, the other parties started. Rose in his wa^on going in
the lead, Barrett in defendant's wagon following Rose, witness
in the wagon following Barrett, and defendant riding Barrett's
horse. The said parties traveled in the order named as far as
the south bank of the west fork of the Trinity river, which was
about a mile distant from Luck's store. The defendant dis-
played great excitement and manifested and expressed a desire
to go on home, get his pistol and kill Collier. The party
stopped on the south bank of the river, and witness and Bar-
rett urged defendant to abandon his design upon Collier's life.
Defendant finally said that he wanted no trouble with Collier
and would drop the matter. Rose then drove across the river.
Witness and the defendant, the latter riding Barrett's horse,
then went into the river, watered their horses and crossed, by
which time Rose disappeared, and Barrett, in defendant's
wagon, was still on the south bank. Witness then told defend-
ant to ride on home and do up his chores, and that he, witness,
would call at his house later, to go with him to the meeting of
the Farmer's Alliance. Defendant agreed and rode off, and
witness saw him no more on that night.

D. A. Williams testified, for the defense, that he was present
at the habeas corpus trial of the defendant before the Hon. J.
M. Hurt, judge of the Court of Appeals, and heard the testi-
mony of Mrs. Martha Rose delivered on that occasion. Mrs.
Rose stated, in the course of her evidence, that, having secured
Rose's pistol, the defendant rushed out of the house and fired
the pistol immediately — that she heard the report just as the
defendant got out of the house.

R. B. Hickman testified, for the defense, that he saw Collier

Digitized by VjOOQIC

Term, 18fe9 ] Milt.er v. The State. 75

statement of the case.

and the defendant in the city of Dallas early on the afternoon
of the fatal Saturday. Passing Collier and some other parties
near a saloon on the public square, he heard Collier say to such
other parties that Mason Miller was a d— d scoundrel, and
that he. Collier was going to kill him. Collier then followed
the defendant, and defendant drew back to get out of Collier's
way. Other parties who were then with Collier placed them-
selves between Collier and defendant to prevent a difficulty,
and defendant walked off to the place where several wagons
were standing, and witness saw him no more on that evening.
After defendant left the crowd. Collier said: '*God d — ^n him,
I have got a six shooter that will get him." During the time
covered by these occurrences, Collier exhibited a pistol and a
knife to the witness. Soon after defendant went to the wagon,
a man whom witness did not know, but who did not correspond
with the description given the witness of James Wright, came
hurriedly to the crowd around Collier. S. B. Rose was one of the
parties with Collier wheri Collier threatened to kill defendant.
This witness stated on cross examination that his principal
business in life was drinking beer, but he sometimes hauled
wood. The knife exhibited by Collier was a weapon about
twelve inches in length. Witness had often, previous to the
said Saturday, heard Collier threaten to kill defendant.

Thomas Alford was the next witness for the defense. He
testified that he met Collier in Dallas on the fatal day, and
about noon on that day took a drink with him in Tom Cade's
saloon. On that occasion Collier told the witness that he was
armed, and that he intended to kill Mason Miller. Witness
then saw that Collier was armed with a pi&tol and a knife. He
knew Collier well and considered him to be a dangerous man,
and one who would most probably execute a threat. Witness,
feeling a great interest in the case of the defendant, attended
the habeas corpus trial, and during that proceeaing, at the
court house, in the city of Dallas, had a talk with the State's
witness Rose, in the course of which talk Rose told him that he.
Rose, was present, and saw the shooting of Collier by the de-
fendant; that he tried to hold Collier and keep him off of the
defendant, but that Collier pulled loose from him and rushed
upon defendant with his pistol in his hand, and that defendant
had to shoot Collier in self defense, and that after the shooting
he found Collier's pistol on the ground by Collier's side, and
picked it up before anybody else reached Collier. Rose, in the

Digitized by VjOOQIC

76 27 Texas Coubt of Appeals. [Qeiwmtoia

Statement of the ease.

same conversation, told the witness that after the shooting he.
Rose, gave defendant his, Rose's, pistol. This conversation oc-
curred just before the habeas corpus trial commenced.

William Wright testified, for the defense, that on one oc-
casion previous to the fatal Saturday, Collier told him that he.
Collier, had had several "rackets" with the defendant, and that
he, Collier, intended to cut the defendant's throat the very next
time the defendant crossed his path. He had often heard Col-
lier threaten to kill defendant. Witness considered Collier a
Tiolent, dangerous man, who would be likely to execute a
threat.

Mrs. Lizzie Miller, the wife of the defendant^ and the lialf
«ister of Collier, testified, for the defense, that she was at her
father's house, a short distance from the house of her husband,
at the time that Collier was shot. She heard of the shooting
on that same night, and went to Rose's house, where Collier
then was. When she reached the house, the State's witness,
S. B. Rose, told her that Collier tried to shoot defendant at
Luck's store on that evening, and that defendant had to run
into Luck's store to save himself; that, when they reached his,
Rose's, house on that night. Collier again ran upon defendant
with his pistol, and that defendant had to shoot him in self de-
fense; that he, Rose, afterwards picked up Collier's pistol from
the ground by Collier's side, and that, after the shooting, he
gave the defendant his, Rose's, pistol. Defendant had a pistoX
of his own at home. It was in the house when witness left,
late that evening, to go to her father's house. Defendant al-
ways kept his pistol at home, and never carried it about his
person.

Dock Ward testified, for the defense, that he met Collier in
the road two or three days before the fatal Saturday. Collier
was in his wagon, and had a pistol in his hand, which he was
polishing. On that occasion he told witness that he would kill
Mason Miller before the close of the week. Witness had often
heard Collier, when drinking, threaten to kill the defendant.
He considered Collier a violent, dangerous man, who would
most likely execute a threat.

Doctor Stovall testified, for the defense, that he reached
Rose's house about two o'clock on Sunday morning. He re-
mained there about an hour, and returned again about nine
o'clock. He examined Collier's wound, which he decided was
necessarily fatal. He did not tell Collier that he would die, but

Digitized by VjOOQIC

Ton, 1889.] Mh^leb v. Tbb Statb. Tf

Statement of the ease.

told his rriatives that it was useless for him, witness, to oomc^
back, as he could do Collier no good. Witness prescribed inor*
pldne to alleriate the wounded man's pain, but not enough to
affect his understanding. He was afterwards informed that
Collier's stomach failed to retain the morphine.

Mrs. Bettie Alley, the next witness for the defense, testified
that she went to Rose's house to see Collier on Sunday OTening,
and remained there about two hours. During the time that she
was there. Collier was under the influenc of morphine, and
talked foolishly. He did not appear to know what he talked
about

Mrs. Sue O'Day testified, for the defense, that she met and
talked with Collier in the city of Dallas on the Thursday before
the shooting. On that occasion Collier told witness that he
intended to kill Mason Miller. Witness said: " I reckon^ not."
Collier replied: "Yes, I intend to kill the whole d — ^n Miller
outfit." Witness said to him: *'Tou will not kill his wife—
your sister Lizzie?" Collier replied: *' I don't know about her,
but she is nothing but a God d---d black-eyed whore." Witness
had often heard Collier threaten defendant, but never before
heard him make such a remark about defendant's wife. She
met defendant in Dallas on the morning of the fatal Saturday,
and told him what Collier said to her on the previous Thursday.

On cross examination, this witness said that when she told
defendant on Saturday what Collier said on Thursday about
Mrs. Miller, and about killing "the whole God d— d Miller out-
fit," the defendant stood mute for a minute, and then walked
off, remarking, interrogatively: "Will Collier do all that by
himself?" Witness never heard defendant utter a threat
against Collier.

John LeNott testified, for the defense, that he went to the
city of Dallas on the fatal Saturday, and reached Rose's
house, on his return, after dark. When he got about opposite
Rose's house Rose called to him that Collier was lying there,
shot. He went to the place between Rose's house and well, and
found Collier lying on the ground. Rose then called to his
wife to bring a light from the house. Mrs. Rose brought a
lamp and witness and Rose carried Collier into the house.
There was no pistol about Collier's person nor on the ground,
nor did Rose, while witness was there, take a pistol from Cot
Hoi's pocket, nor did he give a pistol to Mrs. Rose after sbe^

Digitized by VjOOQIC

78 27 Texas Cottbt of Appbals. [Gkdveston

statement of the case.

reached the place where Collier was, nor did Mrs. Bose take a
pistol into the house.

John Lasater testified, for the defense, that he lived on the
main road between Rose's house and the crossing of the west
fork of the Trinity, and about a quarter of a mile from Hose's
house. He owned a shot gun which he kept loaded at all times,
and which was kept at his said house. He had often loaned
that gun to defendant, and defendant knew perfectly well
where it was kept and that he could get it at any and all times.
The said gun was at the witness's house, loaded, on the fatal
Saturday evening, and there was no reason why the defendant
should or could vlot have taken it. It was generally known to
the witness and to the neighbors at the time of the shooting
that no bucket was kept at Rose's well, and that no person was
permitted to water horses at that well. Collier was a violent,
quarrelsome and dangerous character.

Mrs. Puss Girard testified, for the defense, that the defend-
ant was her neighbor. Defendant came to her house on the
night of the shooting, and remained until next morning, when
he left. He returned a few days later and stated that he was
going to the city of Dallas to surrender. Witness dissuaded
him from that purpose, advising him against surrender at that
time, upon the ground that the excitement and feeling against
him was still too great to render surrender safe.

Mrs. Bowers and Miss Shuler Bowers testified, for the de-
fense, that they were at Eagle Ford on the evening of the fatal
day, when Collier shot at defendant. When that shot was
fired defendant ran into Luck's store.

John Miller, the brother of defendant, testified, for the de-
fense, that he went to Rose's house on the morning after the
shooting. When he arrived Rose took him aside and told him
that the defendant was not to blame for shooting Collier; that
he had to do it, and that after the shooting he. Rose, found Col-
lier's pistol on the ground near where he fell. The defendant,
at the time of the shooting, had a pistol of his own at his home,
which was within two hundred yards of Rose's house.

Dan Curtis testified, for the defense, that he overtook Rose,
defendant and Wright, on the fatal Saturday evening near
Cottonwood branch, between Dallas and Eagle Ford, to which
place he went with them. They soon overtook and passed
Collier, who appeared to be asleep in his wagon. They then stop-
ped and Rose went back to Collier's wagon and waked him up.

Digitized by VjOOQIC

T^rm, 1889.] Millbb v. The State. 79

statement of the case.

Defendant did not threaten at that time to go back and strike
Ctollier with his whip. Collier soon passed the other wagons
and reached Luck's store first, and was standing at the head of
his team when the others arrived. A dispute then arose .be-
tween defendant and Collier. Collier then drew a pistol and
fired upon defendant, at which time Collier was retreating and
defendant advancing.

Mr. Beck testified, for the defense, that he knew John Col- *
lier, and that he was a violent, dangerous man, who would
most likely execute a threat
The defense closed.

Jack Beets testified, for the Stat^, in rebuttal, that about a
year before the killing of Collier he had a conversation with
the defendant about certain threats uttered by Collier against
defendant, in the course of which the defendant said to wit-
ness: **The threats of John Collier do not amount to any more
than the threats of an old woman." Collier was a quarrelsome
man when drinking, but was neither a dangerous man nor a
man likely to carry out a violent threat.

Louisa Langley testified, for the State, that, several months
before the shooting of Collier, the defendant came into the
field where the witness and a daughter of Collier were at work,
and in the course of a wordy altercation that ensued said that
he intended to kill Collier. The reputation of Mrs. Miller, the
wife of defendant, for chastity, was very bad in the neighbor-
hood in which she resided. Witness had heard that reputation
pronounced bad by a large number of people, the names of
whom, nor of any of whom, was she able to give. Four or
five other witnesses for the State testified as did the witness
Louisa Langley as to Mrs. Miller's reputation for chastity.
Three of the same witnesses declared that Collier was not a
dangerous man.

The State closing finally, the defense introduced half a dozen
witnesses who testified that Mrs. Miller's reputation for chastity
in Dallas county, where she had always lived, was good and
had always been good.

The charge of the court on adequate cause, referred to in the
fourth head note of this report reads: "By the expression 'ade-
quate cause' is meant such as would commonly produce a de-
g^ree of anger, rage, reseutment or terror in a person of ordi-
nary temper sufficient to render the mind incapable of cool re-
flection. Insulting words or gestures, or an assault and bat*

Digitized by VjOOQIC

•0 27 Texas Court of Appeals. [OalvestoB

Opinion of the court.

terj so slight as to show no intention to inflict pain or injury,
are not 'adequate causes.'"

"The following are deemed adequate causes:

"1. An assault and battery by deceased, causing pain and
bloodshed.

"2. A serious personal conflict, in which great injury is in-
flicted by the person killed by means of weapons or other in-
struments of violence, or by means, of great superiority of per-
sonal strength, although the person guilty of the homicide were
the aggressor, provided such aggression was not made for the
purpose of killing,

*'3. Insulting words or conduct toward the wife of the party
guilty of the homicide.''

Coombes & Gano filed an able brief and argument for tne ap-
pellant.

W. L, Davidsouy Assistant Attorney General, for the State

Hurt, Judge. At the Austin term the judgment m this case
was affirmed without a written opinion. Counsel for appellant
presents this motion for rehearing, insisting earnestly that the
record contains errors for which the judgment should be re-
versed, and we will now notice the errors assigned. The ap-
pellant was convicted of murder in the second degree for
killing John Collier.

The first error assigned is that "the court erred in admitting
the statement made by Collier after he was shot, because the
proper predicate had not been laid." The statement under
this proposition is that Collier was shot after dark on the
evening of October 28, 1886, and was carried into the house of
S. B. Rose. On the next day after he was shot, his sister-in-
law, Mrs. Fleming, saw and conversed with him. To her he
made a statement under these circumstances; He was shot in
the bowels. On Sunday he suffered intensely — at times more
than others. His bowels were swollen, and he was very sick
— vomiting at intervals. He complained of fullness in the
bowels, and said that he was bleeding internally. Mrs. Flem-
ing took a seat by the bed and said to him: "John, do you
know that you are going to die?" He did not say that he was
dying, or that he expected to die, but replied to Mrs. Fleming:
"Aunt, I am bound to die ! " The counsel for appellant con^

Digitized by VjOOQIC

Term, 1889«] Miller v. The State 81

Ooinion of the ooort.

tended that the declarations were not made under a sense of
impending death; that it does not appear that deceased was
impressed wiih the belief of almost immediate dissolution; that
the reply to Mrs. Fleming: **I am bound to die," may be true,
yet this fails to show that the declarant believed he was in
danger of almost immediate dissolution.

To infer, under the facts attending deceased when this state-
ment was made, that he simply meant that at some time he
was bound to die, would be^unnatural and unreasonable. Thus
to presume would be to place the deceased in the attitude
of a jester whilst in the most awful condition in which a man
can be placed. The declarations must be made under a sense
of impending death, but it is not necessary that they should be
stated at the time to be so made. It is enough if it satisfac-
torily appears in any manner that they were made under that
sanction; whether it be directly proved by the express lan-
guage of the declarant, or be inferred from his evident danger,
or the opinions of medical or other attendants stated to him, or
from his conduct or other circumstances of the case— all of
which are resorted to in order to ascertain the state of the de-
clarant's mind. (1 Greenlf. Ev., 192.) Looking, therefore, to
all the facts surrounding the deceased when the declarations
were made, we are of opinion that they were made under a
sense of impending death, and, so far as this objection is
concerned, were competent evidence. The same observations
apply to the question of the sanity of the deceased.

The appellant introduced evidence of threats by deceased
shortly before the homicide. The State, over objection, proved
by Beets that appellant, about a year before the homicide,
stated to the witness (Beets) that the threats of John Collier
did not amount to more than those of an old woman. Under
the above state of case, this was most evidently competent
evidence.

A nimiber of bills of exception were reserved by appellant to
remarks and statements made in argument by counsel for the
prosecution. In every instance, however, the court acted in
such manner as to render the remarks and statements harm-
less.

There was no error in the charge of the court in regard to
adequate causes. Appellant complains that the court gave to
the jury abstract law upon the subject of manslaughter. Ap-

Digitized by VjOOQIC

83 27 Texas Court of Appeals. [Galveston

Opinion of the court

pellant did not object at the time to these charges; hence, to
reverse for this, some injury must appear or be probable — which
does not appear in this case.

Appellant objected on the trial to this charge: ''Homicide is
justifiable also in the protection of the person against any other
unlawful and violent attack besides those mentioned, ♦ ♦ ♦
and in such cases all other means must be resorted to for the
prevention of the injury, and the killing must take place while
tlie person killed is in the very act of making such unlawful
and violent attack." This charge is in the language of the
statute and is correct. Appellant requested the following
charge, which was refused, and he- excepted: "You are in-
structed that if the homicide was committed in protection of
the person against an attack which produced a reasonable ex-
pectation or fear of death, or some serious bodily injury, then
it would not be necessary for the party so attacked to r,e8ort to
any other means before killing his assailant." Counsel cite us
to no statement — no fact in the record— presenting the question
of self defense; and if there be such evidence in this record we
have failed to discover it. Rose swears to no fact raising the
question, and if he stated such facts to others they could only
be used to impeach him. This being so, whether the instruction
was abstractly correct or not, the court acted properly in re-
fusing to give it in charge to the jury.

The objections urged to the charge of the court relating to
accomplice testimony were not made at the time, nor does it
appear that the appellant was probably injured in this matter.
Under the facts of this case, there was no necessity for the
court to instruct the jury on * 'cooling time."

It is seriously contended that the verdict of the jury is not
supported by the evidence. We think differently. The facts
in this record establish, to the mind of the writer, a cold-
blooded, deliberate assassination, and the appellant should re-
joice that he escaped capital punishment.

We have very carefully considered all the grounds (though
we have not written upon them all) relied upon for a reversal
of the judgment, but we think none of them are well taken,
and the motion for rehearing must be denied.

Rehearing refused.
Opinion delivered January 19, 1889.

Digitized by VjOOQIC

Term, 1889.] Peacb v. The State. 83

Statement of the case.

No. 2530.
John Peace v. The State.

1. Praohob— OoimDruANCB— New Trial.— Even if the absent testimony
Bet oat in an application for continuanoe be both admissible and prob-
ably trae, it will not, if immaterial, require the award of a new trial
because of the refusal of the continuance.

a. Same— Gharob of thb Court— Bill of Exception reserved to the
charge of the court, if too iceneral or indefinite to point out speoiflo
objection, will not be considered on appeal; and, in the absence of a
proper bill of ezcepti6n,^this court will examine the charge of the court
below ouly with reference to fundamental errors or such as, under all
the circumstances of the case, are calculated to prejudice the rights of
the accused.

H Murder^Faot Oasb.— See the statement of the case for evidenoe Tield
sof&oient to support a conviction for murder of the first degree.

Appeal from the District Court of DeWitt. Tried below be-
fore the Hon. H. C. Pleasants.

This conviction was in the first degree for the murder of W.
B. Stonebraker, in DeWitt county, Texas, on the fifteenth day
of August, 1887. A life term in the penitentiary was the pen-
alty assessed against the appellant.

W. L. Rudd, sheriff of Karnes county, Texas, was the first
witness for the State. He testified that he lived in the town of
Helena, Karnes county, in August, 1887. About eleven o'clock
on the night of Monday, August 15, 1887, the witness was
awakened by the shouting of some person at his gate. On go-
ing to the gate he found the person to be Milam Odom. Odom
was slightly wounded, and was taken by the witness into his,
witness's, house. Witness then went to Butler's hotel where
John Rutledge lived, and informed Eutledge that Odom,
wounded, had arrived from his, Rutledge's, ranch, which was
situated in DeWitt county about eight miles from Helena, and
reported that somebody on that ranch had been killed. Rut-
ledge then went to get a physician to attend to Odom, and wit-
ness summoned a posse and repaired to Rutledge's ranch. Upon
his arrival at the ranch he found the dead body of Stonebraker,
Imt there was no living person on the place. The house at Rut-

244

414

1751

403

Digitized by VjOOQIC

84 27 Texas Court of Appeals. [Galveston

StatemeDt of the casa

ledge's ranch was a building of two rooms with a gallery in
front. The house fronted south, the rooms standing one be-
hind the other, the small or rear room being a shed room^
A door pierced the north side of the shed room, another
opened between the two rooms, and a third led from the first
room to the gallery. The three doors were on a direct line
with each other. The north string of the fence was about
twelve feet distant from the house. A light w£ts burning
dimly on a table in the southeast comer of the north room
when the witness readied the ranch. The body of Stonebraker
lay back down, in the north room, his feet near the door be-
tween the two rooms and his head pointing towards the north-
west comer of the room.

Witness examined the body and found tiiat the left side and
front had been pierced by five buck shot. Further describing
his discoveries about the house, the witness said: '*I also
found three shot in the wall just to the right of the door from
the front room to the gallery. One of these shots went through
the wall; and there were two shots in the front fence, some
thirty or forty feet from the house. On the other side of the
house, near the north door, there was the remains of a fire in
the back yard."

The witness knew the defendant as John Peace. He was de-
livered to the custody of the witness on Tuesday, the day after
the killing, by Lieutenant Grimes of the State ranger service, and
witness placed him in the Cuero jail. The last time that wit-
ness saw the defendant prior to the killing of Stonebraker was
on the Friday preceding the tragedy. He came on that even-
ing to Harper's ranch, where the witness and W. T. Morris and
their wives then were. He said that he was on his way to
Houston's ranch. Soon after he reached Harper's ranch, Sam
Harper got home from Yorktown. In the course of the general
conversation which ensued, somebody remarked to defendant
interrogatively: "John, do you know that Stonebraker has
taken your feather bed?'' Defendant replied: **Well, d — n
him, if he has, I will kill him. Don't you think I ought to,
Rudd?" Witness said, in reply: "No; you ought to do noth-
ing of the kind." A few days after the killing of Stonebrakei
the witness went to Butler's hotel to look for a pistol. While
looking about the gallery Mrs. Butler asked him what he was
looking for. He told her, and she directed him to a place on
the gallery near a flower stand, where he found the pistol.

Digitized by VjOOQIC

Term, 1889.] Pbacb v. The State. 86

Statement of the case.

Witness kept that pistol until it was claimed by Milam Odom,
when he delivered it to him. On his cross examination, the
witness said that he did not regard as serious the threat against
Stonebraker uttered by the defendant at Harper's ranch.

W. T. Morris and Sam Harper, testifying: for the State, cor-
roborated the witness Rudd as to the threats uttered by the de-
fen*lant at Harper's ranch. Morris further testified that, ten
days or two weeks prior to the death of Stonebraker, he was on
a scout with Rudd. defendant and others. Witness was armed
with a double barreled shot gun that belonged to Rudd. Ex-
amining the gun while in the witness's hands, the defendant
remarked that he **believed he would borrow that gun from
Rudd."' Witness asked him if he wanted it to hunt with. He
replied: "No; I want it to kill Stonebraker with." The wit-
ness, at that time, did not think the defendant made the state-
ment seriously.

D. Q. Butler testified, for the State, that he was the proprie-
tor of Butler's hotel, in Helena, Karnes county, Texas. Infor-
mation about the killing of Stonebraker was brought to the
witness's hotel about eleven o'clock on the fatal night. John
Rutledge, who boarded at witness's hotel, was then sleeping on
the gallery. Upon being informed of the killing of Stonebra-
ker and the wounding of Odom, Rutledge went first to see
about having Odom attended to, and then went to his ranch
with Rudd. Some time after Rutledge left, — between one and
two o'clock,— the defendant came to witness's house. When he
stepped on the gallery, the witness looked out of his room to
see who he was. Mistaking him for Odom, the witness asked
him: "Milam, does your wound hurt you much?" Defendant
replied: "This is not Milam," and witness recognized him, and
told him that Stonebraker had been killed at Rutledge's ranch,
and Odom wounded. He replied that he had been down the
country on business for Rutledge, and had not heard of the kill-
ing. Witness returned to his room and retired, and defendant
lay down in the bed that Rutledge had recently left. Defend-
ant was still in Rutledge's bed on the gallery when witness got
up next morning, but left soon afterwards. A horse was tied
at the fence when witness got up in the morning, but when he
missed the defendant a few minutes later, he observed that the
horse was also gone. He next saw the defendant between ten
and eleven o'clock on that morning. He was upable to say

Digitized by VjOOQIC

it 27 Texas Court of Appeals. [GaLveston

Statement of the case.

whether or not defendant got breakfast at his hotel on that
morning.

Milam Odom was the next witness for the State. He testi-
fied that he was at Rutledge's ranch at the time Stonebraker
was killed. He and the defendant lived at the same ranch, be-
ing employes of Rutledge. The witness and Rutledge, in a
^^SSJy loft the ranch on the Saturday evening preceding the
fatal Monday. They left the. doors unlocked. They left York-
town on Monday evening, passed Stonebraker with two hands,
Schneider and Polschinzski, driving a herd of cattle, towards
the ranch, and reached the ranch about dark. Rutledge
changed horses at the ranch, and in his buggy started on to
Helena. Witness got a horse and went back to meet Stone-
braker and help him with the cattle, which Rutledge was to
pasture for him. It was between eight and nine o'clock when
Stonebraker, witness and the two hands reached the ranch and
penned the cattle. A fire was immediately built near the back
door of the north room, and witness prepared to cook supper.
He got a basin of water and placed it on the gallery immedi-
ately in front of the door, and proceeded to bathe his face and
hands. Stonebraker was then in the shed room. While wit-
ness was washing, a shot was fired from behind the house.
Witness ran to the front fence, jumped over it, and fled to the
point where his horse was hitched, about two hundred yards
distant. Witness waited at that point a few minutes, when he
ventured to approach as near the house as the tree where his
saddle was hanging. From that point he looked into the shed
room, in which there was a light burning, and saw the body of
a man lying on the floor. He then saddled his horse and rode
to Helena. One of the shots flred from the gun at the time of
the killing struck the witness in the thigh, inflicting a slight
wound.

When the witness and Rutledge left the ranch on Saturday
evening, Rutledge's double barreled breech loading shot gun
was standing in a corner of the front room. The witness and
defendant had used that gun on two or three occasions to kill
birds, withdrawing the loads of buckshot and substituting bird
shot. Witness could not now remember where he placed the
buckshot removed from the gun but thought it probable that
he put them either in his trunk or in a box on the mantel in
the front room. The gun was loaded with bird shot when wit-
ness and Rutledge left the ranch on Saturday, The gun was

Digitized by VjOOQIC

Term, 1889. J Peace v. The State. • 87

Statement of the case.

not at the ranch when witness looked for it on the morning
after the killing. Witness and defendant, who were second
cousinSy had been living at the ranch about six months at the
time of the killing. The witness and Rutledge helped Stone-
braker, on the morning of the fatal Monday, gather Stone-
braker's cattle in a pisture at Yorktown. While witness and
Rutledge were holding some of the cattle at a pen on that
morning, defendant came by. Stonebraker was not then at
the pen. Defendant knew Stonebraker's brand, and if he
asked witness what he was going to do with the cattle — and
witness did not remember that he did — witness told him. Wit-
ness was unable to say that defendant knew that Stonebraker
was going to take the cattle to Rutledge's ranch. Defendant
left Rutledge's ranch on a mission for Rutledge on Friday, to
go to Houston's ranch, fifteen or twenty miles from Yorktown.
He did not get to Yorktown until Saturday. Witness saw him
in Yorktown on Saturday and Sunday, and as late as noon on
Monday. He left Yorktown about noon, saying that he was
going to Allee's ranch, in Goliad county, eighteen miles south
from Yorktown, to take a note to Allee from Rutledge. He
was then riding a bay horse. The horse he was riding when
arrested in Helena, on the day after the killing, was a gray
horse that belonged to Rutledge, and that was kept on the
ranch. That horse was supposed to be on the ranch when
witness and Rutledge left it on Saturday. Witness did not see
defendant after he left Yorktown to go to Allee's until after
his arrest next day. Witness could not accurately fix the
hour at which he and Rutledge left Yorktown on Monday
evening, but they drove rapidly in a two horse buggy, and
reached the ranch soon after sun set, traversing a distance of
twelve miles. In Yorktown, on the Saturday before the kill-
ing, the defendant asked the witness for his pistol. Witness
told him that it was in his saddle pockets at the house of Mrs.
Friar in Yorktown. Defendant said he wanted the pistol to
take with him down the country. Witness, some time after
the killing, found his pistol in the possession of Sheriff Rudd,
claimed and got it.

Cross examined, the witness said that he did not lock the
doors of the ranch house when he left it on Saturday. He had
often before left the doors unlocked, and frequently missed
articles which disappeared from the house during his absence.
Whether probable or not, it was quite possible that the shot

Digitized by VjOOQIC

88' 27 Texas Court of Appeals. [Galveston

statement of the case.

gun was stolen from the said house by somebody. The gray
horse that defendant was riding when arrested was a very
gentle animal. Witness had never caught that horse outside
of a pen, but was confident that, with little difficulty, he could
be caught when running loose in the pasture. Allee's ranch
was about eighteen miles south from Yorktown. It was about
the same distance from Rutledge's ranch, which was about
twelve miles west from Yorktown. The bay horse that defend-
ant had in Yorktown appeared to be jaded. The witness and
defendant frequently accompanied SheriflE Rudd in scouts
throughout the country in quest of Will Jacobs and Khein-
hardt Schneider, two notorious outlaws. Defendant was afraid
to stay at Rutledge's ranch alone. He often went to Yorktown
with the witness. They were often in Yorktown at night.
Stonebraker was town marshal of Yorktown, and was often on
the streets of Yorktown alone at night.

John Rutledge was the next witness for the State. He testi-
fied that he and Odom went to Yorktown from his, witness's
ranch on the Saturday previous to the fatal Monday, and re-
mained there until Monday evening, when they returned to the
ranch, passing Stonebraker with a herd of cattle, and arriving
at the ranch after sundown. This witness corroborated Odom
as to the distances between the various points named by him,
and stated that, in Yorktown, on Monday, he gave defendant
a note which he directed him to take to Allee's ranch, and de-
liver to AUee. Defendant left Yorktown to go to Allee's ranch
about noon. When witness and Odom reached witness's ranch,
after sundown, on Monday evening, witness changed horses
and started on to Helena; sending Odom back to meet Stone-
braker and help him with his cattle. The witness's buggy
broke down within a mile of his ranch, and witness, anxious to
get to Helena that night, released one of the horses, and led
the other to the house of a neighbor, where he borrowed a sad-
dle, and went to Helena on horseback. While he was yet in
the neighborhood of his ranch on that night, the witness heard
no gun shots. About eleven o'clock on that night Odom reached
Helena and reported the killing of Stonebraker. Witness went
back to the ranch with Rudd on that night, and returned to
Helena between eight and nine o'clock. On the next morning
the defendant came to the witness in his room in the Butler
Hotel, and gave him the note he started to take to AUee, re-
marking that he did not go to Allee's ranch because he learned

Digitized by VjOOQIC

Term, 1889.] Peace v. The State. 89

Statement of the case.

that AUee was not at home. The witness took the note and
defendant left, the witness, who was very tired, asking no
questions. Defendant was arrested about eleven o'clock on
that day. He was then riding a horse that belonged to the
^witness's ranch, but was not the horse that he had in York-
town on Monday — the day of the killing. The witness knew
that the defendant did not like Stonebraker, but he often saw
the two together in Yorktown. A double barreled, number ten
breech loading shot gun was kept at the ranch. It w^ there
when witness and Odom left on Saturday, but had disappeared
when witness got to the ranch on Monday night, after the kill-
ing. Witness had not seen the gun since the Saturday prior to
the killing. The defendant was afraid to and would not stay
long at the ranch at night, alone. Defendant passed the pen in
Yorktown where witness and Odom, on Monday morning, were
holding some of Stonebraker's cattle, but he asked no questions
about them that witness heard, and witness said nothing to
him about them. It is about a mile and a half to the witness's
ranch from the corner of Short's fence on the Yorktown and
Helena road. A trail ruus from the said corner of Short's fence
to the witness's ranch. Mrs. Butler's place on the road was
about three miles from witness's ranch. Deceased, defendant
and Odom were about the same in size; defendant being, per-
haps, a shade smaller than either of the other two mentioned.

Nathaniel Thomas testified, for the State, that he lived on
Mrs. Butler's place on the Yorktown and Helena road. One
evening about the time of the killing of Stonebraker, but
whether on the evening: of that day or of a day previous or
subsequent thereto witness was now unable to say, he saw a
man traveling the road towards Helena whom he took to be
and believed was the defendant, although he was not willing
to swear to that fact. That man asked witness if he had re-
cently seen a h^rd of cattle pass over the road. Witness told
him that a herd of cattle passed a short time before, and the
man rode on. Witness was herding sheep on the said evening
when he saw and spoke to that man. That man was riding a
bay horse.

Mark Moore was the next witness for the State. He testified
that he lived on the main road between Helena and Yorktown,
and about two miles from Rutledge's ranch. Witness and his
son Harvey, traveling in a two-horse wagon, went to Yorktown
on the fatal Monday, where, at about eleven o'clock a. m., the

Digitized by VjOOQIC

80 27 Texas Court of Appeaia [(Jalveston

statement of the case.

witness saw the defendant. He saw the defendant again on
the evening of that day. Witness and his son were then on
their way home from Yorktown, and the defendant, on horse-
back, was traveling the main road behind them, going towards
Helena. He at no time approached the Svagon nearer than sev-
enty-five yards. When the defendant reached the corner of
Short's fence, about a mile and a half distant from Rutledge's
ranch, he left the road and went towards the said ranch, but did
not take, the trail. Defendant was then riding a bay, pacing
horse. It was about an hour or an hour and a half before sun set
when defendant left the road at the comer of Short's fence.
Harvey Moore corroborated the testimony of this witness.

Max Polschinzski testified, for the State, that he was at Rut-
ledge's ranch at the time of the killing of Stonebraker. He
and William Schneider helped Stonebraker to drive a herd of
cattle from Yorktown to that ranch on that day. They reached
the ranch with the cattle after dark. Odom met them near the
ranch, and helped them pen the cattle. Odom then said he
would prepare supper, and a fire was built near the back door
of the north room, and between the house and the fence. Wit-
ness and Schneider then sat down near the fence, and nearly
but not quite opposite the door, and began to eat some dried
beef they found on the fence. Stonebraker came to the door
and asked witness and Schneider: "Boys, what ar^ you eat-
ing?" Witness told him, and he replied: **If you don't look
out, you eat some bugs." At that instant a shot was fired, the
witness thought from the front of the house, and Stonebraker
fell, exclaiming: "O, God! I am killed!" Witness and Schneider,
thinking it a joke to frighten them, sat still for a minute or
two, and then got up, and on hearing Stonebraker groan, and
discovering blood on the floor, they fled, going as far as Gaib-
ler's ranch, ten miles away, before stopping. William Schneider
corroborated the testimony of Polschinzski.

S. Thomas testified, for the State, that he lived near Mrs.
Butler's place, on the Yorktown and Helena road, and was the
father of the witness Nathaniel Thomas. His said son was
herding sheep near the said road on the Monday of the killing.
When he came home that night, Nathaniel told his mother, in
witness's hearing, that he saw the defendant on the road that
evening. After the arrest of the defendant, on the next day,
the witness went to where his son was herding sheep, and asked
him again about seeing defendant on the previous evening,.

Digitized by VjOOQIC

Term, 1889.] Peace v. The State. 91

Statement of the ease.

and cautioned him to say nothing about it unless he was cer>
tain about the identity of the man he saw. Nathaniel replied:
*'I am not certain, but I think it was Peace."

Alonzo Allee testified, for the State, that he was either at his
ranch or in the inunediate neighborhood on the fatal Monday,
and was certainly at his ranch on the said Monday night. The
defendant did not come to his house on that day or night.

F. R Graves, county attorney of Karnes county, testified, for
the State, that he went to Rutledge's ranch on the morning
after the killing of Stonebraker. He found four buckshot holes
in Stonebraker's body. Two of the shot Which passed through
the body were found in the clothing. They corresponded in
size and appearance with the single buckshot which wituess
found in a box on a shelf in the room. This witness described
the Rutledge ranch place as did Rudd, and stated that there
was a large tree north of the house, about ten steps from the
fence, and that between thirty and forty steps from the fence
there was a pen and part of an old crib. The corner of the pen
and the said tree were about on a line with the north door of the
house.

Emil Schultz testified, for the State, that he lived in Helena,
Karnes county. He attended a party at Yorktown on the night
of April 19, 1887, and on the next day went home, accompanied
by defendant as far as Short's corner, where the trail to Rut-
ledge's ranch left the road. On the road the defendant said to
witness, in the course of a conversation about Stonebraker:
'^id you see the son of a bitch singing and dancing last night?
He ought to be killed, and, God d — n him, I am going to kill
him the first chance I get." The witness regarded the threat
as a serious one, seriously made, but never communicated it to
Stonebraker, as he never afterwards saw Stonebraker.

John Green testified, for the State, that about two weeks
before the killing of Stonebraker, the defendant met witness
on the streets of Yorktown and asked him: **Don't Stonebraker
board at your house?" Witness replied that he did, and de-
fendant said: "He is a son of a bitch, and I intend to kill
him." Witness did not know whether defendant was talking
seriously or not. He did not communicate that threat to Stone-
braker.

William Metz testified, for the State, that he was present at
and heard a conversation between defendant and John Rut-
ledge, in Yorktown, on the Saturday before the killing of

Digitized by VjOOQIC

92 27 Texas Court of Appeals. [Galvedcon

Statement of the case.

Stonebraker. While defendant and Rutledge were standing in
front of Meyers's saloon, Stonebraker drove by in a buggy.
Defendant asked Rutledge: **Who paid for that buggy?" Rut-
ledge replied: "I did." Defendant then asked: "Who paid
for the piano?" Rutledge replied: *'! think I did." Defendant
said: "And now he has taken my feather bed. He has gone as
far as he can without killing." The witness thought that de-
fendant uttered that threat seriously, but he did not communi-
cate it to Stonebraker.

Fred Zedler testified, for the State, that he was a clerk in a
mercantile house in Yorktown. Defendant came into the store
on the day before the killing and began to talk about Stone-
braker. He accused Stonebraker of taking a buggy from the
estate of his, defendant's, deceased sister, and said something
about a piano in the same connection. He concluded by say-
ing: "And now he has stolen my feather bed. " Witness
asked him: "Johnny, what is the use of making all this trou-
ble, when a few words of common sense will settle the matter
between you and Stonebraker?" Defendant replied: "No; I
won't speak to him; I am here to prosecute him for stealing
my bed."

William Theisen testified, for the State, that defendant came
to his blacksmith shop in Yorktown on the Saturday preceding
the fatal Monday, and asked him: "Didn't I get you to make
the buggy that Stonebraker has, for my sister?" Witness re-
plied: "No; Mrs. Terry ordered it herself." He then asked
witness: "Who paid for it?" and witness replied: "John Rut-
ledge." Defendant then asked witness: "Why did you help
Stonebraker take the piano that belonged to Mrs. Terry's chil-
dren?" Witness replied: "I did not do so. Stonebraker
wanted me to send for it, but I declined, as I thought trouble
might come of it." Defendant then said to witness: "You
were told, and you knew, that the piano did not belong to
Stonebraker. But he got it and the buggy, too. Now he has
taken my bed. I think his pot is about full, and it is likely to
run over."

The State closed, and the defense introduced no evidence.

The application for continuance set out that by one of the
absent witnesses the defendant would prove that, a day or two
before the killing of Stonebraker, two men, whom the witness
did not know, came to Rutledge's ranch and asked if defendant
and Odom were there; that the witness n^plied in the negative,

Digitized by VjOOQIC

Tenn, 1889.] Peace v. The State.

Opinion of the court.

when the two men looked through the house and rode oflE. By
another witness the defendant expected to prove that he, the
said witness, saw the outlaws, Jacobs and Schneider, in Rut-
ledge's pasture a day or two before the killing of Stonebraker.
This proof was claimed to be material in view of the proof on
the trial, that defendant had often, as one of the sheriffs posse,
searched the country for the purpose of arresting Jacobs and
Schneider.

No brief for the appellant on file,

W. L. Davidson^ Assistant Attorney General, and Fly dt
Davidson, for the State.

White, PRESiDiNa Judge. Appellant was indicted and tried
in the lower court for the murder of one Stonebraker, and was
found guilty of murder of the first degree, with his punish-
ment aflSxed by the verdict and judgment at imprisonment for
life in the penitentiary. No appearance has been entered nor
brief filed for him by counsel on this appeal; notwithstanding
which, however, we have most carefully considered the entire
record to ascertain if any error had been committed in the con-
duct of the trial in the lower court.

Defendant made a motion for continuance, which was over-
ruled and an exception duly reserved to the ruling. In the
light of the other testimony which was adduced we do not be-
lieve that the proposed absent testimony, even if we should
consider that it was admissible and probably true, would have
been of any materiality in affecting the result of the trial.

The only other bill of exception was reserved to the charge
of the court. It points out no particular error. A general
rule well established is that " a bill of exception taken gen-
erally to the charge of the court, specifying no particular error
or errors, has no standing and will not be considered by this
court. In the absence of a proper bill of exceptions this court
will examine the charge of the trial court only with regard to
fundamental errors, or such as under all the circumstances of
the case were calculated to injure the rights of the accused. "
(Smith V. The State, 22 Texas Ct. App., 316; Williams v. The
State, Id., 497; Cordway v. The State, 25 Texas Ct. App., 405.)
We find no such error in the charge of the court as would au-
thorize a reversal of the judgment.

Digitized by VjOOQIC

94 27 Texas Oouet of Appeals. [Galveston

Opinion of the court.

It only remains to consider the sufficiency of the evidence to
support the verdict and judgment. Without recapitulating the
facts, which will be reported, suffice it to say that the testimony,
though circumstantial, establishes sufficiently motive, threats,
preparation and proximity to the scene of the homicide on the
part of this appellant, besides other circumstances of inculpa-
tory character. The verdict and judgment are supported suffi-
ciently by the evidence, and we would not be warranted in
interfering with them. The judgment is affirmed.

Affirmed.

Opinion delivered January 19, 1889.

27a Wl
27a 463

No. 2650.
Jambs Alexander v. The State.

niAUDULBNT DlSPOSITIODT OF MORTOAOBD PROPBRTT— IWDIOTMBKT tO

charge the fraudulent sale or disposition of mortgaged property mast
allege the name of the person to whom the same was sold or disposed
of, or, if saoh be the fact, that the name of such person was to the
grand jurors unknown.

Appeal from the District Court of Travis. Tried below
before the Hon. W. M. Key^.

This conviction was for the fraudulent disposition of mort-
gaged property, and the penalty assessed against the appellant
was a term of two years in the penitentiary.

No brief on file for appellant.

W. L. Davidson, Assistant Attorney Gteneral, for tiie JState.

WiLLSON, Judge. This conviction is for the fraudulent sale
and disposition of mortgaged property. It is not alleged in
the indictment to whom the defendant sold or disposed of the
property, or that such person was unknown to the grand jury.

It is essential that the name of the person to whom the prop-
erty was sold or disposed of should be alleged, or that it be

Digitized by VjOOQIC

Term, 1889.] Duqgbb v. The State. 95

Syllabus.

alleged that the name 'of such i>erson was unknown to the
grand jury; and the omission of such an allegation is a sub-
stantial and fatal defect in the indictment. (Presley v. The

State, 24 Texas Ct. App., 494; v. State, 26 Texas Ct

App., .)

Because the indictment is insufficient the judgment is re-
versed and the prosecution is dismissed.

Reversed and dismissed.

Opinion delivered January 23, 1889.

Ko. 2646.
JSRBY DUGGBB V. ThB STATH.

t AoooMPLTOB TO MuBDER— Indiotbcbnt.— The fleoond ootint of the in-
dietment (being the count upon whioh this oonviotion was had) ohargee
that certain persons, to the grand jurors unknown, and whom the
grand jarors are unable to describe, did kill and murder one Ellick
BrowD, and that defendant, prior to the oommission of said murder by
said unknown persons, did unlawfully, wilfully and of his malice afore-
thought, advise, command and encourage said unknown persons to
commit said murder, said defendant not being present at the oommis-
sion of said murder by said unknown persons. It was objected to the
indictment that it neither named nor gave a description of the unknown
persons who committed the murder of Brown. Heldj that the objeo-
tion is not soxmd, and the indictment is sufficient, its purpose and effeet
not being to charge the unknown persons as the ^^accused^^ in this case,
but to charge the defendant as an accomplice to the murder of Brown*

1 8amb.— Thb Charob of thb Court in this case should, more explicitly
than it did, have instructed the jury that, to convict, they must find
that the defendant was not present at the commission of the murder,
and that the murder was committed by a person or persons who had
been advised, commanded or encouraged by the defendant to com.
mit it.

1 8amb~Fact CA8B.~See the statement of the case for evidence heid
insufficient to support a conviction as an accomplice to murder.

Appeal from the Distriot Court of Lampasas. Tried below
before the Hon. W. A. Blackburn.

27 96
88 180

Digitized by VjOOQIC

96 27 Tbxas Court of Appeals. [Galveston

Statement of the case.

Under the second count in the indictment, the appellant in
this case was convicted as an accomplice to murder in the first
degree. A life term in the penitentiary was the penalty as-
sessed by the verdict.

Hugh Brown was the first witness for the State. He testi-
fied that the deceased, EUick Brown, was his brother. The
said Ellick lived in Lampasas county, Texas, about one mile
east from the residence of the witness. He was a bachelor,
and lived alone. About noon on the first day of January, 18S7,
the defendant came to the witness's house and told him that
his brother Ellick was dead; that he had just found his dead
body in his house. The witness and defendant went at once to
EUick's house. On the way the defendant said that he went to
the gate of Ellick's yard and hallooed three times for him, and,
receiving no answer, he went to the door, which was closed,
pushed it open and saw Ellick's body, covered, except the feet
and legs, and lying on a pallett on the floor, the feet being tied
with a rope. The witness and defendant did not go into the
house on reaching Ellick's place. The tracks on the ground
leading from the gate to the door and returning were the tracks
which the defendant said he made on that morning. The yard
gate was thirty or forty feet north from the house. Blood was
found on the crib and on the ground under the crib. It had the
appearance of being fresh blood. The witness and defendant
did not go into the house, nor did they touch the body until the
coroner's jury arrived. A crowd soon collected, ^nd defendant
remained the balance of the day with the witness, about the
premises where the body was. The crib where the witness
found the blood was about thirty yards distant from the house.
Witness saw only the tracks which the defendant claimed to
be his, but did not examine the whole of the yard. Three days
had then elapsed since the witness was at Ellick's house, but
he saw Ellick on the day before the night of his death. Two
trails led to the gallery from the bloody places at the crib, and
witness saw footsteps at the said bloody places.

J. L. Harvey testified, for the State, that he lived in Lam-
pasas county, about three miles distant from the house in
which Ellick Brown lived. He saw the body of Ellick Brown
at the said house on the first day of January, 1887. He reached
the body about three o'clock in the evening, and served as one
of the coroner's jury. The defendant was one of the large
number of persons present at Brown's house when the witness

Digitized by VjOOQIC

Term, 1889.] Duqqbr v. The State. 97

Statement of the case.

arrived. The body of Brown lay on a pallet on the floor, in
front of the fire place. The body, except the feet, was covered
With a quilt, and there was a piece of quilt around the neck
and over the mouth. The feet were tied together and drawn
up to meet the hands, which were also tied together, a piece of
rope being used for that purpose. The skull was broken in,
evidently by the blow of a blunt instrument. The throat and
neck were bruised, the bruises on the throat resembling finger
prints, and indicating choking with hands. Bruises on the
breast and side appeared to have been made by boot heels.
The skin was rubbed off the back, and indicated that the body
had been dragged some distance. A trail leading from the
gallery of the house to the crib, about twenty-five yards dis-
tant, was found. Blood was found on some logs of the house,
and on the ground under the projecting ends of some logs. The
indication at that-point was that something had been recently
hanged there. The trail mentioned by the witness was made
by the dragging of such an object as a man's body over the
ground. In the house, on the floor, and between the body and
the door, a gun was found, the stock lying nearest and pointing
towards the door. The witness thought that gun belonged to
the deceased. A butcher knife was found on the floor of the
house, and a six shooter pistol in a box in a corner of the house.
The house was in great disorder. The scattered dishes and
bloody floor indicated that a terrific struggle had recently
taken place in the house. After the inquest the witness dis-
covered the tracks of two horses which left the deceased's gate,
crossed the road about thirty feet distant, and continued in a
north direction to a branch about seventy-five yards distant,
thence down the branch until they reached a road leading
west, from which point they could not be trailed. The horses
that made those tracks traveled in a gallop. Defendant lived
about three miles north from Ellick Brown's place.

Cross examined, the witness said that he was familiar with
the localities of Lampasas county, and knew where nearly
everybody lived in the neighborhood of Brown's house. Sev-
eral parties lived north from Brown's house, and among them
J. H. Bright, whose house was about a mile and a half distant.
The witness could not tell from the appearance of the dining
table whether or not more than one person ate supper at the
house of the deceased on the previous night. The table was

Digitized by VjOOQIC

98 27 Texas Court op Appeals. [Galveston

statement of the case.

not " set/* but there was a quantity of table ware — cups, sau-
cers, plates, etc.— on it. The gun found in the house was a
Winchester rifle, and was said to belong to the deceased* A
piece of a nubia was found in the hands of the deceased. That
piece did not resemble the nubia that was worn about the neck
of the deceased. The bruises on the neck of the deceased in-
dicated choking and not hanging.

H. Wallace was the next witness for the State. His testimony
was substantially the same as that of the preceding witness,
except that he thought, from the character of the bruises on
the neck, the deceased had been hung. In one of the hands
the witness found a piece of nubia and a gray hair which he
took to be a hair from a man's whiskers The body was found
on tho lioor, but a depression in one of the beds indicated that
it had been occupied, at least for a while, on the previous night.
Deceased was a bachelor with good property, and always ap-
peared to bo sufl5ciently supplied with money. Witness did
not know how much money the deceased usually kept, or was
reputed to keep on his person. Witness saw some black hair
on the crib where the blood was, but was unable to say whether
or not it was human hair.

J. M. Cagle testified, tor the State, that he heard of the kill-
ing of Ellick Brown on January 2, and on that day went to the
bv^ene of the killing with Deputy Sheriflf Halbert and a man
named Edwards. They found the tracks of tliree horses which
left deceased's house, two of them being the tracks mentioned
by previous witnesses. They trailed those. two tracks no
further than to the point in the road where the other witnesses
lost them, but the track of the third horse, which showed a
bent nail, was trailed by the witness and his companions a
mile further in the direction of McAnelly Bend, to a road where
it was lost. While following this trail the witness and his
party met the defendant and E. Brown, going towards Hugh
i3rown's house. E. Brown asked witness what progress he
was making. Witness replied that he was following a horse
track, and defendant said: ** A track is d — d poor evidence.'*
The tracks followed by witness and his party went towards the
house of Jim Baker, where a party was given on the night of
the murder. The horses that made those tracks may have been
going to Jim Baker's party, but the witness first struck them
at the house of the deceased; and two of the said tracks
traveled down a branch before taking a road.

Digitized by vLjOOQIC

Term, 1889.] Duqger v. The State, 99

Statement of the case.

Jim Baker testified, for the State, that he reached EUick
Brown's house between one and two o'clock on the evening of
the day the body was found. Defendant, among others, was
then at the house. While standing on the gallery with de-
fendant the defendant said to witness that he was sorry he was
the first person to find Brown's body, but that somebody had to
be first. Defendant then suggested that perhaps Brown had
been hung, and advised witness to climb to a projecting log of
the crib and see if he could find any indications of hanging.
The witness did so, and found the imprint of a rope on the said
log. On his cross examination the witness said that blood was
found on the ground, and on the side of the crib immediately
under the projecting log, and that, when defendant suggested
the probable hanging of deceased, the varijous parties standing
around were advancing and discussing theories as to how the
killing was done.

J. H. Bright was the next witness for the State. He testified
that in December, 1886, and January, 1887, he lived on Lynch's
\ creek, in Lampasas county, Texas, about one mile from the
house of the defendant, and about the same distance from the
house of the deceased. The witness and the defendant were
at work together in a cedar brake, in October or November,
1887, when one of deceased's yearlings passed them. Defend-
ant remarked: '*That is a fine, fat yearling, and will make
jrood beef." Witness replied: **Yes; I believe I will go and
work for Mr. Brown and see if I can't get him to kill it, and get
some of the meat.'' Defendant said: "Old man Brown never
eats beef." A minute or two later he said to witness: **What
would you think if I were to tell that old man Brown will be
killed some day? Will you believe it?" The witness replied
that he would not believe it, and the defendant said: **Well, he
will be killed some day, and his money will be the induce-
ment." The defendant then asked witness if he thought
**Uncle Ellick" (deceased) had any money about him. Witness
replied that he did not know, but that deceased had money
sometimes. Defendant then said: * If the old man had any
money around him, a person would have to hang him, bruise
him up, and may be so burn him, before he would give it up
or tell where it was." Witness thought that the defendant
then asked him if he would join some men to rob or kill the
deceased. The witness became angry and replied that he could
act conceive how a man could do such a thing. Nothing more

Digitized by VjOOQIC

100 27 Texas Court of Appeals. [Qalvestor

statement of the case.

was said about the matter until an hour later, when the wit-
ness asked the defendant: **If I guess the names of the meD
you want me to go in with, will you tell me?" He replied: "I
have told you too much already." The witness then asked the
defendant: "What part will you have to perform?" He re-
plied: "All I will have to do will be to find him, or see that it
is done complete." On the morning of the Thursday or Fri-
day after the murder, and while the coroner's iuquest was
still in session, the defendant camo to witness's house, and he
and witness went to the wood pile. Defendant then said: "You
remember the talk we had in the cedar brake? Don't tell any
thing that passed between us then." When he left that place,
he looked back and said: "Don't tell anything; don't let any
five hundred dollars buy you. If you do tell, you will get your
light blown out. If I don't, somebody else will."

Cross examined, the witness said that Brown was supposed
to have been killed on Friday night. He heard of the killing
about one o'clock on the next day, at Wallace's store. The
witness, on hearing of the killing, went home and thence to
the house of deceased. Defendant was then there, but no con-
versation occurred there between him and witness. Witness
remained at deceased's house until evening, and attended the
burial on the next day, and saw the defendant at the grave.
He did not see the defendant again until the following Thurs-
day or Friday, when he came to witness's house and asked
witness not to tell what passed between them in the cedar
brake. No third person was present at either of the coversa-
tions between witness and defendant. The witness left Lam-
pasas county and moved to Tom Green county in May, 1887.
He did not tell anybody about the cedar brake conversation
until some time after he located in Tom Green county. His
wife was the first person to whom he divulged the defendant's
said proposition to kill and rob the deceased. Defendant left
Lampasas county in February, 1887. He told witness, when he
left, that he was going to Ellis county. Mr. Martin was the
second person the witness told about defendant's proposition.
That was in November, 1887. Mr. Martin lived in Tom Green
county. In making those disclosures the witness was not influ-
enced by the reward offered for the apprehension of the mur-
derers of EUick Brown. He did not then know that a reward
was offered, but had since learned that fact. He was not now
testifying because of that reward. He expected no part and

Digitized by VjOOQIC

Tenn, 1889.] Duggbb v. The Statb. 101

Opinion of the court

wanted no paft of it in the event the defendant should be con-
victed. The reason why the witness did not report the defend-
ant's proposition to kill and murder the deceased was that he
was afraid of being killed if he did so. Defendant passed
witness's house about ten o'clock on the morning after the
death of the deceased. He said that he was going to EUick
Brown's house to see if he could not sell his place to Brown.
Defendant's place had been on the market for some time. Wit-
ness did not know who were the defendant's "friends."

The State closed.

George W. Lewis, the first witness for the defense, testified
that he spent the Thursday night previous to Brown's death at
the defendant's house. Witness and his son went to see de-
fendant, who was sick. Witness sat up the larger part of that
night, and left the defendant better on the next morning. Be-
sides the witness and his son, no person other than defendant's
family and his brother John stayed with the defendant on that
night. The reputation of the defendant was that he was a
peaceable, law abiding citizen. He was a poor man. Witness
bought defendant's place on February 2, 1887, paying him a fair
price for the same. Defendant had then been trying for montrf^
to sell his place, and once told the witness that he thought he
could sell it to Ellick Brown.

Several other witnesses testified as did the witness Lewis as
to the reputation of defendant as a law abiding citizen.

The defendant's daughter and his brother John, testifying in
his behalf, located the defendant in his house throughout the
night of the murder.

A. O. Walker and J L, LewiSy for the appellant*

W, L, Davidt'oriy Assistant Attorney General, for the State.

WiLLSON, Judge. There are two counts in the indictment; the
first charges that the defendant and a certain other person, or
persons, to the grand jurors, unknown, acting together, with
malice aforethought, did kill and murder Ellick Brown, etc.;
the second charges that certain persons, to the grand jurors
unknown, and whom the grand jurors are unable to describe,
did kill and murder said Ellick Brown, and that the defendant,
prior to the commission of said murder by said unknown per-
sons, did unlawfully, wilfully and of his malice aforethought

Digitized by VjOOQIC

102 27 Texas Court of Appeals. [Galveston

Opinion of the court.

advise, command and encourage said unknown^persons to com-
mit said murder, the said defendant not being present at the
commission of said murder by said unknown persons.

On the trial of the case, after the evidence had been intro-
duced, the district attorney abandoned the first count and dis-
missed the same, relying upon the second count only for a con-
viction, and a conviction was had upon said second count, the
punishment assessed being confinement for life in the peni-
tentiary.

Defendant excepted to the indictment because it does not
allege the names of the unknown person or persons who com- '
mitted the murder, or give any description of them. We are
of the opinion that the court did not err in overruling the ex-
ception. Those provisions of our. code which require the name
of the accused to be alleged in the indictment, if known, or, if
unknown, that a reasonably accurate description of him be
given (Code Crim. Proc, arts. 420-425), are not applicable in
this case, because said unknown person or persons are not the
"accused." The defendant, Jerry Dugger, is the "accused"
in this indictment, and is named as such in the indictment.
The other person or persons, being unknown, could neither be
named nor described, nor was it essential to this prosecution
that they should be; nor was it essential to a conviction of the
defendant that the evidence should disclose who they were.

In support of the second count in the indictment (the count
upon which this conviction is based), there is no testimony ex-
cept that of the witness Bright. He testified, in substance,
that, a m6nth or perhaps two months prior to the murder, the
defendant said to him that Brown would some day be killed,
and that his money would be the inducement. He then asked
witness if he thought that Brown had any money around him.
Witness replied he did not know, but that sometimes he did
have. He then said if Brown had any money around him
a person would have to hang him, bruise him up and maybe so
burn him before he would give it up or tell where it was. He
then asked witness if he, witness, would go in with some men
to rob or kill Brown. Witness answered: "No," and after the
lapse of about an hour asked the defendant if he would tell
him the names of the men, and defendant answered: "I have
told you too much already." Witness then asked him what
part he would perform. He said all he would have to do would
be to find him and see that it was done complete. Said witness

Digitized by VjOOQIC

Term, 1889.] Dugger v. The State. 108

Opinion of the court.

testified further that about one week after the murder defend-
ant called his attention to the conversation above related, and
told him not to tell anything about it, and stated that if he did
tell about it he would be killed.

Is this testimony sufficient to sustain this conviction? We
are clearly of the opinion that it is not. It does not show that
the unknown murderer or murderers were advised, commanded
or encouraged by the defendant in the comraissioa of the
crime. It does not show that the "men" to whom he alluded
in the conversation with the witness Bright were the murderers
of Brown. Brown may have been murdered by other men
than those — ^by men whom the defendant did not know, or had
never seen— and if so, he certainly was not an accomplice in
the murder. It is not pretended that the witness Bright was a
principal in the murder, and Bright is the only known person
who was advised, commanded or encouraged by the defendant
to commit the murder. It may be that the defendant was an
accomplice in the atrocious crime shown by the evidence to
have been perpetrated by some person or persons, but we can
not proiK)urwe his guilt legally from the evidence before us. If
the witnees Bright is to be credited, there is strong grounds for
suspecting that the defendant was in some way criminally con-
nected with the murder, but suspicion is not proof, and the law
demands proof, and such proof as leaves no room for reasonable
doubt of guilt.

With respect to the charge of the court, we do not think it
subject to the objections made to it. It is, in our opinion, a
clear and correct exposition of the law of the case, except, per-
haps, that it should have more distinctly instructed the jury
that, to find the defendant guilty, they must believe from the
evidence that the defendant was not present at the commission
of the murder, and that the murder was committed by a person
or persons who had been advised, commanded or encouraged by
the defendant to commit it.

Because the evidence does not sustain the conviction, the
judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered January 23, 1889.

Digitized by VjOOQIC

104 27 Texas Court of Appeals. [Galveston

Statement of the case.

No. 3568.
Bob Hikes v. The State.

PrAOTIOB— COBROBORATION OF ACOOMPLIOB TESTIMORT — CH AROB 0»

THE Court— QuARB.— If the proof tends to raise the question whether
or not a Staters witness is an accomplice in the offense on trial, can the
trial court, in any state of case, refuse to submit to the jury the question
of accomplice f)el non, together with proper instructions upon the cor-
roboration of accomplice testimony? If so, it must not only be because
the proof that the witness is an accomplice is meaf^re, but because the
other proof in the case tends strongly to show that be is not. The
proof in this case fairly mooting the complicity of the two Staters wit-
nesses, the trial court erred in refusing to instruct the Jury upon the
law of accomplice testimony.

Appeal, from the District Court of Marion. Tried below be-
fore the Hon. W. P. McLean.

The conviction in this case was in the first degree for the
murder of Ike Bailey, in Marion county, Texas, on the twenty-
eighth day of March, 1888. Death was the penalty assessed
against the appellant.

W. B. Stallcup was the first witness for the State. He testi-
fied, in substance, that in March, 1888, he was acting constable
in and for precinct No. 5, of Marion county, Texas. On Friday,
the thirtieth day of that month, the witness was called upon to
hunt for Ike Bailey, or for his dead body. Bailey's body, which
had been dead some hours, or perhaps days— witness could not
say how many — was found on the said Friday in an old field
known as the "lake" field. The place in the field where the
body was found was about a quarter of a mile distant from the
house of the defendant, and about a mile and a half distant
from the house of the deceased. The searching party consisted
of forty or fifty people. They met at the house of the deceased
and proceeded thence to the field of defendant, passing tke de-
fendant's house. Will Hartsaw had found the body in the
**lake" field when the witness reached him. The witness had
known Ike Bailey since the close of the war, and readily identi-
fied the body found as that of the said Ike Bailey. The body
lay with the arms drawn up to the head, and a trail on the

Digitized by VjOOQIC

Term, 1889.] Hines v. The State. 105

Statement of the case.

ground showed that it had been dragged about twenty-five
yards. The witness saw three gunshot wounds on the body,
one in the left side, one in the forehead and the third struck
the skull. The skull was badly broken and appeared to have
been mashed in with a blunt instrument of some kind. The
witness arrested the defendant and Dan Franklin upon the
charge of murdering the deceased. The witness then took de-
fendant before the coroner's jury. Witness had no personal
knowledge of any trouble between the defendant and the de-
ceased. The witness had a conversation with Armstead Cove,
the half brother of defendant, which led to the finding of the
gun which is now in evidence. The piece of wood now ex-
hibited by the witness was part of a broken gun stock which
was said to have been found at the place of the murder by
Jeff Melton and Jim Mitchell. The gun in evidence was found
bj the witness .about an hour and a half before day on Satur-
day morning, in a brush heap. It was a double barreled shot
gun, the stock broken at the breach, one barrel broken and
both barrels bent. The brush heap in which the gun was found
was about a quarter of a mile from the place of the killing, in
the "lake" field, which was near the field occupied and culti-
vated by the defendant. The said gun was delivered to Captain
DeWare, by the witness, on Saturday morning. John Gray,
Will Hartsaw and two or three others were with the witness
when he found the gun. The witness saw blood only at the
point where the killing occurred. He examined the body of
Ike Bailey carefully, but found no weapons of any character
on it.

On his cross examination the witness stated that he saw
foot tracks near the body, and other foot tracks at the crossing
of a branch about seventy-five yards east from where the body
was found. The tracks that crossed the branch were the tracks
of one man, and they showed that the shoes worn by him were
not mates. Henry Davenport was one of the negroes who
were with the witness and the parties who examined the foot
tracks, and he then had on a pair of shoes which did not mate
with each other. Witness did not hear Davenport deny that
he made the tracks that crossed the branch, but on the contrary
he said that he *'passed along there" on Wednesday. Neither
the piece of gun stock nor the ramrod were found by witness,
and he did not know how far the points at which they were
found were from the place of the killing.

Digitized by VjOOQIC

106 27 Texas Court of Appeals. [Galveston

statement of the case.

Annstead Cove testified, for the State, that he and the de-
fendant were half-brothers, and that he lived at the defend-
ant's house at the time that Ike Bailey was killed. The wit-
ness left the defendant's house early on the morning of the day
on which Ike Bailey was killed, and went to Gray's field to
work. The broken gun that is now in evidence belonged to
the witness. It was in the defendant's house, where the wit-
ness always kept it, on the morning of the fatal day, when the
witness left to go to work. It was not then broken, but one of
the tubes was gone. On the evening of that day the defendant
came to Gray's field where the witness was at work, and told
him that he, defendant, had killed Ike Bailey, and that in the
*'rucus" he had broken the witness's gun. On the next morn-
ing, at the horse lot, the witness asked the defendant where
the gun was, and the defendant pointed to some brush heaps
and said: "It is hid in one of them." On the night after the
finding of Ike Bailey's body, the witness went witli Mr. W. B.
Stallcup, who had him in charge, to the brush heaps po nted
out to him by the defendant, and found the gun in one of them.
The gun was broken when found. Witness turned over two or
three of the brush heaps before he found the one in which the
gun was concealed. Mr. Stallcup then had the ramrod which
belonged to that gun, but witness did not know where he got
it. Witness did not remember that he denied to Stallcup that
the ramrod belonged to his gun, but if he did it was because
he was frightened, and was afraid of the large number of
armed men who were present, threatening to hang all of the
parties who had been arrested. The barrel of the gun which
would shoot was loaded on the morning of the fatal day when
witness left defendant's house. When the witness started to
Gray's field on that morning the defendant was near his house
cutting some poles to repair his fence.

Cross examined, the witness said that the last time he handled
his said gun was about two weeks prior to the killing of Ike
Bailey. George Marshall was the person who last had the said
gun prior to the fatal day. When the defendant came to the
witness in Gray's field, on the evening of the fatal day, and
told him that he had killed Ike Bailey, he said that Ike Bailey
struck him and cut him in the shoulder, and that he then
knocked Ike on the head with the gun. The witness observed
then that the defendant's coat, which was now in Jefferson,
was cut on the shoulder. The defendant's mouth was bleeding

Digitized by VjOOQIC

Term, 1889.] Hines v. Thbs State. i07

statement of the cetse.

when he reached Gray's field on that evening, and witness saw
indications of a recent wound on his face. The discovery of
Ike Bailey's body attracted a large crowd of persons, many of
whom were armed. Their evident excitement, and threats to
hang all of the parties who had been arrested, frightened and
terrified the witness. W. B. Stallcup and Will Hartsaw ar-
rested the witness and took him to the inquest. Some parties
then seized the witness and pulled him from the house in which
the inquest was being held, and dragged him to the gate, where
they were stopped by Mr. Gray and Mr. Colzin, who interfered
on behalf of the witness.

On re-direct examination by the State, the witness stated he
had never before told anybody that the defendant told him that
Ike Bailey struck and cut him before he, defendant, killed him.
Witness told the district attorney that the defendant told him
that he, defendant, killed Ike Bailey, but he did not remember
that he told the district attorney that he knew nothing more
about the killing. The gun which the witness and Stallcup
found in the brush heap, and which is now in evidence, be-
longed to the witness That gun was in the defendant's house,
loaded in one barrel, when witness left that house on the fatal
morning, to go to Gray's field.

Jim Mitchell was the next witness for the State. He identi-
fied the piece of wood exhibitod to him as the piece of the stock
of a gun which he found at the place of the killing. It was, he
supposed, a fragment of the stock of the gun identified on this
trial as the gun of Armstead Cove, as it fitted to a nicety the
broken place in the stock of that gun. The witness found the
said piece of wood on the ground where Ike Bailey was killed,
which place was about seventy yards from where the body was
subsequently found. The witness found it exactly where Bai-
ley's head lay after he fell, as shown by the blood and an
indentation in the ground. The ramrod now exhibited to the
witness was found on the ground a very short distance from
where the killing occurred. Bailey's body was dragged from
the point where the killing occurred to the point where it was
subsequently found, as shown by the drag murk on the ground.
Bailey's body was found in what was known as the '*lake," or
Posey field, which at that time was cultivated by the defendant
—the defendant's house being about a quarter of a mile from
where the body was found. There was an old and nearly filled
up well a short distance from where the body was found, and

Digitized by VjOOQIC

108 %! Texas Court op Appbals. [GkJveeton

Statement of the case.

the head was found lying next and towards the well. The
ground indicated that the body had been dragged from the
place of killing towards the old well. No weapons of any
kind were found on or about the body. The witness saw the
defendant very soon after Bailey's body was found, but saw no
wounds on his face or elsewhere on his person.

Cross examined, the witness said that the inquest was held
on Friday morning, and on that evening the witness went to
the scene of the murder to hunt for shot. Mr. Hartsaw was
the first person to discover the body. Foot tracks led from the
place where witness found the piece of gun stock to where the
body was found. He saw other tracks crossing the branch.

M. C. Stallcup, justice of the peace of precinct No. 5, Marion
county, testified, for the State, that he knew the deceased in
his life time, and knew the defendant. The defendant was
charged by affidavit in the witness's court with the theft of
seventeen hundred pounds of seed cotton from the deceased.
The affidavit was made by the deceased, and the deceased and
Henry Davenport were the principal witnesses against defend-
ant. The witness, sitting as an examining court, bound the
defendant over to the district court. Subsequently the defend-
ant came to see the witness about replevying the cotton. The
witness would have held his next court on March 30, 1888. De-
ceased was supposed to have been killed on March 28, 1888.
No settlement of the cotton matter between the deceased and
the defendant was ever reached in the witness's court. Henry
Davenport testified on the trial of defendant before witness,
in the interest of deceased. Witness had no personal knowl-
edge of a subsequent difficulty between deceased and Daven-
port about a sum of money that deceased was to pay Daven-
port for testifying for him. The witness did not know where
Davenport was at the time deceased was killed.

Henry Davenport testified, for the State, that some time
prior to the death of Ike Bailey the latter and the defendant
had trouble about some cotton. Witness knew nothing about
the merits of that difficulty, nor did he know as a fact that the
cotton taken .by the defendant belonged to Bailey. He thougnt
it was proved that the cotton belonged to Bailey.

Cross examined, the witness said that he ate dinner at the
house of Mr. Frank Reynolds on the Wednesday preceding the
Friday on which Bailey's dead body was found. He had his
gun when he left Reynolds's house on that afternoon, but did

Digitized by VjOOQIC

Term, 1889.] Hines v. The State. 109

Statement of the case.

not have a coat nor a shot pouch. From Reynolds's house wit-
ness went to Parker's and thence home, meeting Mr. Jeff
Melton. Witness was not out hunting, but having his gun he
shot a squirrel. From Parker's house witness did not go back
to Reynolds's, but went to Adkisson's. The witness was present
when Bailey's body was found, but did not on that occasion
deny his track which was found near the place where the body
was found. It was on Friday night that Bailey's body was
found. Witness knew Dan Franklin. Dan Franklin and his
sister came to the witness's house on Wednesday night. Wit-
ness did not remember that Dan Franklin told him that he was
going to Ike Bailey's house to borrow a mule, and that in reply
he told Franklin that old man Ike Bailey was not at home but
was down in the "lake" fiald dead, with his brains shot out.
The witness denied that he ever told Hartsaw or Melton, in
words or substance, that old man Ike Bailey was down in the
•* lake" field with his brains shot out. The witness denied that
he ever received any money from Ike Pailey for swearing for
him in the case against the defendant for stealing the cotton.
He denied that Bailey ever promised to pay him any sum for
swearing for him on that trial, or that he ever said in the
presence and hearing of Lucy Marshall, or any body else, that
Bailey promised to pay him five dollars for swearing against
defendant on that trial, and then refused to pay it. Witness
had received money from Bailey as wages for work done. To
make his denial emphatic, the witness again stated positively
that he did not, on Wednesday night, tell Dan Franklin and
his sister that Ike Bailey was out in the "lake" field dead,
with his brains shot out. With equal emphasis he re-asserted
that, although he saw Mr. Jeflf Melton on Thursday evening,
he did not tell him that Ike Bailey was in the "lake" field
dead, with his brains shot out. He did not tell Jeff Melton
that he dreamed that Bailey was in the " lake " field with his
brains shot out. Witness went to Mr. Gray's house on that
night [which night ?], but did not tell Gray that Bailey was
dead, with his brains shot out, nor did Gray tell witness that,
as he knew Bailey was dead, he was bound to know something
about his death. The witness was not with Mr. Hartsaw at
the instant that Hartsaw found the dead body. Hartsaw did
not call witness's attention to a foot track and tell him that the
track was made by a man who wore shoes that did not match.
Witness told Hartsaw that he, witness, passed along there on

Digitized by VjOOQIC

110 27 Texas CotrRT op Appeals. [Galveston

Statement of the case.

Wednesday, the second day before the body was found. The
witness said, at Mr. Johnny Gray's, that it was strange that
Ike Bailey was missing, as he had agreed with witness to plant
corn on the next day — Thursday. The witness's gun was at
home and was not broken.

Allen Zachary testified, for the State, that he was one of the
congregation present at the Gethsemane church in Miirion
county, on the third Sunday in March, 1888, on which occasion
the Reverend Dyer preaclied. When services began, the wit-
ness, defendant and others were outside. Ike Bailey came to
the door and called to all members to come in, as services were
about to begin. Defendant said to witness: *Tay no attention
to Ike Bailey. He is a grand rascal, and I am going to kill
him."

Cross examined, the witness said that the church service re-
ferred to by him was held about two weeks before the body of
Bailey was found. Witness lived in the **bend/' and rented
land from Jim Mitchell, who was a witness in this case. A
large crowd attended church on the Sunday referred to. Wit-
ness knew everybody there, but would not undertake to say
what particular person or persons were with him and defend
ant when Bailey announced the opening of services, and when
defendant said tlia: he was going to kill Bailey.

Wallace Clinton testified, for the State, that the defendant
came to his place on the Monday night previous to the Friday
on which Bailey's body was found. In the course of a conversa-
tion with witness, defendant said that he had been required to
give a bond about a bale of cotton, and that if Ike Bailey fooled
with him he would shoot Ike's heart out and go to the peniten-
tiary. Witness replied: **Bob, if I was you I would not do
that." Defendant remained at witness's house until the next
morning, and a few days later the witness heard that Ike
Bailey was missing. Witness was summoned by Stallcup, and
helped to search for the body of Ike Bailey, and saw it after
it was found. He saw no foot tracks immediately at the body.
The witness and the party ne was with then went to the place
where, as shown by the indented ground, Bailey was killed,
and about ten steps from that place the witness saw (pointingf
to the defendant's feet) the tracks of those run down shoes.
Those tracks were the tracks of the shoes the defendant had on
the previous Monday night, and on the morning that the body
was found, aiid that he was wearing on this trial. The witness

Digitized by

Google

Term, 1889.] Hines v. The State. Ill

statement of the case.

not only observed the tracks and shoes closely, but he knew
the defendant's track, and on oath now states that the tracks that
he saw near where the killing occurred were the tracks of the
defendant. When witness advised defendant not to execute
his threat to kill Ike Bailey, defendant replied: **By God, I
will do it, and go to the penitentiary."

Cross examined, the witness said that it was at Lewis Wat-
son's house that defendant said he would kill Ike Bailey if he
fooled with him, and go to the penitentiary. Defendant got
breakfast at Lewis Watson's house, and witness observed his
run down shoes on that morning. Henry Jackson came to
Lewis Watson's on that morning, and, the witness thought,
was speaking to Lewis about some fodder when defendant
made the threat. Defendant came to Watson's house in the
night, but it was after breakfast when he uttered the threat
to kill Ike Bailey. Witness observed the defendant's shoes on
that morning more particularly because the day was damp and
cool, and the shoes were open and worn. When on the ground
where the body was found, the witness heard Mr. Hartsaw tell
Henry Davenport not to deny his, Davenport's, track. The de-
fendant did not aid in the search for Bailey's body, and was
about the only resident of the neighborhood who did not.

Alf Quinn testified, for the State, that he was one of the party
that made the search for the dead body of Ike Bailey. The
defendant was not one of the searching party. At the place
where the body was discovered the witness found a hat and
coat, a saddle and a blanket. He saw a gun at the same place,
but was not present when the gun was found. Soon afterwards,
at Ike Bailey's house, the witness saw a ramrod in the posses-
sion of Mr. Stallqup. The ramrod in evidence is the ramrod
he saw at Bailey's house in the possession of Stallcup. He
recognized it then and identifies it now as a ramrod he, witness,
made. He and Jimmy Dedman went coon hunting one night
previous to the death of Ike Bailey, and took the gun in evi-
dence with them. There was then no ramrod to the gun, and
the witness made the one that is now in evidence. On his
cross examination the witness said that there could be no mis-
take about the ramrod being the one he made for the gun in
evidence. Witness had a general acquaintance with that gun,
and had used it since the night on which he took it coon hunt-
ing and made the ramrod for it. He borrowed the gun on
that night from Jinmiy Dedman. It was not a neighborhood

Digitized by VjOOQIC

113 27 Texas Court op Appeals. [Gcdveston

Statement of the case.

gun. It was on Friday night that witness saw the ramrod for
the first time after the disappearance of Ike Bailey. It was
then in Esquire Stallcup's possession. The hat, saddle and
blanket belonged to Ike Bailey.- Witness did not see a bridle
at or near the place where Bailey's body was found. On the
previous day — Thursday — the witness saw Ike Bailey's mule.
It had on a bridle but no saddle nor blanket. Bailey let his
mule run out, but not on this range in which witness saw it.
At the time that the witness made the ramrod that is now in
evidence the gun belonged to Jimmy Dedman.

Jim Dedman testified, for the State, that at one time he
owned the gun that is now in evidence. He had not seen it for
a month or more at the time of the killing of Bailey, and did
not know who owned it at that time. He remembered going
coon hunting with Alf Quinn some time before the killing, and
of taking the said gun along, and it was his recollection that
Quinn made a ramrod for the gun on that night.

W. B. Stallcup, recalled by the State, testified that the gun
was broken and bloody when he found it. Some of the blood
came off and stained the witness's hands. Witness last saw
the gun on the day previous to this testimony. It was then in
the possession of Captain DeWare, and was in the condition it
was when found.

T. C. Burks testified, for the State, that he remembered the
examining trial of the defendant upon the charge of stealing
cotton from Ike Bailey. It occurred about three weeks prior
to the killing of Ike Bailey. The result of that trial was the
binding ovor of defendant to the district court. On the day of,
but after the examining trial, the defendant appealed to the
witness to go on his bond. In urging witness.to sign the bond,
he said that witness would assume no danger or loss, as Ike
Bailey would never get into court.

Cross examined, th« witness said that the bond defendant
requested him to sign on the day of the examining trial was an
appearance and not a sequestration bond. He did not on that
day ask witness to sign a sequestration bond, but did after-
wards, when witness declined. When he asked witness to go
on the appearance bond, the defendant asked witness how he
could get possession of the cotton, and he afterwards requested
witness to sign his sequestration bond. The cotton which de-
fendant was charged with stealing from Bailey was hauled to
the witness's gin by the defendant. It was not afterwards

Digitized by VjOOQIC

Tenn, 1880.] Hikes v. Thb Statb. ll3

statement of the

placed in the witness's custody by legal process, nor was it
seized by an oflBcer under legal ^process, but was turned over
to Ike Bailey by the witness upon the order of Mike Stallcup.
Defendant lived on witness's place two or three years. Wit-
ness, though now on friendly terms with defendant, was then
a little "wrathy" with defendant, and declined to go on his
bond because he was not willing to help a man who would not
pay him what he owed.

John Watts testified, for the State, that he saw Ike Bailey, at
his, Bailey's, house on the morning of his death — Wednesday,
March 28, 1888. Bailey was then at home. His mule was tied at
the fence in front of his house, and he told witness that he was
going off to hunt for his other mule. Cross examined, the wit-
ness said that he was passing Bailey's house when he saw
Bailey on the fatal Wednesday morning.' Bailey shut the door
of his house and came to the front gate. Witness saw no person
but Bailey at the time, but could not see into the house, 'ihe
witness, who was related to Bailey by Bailey's marriage, lived
on Mr. John Gray's place. Bailey's wife was dead, and no per-
son was living with Bailey at the time of the murder.

Nathan Wi'son was the next witness for the State. He tes-
tified that he had a conversation with the defendant a few days
before the killing of Ike Bailey. Defendant, on that occasion
told witness that he had a world of trouble, and that Ike Bailey
would not be a living man when Mike Stallcup's court next
convened. Cross examined, the witness said that he lived in
the ''bend," and in the neighborhood in which defendant lived.
Witness did not like to have defendant living where he did.
In fact the witness did not like that neighborhood. The neigh,
borhood further up the river — ^about where Mr. Stallcup lived —
was more to the liking of witness. It **beat" defendant's
neighborhood. It was more pious, and the climate was better.
No person was within a quarter of a mile of witness and de-
fendant at the time of the conversation in which defendant
said that Bailey would not be a living man when Stallcup's
court met. Stallcup's court was not in session on that day. The
witness knew that the defendant had a case in Stallcup's
court, but he did not know that it had already been decided.
The witness was not engaged in preaching on the day of the
conversation with the defendant. He was engaged in cutting
rails at a point between three and four hundred yards distant

Digitized by VjOOQIC

114 27 Texas Court of Appeals. [Galveston

Statement of the case.

from Pleas Goyne's bouse, and just beyond Sbar Smith's
house, and not far from the pond near Smith's store. De-
fendant, on his way to town, after eating dinner at Goyne's
house, went with witness to where he was splitting rails. He
first met defendant on that day just beyond the pond, the wit-
ness then being on his way to Smith's store for a plow point
that was wanted on the widow Luster^s place. Defendant said
something about the cotton trouble beeween him and Ike Bai-
ley, but that part of the conversation already stated by witness
was all that he recollected. Witness afterwards told Cal
Bailey, Ike Bailey's step son, what defendant said to him.

Ida Marshall testified, for the State, that she lived with her
mother, who lived on defendant's place, less than half a mile
from defendant's house. She knew Ike Bailey's mule. That
mule, with only a bridle on, came to the house of the witness's
mother late on one cloudy evening. It went thence towards
the branch. Witness did not know from which direction it
came to the house.

Doctor T. H. Stallcup testified, for the State, that he saw
the dead body of Ike Bailey on the morning of March 30, 1888,
at which time, as indicated by the progress of decomposition,
it had been dead from forty-eight to seventy -five hours. There
were three gun shot wounds on the body. One shot entered
the left hand, between the third and fourth fingers. Another
entered the left side. These two wounds were superficial, or
at least would not have produced death. The third wound,
which was necessarily a fatal one, and which must have caused
instantaneous death, entered the forehead. The skull was also
fractured in two places, the result of blows inflicted with a
bludgeon, either of which fractures was in itself a necessarily
fatal wound. The witness extracted the ball from the head,
which was now in the possession of the witness's brother, who
was in court. The ball, being obtained, was exhibited to the
witness, who stated that he could not say that it was the ball
he extracted from the head of Bailey. The ball he extracted
he thought was a thirty-two calibre pistol ball. The witness
knew but little about pistols or pistol balls. The skull wounds
were of such character as would have paralyzed Bailey and
rendered him insensible. Those wounds alone, if inflicted on
March J<58, and Bailey was left as he fell until March 30, must
have produced death, independent of the gun shot The wit-
ness did not think that, after receiving the skull wounds thd

Digitized by VjOOQIC

Term, 1889,] Hinbs v. The Statb. 116

Statement of the case.

deceased could have crawled. Witness had known men to re-
cover from gun shot wounds in the head. He had known men
to survive skull fracture, and to recover after the removal of a
piece of skull as large as a man's hand.

Armstead Cove, recalled by the State, testified that he did
tell Doctor Stallcup (meaning, evidently, Esquire Stallcup) that
when the defendant came to him in the field on the evening of
the fatal day, blood was flowing from his mouth. He denied
that his statement was that there was nothing the matter with
defendant except that there was a small "splotch " of blood
under one eye.

Mike (Esquire) Stallcup, recalled by the State, testified that
ho saw defendant soon after his arrest. At that time there
were no visible wounds or scratches on his person. Soon after
that the witness had a conversation with Armstead Cove, in
the course of which said Cove stated that there was nothing
whatever the matter with defendant when he reached the field
on the evening of the fatal day, except that he had a small
"splotch" of blood on his right hand and another under the
eye. He did not say that blood was then flowing from defend-
ant's mouth. After the prosecution against defendant for
stealing Bailey's cotton was instituted, and after witness bound
him over to the district court, the defendant several times
spoke to witness about instituting a suit to try the right of
property to the cotton. Judging from a note about the matter,
written to him by Mr. Rowell, the witness supposed that Rowell
was to act as attorney for defendant in that matter. On cross
examination the witness stated that Ike Bailey was in town
when his cotton was claimed to have been stolen by defendant.
Henry Davenport was the principal witness who testified
against the defendant on the examining trial Ike Bailey was
^0 a witness, and testified to the ownership of the cotton and
to the want of consent to the taking of the same. The ball
now exhibited to- the witness was the ball that was taken from
Ike Bailey's head.

W. B. Stallcup, being recalled by the State, testifiei that
there was but one tube on the gun when found by him and
Cove. There was a part of an exploded cap on the other tube.
It did not appear to have been long exploded. Cove went direct
to the particular brush heap in which the gun was found, and
went direct to the particular side of that brush heap where it
was concealed.

Digitized by VjOOQIC

116 27 Texas Go0Kt of Apprals. X^Wverton

Statement of the oaee.

Will Hartsaw testified, for the State, that he found the dead
body of Ike Bailey in the edge of an old field, near an old well
that was filled up to within four or five feet of the surface.
Fifty or sixty people, some ?iorseback and some on foot, were
"breasting" through the woods, about fifty yards apart, when
the witness discovered the body. He immediately blew his
horn, and the crowd gathered about the body. Mr. Stallcup
was among the last of the party to reach the body. The body
was examined where it was found, but no weapon of any kind
was discovered about it. Further search discovered the place
where Bailey was killed, and where he had been dragged or
had crawled to the place where the body w^s found. Near the
place of the killing a ramrod, but no gun or other weapon, was
found. On the next morning, before dayt Armstead Cove went
to a brush pile and got the gun. The witness was one of the
parties who went with him. Cove got the gun from the brush
heap he first went to. That gun was broken, and is the identi-
cal jj^un that is now in evidence.

William Watts testified, for the State, that he was the ne-
phew of Ike Bailey. He knew the defendant and knew that,
about the time of the killing of Bailey defendant owned, or had
possession of, a white handled five shooting pistol.

On cross examination, the witness said that he did not know
that the pistol he saw in the defendant's possession on or about
the time of the killing was the property of Jim Williams, nor
did he know that Jim Williams owned a pistol. The witness
was present at the inquest, and knew that defendant and Arm-
stead Cove were taken to the woods. He knew that neither de-
fendant nor Cove were tied when they were taken from the
inquest into the woods. He knew nothing about defendant
being hung to a tree.

W. B. Stallcup, being again recalled by the State, testified
that he arrested the defendant on Friday night, on the premises
of George Gray, and about a mile from defendant's house. It
was about eleven o'clock when he made the arrest, Defendant
was then lying on a pallet with Dan Franklin in an unlighted
room. Witness went to the defendant's house before he went
to Gray's place. The witness did not know that defendant
plowed on Gray's place for Mr. Gray on that Friday.

Alex Walton testified, for the State, that he was at George
Watts's house when defendant was there on the day referred to
by the witness William Watts. That was about a week before

Digitized by VjOOQIC

Teim, 1889.] Hikes v. Th» Statb, IW

Statement of the ease.

Badlej was killed. Defendant had a white handled five shoolh
iBg pistol on that daj. Luc j Marshall lived on the place of the
defendant.

On his cross examination, the witness said that he saw the
pistol in defendant's possession at Gleorge Watts's place prior to
the time above mentioned— about a month before. On that oc-
casion defendant pulled the pistol on the witness, who had
offered to fight him a fair fight if he would lay the pistol down.
The pistol was a thirty-two calibre, and at the time last referred
to it belonged to Dan Franklin. Witness's wife was a sister of
Watts, a!)d a niece of Bailey.

Sheriff DeWare testified, for the State, that, in answer to a
note from Mr. Stallcup, he started to the place where Bailey
was killed, between five and six o'clock on Saturday morning.
He met the party taking defendant to town. He had defend-
ant in his personal charge for twenty miles, but observed no
scratches nor bruises on his person.

The State closed.

The defense recalled Doctor T. H. Stallcup as its first wit-
ness. Doctor Stallcup testified that he was unable to state
whether Bailey was standing on his feet or was lying down
when he was stricken on the head with the bludgeon. It was
possible, but not at all probable, that Bailey was lying down
when the blows on the head were inflicted. The witness
thought the other wounds on Bailey were inflicted by pistol
baUs.

Henry Jackson testified, for the defense, that he went to the
house of Lewis Watson on the day referred to by Wallace
Clinton. He saw the defendant there on that day, talking to
Wallace Clinton, but he did not notice the shoes then worn by
the defendant.

Sheriff DeWare, recalled by the defense, identified the gim
in evidence as the gun that was delivered to him by Mr. Stall-
cup. The right hand barrel of the gun was then loaded and is
loaded yet. The load was then extracted and exhibited to the
jury. It consisted of a mixture of turkey and bird shot.

Jeff Melton was the next witness for the defense. He testi-
fied that he was in his field on the evening before Bailey was
killed, and that Henry Davenport came to the field on that
evening. Bailey disappeared on Wednesday. On the evening
of that day the witness saw Davenport back of his, witness's,
field. Davenport then had a shot gun in one hand and a squir-

Digitized by VjOOQIC

118 27 Texas Court of Appeals. [Galveston

Statement of the case.

rel in the other. Davenport came to the witness's house on the
night of the next day, Thursday, and said that Bailey was
killed; that he knew Bailey was dead, because he left home and
had not come back, and was still missing. He added: "He
(Bailey) is killed, and his head is shot all to pieces." Witness
remarked in reply: "How do you know he is killed? You
must be implicated.'' Witness then said to Davenport: "I was
sitting up with my children and heard a pistol shot." Daven-
port replied: "That shot didn't finish him. We went back and
finished him after that shot." The witness was one of the first
parties to reach Bailey's body after it was discovered. At a
point about seventy-five or eighty yards distant from where the
killing took place a track was found, and, although it could be
found nowhere else than on the branch, it looked to have come
direct from the body. The man who made that track avoided
sandy places, and went up the branch above the ford and
crossed under some brush. Henry Davenport was there, and
his attention was called to that track. The witness found the
ramrod that is now in evidence, and saw Bailey's hat and sad-
dle near the place of the killing. The saddle was found about
one hundred yards northeast from where the body was found,
and about thirty steps from where the body first fell. The place
where the witness found the ramrod was very nearly in the
same direction from where the body was found that the saddle
was; and, in going from the place where the ramrod was found
to the place where the saddle was found, one would go in an
almost direct line towards the body. Witness found no tracks
along the "drag" from the place where the body fell to where
it was found. When found the body was lying back down, and
the hands were muddy. When the witness saw Henry Daven-
port on Wednesday evening — he could not say what time it
was — he was going from the direction of the place where the
killing occurred. Witness did not see Davenport after that
until the following night. Witness saw, on the left hand side
of the "drag," the tracks of what he took to be a small, high
heeled shoe, and at the place where the body fell, very near to
the indentation of the ground made by the head and shoulders
of the body, the witness saw the track of a run down shoe.
That track was different from the track found on the branch."
Will Hartsaw, recalled by the defense, testified that he saw
Henry Davenport on the night before the body was found. On
the next day Davenport reported that Bailey was missing.

Digitized by VjOOQIC

Term, 1889.] Hines v. The State. 119

Statement of the case.

Witness asked Davenport what had become of Bailey, and
then, in reply to what Davenport said, how he knew that Bai-
ley was dead. He replied that he knew Bailey was dead, and
that he was shot all to pieces. He did not say where Bailey's
body could be found. The witness saw the track on the branch
about seventy-five yards from where the body was found, which
track resembled the track of Henry Davenport. He told Da-
venport about that track and its remarkable resemblance to
his track. Davenport replied that he did not deny that track
as his, and that he had been at that place. The track which
the witness took to be Bailey's track was a large track, and
Bailey had on a new pair of number twelve boots. That track
was running. The smaller track was also running. It was ap-
parent from the tracks that the man who made the small tracks
pursued the man who made the large track. There was no in-
dication of a scuffle at the point where Bailey fell. On his
cross examination the witness said that the track which re-
sembled Davenport's was going almost direct — a very little
angling— from the direction of the place where the body was
found.

Dan Franklin testified, for the defense, that he lived on the
place of George Gray, in the *'Bend." The witness first heard
of the disappearance of Ike Bailey on Thursday night at the
house of Henry Davenport. Davenport told witness on that
night that Ike Bailey was dead; that he knew Bailey was dead;
that he went oflf on Wednesday and had not come back. He
said: "Ike Bailey is dead, and he is somewhere in that /lake'
field." He said that he only imagined that Bailey was dead.
The witness was arrested on the premises of Mr. Gray on Fri-
day night. The witness and defendant were working — plow-
ing—for Mr. Gray when the successful search for Mr. Bailey's
body was made. The witness occupied a house on Mr. Gray's
place, and with defendant and Jim Williams was sleeping in
that house when the arrest of himself, defendant and Williams
was made. Witness had no pistol on that night, but Williams
had one. The witness once owned a white handled pistol. On
his cross examination this witness said that Jim Williams had
his washing done and kept his clothes at the defendant's house,
but did not keep his pistol at defendant's house. If the pistol
was at defendant's house on Thursday the witness did not see
it. The witness denied that he told Davenport that old man
Ike Bailey had been killed, and that when his body was found,

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120 27 Texas Court of Appeals. [Galveston

Statement of the case.

his head would be found shot all to pieces. * He denied that he •
ever told old Aunt Violet Davenport that Bailey had been
killed, and that the killing was done with his, witness's, pistol.
The witness and defendant were not the only parties in the
neighborhood who did not join in the search for Bailey's body,
Alex Courtenay and several others did not aid in the search.
At that time Mr. Gray was on the witness's bond as a defend-
ant in the charge of stealing Ike's cotton, and when witness
was called upon to join in the search he had to go to Gray's to
report where he was going to. Gray would not consent for the
witness to go, as he said he did not want his plows stopped;
consequently — and for that reason — the witness could not join
in the search. On his re-examination the witness said that it
was after supper on Thursday night when he went to Daven-
port's house. Se stayed there all night, as did Henry Daven-
port. The white handled pistol which the witness once owned,
he bought from Frank Reynolds.

Frank Reynolds testified, for the defense, that he lived about
a raile and a half from defendant's house. Witness saw Henry
Davenport in his, witness's, field between ten and eleven o'clock
on the fatal Wednesday morning. Davenport went to wit-
ness's house between eleven and twelve o'clock on that day,
ate dinner there and left between one and two o'clock. When
he left he went east from witness's house, across the edge of
the field and towards the "lake" field. He then had a shot
gun, and a shot sack across his shoulders, on the outside of his
coat. He went directly towards the point where the body was
*af terwards found. Before the arrival of Henry Davenport the
witness heard some shooting from the direction of the place
where the body was afterwards found. From what Daven-
port said to him on his arrival, witness supposed he did the
shooting. He said to witness : * * Now, suppose me and another
negro was to get into a rucus, you white men ought not to have
anything to do with it.'* Henry Davenport had never before
been on the witness's premises, so far as the witness knew.

Cross examined, the witness stated that Henry Davenport
could not be said to have stayed to dinner at witness's house on
his, witness's, invitation, but, being there at dinner time, wit-
ness gave him his dinner. Prior to that day the witness had
tried to sell to Davenport a certain hog of his that was running
in Davenport's range, and on that day he renewed the negotia-
tion in an eflEort to exchange the hog for some cotton which

Digitized by VjOOQIC

Ttrm, 1889.] Hinbs v. The State. 1»1

Statefmeot of the

Davenport had. Davenport said that he would have to coa-
«ult his wife before trading, that he had promised to give her
some money with which to buy Christmas ''tricks." Whai
Davenport left witness's house, after dinner on the said
Wednesday, he went northwest toward the "lake" field, re-
marking that he was going to kill some squirrels.' Henry
Davenport, on that day, told witness that he had been to old
man Atkisson's house. He did not say that he had been at
work for Atkisson. He said that he was afraid somebody
would kill him.

Gteorge Gray testified, for the defense, that he went to the
place where Bailey was killed, and where his body was found,
four or five days after the finding of the same. Those places
were about a quarter of a mile distant from Davenport's house,
and on the most direct route from the defendant's house to the
land which he, defendant, was then cultivating, and which
land he rented from the witness. Defendant came to the wit-
ness's house a day or two before the finding of Bailey's body,
and, while sitting on the horse block at witness's house, he
spat a mouthful of blood. That was between three and four
o'clock on Wednesday evening. The witness knew Jim Wil-
liams, but did not know his present whereabouts, nor where he
was at the time of the killing of Bailey. Williams was in the
witness's employ at the time Bailey disappeared. He then
owned a white handlea pistol. A week or two before Bailey
was killed Williams got to shooting the pistol about the place,
and witness took it away from him and put it in his, witness's,
trunk. It was taken out of that trunk about a week after the
killing. If the defendant ever owned a pistol the witness did
not know it. The defense closed.

The State, in conclusion, introduced as a witness Violet, the
wife of Henry Davenport. She testified that Dan Franklin
came to her house on the night that Bailey's body was found,
and asked if she knew where B^-iley was. He then told wit-
ness that Bailey was missing, and asked if witness knew
whether or not there was anything wrong with Bailey. He
then said: "If Ike aint come hack yet, then Ike is killed, and,
wherever he is, he is killed with my pistol, for I sold it to Jim
Williams. Whoever has done it, I hope they have left life in
him, so he can tell who it was."

Cross examined, this witness stated that she and her husband
worked for Bailey on Tuesday, the day before his disappear-

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1*2 27 Texas Court op Appeals. [Galyeston

Argament for the appellant.

ance. Bailey told them on Tuesday night to be certain to re-
turn on Thursday morning. They went back on Hmrsday
morning and worked <m Bailey's place until about four o'clock
in the evening. The witness and her husband were the first per-
sons to feel uneasiness about Bailey. The witness did not know
where her husband was on Wednesday morning. He was not
at home to dinner. When he got home that evening he said
that he got his dinner at Mr. Reynolds's house. The witness did
not know what time Henry got home on that Wednesday even-
ing. Henry had neither coat nor shot sack when he left home
on Wednesday morning. Witness was lying down when Henry
got home on Wednesday evening. He asked her what was the
matter. She replied that she was lying there thinking of what
had become of old man Ike Bailey. Henry replied that if old
man Ike was killed and misplaced he was very sorry.

W. T. Annistead, J. H. Culbe7'son, Camp & Taylor and
J. E. McComb, for the appellant: A conviction can not be had
upon the uncorroborated testimony of an accomplice, and the
evidence in this case being sufficient to moot the complicity of
the State's witness Cove, the trial cour erred in failing and re-
fusing to instruct the jury upon the law applicable to the cor-
roboration of an accomplice witness.

Does the evidence in this case raise the complicity of the
witness Cove? The ramrod found on the ground near the
dead body was identified positively as the ramrod of his gun,
and the broken gun produced in evidence was identified and
admitted by him to be his gun. He was the person who first
told where the gun was concealed in the brush heap, and he
went directly to the brush heap with the officer, and there got
the gun and delivered it to the officer. According to his own
sworn statement on the stand, he kept locked in his own breast
the secret of Ike Bailey's death — protesting, indeed, that he
knew nothing whatever about Bailey's disappearance — from
Wednesday until midnight of Friday, when he disclosed it only
under the influence of fear, superinduced by the presence, if
not the threats, of an armed body of men. The said witness
Cove was shown to live at the house where the gun was usually
kept, and it was proved that he passed through the lake field
on the evening of the killing.

W. L. Z)avidson, Assistant Attorney General, for the State.

Digitized by VjOOQIC

Term, 1889.] Hikes v. The State. DM

Opinion of the eonrt

HxTRT, Judge. This is a conTiction of murder of the first
degree, with the death penalty. We ha^B carafoUy examined
all the grounds relied upon for a reversal of the judgment, «nA
are of the opinion that none are well taken except that con-
tained in the third assignment, to wit: "The court erred in
failing and refusing to charge the law applicable to the corrob-
oration of an accomplice, the witness Armstead Cove being an
accomplice.'* The court's attention was called to this subject,
and counsel requested a charge thereon, but did not prepare
the charge. The court refused to prepare and submit to the
jury instructions relating to this subject, and counsel for ap-
pellant excepted and reserved a bill.

No doubt the learned trial judge did not believe there was
any evidence in the case raising this question, and hence the.
failure to charge thereon. It will not bo questioned that if
there be such evidence it was the duty of the court to instruct
the jury with reference to the necessity and the character of
corroboration required to authorize a conviction upon the testi-
mony of an accomplice.

Was there evidence reasonably tending to show that Cove or
Davenport, or any other witness upon whose testimony the
State relied for conviction, was an accomplice? If so, under
the facts of this case, the court should have instructed with
reference thereto. What are the facts?

On Wednesday, March 28, 1888, in Marion county, Texas, in
what is known as the Bend neighborhood, the deceased, Ike
Bailey, left his house two miles from the **lake" field, where
he was afterwards, on Friday, the thirtieth of March, found
dead. He had evidently been killed, as in his head and body
were two gun shot wounds, apparently of a rifie or pistol of
thirty-two calibre. His skull was also fractured by blows from
some heavy instrument. The body was found in the **lake" field
about three hundred yards from the house of defendant Hines,
on a path or road leading from Hines's house to the Gray field
which Hines cultivated, and about twenty steps from an old
well. Near the body of deceased were his saddle and saddle
blanket. Wednesday evening, the same evening deceased left
home, his mule, with bridle but no saddle or blanket on, was
seen going from the "lake" field. A ramrod and a piece of the
stock of a shot gun were found near the body. This ramrod
was identified as the ramrod of Armstead Cove's shot gun,
also the piece of ^un stock. The tracks of Henry Davenport

Digitized by VjOOQIC

DM 27 Texu Goxtbt of Appials. [Galyettoft

OpinioB of th« eowrt.

were found going towards and from the body. Davenport was
seen going in the direction of the ^'lake" field a short time be-
fore the killing, with a gun, and was seen going from the field
late Wednesday evening. Late Wednesday evening, when
Ike Bailey did not come' home, Davenport told witness that
Ike Bailey would not come home, that he had been killed, and
his head shot and beat all to pieces. Thursday he told another
witness the same in substance, and said he had been killed in
the "lake"' field. Wednesday Davenport ate dinner at witness
Frank Reynolds's house — had his gun. He said to Reynolds:
**If me and another negro gets into a rucus, you white men
ougl^t to have nothing to do with it." In the evening he went
off with his gun in the direction of the "Jake" field. Just after
the shots were heard in the field, Davenport was seen going
from the direction of the place where the shots were heard and
the body afterwards found. He also told witness on Thursday,
after the killing, that the first shot did not kill Ike Bailey.
Davenport and his wife know that Ike Bailey went to the "lake"
field that evening, and were the only persons who knew of
this so far as the evidence shows.

Witness Armstead Cove was the half ferother of appellant,
lived with him, and owned an old shot K^n in very bad repair.
The ramrod and piece of stock found by the body belonged to
this gun. The nijj;ht of the evening the body was found
Armstead Cove, Henry Davenport, Jim Williams and appel-
lant, were arrested and taken to the inquest separately. The
constable was there, and also a crowd of armed men in an ex-
cited condition, threatening to kill all the prisoners. The pris-
oners were taken out and threatened with death if they did not
confess. When it was brought to the knowledge of Armstead
Cove that the ramrod was identified as being his, and himself
being threatened with death, he said thb appellant, Hines, told
him at the horse lot that he had killed Ike Bailey with his
(Armstead Cove's) gun, and pointed to some brush heaps and
said the gun was under one of them. One hour and thirty
minutes before daylight he, with the constable and others, he
guiding them, went straight to the brush heap, and to the side
of the heap where the gun was, stopping at no other, though
he insisted that he had examined several others before finding
the gun.

Ike Bailey (the deceased) and Bob Hines had had some trouble
about some cotton, in which it was charged that Hines stole

Digitized by VjOOQIC

Tmnj 1689.] HnoES t;. Thb Stavb. IS^

Opiidon of th« ootirt

tlie cotton from Bailey. Hines was under bond to appear to
aaswcr the charge. Davenport was the principal witness
against Bob Hines in the cotton case. Two or three witnesses
testified that Hines had threatened to kill Bailey.

The State attempted to explain some of the facts which tend
to show that Cove and Davenport were accomplices, but this
being a question for the jury, the court could not assume that
the explanations were full and complete and withdraw the
question accomplice vel non from the jury or refuse to call
their attention to this question by proper instructions.

Again, there is no attempt to explain some of the most cogent
facts which tend to show these witnesses to be accomplices.
We mean by explain, to render these facts completely con-
sistent with the hypothesis that neither Cove nor Davenport
was an accomplice. Let us present a case so as to illustrate
our views upon this subject.

There is evidence in a case tending to show that a witness
upon whose testimony the State relies alone or in part for
conviction was an accomplice, but the other facts in the case
render it reasonably certain that the witness was not an accom-
plice. Can the trial judge assume these facts, to wit: the
facts which render it reasonably certain that the witness was
not an accomplice, to be true, and refuse to submit to the jury
the law relating to the testimony of an accomplice? We se-
riously doubt if in any case the judge can so assume, and
refuse to instruct upon the question of an accomplice. But to
warrant the court in thus acting, the case must be one in
which the testimony which tends to show the witness to be an
accomplice is very slight, and the other facts must render it
absolutely certain that he (the witness) is not an accomplice.
The rule that the court should charge upon the theory of the
case relied upon by the accused, should be applied to this ques-
tion.

But, there being evidence strongly tending to show that Cove
and Davenport were accomplices, do the other facts in the case
render it even reasonably certain that they, nor either of them
was not an accomplice? They do not; and hence the necessity
for the proper instructions relating to the testimony of an ac-
complice.

We will relate briefly the facts bearing on Cove, which tend
to show him an accomplice. Deceased was killed with his gun.
He had access to the gun, it being in his house. He denied all

Digitized by VjOOQIC

126 27 Texas Court of Appeals. [(lalvestoa

OpiuioD of the court.

knowledge of the crime. He went at night with the officer
and others to the brush pile — guiding them. He went to the
pile/ there being a number of brush piles in the clearing, in
which the gun was concealed. He went direct to the pile con-
taining the gun, and he went directly to the side of the pile
where the gun was concealed. Upon the trial he swears
that he went to several piles before he found the right
one. This was shown to be false. Now, Hines may have told
him where the gun was concealed, and may have given him
such a description of the brush pile, its locality, etc., as to en-
able him to go at night directly to it; this, however, would be
remarkable. But to give him such a description and such
directions as to enable him to go at night directly to the right
pile, and to the side of the pile of brush at which the gun was
concealed, is not reasonable. Especially so, when considered
in the light of his statement bearing upon this matter. He
says that Hines told him that he had killed Ike Bailey with his
(Cove's) gun, and pointed to some brush heaps and said it was
under one of them. There is no pretense that the appellant
pointed out the particular pile, or gave the witness such de-
scription of it as would enable him to go directly to it. This is
contradicted by the witness himself, in this, that he '^did turn
down two or three brush heaps in hunting for the gun."

Now, under these facts it is reasonable to infer that this wit-
ness did not obtain knowledge of the whereabouts of the gun
from the defendant. But, be this as it may, these facts, tending
strongly to inculpate the witness either as a principal or an
accessory, the question of accomplice vel non should have been
submitted to the jury, with instructions that if they found him
to be an accomplice then, to convict on his evidence, he should
be corroborated as the law directs. As to whether Davenport
was an accomplice or not, that also should have been submitted
to the jury with proper instructions.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered January 26, 1889.

Digitized by VjOOQIC

Tenn, 1889.] Hughes v. The State. 187

Statement of the

No. 2641.
0. H. Hughes v. The State.

L Pbagtioe— EviDBNCK—BiLL OF EXCEPTION to the admtssloii of eTl-
denoe must disclose the gronnd of objection; otherwise it is not en-
titled to be considered on appeal.

3. Murdbr^Fact Case.— See the statement of the case in this, and in
the case of ex parte Smith and Hngbes, 26 Texas Court of Appeals*
184, for evidence ?uld sufficient to support a conviction of murder of
the first degree.

Appeal from the District Court of Leon. Tried below be-
fore the Hon. N. Q. KittrelL

The conviction in this case is in the first degree for the mur-
der of Robert Martin, in Leon county, Texas, on the sixth
day of May, 1888. A life term in the penitentiary was the
penalty assessed by the verdict.

The appellant in this case was one of the relators in the Smith
and Hughes habeas corpus proceedings reported in the twenty-
sixth volume of these Reports, beginning on page one hundred
and thirty-four. Of the witnesses who testified on the habeas
corpus proceedings, Messrs Bryan, Vick, Ike Martin, Owens,
Bolter, the district clerk, Joyce, Mrs. Susan Hughes and
Miss Jennie Hughes testified on this trial, their narratives
on the two trials being substantially the same. This report
comprehends the testimony of witnesses who did not testify on
the habeas corpus proceedings.

Cape Cowart testified, for the State, that he lived in Freestone
county, Texas. The deceased and witness's brother Jesse had
a herd of cattle at the latter's stock pens, in Freestone county,
on the evening of May 3, 1888. The witness, the deceased, Ike
Martin, James and George Collins, J. T. Windham, and per-
haps others, were at said stock pens on the said evening when
the defendant, Ed Smith, James Smith, George Smith, J. P.
Parker, Jr., Henry Parker and Louis Davis arrived, each o£
said parties being armed either with a sholt gun or a Winches*
ter rifle. Defendant had a shot gun. One of the party, J. P«
Parker, Jr., according to witness's recollection, said that the

Digitized by VjOOQIC

1*8 27 TBXA8 COTTRT OF APPSALB. [QftlTeftOD

GHatement of the «a8e.

party wanted to examine or inspect the herd. Deceased re-
plied that he had no objection to an inspection by honest gen-
• tlemen, but that no Qod d — d midnight assassin could inspect
them. The witness and others prevailed on deceased to per-
mit James Smith to examine the herd. Mr. James Smith re-
ported the herd all right, but that it contained an unbranded
heifer. Ike Martin, the brother of the deceased, claimed that
heifer. The defendant and his party then left.

Shorty Martin, a brother of the deceased, testified, for the
Stdte, that a conversation between the defendant and deceased
occurred in the hearing of the witness, near the witness's
house, between sun down and dark on the evening of May 1^
18S8. Ed Smith was with defendant at the time. Deceased
told defendant that he was going away soon, and wanted a
settlement with him, defendant, who owed him, deceased, for
supplies. Defendant replied that if deceased would come to
his house they would settle d — d quick. The deceased replied
that he had the books, and the place to settle was there. A
quarrel then ensued between the defendant and the deceased,
in the course of which the defendant said that if the deceased
did not mind, he, defendant, would settle with him before he
left, between two suns.

West Williams testified, for the State, that on the evening of
Friday, May 4, 1888, while he and ciefendant were working the
road, about eleven miles from Buflfalo, defendant said to him:
**Bob Martin talked to me pretty rough a day or two ago, and
I don't intend to stand it. One day ain't always."

Miss Bettie Hay testified for the State, that on the night of
Monday, May 7, 1888, about twelve o'clock, she was awakened
by the reports of fire arms discharged near the house of her
mother, A minute or two after the shots were fired, Mr. Lin-
son came to the house and said that somebody had just shot a
prisoner he had in custody. The witness's mother went to the
place indicated by Linson, and witness followed as soon as
she could get ready. Very soon after the witness reached the
deceased, who was then lying on the ground, wounded, he said
of his own motion, and not in reply to questions: **Smith and
Hughes did the shooting. I saw them by the flash of the gun,
and the Parkers are into it." A minute or two later he said:
•*I am bound to die" or '*I am dying." Witness understood
him to say: **! am dying." About thirty minutes later he
said; '^Sinith and Hughes did this." Presently he asked wit-

Digitized by VjOOQIC

Term, 1889.] Hughes v. The State. 129

Statement of the case.

ness and her mother to pray for him, and attempted to pray
himself, as directed by witness. Very soon after witness
reached the deceased, Linson left to go for Mr. Bradford, who
lived but little more than a quarter of a mile distant, and as
witness, who was much excited, computed the time, he was
gone about twenty minutes. Deceased said nothing, but
groaned during Lin son's absence. On his return, Linson
asked deceased if he wanted some water. He said that he did.
Witness then went to the house, fifty yards distant, and re-
turned, making the trip as soon as she could, and it was imme-
diately upon her return that deceased made his first statement.
He several times said: **I am dying." He talked at intervals
until he died, an hour or more after he was shot, but at no time
spoke in a manner to indicate any hope of recovery or other
expectation than to die.

Frank Watson testified, for the State, that he was book-
keeper in the mercantile establishment of J. M. Pearlstone
& Son. During the year 1887, the deceased became security
at Pearlstone's store for supplies furnished the defendant by
Pearlstone, and afterwards paid the account.

James Smith testified, for the State, that on his way to Buf-
falo, on Tuesday morning. May 8, 1887, he stopped at the field
of his brother, Ed Smith, where he found his said brother and
this defendant, and Messrs. Teeter and Faulk, two young men
who were then on their way to inform the relatives of the de-
ceased of the killing of the latter on the night before. The
witness, while in the said field, told defendant that he had been
told that a straw hat had been found on the ground of the kill-
ing. Defendant replied: "I reckon my hat is at home, unless
it has been destroyed." As witness rode oflf, defendant called
to and asked witness if he was going to Buflfalo. The witness
replied that he was, and defendant said to him: "My hat may
be at home or it may be destroyed. You get me one while at
Buflfalo to-day." He then proceeded to describe to witness the
place in Pearlstone's store where he would find the hats. Wit-
ness asked: "Shall I tell Barney Pearlstone to send you one?"
He replied: "No; get me one out of the box behind the door."
Witness replied: "I can't do that." Defendant said: "All
right; I know my hat is at home anyway, unless the children
have torn it up."

H. J. Childs testifiea, for the State, that he was sheriff of

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130 27 Texas Court of Appeals. [Galveston

statement of the case.

Freestone county in May, 1888. On the night of Saturday, May
12, 1888, the witness went to the house of Ed Smith and arrested
him, the said Ed Smith. After serwng the warrant, witness
asked Smith where his black straw hat was. Smith pointed to
a straw hat hanging on the wall, and said: *^here it is." The
hat which is now in evidence, being one of the two exhibited
on the inquest, looked to be the hat pointed out by said Smith.
Smith said he got the hat from Pearlstone on the Friday before
the assassination of Martin.

Ed Smith was the next witness for the State. He testified
that he was charged by separate indictment with the same
murder for which this defendant was now on trial. The said
murder occurred on the night of Monday, May 7, 1888. The
witness was at^work in his field on that day, when he was
joined by the defendant, who was armed with a shot gun.
About an hour and a half before sun set, J. P. Parker, Jr.,
and Henry Parker came by the field and spoke to witness and
defendant. Defendant followed them to a point behind a hill
beyond the view of the witness. Defendant returned to where
the witness was in a short while, and told witness that a plot
to kill Bob Martin on that night was agreed upon, and that he
wanted the assistance of the witness. He then said that he
and J. P. Parker, Jr., Henry Parker, W. T. Linson and the
negro Lewis Davis were the parties to the plot, and that witness
must join them. He then said that J. P. Parker, Jr., told
him to tell witness that he, witness, had to go, and that if wit-
ness refused or "gave anything away," he, Parker, would kill
witness. This was the first intimation the witness ever had
that deceased was to be killed. He did not want to participate
in the plot, and so informed defendant, but defendant replied
that if witness refused, Jimmie Parker would kill him, wit-
ness. Thereupon the witness, being afraid to refuse, consented.
The witness never at any time, before or after the killing, had
any talk with the Parkers or anybody else about the killing.
When witness, in view of the threat against his life, agreed to
take part in the assassination, defendant told him that the
agreement was to meet at a hill near Cedar Creek church
about three-fourths of a mile from where the Parkers lived.
The witness then left defendant and went to the point in the
field where his two sons were burning? brush, and after a while
returned to defendant, ready to accompany him to the place
of meeting, two and a half or three miles distant. The witness

Digitized by VjOOQIC

Term, 1889.] HuGBres v. The State. 181

Statement of the ^ase.

anJ the defendant left the witness's field about an hour before
sun down, and walked to the place of meeting, the defendant '
taking a double barreled, shot gun with him, but the witness
had no arms of any character on his person. They arrived at
the place of rendezvous about dusk, where, within a few min-
utes, they were joined by J. P. Parker, Henry Parker and
Lewis Davis. The entire party then went to a hill north of the
church, when J. P. Parker, Jr., said to defendant: "Well,
you know where to go." Defendant answered: **Yes," and the
party separated into two parties, the two Parkers and Davis
going one way and witness and defendant another. Neither
of the Parkers nor Davis spoke to witness on that night, nor
did the witness see them again after separating from them as
stated. The witness and defendant went direct to the place
near Mrs. Hay's house where the shooting afte^ards occurred.
Defendant took his position behind a black jack tree, south of
the road which, from its connection with the main Buffalo road,
a few yards distant, leads to Linson's house. He then cut away
some undergrowth that obstructed his view of the road. The
witness stood about the tree, first on one side and then on the
other. Defendant told witness that Linson, having deceased
in charge, was to reach the cross road at about twelve o'clock,
and was to apprise him, defendant, of their proximity, and
would drop behind deceased just before reaching the junction
of the roads, and would call to deceased to "turn to the right;"
that Linson then was to ride far enough in the rear of deceased
to enable him, defendant, to shoot and kill deceased. The wit-
ness and defendant were at the tree three hours or more before
Linson and deceased reached the cross road. No person came
along that road before the killing, except that Lewis Davis
came to the tree once and left again. About twelve o'clock
Linson and deceased reached the vicinity of the cross road, and
Linson, who appeared to be behind deceased, exclaimed: **Turn
to the right. Bob; we will go by my house." Deceased turned
to the right into the said cross road, Linson dropped behind as
agreed, and defendant fired two shots from his gun at deceased.
Linson fired two shots and witness and defendant fled from the
place through the woods, defendant dropping his hat in the
flight.

The witness and the defendant went to the town of Buffalo
on the Friday preceding the fatal Motiday. They went into the
store of J. M. Pearlstone & Son, and witness asked Mr. Owens,

Digitized by VjOOQIC

13^ 27 Texas Court of Appeals. [Galveston

Statement of the case.

the clerk, for a sack that Dr. Baiter was to leave there for him.
He got the sack and directed Mr. Owens to put him up a dollar's
worth each of coffee and sugar. While Mr. Owens was putting
up the said articles the witness observed a box of black straw-
hats. He asked Owens to give him one of the hats. Owens
gave him one and told him not to let the *' boss " see him with
it. Defendant then asked Owens to give him one of the hats,,
and Owens did so. Witness then put the two hats in the sack,
and he and defendant got in the wagon and went home. When
they went to separate that evening defendant thrust his arm in
the sack to get his hat. He took out one of the hats, remark-
ing: ** It makes no difference which I take, as they are both
alike."

Cross examined, the witness said that, during the week pre-
ceding this trial, he testified on the habeas corpus trial of J.
P. Parker, Jr., Henry Parker and W. T. Linson, and on that
trial he testified that he had not talked to anybody about the
killing of deceased, and that he had been promised nothing in
consideration of his testimony. As a matter of fact, before he
testified on the said habeas corpus trial, and before he went be-
fore the grand jury to testify about the killing of deceased, he
had a talk, in the front room of the jail, with District Attorney
Campbell and Messrs. B. D. Dashiell and F. M. Etheredge. In
that conversation District Attorney Campbell told witness that
if he would truthfully tell all he knew about the killing of de-
ceased he, Campbell, would not prosecute witness, and witness
would escape punishment. The reason why witness testified
untruthfully about this matter on the habeas corpus trial was
that Mr. Campbell particularly admonished him, in the said
conversation, not to divulge the agreement. Witness knew,
when he made the false statement on the habeas corpus trial,
that he was committing a moral and penal offense, and that he
was making himself liable to prosecution for perjury. He did
it, however, to comply with the instruction of the district at-
torney as he understood it, or, in the language of the witness,
*' I done it because the district attorney told me to say nothings
about it." An indictment was still pending against the wit-
ness, in the district court of Freestone county, for an assaidt
with intent to murder deceased, committed in the fall of 1887.
Miss Celia Pettigrew testified, for the defense, that, at the
time of the assassination of the deceased, she was teaching
school at Cedar Creek, near the residence of Mr. J. P. Parker,.

Digitized by VjOOQIC

Term, 1S89.] Hughbs v. The Statb. 133

Statemeot of the case.

Jr., and at that time was boarding at the house of the said
Parker, occupying a room, with Mrs. B. Solomon. She had a
distinct recollection of the fatal night, and knew as a matter
of fact that J. P. Parker, Jr., was at home with his family on
that night, at least until ten o'clock. The witness, Mrs. Solomon,
J. P. Parker, Jr., and Mrs. Parker, his wife, sat on the gallery
of said Parker's house, engaged in conversation, until about ten
o'clock, when Mr and Mrs. Parker retired to their room. Wit-
ness and Mrs. Solomon went to their room a few minutes later.
A negro girl reported the killing of deceased early on the next
morning, Mr. J. P. Parker, Jr., being present, and repeated
the current rumor that deceased's dying statement inculpated
the Parkers. Witness then vividly recalled the presence of
Mr. Parker at his home on the previous night. Witness was
not related in any way to the parties involved in this ptx)8ecu-
tion. Mrs. B. Solomon corroborated the testimony of Miss
Pettigrew, placing J. P. Parker, Jr., at home at dark on the
fatal night, continuously until he retired with his wife about
ten o'clock, and still at home at daybreak next morning.

The substance of the testimony of Mrs. H. C. Parker, the
wife of J. P. Parker, Jr., was that her husband came homo
from work about sun down, ate supper with the witness, Mrs.
Solomon and Miss Pettigrew about dark, engaged in conversa-
tion with the said parties on the gallery until about ten o'clock,
then retired with the witness to their room, when he wrote
until about eleven o'clock, when he went to bed with the wit-
ness, and remained in bed continuously until day break next
morning. Mrs. Parker declared that she was constitutionally
of a nervous temperament, easily awakened from sleep, and
that her husband could not possibly have left their bed that
night without awakening her, and that to her positive knowl-
edge he did not leave it on that night.

The written testimony of Mrs. M. L. Parker, the wife of
Henry Parker, as delivered on the habeas corpus trial of W.
T. Linson et als., was read for the defense by agreement. The
substance of her said testimony was her positive statement
that her husband was at his home throughout the entire night
of the fatal Monday.

J. C. Collins, George Collins and J. T. Windham testified, for
the defense, that they were at Jesse Cowart's stock pen on May
1, 1888, when defendant, James, Ed and George Smith. J. P.
and Henry Parker and Lewis Davis came there to look through

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134 27 Texas Court op Appeals. [Galveston

Opioion of the court.

Martin's herd of cattle, and that J. P. Parker, Jr., and defend*
ant were the only persons who then had guns.

DoUon Jb Richardsofif for the appellant.

W. L. Davidson^ Assistant Attorney General, for the State.

WiLLSON, Judge. With respect to the testimony admitted
as res gestaB, it is not shown by the bill of exception what par-
ticular objection was made thereto. A bill of exception to the
admission of evidence should clearly disclose the ground or
grounds of the objection made to the evidence; otherwise it is
not entitled to be considered. (Willson's Crim. Stats., sec.
2516.)

With respect to the admission of the testimony of dying
declarations made by the deceased, the bill of exceptions is de-
fective in the same particular mentioned above. It does not
state the ground or grounds of obiection made thereto.

Nb exceptions were made to the charge of the court. We
have carefully examined the charge in the light of the objec-
tions made to it on the motion for new trial and in this court,
and, in our opinion, it is free from material error — such error
as might have injured the rights of the defendant. It may be
that in some particulars the charge is not critically correct, but,
considered as a whole, and with reference to the evidence, it is
not materially objectionable.

We think the evidence amply supports the conviction. The
testimony of the accomplice witness Smith is strongly corrob-
orated by evidence which tends to connect the defendant with
the crime. Without the testimony of the accomplice witness
the guilt of the defendant is sufficiently established by the
other evidence.

We have found no error in the conviction^ and the judgment
is affirmed.

Affirmed.
Opinion delivered January 2Q, 18d0«

Digitized by VjOOQIC

Term, 1889.] Johnson v. The State. 136

Opinion of the ooort.

No. 2638.

Fraioc Johnson v. The Statb.

pRAOTiOB—BviDBNOE— Witness.— The hasband or wife Is eompetent to
teitify for the other in a criminal prosecution, bat not for the State,
imless the proseoation be for an offense committed by the one against
the other. This rule is not relaxed by a mere separation of the spouses
without a legal severance of the marria^^e relation.

Appeal from the County Court of Brazos. Tried below be-
fore the Hon. D. 0. Barmore, County Judge.

The conviction in this case was for an aggravated assault
upon Sally King, a female, the penalty assessed being a fine of
twenty-five dollars.

The question determined on this appeal does not requite a
statement of the proof.

J. A. Buckholts, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

Whttb, Presidino Judge. Appellant was tried and con-
victed in the lower court for aggravated assault upon one Sally
King. Sally King was appellant's step-daughter. Over objec-
tions of defendant, his wife, who was the mother of the injured
party, was introduced as a witness by the prosecution and al-
lowed to testify against him, as shown by his bill of exceptions.

A husband or wife may, in all criminal actions, be witnesses
for each other, but they are expressly prohibited by statute
from being witnesses against each other, except in prosecutions
for offenses committed by the one against the other. (Penal
Code, art. 735; Compton v. The State, 13 Texas Ct. App., 271;
Thomas v. The State, 14 Texas Ct. App., 70.)

It is shown by the testimony of the wife that she left her
husband on the day of the alleged assault upon her daughter;
that she had not returned to or cohabited with him since, and
that she did not intend to live with him again. Such conduct
on her part, however, did not operate a dissolution of the mar-

27 135
32 624

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136 27 Texas Court op Appeals. [Galveston

statement of the cast;.

riage, or so alter the relations of the parties in contemplation
of law as to render her a competent witness in the case against
the husband. (Clanton v. The State, 20 Texas Ct. App., 616;
Johnson v. The State, Id., 609.)

The Assistant Attorney General confesses error on behalf of
the State in the ruling of the court in admitting the wife to
testify, and the judgment is reversed and the cause remanded.

Reveised and remanded.

Opinion delivered January 26, 1889.

No. 2686.

Charles H. Franklin v. The State.

Assault and Battery— Fact Case.— See the statement of the oaee for
evideDce Tield ineuffloient to support a conviction for assault and bat.
tery.

Appeal from the County Court of Leon. Tried below be-
fore the Hon. H. B. Pruitt, County Judge.

The conviction was for an assault and battery upon Sam H.
Winn, and the penalty assessed against the appellant was a
fine of five dollars.

Sam H. Winn testified, for the State, that he was a deputy
aheriff of Leon county, located at the town of Marquez. On
the night of August 13, 1887, the witness and Mr. Yancy Bums
went to the depot in Marquez to meet a lady passenger who
was due on the incoming train. Witness reached the depot a
few steps in advance of Burns, Campbell LaFlore and others,
just as the train pulled in, and became separated from them by
the said train. While the passengers were getting oflf the train
for supper, some person on the other side of the train from wit-
ness called to him that a fight was in progress. Witness went
at once to the other side of the train, and found LaFlore en-
gaged in a fight with defendant. LaFlore was on his hands
and knee s, endeavoring to get away from defendant, who was
striking him with a plank. Witness went up to defendant, told

Digitized by VjOOQIC

Term, 1880.] Franklin v. The State. 137

Statement of tho Cdse*

defendant that be was an officer, and woul i have to arrest
him. Defendant replied: **By God (or God d — n), I will see
that you don't." Witness then seized the defendant, and in the
struggle that ensued defendant struck him, witness, with his
fist and with a plank. He finally broke loose from witness,
•eized witness by the collar and struck him over the head with
apiece of wood. Witness had no weapon when he undertook
to arrest defendant, but, when defendant struck witness with
the piece of plank and knocked him back a step or two, some
person called to witness: "Get your pistol." Defendant said:
*'Let me get mine, too."

Continuing, this witness said that he did not know how the
fight between defendant and La Flore began. He did not then
know the defendant, and did not suppose the defendant knew
him. After the occurrence described the defendant got back
on the train, and witness followed and arrested him, the do-
fendant making no resistance. Having arrested defendant,
the witness put a chain on his legs and tied his hands behind
him, and then took him to town, where Justice of the Peace
Watson proceeded to investigate the complaint filed against
him. While that investigation was in progress some person
from behind the witness struck the defendant a severe blow
with a heavy weight that belonged to a platform scales. De-
fendant was still tied when struck by the scales weight. Wit-
ness had to go home after the investigation, and, not desiring
to take defendant with him, he turned him over to a negro
named Ephraim Malone, and directed Malone to take defend-
ant out of town for the night in order to prevent the defendant
being further hurt.

Mr^. Lock testified, tor the defense, that she was a passenger
on the train that stopped for supper at Marquez on the night of
August 13, 1887. Defendant was the porter on the train. As
the train slowed up at Marquez the defendant appeared at the
door of the ladies' coach and announced the supper station.
While the passengers were getting off the witness heird a noise
outside. Looking out of the car window, the witness saw three
or four men beating the defendant with sticks, defendant being
down on his hands and knees. The defendant presently made
his escape and ran around the train, pursued by the men.

S. P. Cocherane, conductor on the train, testified, for the de-
fense, that when the train stopped at Marquez for supper on
the night of August 13, 1887, the defendant, in the discharge of

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138 27 Texas Court of Appeals. [Qalyeston

Statement of the case.

bis duties, got off the train, and, with the foot box in his hand,
took his position at the steps of the ladies' coach to assist
passengers desiring supper to get off. About that time a man,
whose name witness had since learned to be La Flore, crowded
up to the* steps, when the defendant said to him: ^' Don't push
me down." Thereupon La Flore kicked the defendant on the
jaw. Thereupon the fight became general, three other men
joining La Flore in beating defendant, one of them being
Winn, who, as witness afterwards learned, was a deputy sher-
iff. The witness attempted to quell the riot, when one of the
defendant's antagonists struck him, witness, above the eye
with a coal cinder, and La Flore seized a heavy piece of iron
pipe, three or four feet long, and '* punched " at witness. About
that time the defendant escaped and went back into a car. He
was soon followed and arrested by Winn and a posse.

George Hughey, the paper vendor on the train, testified, for
the defense, substantially as did the witness Cocherane. He
heard some person, during the fight, call to Winn to get his
pistol. Defendant said: " Let me get mine, too," and fled into
the car where witness was, and asked the witness for his valise,
which contained his pistol. Witness, who had hidden the
valise, prevailed on the defendant to abandon the row and re-
main in the coach. Presently Winn and his posse came in and
arrested defendant, at which time defendant stated to them
that if he had known Winn to be an officer he would have sur-
rendered to him. Defendant did not resist arrest by Winn and
the posse.

Ephraim Malone was next introduced by the defense. He
sought to be excused from testifying, and finally declined to
testify upon the ground that he was afraid if he testified to
facts in his knowledge he would suffer at the hands of Winn,
La Flore, or their friends. Compelled by the court to answer
questions, he stated that he was present at the examination of
the defendant before Esquire Watson on the night of the fight.
While defendant, chained and tied, was being examined La
Flore struck him once with his fist and afterwards with a scales
weight. Winn afterwards turned defendant over to witness,
and directed witness to keep him away from town that night
as he might get hurt. Witness took the defendant to the
woods and kept him until next morning.

Dotson <k Lichardson, for the appellant.

Digitized by VjOOQIC

Term, 1880.] Franklin >, Thb 8tatb. i3§

Opinion of the oourt

W. L. Davidson, Assistant Attorney General, for the State*

White, Presiding Judge. On the evidence as it is presented
in the record before us, we do not think the conviction in this
case should be permitted to stand. Appellant was assaulted by
one LaFlore; others engaged in the affray, assisting LaFlore,
and were beating appellant when Winn, who was a. deputy
sheriff, and who is the party charged to have been assaulted,
ran around the train of cars, and, without attempting to ar-
rest any of the parties fighting the appellant, grabbed hold of
appellant, and appellant struck him — so he testifies. Other
witnesses testify that Winn himself entered into the fight and
commenced striking appellant with a board or "doty piece of
plank." Winn testifies that when he arrived at the scene of
conflict he told the defendant he was an officer, and would
have to arrest him. * 'Defendant remarked: *By God (or God
d— n), I will see that you don't.' I grabbed defendant, and dur-
ing the scuffle we had, he struck me with his fist and a plank."
No other witness heard Winn tell the defendant that he was
an officer and would have to arrest him. Defendant's own
statement after the fight, and which was introduced in evi-
dence, was that if he**had known Mr. Winn was an officer dur-
ing the fight, he would have surrendered to him."

Now, if appellant, engaged in a serious fight with several
other parlies, was grabbed by Winn, and, not knowing that
Winn was an officer, struck Winn in resistance to what rea-
sonably might appear to him as an assault by Winn upon him,
it is clear that he would be justifiable on the ground of self de-
fense. If Winn was an officer really intendin;^ lo quell the diffi-
culty and preserve the peace, it does appear to us as if he made
a most serious mistake in accomplishing that object by grab-
bing hold of the man who was contending, single handed,
against three or four others. And it is but reasonable to sup-
pose that under such circumstances defendant might well have
mistaken Winn for "another Richmond in the field," come to
swell the ranks and take part with his assailants.. If he acted
upon such reasonable appearances, then he was only exercis-
ing his inalienable right of self defense, and should not be pun-
ished for doing so.

We do not deem it necessary to discuss the outrages commit-
ted upon defendant after his arrest, as disclosed in the record.
Suffice it to say, we do not believe from the evidence that de-

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1^0 27 TszAS Court op Appeals. [Galveston

statement of the case.

fendant's guilt is made so clear and certain, under all the cir-
cumstances of this case, as that his conviction should be
permitted to stand as a precedent.

The judgment is reversed and the cause remanded.

Reversed amf remanded.

Opinion delivered January 26, 1889.

No. 2547.
Jambs Hanson v. The Statb.

1. ThBFT — EVIDBNCB — ACCOMPLICB TBSTIMONT. ^ OWNBRSHIP, like

every other material issue on a trial for theft, roast be proved by com-
petent evideaoe, and if it rests upon the testimoiiy of an accomplice
such proof is insufficient unless legally corroborated.

2. Bamb— Fact Case.— See the statement of the case for the nubstanoe

of evidence held insufficient to support a conviction for theft.

Appeal from the District Court of Kimble. Tried below
before the Hon. A, W. Moursund.

This conviction was for the theft of a cow, the property of
L. P. Dodson. The penalty assessed by the verdict was a term
two years in the penitentiary.

J. J. Stockbridge was the first witness for the State. He tes-
tified, in substance, that he was in the employ of one Bybee,
in Kimble county, on the first day of April, 1887. On the
morning of that day, the defendant,* armed with Bybee's gun,
rode up to Bybee's camp, and Bybee asked him if he had
* 'found that beef." Defendant replied that he had found one
that would do, and asked Bybee if he* would go and help kill
it. Bybee sent the witness in his stead. Defendant piloted
witness to a certain point and indicated a certain red cow, and
directed witness to drive her to a point where he could shoot
her. Witness did so, and defendant fired upon and killed the
cow. Witness helped him but little in skinning the cow. De-
fendant then cut off the two hind quarters of the beef and put
them on his horse. He then cut off the ears, which he put in
his coat pocket. He then cut into strips those parts of the
hide on which the brands were placed. Then he went to camp

Digitized by VjOOQIC

Term, 1880. J Hanson v. The State. Ut

statement of the oa«^^e.

with the two hind quarters, leaving the balance of the beef and
the remainder of the hide. Sonie of that be^f was eaten at
supper that night by the witness, defendant and others. The
animal was branded DOD on one side 'and SON on the other.
On the morning after killing the cow, witness and defendant
cut some of the beef into strips and hung it up to dry.

On his cross examination this witness said that soon after
the killing of this cow, the sheriff took possession of the horsea
which witness was then herding for By bee. By bee escaped
arrest. Witness was not placed under arrest by the sheriff,
but at the sheriff's request he assisted in driving the horses to
Junction City. On his arrival at Junction City he made an
aflfi<iavit charging defendant with th\B theft of the cow. He did
not then know who owned the cow or the brand described, nor
did he then know that defendant was not authorized to kill the
said cow. Witness suspected nothing wrong about the killing
of the cow until defendant cut off the ears. He would have
helped skin the cow had his knife been sharp enough, and
would have helped take the meat to camp had his horse been
gentle enough. Witness did not, while at defendant's camp,
cut fresh raw hide into hopples or neck strips for Bybee's
horses, of which he then had charge.

L. P. Dodson testified, for the State, that his wife owned the
DOD— SON brand of cattle, but they were in the exclusive
care, control and management of witness. He had no recollec-
lion of missing any particular animal in the spring of 1887, but
he never gave his consent to defendant to take or kill any of
that stock.

Deputy Sheriff Oliver testified, for the State, that he was at

defendant's camp a day or two after the alleged theft, and saw

the hind quarter and part of another hind quarter of a beef ia

that camp. Some strips of fresh beef were hanging up to dry.

He also saw in that camp some strips of fresh cow hide, red in

color. The strips were of a size usually used for hopples. At

a point near the said camp witness and one Brown found two

men in charge of a bunch of horses. One of the men fled, and

witness took charge of the horses as stolen property. The

witness Stockbridge, who was the other man with the herd,

helped witness to drive the horses to Junction City. He was

not placed in arrest. On the way to Junction City, Stockbridge

told witness about the defendant killing the DOD — SON cow.

The State closed.

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142 27 Texas Court of Appeals. [GFalveston

Opinion of the eonrt.

J. J. Stockbridge was recalled by defendant as his first wit-
ness. He denied that, two or three months after the alleged
theft, he met Allen Hanson and Ed Dunn near his, witness's,
father s house, in Comaftche county, and told them that he got
into trouble about some horses that were found in possession of
himself and Bybee, near defendant's camp in Kimble county,
and that, to save himself from prosecution and conviction for
complicity in the theft of those horses, he was compelled to file
an affidavit charging defendant with the theft of Dodson's
cow.

Allen Hanson and Ed Dunn, testifying for the defense, de-
posed that the State*s witness Stockbridge did, in Comanche
county, near the house of his, Stockbridge's, father, tell them
that two or three months previously he and Bybee were discov-
ered by officers, near defendant's camp, in possession of a herd
of stolen horses; that Bybee escaped, and that, to save himself
from prosecution for the theft of those horses, he was compelled
to file the affidavit charging defendant with the theft of Dod-
son's cow.

A. D, McQinniSy for the appellant.

W. L, Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This conviction is for theft of a cow, the al-
leged property of L. P. Dodson. Upon the trial the State in-
troduced as a witness one Stockbridge, who was evidently an
accomplice. He swore to facts which very cogently criminated
the defendant, but, being an accomplice, was he sufficiently
corroborated?

The cow was alleged to be the property of L. P. Dodson.
There is not the slightest testimony in this record, save that of
Stockbridge, which tends to prove that the animal belonged to
Dodson, or that Dodson had lost or missed the cow. Upon the
issue of ownership the accomplice must be corroborated.
(Croell V. The State, 24 Texas Ct. App., 404.)

Again, that the accused stole the cow of any person is shown
only by the testimony of Stockbridge, the accomplice. He
states that defendant carried the beef and part of the hide to
his camp; that the cow was red, etc.; that she was killed about
April 1; that defendant hung up the meat to dry, etc.

Deputy Sheriff Oliver was at the camp of defendant about

Digitized by VjOOQIC

Term, 1889.] Day v. The State. 143

Syllabus.

the last of March or first of April, and saw fresh beef and some
strips of hide, and also some beef hung up to dry. He also
saw some fresh raw hide (red) cut up in strips of suitable size
for hopples. The testimony of Oliver constitutes the supposed
corroboration. Now let us eliminate from the case the evidence
of Stockbridge. What fact is there in the evidence of Oliver
which would induce a reasonable person to infer that defendant
had stolen the beef? At his camp was found a hind quarter
and other portions of a beef. This meat was fresh. Some was
hung up to dry. The hide of the animal was red. Some of the
hide was cut up in strips of suitable size for hopples. Is this
evidence tending to show that Dodson's animal was stolen and
that defendant was connected with the theft? We think not.

AppeUant reserved no bill of exceptions to the action of the
court in overruling his application for a continuance.

Because the witness Stockbridge was not corroborated as to
the ownership of the animal, and because he was not corrob-
orated as to the theft by appellant of any person's animal, the
judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered January 30. 1889

No. 2548.

Gabb Day v. Thb Statb.

t GAMiff g-^Tbtdiotmbnt.— It is not essential to the suffloienoy of an in-
dictment to charge the offense of betting at a game played with dice,
' that it shall allege that the accused played the game with another or
bet with another person.

1 8amb— Betting at a Gabib Played With Dice— Distinct and
Continuous Offenses. — To bet at any game played with dice, by
whatever name the game be known, is an offense onder the law of this
State. Aud each separate act of betting at snch a game constitutes a
distinct offense. The consecutive throwing of dice from nightfall until
day break does not constitute a continuous game, aud the consecutive
betting on the different throws does not constitute a continuous of-
fense.

8. Same— EviDBWCB— Accomplice— Witness.— A witness, to be inooixF
petent to testily in behalf of a defendant upon the ground that he was

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144 27 Texas Court of Appeals, [Galveston

Statement of the case.

under indicttueDt for the same offense, must appear to have been in-
dicted for participation in the very same criminal act for which th»
defendant is bein^ tried. It will not snfflce to diRqnalify him that he is
indicted fdr a similar olTense. The defense in this case offered a wit-
ness by whom to prove an alibi. The witness was rejected, upon the
State's motion, upon the ground that he was charged by a separate in-
dictment with the same offense. The onus of establishing incompe-
petency by showing that the indictment against the witness covered
the gnme criminal act for which the defendant v^as on trial rested on
the State; and, the State failing to establish that fact in this case, the
presumption obtained in favor of the competency of the witness, and
the ruling of the court was error.

Appeal from the County Court of Freestone. Tried below
before the Hon. T. W. Sims, County Judge.

The opinion discloses the nature of the case, and the record
brings up no statement of facts.
The penalty assessed was a fine of ten dollars.

No brief for appellant

W. L. Davidson, Assistant Attorney Gteneral, for the State.

Hurt, Judge. This conviction is for betting at a game
played with dice, called * 'craps. " The indictment fails to al-
allege that appellant played the game with another or bet
with another person. This is not necessary to its sufficiency,
but is material with respect to another question.

Upon the trial defendant offered to prove an alibi by Robert
Cooper and others. The State objected because they were in a
separate bill or bills indicted for betting at craps. The evi-
dence upon this matter was that the game on the night of Au-
gust '^4, 1S88, began about dark and continued until daylight
the next morning, and that Cooper and the others during the
night participated in the betting at the game called craps.
Now, it will be observed that it is not shown that the proposed
witness bet with defendant or at the game at the same time
that defendant bet or played.

Looking to the definition of the offense, we will find that to
bet at any game that can be played with dice is an offense.
Let the game be called by whatever name it may be, or without
a name, if played with dice, and a person bets at it — that is, on

Digitized by VjOOQIC

» Tenn, 1889.] Day v. The State. 145

Opinion of the court.

the result, he would be guUty of an offense. It is seen that
this is not a continuous offense, but one bet at this game and
the offense is complete.

Article 731, Code Criminal Procedure, provides that persons
charjfed as principals, accomplices or accessories, whether in
the same indictment or different indictments, can not be intro-
duced as witnesses for one another. The proper rendering of
the article is that persons charged as principals to the same of-
fense, or accomplices or accessories to the same offense, either
in the same indictment or in different indictments, can not be
witnesses for one another. An offense is an act or omission
forbidden by positive law, to which is annexed, on conviction,
any punishment prescribed in this code. (Art. 52, Penal Code.)
In this case the prohibited act is betting at a game played with
dice. Now, to render incompetent, the witness must be in-
dicted as principal, accomplice or accessory to the same act for
which defendant is indicted. The transaction must be the
same; a similar act will not suffice.

To illustrate: A game of poker begins at dark and the play-
ing is continued all night. During the night a number of per-
sons participate in the game, but not with each other or at the
same time. Now, if one should be indicted, those who did not
play with him, or play at the game at the same time at which
defendant played or bet, would not be incompetent.

Appellant proposed to prove a material fact by several wit-
nesses; the State objected upon the ground that the proposed
witnesses were incompetent. The presumption being in favor
of competency, the State must show incompetency. This was
not done in this case.

But it is urged that these witnesses could not be compelled to
criminate themselves. That was a matter with them, and not
the State. Nor was this a necessary or probable result; for
they could have sworn to the facts sought to be elicited without
self crimination, though they may have been guilty themselves
of the same offense as that charged against appellant.

Under the facts as presented in the record, we are of opinion
that the court erred in holding these witnesses incompetent.

The judgment is reversed and the cause remanded for another

trial

Reversea and remanded.

Opinion delivered January 30, 1889

Digitized by VjOOQIC

146 27 Texas Coujit of Appeals. [Galveston •

Syllabus.

No. 2445.
Dave Fahey v. The State.

Constitutional Law— Occupation Tax on RsTAiLiNa Liquors.—
Under the Acts of March 11, 1881, and April 4, 1881, the appellant was
prosecuted for pursuing the occupation of selling liquors in quantities
less than a quart, without paying the tax required by law and without
license, etc. He excepted to the indictment on the fcround that the said
Acts of 1881 are violative of tbe Constitution of the State in two re.
spects; fir^t, because they contain more than one subject, and embrace
subjects not expressed in their titles; and, second, because, as a con-
dition precedent to eu gaging in such business, the said Acts require
the tax thereon to be paid in advance for the term of a year, but per-
mit the tax on other occupations to be paid quarterly, and require a
license to pursue said business, but permit others to be pursued with-
out a license, and therefore are repugnant to the constitutional require-
ment of equality and uniformity in taxation. But held that neither of
these objections to the said Acts of 1881 is tenable, nor are the said
Acts repugnant to the Fourteenth Amendment of the Constitution of
the United States. ISee the opinion in extenso for a lucid exposition
of the principles and precedents which maintain the constitutionality
of the said enactments..

Samk— **8uBJKCT" OF LEGISLATIVE AcTs.— The present Constitution
of Texas provides that *'No bill (except general appropriation bills,
etc.,) shall contain more than one subject, which shall be expressed in
its title/* Held that an Act may, without contravening this inhibi-
tion, contain or contemplate more objects than one.
Equality and Uniformity op Occupation Tax— Section 1 of article
8 of the State Constitution expressly empowers the Legislature to im-
pose occupation taxes, and section 2 of the same article requires that
such taxes shall *^be equal and uniform upon the same class of sub*
jects within the limits of the authority levyin}? the tax." These pro-
visions do not necessitate equality and uniformity as between different
clai^ses of occupations, nor require the imposition upon every class of
the same conditions precedent to their lawful pursuit; and therefore
the requirement from retail liquor dealers of a license and of pre-
payment of the tax for a year does not contravene the said constitu-
tional provisions, though these conditions be not imposed upon other
occupations. So, alj-o, one county may, without infringing said pro-
visions, levy a larger county tax upon an occupation than is levied on
the same occupation by other counties.

Charge of the Court. — The trial court instructed the jury to con-
vict in case they foun<i that the defendant (within the alleged venue
and dates) pursued the occupation of selling spirituous, vinous and
malt liquors, in quantities less than a quart, *^ without having paid the

Digitized by VjOOQIC

Term, 1889.] Fahey v. The State, 147

Statement of the case.

occupation tax of three hundred dollars to the State and one hundred
and fifty dollars to the county of Q-alveston, and the said taxes were
then due and owing and unpaid to the State and county respectively; '
and further instructed the jury that the penalty was by a fine of not
less thfin four hundred and fifty dollars, nor more than nine hundred
dollara Appellant assails these instructions because they substitute
the phrase '* without having paid the tax ^ in lieu of the phrase ** with-
out having obtained a license.^' Held that the substitution was to ap-
pellant's advantage, and affords him no cause for complaint.
5. SABfB. — It was also objected that the instrnctions assumed as a fact
that the county of Galve<«ton had levied on the appellant's occupation
a county tax of one half the tax levied on it by the State. The record,
however, shows that the appellant admitted that fact on the trial, and
that the State consequently iutrodviced no other- proof of it. Held
that the objection is not tenable.
«. 8amb— Penalty. —Objection was taken to the penalty as stated in the
instructions, viz: a fine of not less than four hundred and fifty dollars
nor more than nine hundred dollars. Held that the instruction was
correct, inasmuch as the State tax was three hundred dollars and the
county tax one hundred and fifty dollars, aggregating four hundred
and fifty dollars, which was the minimum and the double of which
waA the maximum of the fine prescribed by the statute.

Appeal, from the Criminal District Court of Galveston. Tried
below before the Hon. Gustave Cook.

By indictment it was charged that, in the county of Galves-
ton, on January 18, 1887, the appellant ** unlawfully and wil-
fully did pursue and follow the occupation of selling spirituous,
vinous and malt liquors in quantities less than one quart, and
did then and there sell spirituous, vinous and malt liquors to
persons whose names are to the jurors unknown (the same
being an act taxed by law), without first having obtained a
license therefor; and that the said Dave Fahey has not paid
tax or obtained a tax receipt or license therefor; and that said
Dave Fahey is indebted to the State of Texas in the sum of
three hundred dollars, occupation tax for pursuing said occu-
pation, and to the said county in the sum of one hundred and
fifty dollars, occupation tax for pursuing said occupation, and
that the commissioners court of Galveston county levied a tax
on said occupation, one half the amount levied by the State on
said occupation; contrary," etc.

In the opinion of this court will be found the exceptions
taken by the defense to the indictment, and also the exceptions
taken to the instructions given to the jury by the trial court.

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148 27 Texas Court op Appeals. [Galveston.

Argument for th«^ appellant.

The inculpatory testimony was conclusive and unquestioned,
and there is no occasion to set it out here. The jury assessed
the punishment at a fine of four hundred and fifty dollars. The
printed arguments of counsel for both sides of this ease are
characterized by much research and ability, but are so elabo-
rate that space can be allowed for no more than the leading
propositions and the corresponding citations.

Oresham, Jones <t Spencer , for the appellant: The court erred
in not quashing the indictment,

1. Because the laws of March 11, 1881, and April 4, 1881,
levying the occupation tax and providing for the issuance of a
license is unconstitutional and void, in this, that said acts con-
tain more than one subject, to wit, the exercise of the police
power and that of taxation for general revenue, and embrace
subjects not expressed in the titles of the bills. (Gen. Laws,
1881, pp. 21-112; Const., art. 3, sec. 35; Const., art. 8, sec. 1; Ex
Parte Mabry, 5 Texas Ct. App., 98; Cannon v. Hemphill, 7
Texas, 207; San Antonio v. Gould, 34 Texas, 49; Giddings v.
San Antonio, 47 Texas, 548; State ex re. Jones v. Lancaster
Co., 6 Neb,, 474; State v. McCann, 4 Lea, 1; State ex re. Drury
V. Halleck, 12 Pac. Rep., 832; Skinner v. Wilhelm, 6 West Rep.,
367; Boom Co. v. Prince, 24 N. W., 361; S. C, 10 Am. & Eng.
Corp. Cases, 391; Reader v. Township of Union, 39 N. J., 509;
People ex re. Stewart v. Father Math. Soc, 41 Mich., 67;
State V. Bowers, 14 Ind., 195; Igoe v. State, 14 Ind., 239; Grubbs
V. State, 24 Ind., 295; Rogers v. Manf. Imp. Co. 1 Cent. R , 144
Lane v. State, 8 Cent. R., 639; Dorsey's Appeal, 72 Pa. St., 192
Ragio V. State, 6 S. W. R., 401; Matter of Sockett, 74 N. Y., 95
Walker v. State, 49 Ala., 329; Ex Parte Thomason, 20 N. W.
R., 312; Peck v. San Antonio, 51 Texas, 490.)

Said acts are unconstitutional in this, that they require the
said payment of the tax to the State, county and city, in ad-
vance, for the term of one year, as a condition precedent to the
right of pursuing said occupation, while all others are permit-
ted to pay quarterly; and is in conflict with and repugnant to
sections 13 and 19, Bill of Rights, and to sections 2 and 3, article
8, of the State Constitution, and the fourteenth amendment to
the Constitution of the United States; and they are inimical to
the Constitution in this, that they require a license of persons
pursuing the occupation of the appellant and of the billiard
table keeper, and require none of persons pursuing any of the

Digitized by VjOOQIC

Term, 1889.] Fahey v. The State. 149

Argumeut for the appeilaat.

other occupations taxed by law, and provide no means of ob-
taining a license by such other persons. (Wharton's Com., sec.
13; 1 Kent's Cora., 400; Cooley's Const. Lim., 391; Ex parte Wes-
terfield, 55 Col, 550; The State v. Hammer, 42 N. J., L., 435;
Com. V. Pottan, 88 Penn. State., 258; Stein v. Foltz, 5 Central
Rep., Penn., 283; The State v. Board of License, 4 Central Rep. ,
N. Y., 83; Ragio v. The State, 6 S. W. Rep., 401; Morrison v.
Buchert, 3 Central Rep., 117; The State v. Anderson, 3 Western
Rep, Ohio, 605; City of Scran ton v. Silkman, 4 Central Rep.,
317; Bank of State v. Cooper, 2 Yerg., 599; Waily v. Kennedy.
3 Yerg., 555; The State v. Duflfy, 7 Nev., 342; Slaughter House
Cases, 16 Wall., 67.)

The indictment is defective in not alleging that the defend-
ant had not procured a license before the finding of the indict-
ment; and it also fails to state in what quantities the defendant
sold the liquor. (Penal Code, art. 112.)

The sixth and seventh assignments of error call in qutetion
the correctness of the charge of the court. The court gave the
following charge: "If the evidence satisfies the jury beyond a
reasonable doubt that the defendant did, as charged in the in-
dictment, pursue, in the county of Galveston, State of Texas,
the occupation of sellin^i: spirituous, vinous and malt liquors in
quantities less than a quart, between the first day of October,
1886, and the filing of the indictment in this case, to wit: the
twenty-fourth day of January, 1887, without having paid the
occuf>ation tax of three hundred dollars to the State and one
hundred and fifty dollars to the county of Galveston, and that
said tax was then due, owing and unpaid to the State and
county respectively — say you find the defendant guilty as
charged in the indictment, and assess the punishment, which is
a fine not less than four hundred and fifty dollars nor more
than nine hundred dollars.'*

It is rare to find in so short a charge so many errors.

First. The offense denounced is not th*^ selling of spirituous,
vinous and malt liquors without first paying the tax; but with-
out first obtaining a license therefor. (Lewis v. The State, 14
Texas Ct. A pp., 232; Penal Code, art. 110.)

Second. The court charged that if the defendant pursued
the occupation between the first of October, lJ5b;6, and the
twenty-fourth of January, 1887, and the tax was "then due,
owin^ and unpaid," he must be found guilty; when the charge
on this point should have been: "and the tax was due, owing

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150 27 Texas Court op Appeals. * [Galveston

Argument for the state.

and unpaid on the twenty fourth of January, 1887," and defend-
ant had obtained no license, find him guilty, etc. (Penal C!ode,
art. 112.)

The court also ©rr^d in charging upon the weight of the evi-
dence, as follows: "without having paid the occupation tax of
three hundred dollars to the State and one hundred and fifty
dollars to the county of Galveston ♦ * * say you find the
defendant guilty as charged in the indictment, and assess the
punishment, which is a fine not less than four hundred and
fifty dollars nor more than nine hundred dollars."

The amount of tax as levied by the county, if any, was a
question of fact that the court could not take judicial knowl-
edge of nor assume as a fact proven. The charge should have
been: *'If the jury believe from the evidence that the defend-
ant did pursue the occupation without having first obtained a
license, you will find him guilty and assess the penalty, which
is a fine in any sum not less than the amount of the tax so due
on January 24, 1887, if any, and not more than double that sum,"
(Penal Code, art. 112.)

The court also erred in adding the amount alleged to be due
the county to the penalty, because that part of the penalty is
not aflSxed to the offense by any written law of this State. To
hold otherwise is to make the act a special law and unconstitu-
tional. To illustrate: A person committing the offense in
Brown county (supposing said county to have levied no occu-
pation tax) would be punished by a fine of not less than three
hundred dollars, nor more than six hundred dollars; if in Gal-
veston county not less than four hundred and fifty dollars nor
more than nine hundred; if in Galveston city and county not
less than six hundred nor more than twelve hundred; and all
!or identically the same act of the defendant. (Penal Code,
xrt. 3.)

The court should have granted a new trial because the offense
:harged in the indictment is for pursuing the occupation of
selling spirituous, vinous and malt liquors in quantities less
than a quart, without first having obtained a license therefor.
The verdict and judgment are for pursuing the occupation of
elling spirituous, vinous and malt liquors without license or
irithout having paid the tax due.

W, L, Davidson f Assistant Attorney General, for the State:
Appellant moved to quash the indictment in the court below.

Digitized by VjOOQIC

Term, 1889.] Fahey v. The State. 151

Argument for the state.

and the motion was overruled. He assigns error on this ruling
of the trial court.

1, Because the laws of March 11, 1881, and April 4, 1881,
levying the occupation tax, and providing for the issuance of a
license, are unconstitutional and void; in this, that said acts
contain more than one subject, to wit, the exercise of the
poUce power and that of taxation for general revenue, and em-
brace subjects not expressed in the titles of the bills.

The above stated proposition of appellants is based upon the
anterior propositions: 1, That the taxing power of the legislative
bodv is a separate and distinct power from that of police regu-
lation; 2, that, being separate powers, their domain and limits
are so sharply defined and marked that the one can not be
called to aid the other by the Legislature in exercising the in-
herent sovereignty lodged in that body in matters of taxation
and police regulations, and that in no emergency can the one
be used as the adjunct to the other in collecting the assessed
revenues of the State; 3, that no act of the Legislature can em-
brace matters not expressly set out in the title.

It may be admitted as a general proposition that the taxing
power is a separate power from that of police regulation, and
equally so is the right of eminent domain. They have, as a
general rule, a different operation, pursue a different channel,
and attain different ends. However distinct their power and
authority may be, and however wide they may diverge when
considered as questions of inherent sovereignty, yet they have
the same origin and spring from the same source. All the au-
thorities agree that the right of eminent domain, the taxing
power, the police regulation, all have their origin in and spring
from necessity. All endorse the doctrine that the above enu-
merated powers are the strongest evidences of state sover-
eignty, and lie back of all law, organic or statutory. All the
authorities agree that these powers are unlimited in the Legis-
lature, unless specially curtailed by the express provisions of
the Constitution. It is a proposition not to be doubted that the
Legislature have the authority inherent to exercise proper legis-
lation with reference to eminent domain, to levy taxes and
provide for the collection of the same, both on property and
professions, pursuits and occupations, subject only to constitu
tional restrictions. It is equally certain that the "necessity
is to be judged of by the Legislature, and that their action is
final, unless in plain, clear, and unequivocal terms that action

^ •»

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152 27 Texas Court op Appeals. [Galveston

Arguiiient for the state.

is contrary to constitutional limitations. (Tiedeman, Lim. on
Police Power, pp. 371-378; Id., pp. 1-4; Id., pp. 461-482; also
467-471; Potter's Dwarris on Stat, and Cons., pp. 444-467;
Cooley, Con. Lim., pp. 598, 673-G76; Cooley on Taxation, pp. 1,
4, 384, 512.)

Article 8 of the Constitution of 1876 does not affect this pre-
rogative, nor alter this authority, except as therein set out.
The exemptions therein set out do not touch the question at
issue, nor apply thereto. The limitations mentioned in that
article of our Constitution, and exemptions therein specified,
are (1) mechanical and agricultural pursuits, and (2) that cities,
towns and counties can only levy one-half of State tax on occu-
pations; (3) it also requires taxation to be uniform. This is
fundamental any way in a free government.

Upon the question as presented the Constitution says the
Legislature may levy occupation taxes. This neither adds to
nor detracts from the inherent power of the Legislature to levy
taxes upon occupations. It is not a limitation upon legislative
authority. When the Constitution does not limit the power to
tax, the Legislature can not be controlled in this respect by any
coordinate branch or department of the government, because
it is independent of the other departments, and in this matter
is supreme. I speak only of State governments and sovereign-
ties.

Is a State law levying an occupation tax, and requiring a
license to be procured before pursuing that occupation, void
and unconstitutional because said law invokes the taxing and
police power at the same time and in the same law?

The constitutionality of a law is presumed; and, as a conflict
between the Constitution and the statute is not to be implied, it
follows '*that the court, if possible, must give the statute such
a consi ruction as will enable it to have effect." (Cooley's Con.
Lim., side p. 183; Ex Parte Mabry, 5 Texas Ct. App., 96; New-
land v. March, 29 111., 384 )

As our Constitution does not limit the ^legislature in levying
occupation taxes, it would follow that the tax complained of is
properly levied, and is not subject to criticism from this stand-
point. (Texas Con., 1876, art. «; Cooley's Con. Lim., 598; Coo-
ley on Tax., '84.)

'^Necessity" is the common source of the taxing power as well
as of police regulation. It would follow that no arbitrary rule
can be Jaid down that will or can make them antagonistic to each

Digitized by VjOOQIC

Term, 1889.] Fahey v. The StatB. 153

Argnment for the state.

Other; and it would follow that, being grouiiJod in necessity
and in the inherent power of government, they can and are
often called to aid and assist each other. Then, when relegated
to fundamental laws of inherent authority, complete sove-
reignty of the Legislature, and the underlying law of necessity
and self preservation, and not being abridged by the Constitu-
tion of these powers, it would follow that, having their origin
in these common sources, the taxing power and police authority
can not be arbitrarily separated, or be made to sland out op-
posed to each other by judicial construction or decision.

The position assumed by appellant in his able brief is that
these two great powers are antagonistic and can not be called
to the aid of each other— that is, that the Legislature can levy
the tax by virtue of its taxing power, but that it can not call
into requisition the police authority to enforce the collection of
that tax by virtue of the same act of the Legislature. In other
words, that an act of the Legislature that sought to enforce the
collection of the tax levied by that act, by requiring the license
to be procured before following that occupation, would be void
as antagonistic to article 3, section 35, of the State Constitution,
and that in no emergency can the Legislature blend the taxing
and police power, because it would be obnoxious to said article
and section of the Constitution. This idea is fundamentally
wrong. (Cooley on Tax., 66; Lane Co. v. Oregon, 7 Wall., 71;
State V. Parker, 32 N. Y., 426; Eyre v. Jacob, 14 Gratt., 422;
Davey v. Galveston County, 45 Texas, 201; Ex Parte Cooper, 3
Texas Ct. App., 489; Ex Parte Mabry, 5 Texas Ct. App., 93;
Willson's Crim. Stats., sec. 195; Cooley on Tax., 385; License
Tax Cases, 5 Wall., 472.)

In speaking of taxes, their nature and kinds, Mr. Cooley
says: "They may be intended to discourage trades and occu-
pations which may be useful and important when carried on
by a few persons under stringent regulations, but exceedingly
mischievous when thrown open to the general public and en-
gaged in by many persons. An example is the heavy tax im-
posed in some States and in some localities of other States on
those who engage in the manufacture or sale of intoxicating
drinks. Two purposes are generally had in view in imposing
such a tax: to limit the business to a few persons, in order to
more efficient and perfect regulation, and also to produce a
revenue. A tax laid for the double purpose of regulation and

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154 27 T&XAS Court of Appeals. [Galveston

Argument for the state.

rerenue must be grounded in both police and the taxing power. "
(Cooley on Taxation, p. 11.)

Thus it will be seen that in almost all phases of taxation and
I>olice regulation the one is aid to the other. If one is the
leading object^ the other is made to assist in attaining it. In
many matters the two powers seem to blend naturally and are
often necessary adjuncts to each other. It would seem that it
is immaterial which is the leading object.

This same question seems to be not a novel one in this State.
Nearly every tax law passed since the organization of our
State government has been attacked on the same ground — that
is, that the law has two objects or subjects expressed in the
title, and other matters in the body of the bill not mentioned
in the title. Our Supreme Court thus speaks of it: *'It is also
insisted that the act is unconstitutional because it embraces
two objects, both of which are expressed in its title. The num-
ber of cases in which the court has been called upon to con-
sider similar objections to other laws renders it unnecessary to
say little more than that this objection can not be maintained.
The act embraces, as we think, but one leading object. All its
provisions are subsidiary to, and legitimately connected with,
and tend to eflfect and enforce this main object, which is suffi-
ciently, clearly and definitely expressed in the title. The con-
stitutionality of the act, as we have just said, was directly
before the court shortly after its enactment; and the fact that
no objection of this kind was then made to it by counsel or the
court, and that it has been ever since recognized as a valid and
constitutional enactment, is strongly persuasive that the objec-
tion is without force. Legislation of a similar character, both
in respect to the title and the subject matter of the act, has, it
is believed, been of frequent occurrence; and it has been too
long recognized and enforced to be lightly set aside or annulled
by the courts." (Davey v. Galveston County, 45 Texas, 298.)

**It can not be denied that appellant was engaged in an oc-
cupation for the pursuing of which he might be required by
law to procure a license, and upon which an occupation tax
could be imposed by the Legislature. The amount of such tax,
the manner of collecting it, and the purposes to which it should
be applied when collected, are matters of legislative discretion.
We can not say that the laws enacted by the Legislature to
effect these purposes are unconstitutional, unless they are
clearly shown to be in conflict with some provision of that in-

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Term, 1889.] Fahby v. Thb State. 155

Argument for the state.

strument; nor can the court say that the Legislature may not
assess the amount of tax it intends levying by different acts,
in which the amount collected under one act may be appropri-
ated differently from that imposed by the other." (Id., 299.)

This court has been called on also in several cases to decide
this same question. In reviewing the cases and authorities
bearing on this matter the court said: "We are of opinion
that the act under consideration embraces but one leading sub-
ject, which is expressed in the title, and that all of its provis-
ions are subsidiary to, and legitimately connected with, and
tend to effect and enforce the main subject embraced in the
title of the act; and that all the different sections may be con-
strued to be in harmony with the main subject expressed in
the title, including the enforcement of a complianbe by the
penal sanctions provided in the third section for its enforce-
ment against those who disregard its provisions, *the leading,
object of the law being to tax the privilege of keeping or har-
boring dogs, and to provide for an assessment and collection
thereof.'" (Ex parte Mabry, 5 App., 99, 100; See also Giddings
V. San Antonio, 47 Texas, 548; Albrecht v. State, 8 App., 216;
Johnson v. State, 9 App., 249; Thompson v. State, 17 App.^
253.)

With reference to the giving the bond and its conditions, it
may be held that they are the required steps to be taken be-
fore the issuance of the license, and it would be immaterial
whether the same are or are not expressed in the title. (Cooley,
Cons. Lim., p. 181; People v. Briggs, 50 N. Y., 566; Phillips v.
Bridge Co., 2 Met., Ky., 222; Smith v. Com., 8 Bush., 112; Ex
parte Upshaw, 45 Ala., 234; Ex parte Mabry, 5 App., 93, and
authorities there cited.)

The bond required in the two acts of March 11 and April 4,
1881, has been held a good bond by our Supreme Court. (Gold-
sticker V. Ford, 62 Texas, 385.) Under the act of 1887, thi&
court held that the bond must be given and the license taken
out by the party desiring to pursue the occupation of selling
liquor. (Ex parte Bell, 24 App., 428.) Upon these questions
the indictment is valid, and not objectionable ou the grounds
of the motion as presented.

Are the laws unconstitutional because the advance payment
of the tax for one year as a condition precedent to appellant's
engaging in the occupation of liquor selling is required, while
for other occupations quarterly payments in advance are per-

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156 27 Texas Court of Appeals. [Galveston

Argument for tbe state.

mitted? Under the authorities already cited and quoted, said
laws are not unconstitutional, and can not be so held. The
government may tax one occupation or it may tax all. There
is no restriction upon its power in this regard unless one is ex-
pressly imposed by the Constitution. (Cooley on Taxation, p,
384; Butler's Appeal, 73 Penn. St., US,)

It is not special class legislation, because it bears equally
upon every one who engages in that particular occupation.
None are exempt from its provisions and penalties, but all are
required to comply with its provisions and all are forced to pay
the tax in advance as demanded by the statute. It is uniform
and bears alike on all who engage in that business. (Bohl v.
The State, 3 App., 683; Thompson v. State, 17 App., 253.)

The Legislature can levy one amount upon one occupation,
another amount upon another occupation, and require its pay-
ment in advance either annually or quarterly, and as long as
that tax is uniform and equal upon all who engage in the
named occupation, it will be uniform and not repugnant to the
•Constitution.

Another objection urged to the indictment is that it is de-
fective in not alleging that the defendant had not procured a
license before the finding of the indictment. Appellant cites
and relies upon Penal Code, article 112. The indictment does
allege the fact that the defendant pursued the occupation
without having obtained a license therefor. Appellant was in-
dicted under article 110 of the code for failing to obtain his li.
cense before engaging in the occupation denounced. It fvas
only necessary to bring the indictment within the rule laid
down in that article. It is not required to set out in the indict-
ment the negative matters of defense enumerated in article lia
of the code. Those matters, by being placed in a separate
statute or article, became defensive matters, and the pleader is
relieved of the necessity of pleading same, and the further ne-
cessity of negativing them. (Lewis v. The State, 7 Texas Ct.
App., 567; Zallner v. The State, 15 Texas Ct. App., 23.)

But where exceptions are embraced in the enacting clause,
the indictment should negative each of said exceptions. (Duke
v. The State, 42 Texas, 455; Woodward v. The State, 5 Texas
€t. App., 29().)

The State is required to allege, by proper averments, that a
defendant has pursued the given occupation of retail liquor
dealer in selling in quantities less than one quart, without first

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Term, 1880.] Fahet v. The State, 157

Opinion of the ooort.

having obtained his license therefor; and if the city or county
or both are to be taken into account, then it is proper to allege
ike I^al amount of taxes levied on said occupation by said
county or city or town. This being done, the proof would be
that the party charged had followed and engaged in said occu-
pation without obtaining his license, and that the county and
city had levied the proper tax thereon, and the State's case is
made out.

The defendant must avoid this by showing that he had
brought himself within the exceptions laid down in article 11^
of the code. It would hardly be contended that he, having
paid the taxes and costs of prosecution, would be exonerated
from the penalty denounced by article 110. The license is the
sine qua non before engaging in the business. (Penal Code,
arts. 110, 112; Acts Seventeenth Legislature, 1881, p. 34.)

The punishment denounced and affixed by article 110 is not
less than the amount nor more than double the amount of the
taxes so due. It will be observed that the words "so due" in
said article HO, in order to be properly understood in connec-
tion with article 113, and in showing the legislative intent,
should be held to have the same meaning as if that expression
read "so levied." It is clear that the Legislature was intend-
ing to affix a penalty and to give a criterion for assessing the
penalty. It did not mean to say or to convey the idea that the
tax must be unpaid and owing or unsatisfied. It only defined
the offense and fixed the rule for determining the punishment
for the failure to obtain the license.

The exception to the charge is not taken so as to require a
reversal of this case, even should the charge be defective, as
claimed in the bill of exceptions. This is a misdemeanor. In
order to secure any advantage of the supposed error or weak-
ness in the charge, the appellant must not only reserve his bill
of exception thereto, but he must request a special charge cov-
ering the supposed defect in said charge. (Forrest v. The
State, 3 Texas Ct. App., 252; Work v. The State, 3 Texas Ct.
App., 233; Richards v. The State, 3 Texas Ct. App., 423; Lloyd
V. The State, 19 Texas Ct. App., 321.)

Hurt, Judge. This is a conviction for pursuing and follow-
ing the occupation of selling spirituous, vinous and malt liquors,
in quantities less than one quart, without first having obtained
a license therefor, and without having paid the tax required by

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158 27 Texas Court of Appeals. [Galveston

Opinion of the court

law. . This prosecution is based upon the acts of March 11,
1881, and April 4, 1881.

Appellant moved to quash the indictment upon several
grounds:

1. Because the laws of March 11, 1881, and April 4, 1881,
levying the occupation tax and providing for the issuance of a
license, are unconstitutional and void in this, that said acts
contain more than one subject, to wit: the exercise of the police
power and that of taxation for general revenue, and embrace
subjects not expressed in the titles of the bills.

2. Said acts are unconstitutional in this, that they require
the said payment of the tax to the State, county and city in
advance for the term of one year as a condition precedent to
the right of pursuing said occupation, while all others are per-
mitted to pay quarterly; and are in conflict with and repug-
nant to sections 13 and 19 of the Bill of Rights, and sections 2
and 3, article 8, of the State Constitution, and the fourteenth
amendment to the Constitution of the United States, in this,
that they require a license of persons pursuing the occupation
of appellant, and of the billiard table keeper, and require none
of persons pursuing any of the other occupations taxed by
law, and provide no means for obtaining a license by such other
persons.

First ground:

Do the acts of March 11, 1881, and April 4, 1881, contain more
than one subject? If so, they are void. The Constitution pro-
vides that " no bill shall contain more than one subject, which
shall be expressed in the title." . (Art. 3. sec. 35.) In the pre-
ceding Constitution the word ** object" was used instead of
the word "subject."

Judge Bonner, in Stone v. Brown (54 Texas, 341), observes
that "it may be presumed that the convention had some reason
for substituting a different word from that which had been so
long in use in this connection; and that in the light of judicial
expressions the word * subject' may have been thus substi-
tuted as less restrictive than 'object.'" In The People v. Law-
rence (36 Barbour, 192), the Supreme Court of New York say:
*'It must not be overlooked that the Constitution demands that
the title of an act shall express the subject, not the object, of
the act. It is the matter to which the statute relates and with
which it deals, and not what it proposes to do, which is to be
found in the title; It is no constitutional objection to a statute

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Term, 1SS9.] Fahey v. The State. 159

Opinion of the court

that its title is vague or unmeaning as to its purpose, if it be
sufficiently distinct as to the matter to which it refers.'' .

What, then, is the subject of the acts of March 11, 1881, and
April 4, 1881? Most clearly the subject of these acts is the reg-
ulation of the sale of spirituous, vinous and malt liquors and
medicated bitters. Now, if there be but one subject in the act,
but more than one object, the act would not be obnoxious to
the Constitution.

We could concede, for the argument, that the object of these
acts is to regulate the sale of these liquors, to collect revenue
and divers other purposes and objects; still, unless there was
more than one subject in the act, it would be valid — constitu-
tional.

Again: Suppose that there be more than one subject men-
tioned in the acts. If they be germain or subsidiary to the
main subject, or if relative directly or indirectly to the main
subject— have a mutual connection — arid are not foreign to the
main subject, or so long as the provisions are of the same
nature and come legitimately under one general denomination
or subject, we can not hold the act unconstitutional. (Qiddings
V. San Antonio, 47 Texas, 556; Breen v. R. R. Co., 44 Texas,
306; Austin v. R. R. Co., 45 Texas, 267; Phillips v. Bridge Co.,
2 Met., Ky., 222; Smith v. Commonwealth, 8 Bush, 112; State
V. County Judge, 2 Iowa, 284; Battle v. Howard, 13 Texas, 345;
Murphy v. Menard, 11 Texas 678; Tadlock v. Eccles, 20 Texas,
792.)

We are of opinion that these acts do not contain more than
one subject.

Second Ground:

"That the acts above cited require payment of the tax in
advance for the term of one year as a condition precedent to
the right of pursuing said occupation, while all others are per-
mitted to pay quarterly; and hence in conflict with and repug-
nant to sections 13 and 19 of the bill of rights, and sections
2 and 3, of article 8, of the^ State Constitution, and the four-
teenth amendment to the Constitution of the United States, in
this, that they require a license of persons pursuing the occu-
pation of appellant and of the billiard table keeper, and re-
quire none of persons pursuing any other occupation taxed by
law, and provide no means for obtaining a license for such per-
sons."

Answer to these objections:

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160 27 Texas Court of Appeals. [Galveston

Opinion of the court

1. The Constitution confers the power upon the Legislature
to impose occupation taxes. (Art. 8, Sec. 1.)

2. But all occupation taxes must be equal and uniform upon
the same class of subjects within the limits of the authority
levy ini? the tax. (Sec. 2, Art. 8.)

Upon this occupation the State tax is the same all over the
State, and if a county desires to impose a tax upon this occu-
pation it must be equal and uniform over the county — that is,
all persons must be required to do and perform the same things
as acts precedent to the right to pursue the occupation in said
county, and they must pay the same amount of tax — neither
more nor less. So within the limits of cities and towns.

It is evident that the tax imposed upon the occupation of
selling in quantities less than one quart the liquors named in the
acts cited is equal and uniform in the State; and it appears
from this record that it is equal and uniform within the limits
of Galveston county. The Legislature is the authority levy-
ing the State tax; the county of Galveston, through the com-
missioners court, is the authority levying the county tax within
the county limits. The tax being equal and uniform in every
particular over the State as to the State tax, and being equal
and uniform within the limits of the county of Galveston, in-
stead of being obnoxious to the State Constitution, these acts
are in strict conformity with its requirements.

The above observations apply to the objection that the per-
sons proposing to follow this occupation must pay in advance
for the term of one year as a condition precedent to the right
to pursue it; while upon all others they are permitted to pay
quarterly. This being required of all of the same class alike,
the Constitution is by no means infringed; and in addition to
this the requirement is founded in the highest considerations of
public policy and common sense.

It is insisted that the tax is unequal and not uniform, "be
cause a person pursuing the occupation in some counties would
not be required to pay as much as in others; that the cities and
counties are not required to assess this tax, and if they do,
they may assess it at a greater or less sum in the different
cities and counties, etc., and, as the penalty depends on the
amount assessed, it would not be the same, it would not be
uniform over the State." This is evidently correct, but consti-
tutes no objection to the law.

In the Banking & Insurance Company v. The State (42

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Term, 1889.] Fahby v. The State. 161

Opinion of the court

Texas, 636) an analogous question arose. The State sued the
company for occupation tax. The company interposed a con-
stitutional objection to the tax, contending that it was not
e(Jual and uniform throughout the State. The statute provided
that those pursuing such occupation should pay a tax of two
hundred and fifty dollars, if the business was carried on in a
city or town exceeding five thousand in population. Galves-
ton, the city in which the occupation was followed, contained
a population greater than five thousand. The act also provided
that, if the population was less, a tax of fifty dollars should be
paid.

The Supreme Court (opinion by Moore, J.) held that such a
tax was equal and uniform; and this opinion is approved in
Blessing v. City of Galveston. (Id., 641.) These opinions were
rendered under the preceding Constitution, which contained
this provision: " Taxation shall be equal and uniform through-
out the State." The present Constitution settles this question
beyond all controversy, there being a ppecial provision relating
to occupation taxes, which is: "all occupation taxes shall be
equ^l and uniform upon the same class of subjects within the
limits of the authority levying the tax." The limit of the
State's legislative authority is the whole State; that of the
county, city or town is their respective boundaries.

That the State tax is equal and imiform is not questioned
here. Now, if the tax imposed by the counties, cities and
towns is equal within their limits, the imposition of such tax
would not be obnoxious to the Constitution, but would be in
exact accord with the above provisions, though in other coun-
ties, cities or towns the tax may not be the same.

So far as the fourteenth amendment of the Constitution of
the United States is concerned, it certainly was not intended
to prohibit the States from enacting laws regulating the traflSc
in these liquors, so long as they do not abridge the privileges or
inununities of citizens of the United States, or deprive any
person of life, liberty or property, without due process of law,
or deny any person within its jurisdiction the equal protection
of laws. These acts do none of these things. If they do, then
the State would not have the right to tax one occupation greater
than another, nor to require a license or bond as conditions
precedent to the pursuing of any occupation, imless such re-
quirements were made of persons proposing to pursue any oc«

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162 27 Texas Court of Appeals. [Galveston

Opinion of the court.

cupation. If this be the proper construction of the amendment,
then the text writeris, and supreme courts and legislatures of
most, if not all, the States have misconstrued it; for acts with
like provisions in substance have been passed by nearly if not
all the States, and have been upheld by the highest judicial
authority thereof. Nor can a case be found, we assert, holding
that, because of such provisions in an act, to wit: requiring
payment in advance for one year, efc, such payment not being
required for all occupations, is an infringement of the four-
teenth amendment to the Federal Constitution.

Third ground:

"That the indictment is defective because it does not charge
that defendant had not purcured a license before the finding of
the indictment." The indictment alleges every element of the
offense. This is no exception or proviso in the enacting clause:
it is matter contained in article 112 of the Code, and is de-
fensive in its character; hence the accused must bring it for-
ward, or it must appear on the trial that the taxes have been
paid— this being a question of fact and not of pleading.

Appellant excepted to the following charge:

"If the evidence satisfies the jury beyond a reasonable doubt
that the defendant did, as charged in the indictment, pursue
in the county of Galveston, State of Texas, the occupation of
selling spirituous, vinous and malt liquors in quantities less
than a quart, between the first day of October, 1886, and the
twenty-fourth day of January, 1887 (the date of filing the in-
dictment), without having paid the occupation tax of three
hundred dollars to the State, and one hundred and fifty dollars
to the county of Galveston, and the said taxes were then due,
and owing, and unpaid, to the State and county respectively,
say you find the defendant guilty as charged in the indictment,
and assess his punishment, which is fine not less than four hun-
dred and fifty dollars, nor more nine than hundred dollars." The
objections are, first, that the charge does not correctly define
the ofifense; and second, it does not give the penalty correctly,
and is upon the weight of evidence, etc.

Appellant being charged with pursuing the occupation with-
out license, counsel for appellant contend that the charge is in-
correct, because it substitutes "without having paid the tax"
for "without having obtained a license," etc. If appellant had
in fact paid the taxes and procured the license as required by-
article 112, as amended March 15, 1881, he could not have been

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Twm, 1889.] Johnson v. The State. 163

Syllabus.

convicted, thoup^h he may not have had a license. This be-
ing so, the charge was more favorable to him than the law.

It is urged that the charge assumed a fact to have been
proven, and is therefore upon the weight of evidence. The
court, in its charge, does assume that the commissioners court
of Gtelveston county had assessed a tax of one half of the
State tax upon the occupation. That such a tax had been as-
sessed there can be no doubt; this was admitted by appellant
on the trial, and the State introduced no evidence to prove it
because of its admission. This being the case, the court did
not err in assuming this to be a fact. Nor did the court err in
charjcing that the penalty was not less than four hundred and
fifty dollars, nor more than nine hundred dollars — this propo-
sition depending upon the foregoing.

We find no error in the judgment, and it is affirmed.

Affirmed.

Opinion delivered January 30, 1889.

No. 2546.

Albert Johnson v. Thb Statb.

^ PHAcncB— Confession— Cross Examination of a Witness.— The
proof on a trial for rape was in direct conflict as to the identity of the
defendant as the person who committed the ofifense. A defense witness
hafing testified to facts tending to establish in favor of the defendant
ft case of mistaken identity, the State, over objection of defendant, was
permitted to interrogate the witness as to whether or not, subsequent
to the alleged ofifense, he reo-ived from the defendant a letter confess-
ing his guilt, and making a statement eoocerning, and asking infof*ma
tion aboat, the commission of the offense. In permitting this manner
ofeiaraination the court erred, because, first, if, as manifest, the pur-
pose of the State was to prove that the witness received from defend-
ant a letter written by him and confessing his guilt, it should first hare
SQiumoned the witness with a subpcena duces tecum to produce the
letter in court. Failing then to produce tl^e letter, the witness might
be examined to prove the reception by him of such a letter, and that
to his knowledge it was written by defendant. But then the contents
of the letter conld not be proved by the witness without proof of tAi%
loii or destruction of the same. Second, if the object of the State waa
to impeach the witness, then the fact whether or not he had received

I 90 528

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164 27 Texas Court of Appeals. [Galveston

Statement of the case.

^a letter from the defendant was the only fact about which the predi-
cate was allowable, and, the witness having answered that question in
the negative, the limit of the investigation was reached, under the rule
that ''when a witness is cro^s examined on a matter collateral to the
iBsue, his answer can not be subsequently contradicted by the party
putting the question/* This rule was further violated in this case by
permitting the State to contradict the witness by another witness, as
to the letter.

2. Rape— Charge of the Court.— The trial court charged the jury as
follows: ''Penetration is necessary to constitut'C the offense, but pen-
etration only is necessary to constitute the offense.** Held, abstractly
correct, but insufficient, because, in addition to penetration, it is ^sen-
tial in a rape case to show want of the woman's consent, and that the
act was accomplished by force, threats or fraud.

8. Same— Reasonable Doubt.— The court charged farther as follows:
''It is not sufficient, to secure a conviction, for the State to make out a
prima facie case, but the guilt of the defendant must be shown beyond
a reasonable doubt; and the failure or inability of the defendant to
show his innocence does not lend any additional probative force to the
incriminative facts, if any, shown by the State, or raise any presump-
tion of guilt against the defendant.** This charge, though abstractly
correct, was calculated to lead the jury to believe that, in the opinion
of the court, the defense had failed to show innocence. A reasonable
doubt of guilt, independent of exculpatory proof, entitles an accused
to an acquittal.

4 Same.— The court further instructed the jury that "the defendant is
presumed to be innocent until his guilt is proved beyond a reasonable
doubt; and, if upon the whole evidence you have a reasonable doubt
of his guilt, you must acquit him, and not resolve the doubt by a miti-
gation of the punishment** This charge is objectionable in that the
concluding clause may have induced the jury to inflict the greater pen.
alty instead of the milder one provided by the statutes. Note the sug-
gestion that in charging the reasonable doubt the trial court should fol-
low the language of the statute. (Penal CkKle, art. 727.)

Appeal from the District Court of Washington. Tried be-
low before the Hon. I. B. McFarland.

This is the second appeal prosecuted by this appellant from
conviction for the rape of Annie Knuppel, on the twenty -sixth
day of January, 1886. The penalty assessed on this last trial
was death.

The testimony adduced on the two trials was substantially
the same, and for the purposes of this Report it is deemed suflS-
cient to state, in succinct form, the substance of the proof upon
the one contested issue of fact, which involved the identity of
the accused, and to refer to the former report of this case for

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Term, 1889.] Johnson v. The State. 165

Statement of the case.

the evidence in detail. (See Johnson v. The State, 21 Texas
aApp., 368.)

The testimony of Miss Knuppel, the injured party, was tne
only proof in the case identifying the defendant as the party
who committed the outrage, and upon this issue her evidence
was direct and positive, except that, when recalled to the stand
by the defense, she admitted that if the defendant on trial had
a mustache at the time of the rape, then he was not the person
who committed it. In substance, Miss Knuppel's narrative is
as follows:

The outrage was committed on Tuesday, January 26, 1886, at
about one, or half past one o'clock in the day. The place was
on the line of the Gulf, Colorado & Santa Fe Railway, about a
mile and a half or two miles south of Brenham, near where
the public road leading from Brenham to Wesley crosses the
railroad track. She was living with her father about four
miles south of Brenham, and at the time of the assault was
returning home from town, to which she had gone on an errand.
She had ridden to town on a wagon with Messrs. Kraemer and
Roemer, but returned home on foot, walking along the railroad
track. At about a mile and a half or two miles from town she
was overtaken by a colored man, who was walkings in the same
direction with herself but more rapidly. When she first saw him
he was about twenty feet behind her. As he got near her she
stepped off the track to let him go by. He passed her, and
then turned and caught hold of her and struck her with his
hand. He then threw her down and had carnal intfij:coui?ge
with her ac^ainst her will. The man then left her and came
back in the direction of Brenham, and she saw him no more.
On reaching home she told her mother and sister-in-law, and
afterwards her father and others, of the occurrence, describing
to them the person of her assailant and the circumstances of
the outrage.

According to her statement there was no peculiarity about
the man. " He was a middle sized man; he wasn't right black
or right yellow, but midway between, and was what is called
in German a * younge,' or young man. He looked to be about
twenty years of age, but might have been any where from
nineteen or twenty to twenty-five years old; he had no beard
or whiskers and no mustache, but had a perfectly smooth face,
as smooth as her own. He had a scar on the right side of his
face, near the eye. She looked at him well while he had her

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166 27 Texas Court of Appeals. [Galveston

Statement of the case.

down, and observed the scar on his face then and afterwards.
He had on a dark gray coat, dark pants and a gray hat." A
black frock coat, Prince Albert style, and a small, stiff, black
Derby hat, claimed by the defendant, were exhibited to her,
but she said they were wholly different from those worn by
her assailant. The coat worn by the party who ravished her
was a short sack coat of a gray color; the hat was a soft
•* slouch" hat, also gray in color. The man remained with her
about five or ten minutes. When he overtook her he had a
piece of iron in his hand, a fish bar plate, about twelve or four-
teen inches long and not quite so wide as her hand. While he
had her down he had a rock in his hand. He picked up the
rock and then dropped the iron. She could not remember
whether he dropped the iron and rock after he got up or not.
She had never seen her assailant before. Two colored men,
Willie Wills and Anderson Guy ton, were arrested and brought
before her by the oflBcers shortly after the outrage, both of
whom had scars on their faces and otherwise corresponded with
the description given by her of her assailant, but she said
neither of them was the man who outraged her. She said
Willie Wills **had a scar on the right side of his face, near the
eye," but he was " not of the right color." She " did not know
whether he was lighter or blacker " than her assailant. She
"did not know whether he was taller or not." She " did not
know whether he was as old or not;" he was " about fifteen or
twenty years old;" he was " a middle sized man;" she could not
tell whether or not he was taller than the defendant, nor which
was the blacker of the two. She has not seen Willie Wills in
two years. When they brought Anderson Guyton for her to
look at she saw at once that he was not the right man. Ho
was " too small," was smaller than her assailant. She did not
think Guyton got off his horse. She did not know whether ho
had a scar on his face or not.

The defendant was taken as a prisoner to her father's house
about the middle of March, 1886, seven or eight weeks after
the alleged outrage, when she promptly recognized him as her
ravisher, although he was differently dressed and then had a
mustache, but " not much of a one." She recognized him "by
his whole face;" "by his general appearance," and by "the
scar." She " would have known him any way, without the
scar." She was positive in her statement that the defendant
was the man who outraged her, but, except in the particulars

Digitized by VjOOQIC

Term, 1889.] ' Johnson v. The State. 167

Statement of the case.

named, she did not describe or distinguish him from other per-
sons of his race and color. She did not undertake, to give any
other peculiarity of form or feature, or to state or approximate
his height or weight. With the defendant sitting before her at
the trial, she described the scar as being "on the right temple,
aUttle to the right of the eye," and said ** it curved up in a circle,
the middle part going upwards." With reference to his age, she
then said he was '* from twenty to twenty-seven years of age;"
" not twenty, but between twenty and twenty-seven."

She stated that the suspected parties were not all brought be-
fore her at the same time, but separately, and when the de-
fendant was brought to her for identification she was apr)rised
of the purpose of his being brought, and no test whatever was
made to ascertain whether she would be able to single him out
of a crowd.

She thus describes the scene of the outrage: "It was on the
Sajita Fe railway track about a mile and a half or two miles
south of Brenham, and about two hundred yards north of
where the public road leading from Wesley to Brenham crosses
the railroad track. **It was not in a cut," but the embankment
was "two or three feet high." She "could see over it." Two
rent houses were in plain view, not more than three hundred
and fifty or four hundred yards distant. The parties were also
in plain view of persons traveling the Wesley road and of any
one passing on the railway^ Her assailant laid her down be-
tween the banks of the railway on the right hand side of the
track, but off of the track; her feet were pointing towards the
track, her head was angling north. The alleged outrage took
place shortly after noon, at about one or half after one o'clock.

When recalled by the defendant she stated again, in the
most positive language, that thje party who had assaulted her
had no beard whatever on his face — neither whisker nor mus-
tache. "If this man," she said, "hada mutache on the twenty-
sixth of January, 1886, then he is not the man that ravished
me." On further examination by the State she reaffirmed her
conviction that the defendant was the guilty party. "I have
no doubt whatever," she said, "about his being the man."

The remaining testimony for the State, as may be seen by
reference to the previous report, clearly establishes the pene-
tration of the girl's private parts, and otherwise supports her
narrative except, as to the identity of the offending party,
with respect to which it is not directed. It is not, however,

Digitized by VjOOQIC

168 27 Texas Court of Appeals. [Galveston

Statement of the case.

essential to the question of evidence involved in the disposi-
tion of this appeal, and, therefore, is not here recapitulated.
It may be stated, however, that no witness, testifying for the
State, claimed to have seen the defendant in the vicinity of
Brenham, or the scene of the outrage, at any time near the
day of the alleged outrage, or to have known him at any time
when he answered, in appearance or dress, to the description
given by Miss Knuppel of her assailant. It was shown that
defendant was arrested in Austin county, seven or eight weeks
after the alleged outrage.

The defense relied upon was an alibi and mistaken identity —
that he was not the person who committed the oflfense. To
support the first of these defenses he proved by the persons
with whom he was living and working — six different parties —
that he was at his work, some three or four miles from the
place of the alleged oflfense, on the day of its occurrence and
during that entire week. During his stay in the neighborhood,
which lasted about five weeks — from the beginning of January
to February 6 — he came to Brenham but twice — once, about
the middle of January, to meet his wife and take her to his
sister's, with whom he was boarding; the other time a few days
later, when he accompanied his wife as far as Brenham on her
return to Bellville. On both of these occasions he rode a mule
belonging to Ford, and led the horse which had been ridden by
his wife. The witness, Willis Jackson, taught s^;hool on the
road traveled by the defendant and Ford and his wife in going
to and from their work. On, Monday, January 25, the day be-
fore the alleged outrage, the defendant came to the school
house and inquired of witness when he expected to go to Bren-
ham, and, learning that he would go on Wednesday, the twen-
ty-seventh, which was witness's lodge night, defendant re-
quested him to call for his mail, which witness did, waking
him up to deliver it on Wednesday night, the day following
the commission of the alleged oflfense.

Upon the remaining defense — that he was not the person
who committed the outrage — the defendant proved by the six
witnesses by whom he sought to establish an alibi, and by
fifteen others living in and about Bellville — some white and
some black — including the sheriff, the county attorney and the
judge and ex judge of the county court, that they had known
him for periods ranging from five to fifteen years, and that he
had worn a mustache for several years continuously up to the

Digitized by VjOOQIC

Term, 1889.] ' Johnson v. The State. 169

Statement of tbe case.*

time of this trial. The same witnesses testified that they had
never seen the defendant dressed in clothing similar to that
which, according to the testimony of Miss Enuppel, was worn
by her assailant.

The principal ruling upon this appeal is based upon the
action of the trial court with respect to the examination of the
defendants witness R6bert Ford. The said Ford was one of
the six parties who, being introduced by the defendant, testi-
fied to the facts constituting the alibi relied upon^ and also to
the fact that the defendant had a mustache at the time of the
alleged outrage, and that he owned no such clothes as those de-
scribed by Miss Knuppel. The method of cross examination to
which the ruling of this court is particularly directed appears
fully in the opinion.

In rebuttal of this witness, the State introduced the witness
Wash Boulding, Jr., to whom it propounded questions and
elicited answers as follows:

Question. "Did you or not, shortly after the rape upon Annie
Knuppel, in the city of Brenham, between Lehman's bar room
and Julia McFarland's book store, at the request of Robert
Jord, a brother-in-law of the defendant, read a letter directed
to said Ford?"

Answer. **I did, shortly after the rape, read a letter for Rob-
ert Ford at the place* mentioned, said letter being to him."

Q. "State whether or not said letter was, or purported to be,
from the defendant, and made any statement about the said
rape, and inquired of said Ford who was suspected of its com-
mission, and if defendant was accused of it."

To which question and any answer thereto the defendant, by
his counsel, objected, which objection the court sustained and
refused to allow said witness to answer the same; whereupon
the State's counsel inquired of said witness:

Q. *'Do you know the defendant's hand writing, and was
said letter in his band writing?"

A. "I do not know whether it was in defendant's hand
writing or not. I do not know defendant's hand writing?."

Q. **Don't tell what was in the letter, or who it was from,
but state who was present at the time you read the letter to
Ford. And how did you happen to read the letter? Was it be-
fore or after defendant's arrest? Was the* letter directed to
Ford."

A. "I read the letter for Ford before defendant was arrested

Digitized by VjOOQIC

170 27 Texas Court of Appeals. . [Galveston

ArgameDt for the appellaot.

OP this charge. Ed Deadman and Willis Boulding were pres-
ent at the time. I was standing on the sidewalk, at Lehman's
bar room, with Ed Deadman and Willis Boulding. Robert
Ford came up to us and asked me to read the letter for him, as
he could not read. We stepped off the sidewalk into the street
a little way, between Lehman's bar room and McFarland's
book store, and I read the letter to Ford. It was directed to
him."

B. H. Bassett and E. B, Muse, for the appellant: We insist
that the court erred in admitting, over defendant's objections,
the testimony elicited from the witness Robert Ford with refer-
ence to an alleged letter written by the defendant; because,
1. The letter (if such ever existed) was the best evidence. No
effort having been shown by the State to procure or produce
such letter upon the trial or prove its loss, the testimony was
secondary. 2. The testimony was inadmissible, because the
execution of the letter in defendant's handwriting had not been
shown, and no promise upon the part of the State was niade to
show such fact. 3. Said testimony was illegal and irrelevant
to the issue of defendant's guilt, and was prejudicial to the de-
fendant.

The court erred in admitting the testimony of Boulding; be-
cause:

1. The alleged letter was not shown to have been written by
defendant, or by his direction, or to have been in his hand-
writing.

2. Because no basis for an impeachment of the witness Ford
had been laid by the State; no specified time, place or circum-
stance having been stated.

3. Because the letter read (if any), not being shown to have
been from the defendant, the impeachment of the witness
Ford by Boulding was upon an immaterial issue in the case,
the same not tending to establish the guilt of the defendant by
legal evidence.

4. Because it did not appear that the defendant had in fact
written any letter to Ford, or that Ford had received such, or
that Boulding ha\i read such a letter from the defendant.

5. Because the testimony was illegal and irrelevant, and be-
cause the tendency af not the purpose of the testimony and ex-
amination in connection with the testimony of the witness Ford,
hereinbefore excepted to, was to impress the jury with the idea

Digitized by VjOOQIC

Term, 1S89.] - Johnson v. The State. 171

Argument for the appellant.

or belief that the defendant had written a letter to Ford con-
fessing or tending to show his guilt.

6. Because said testimony was calculated to prejudice the
jury against the defendant, and tended to create in the minds
of the jury a belief of defendant's guilt. But the court over-
ruled said objections and admitted said testimony to the jury,
to which decision of the court the defendant then excepted; and
thereafter the defendant moved the court to strike out all of
said questions and answers and testimony of said witness
Boulding, and to instruct the jury to disregard the same, which
was refused, and the defendant duly excepted to said rulings.

The charge did not in any way restrict the effect of the testi-
mony.

It is submitted: 1. That the jury would readily connect the
excluded letter, in relation to which Boulding spoke, with that
concerning which Ford had been interrogated, and would nat-
urally infer that Boulding had seen and read a letter from the
defendant to Ford containing a substantial confession of his
guilt; which would, in the language of the Supreme Court, in
The City of Galveston v. Barbour, 62 Texas, 175, be but another
mode of bringing before the jury parol evidence of the contents
of the letter.

2. The admission of the evidence constitutes reversible error,
the evidence having been admitted over objection, and its prob-
able influence being prejudicial. (Malcomson's Case, 25 Texas
Ct. App., 268, 291.)

3. That the attempted impeachment should have been re-
stricted to the exact predicate laid; and that neither time, place
nor circumstance being laid in the predicate, the impeaching
evidence was improperly admitted. (Henderson's Case, 1 Texas
Ct. App., 432; Treadway's Case, Id., 668; Williams's Case, 3
Texas a. App., 316; Walker's Case, 6 Texas Ct. App., 577.)

4. That the attempted impeachment was on a wholly irrele-
vant and immaterial fact, the alleged letter not being shown to
have been written or sent by the defendant, and no subpoena
duces tecum or other effort being taken to secure the production
of the letter itself. (Estep's Case, 9 Texas Ct. App., 336; Walk-
er's Case, 6 Texas Ct. App., 577; Rainey's Case, 20 Texas Ct.
App., 473; 1 Greenl. Ev., sees. 5G0, 562, 575, 577.)

5. And even should it be held that the evidence was properly
admitted for purposes of impeachment, the charge should have
restricted its use to that specific purpose. (Maines's Case, 23

Digitized by VjOOQIC

172 27 Tbxas Court of AppeaIiS. [Galveston

Opinion of the court

Texas Ct. App., 568, 572; Washington's Case, Id., 336, 338; Bar-,
ron's Case, Id., 462, 475; Davidson's Case, 22 Texas Ct. App.,
373, 382; Taylor's Case, Id., 530, 545; Rogers's Case, 9 S. W. Rep.,
763, 768.)

W. L. Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. Appellant's record now before
us presents a second appeal taken by him in this case. He has
twice been convicted of rape — his punishment the first time
being assessed at imprisonment in the penitentiary for^ ninety-
nine years, and on the second trial, from which this appeal is
taken, there is an assessment of the death penalty as his pun-
ishment. (Johnson v. The State, 21 Texas Ct App., 368.)

In the view we take of the present record, and of the duty
devolving upon us as to the disposition to be made by us of the
case here presented, it is unnecessary, and would perhaps be
profitless to notice the questions arising upon the rulings of the
oourt in relation to matters occurring preliminary to the trial
upon the merits; since it is not probable that they will again
arise upon another trial.

One of the most important issues which arose upon the trial
in the court below was as to the identity of the defendant as
the party who had committed the crime. Whilst the prosecu-
trix had sworn positively to the identity of the defendant as the
man who ravished her, she said, nevertheless as positively
that "if this man (defendant) had a mustache on the twenty-
sixth day of January, 1886 (the day she was ravished), then he
is not the man that ravished me." On this issue, thus squarely
made, defendant had produced a number of witnesses, white
as well as black, and some of them men of prominence, whose
testimony was almost positive to the fact that defendant did
wear a mustache on the twenty-sixth of January, 1886. And
the same may be said with reference to the difference in the
clothing worn by the ravisher and that worn by defendant. In
other words in short, the effort of the defendant was to meet
every part and portion of the testimony of the prosecutrix de-
scriptive of the identity of the party who outraged her, and to
show that it was a case of mistaken identity with her, and that
it was impossible he could have been the guilty party.

In this attitude of the case, the State, over objections of defend-
ant, was permitted to cross examine the defendant's witness
Robert Ford as follows, viz. :

Digitized by VjOOQIC

Tenn, 1889.] Johnson v. The State. 173

Opinion of the court.

Question by the State: "Did you not, after the rape of
Annie Knuppel, receive a letter from the defendant inquiring
of you about the commission of said rape, who was suspected
of it, and if he was accused of its commission?"

Answer: **I never, at any time, received a letter from the de-
fendant, after or before said alleged rape, nor did I receive any
letter from him inquiring of its commission or asking if he was
accused of it."

Q. "Did you not, after said rape, receive a letter purporting
to come from defendant, making a statement about the rape, or
inquiring if defendant was accused of it?"

A. "I never received any letter from defendant, or from
any one else, or purporting to come from defendant, making a
statement about the rape, or inquiring if defendant was accused
of it. I do not read or write. I do not know defendant's hand
writing."

Q. "Did you not, in Brenham, after said rape, request Wash
Boulding, Jr., to read a letter for you, and did he not then read
to you a letter from the defendant to you, in which defendant
stated that he had committed the rape, and inquiring of you
who^as suspected of its commission, and if he was accused of
it?"

A. "No. Wash Boulding never read any such letter for
me nor any other letter for me, either after the rape or before
it I never received such a letter or any letter from defendant
orany one else, in reference to the rape. Never received any
letter from defendant, or purporting to be from him, after he
left my house, after the alleged rape."

''Which testimony was objected to by the defendant at the
time it was offered, on the grounds: (1) That the letter (if such
ever existed) was the best evidence; that no effort had been
shown by the State to procure or produce such letter upon the
trial, or to prove its loss; and that the testimony was sec-
ondary: (2) That the testimony was inadmissible because the
execution of the letter in the defendant's hand writing had not
been shown, and no promise upon the part of the State was
made to show such fact: (3) That s^d testimony was illegal
and irrelevant to the issue of defendant's guilt, and was preju-
dicial to the defendant.

"But the court overruled said objections and admitted said
testimony to the jury, to which decision of the court the de-
fendant then duly excepted; and thereafter the defendant

Digitized by VjOOQIC

174 27 Texas Court of Appkals. [Galveston

Opinion of tho court.

moved the court to strike out said testimony and instruct the
jury. to disregard the same for the reasons; and! uponi the
grounds above alleged; but the court overruled said motion to
strike out, and refused to exclude said evidence from tho iuiy;
to which decision of the court the defendant then exceptedj^**
etc.

Manifestly the object of this method of examination of the
witness was to impress the jury with the idea that the witness
.had received a letter from aefendant, in which the latter con-
fessed that he had committed the crime. If the object was to
prove the fact that such a letter had actually been written and
received, then the proper practice would have been, in the first
place, to have summoned the witness with a subpoena duces
tecum, or notice, to produce the letter in court. (1 Greenlf,
Ev., 13 Ed., sees. 557, 558, 559, 560.) Failing or refusing to pro-
duce it, the State then might have proven the fact by him, if
a fact, that he did receive a letter, and if the witness knew
that defendant wrote it, from his knowledge of his handwriting,
or otherwise, he might also prove that fact. But, unless tho
letter was lost or mislaid so that it could not be produced, ita
contents even then could not be proven by the parol evidence
of the witness, the letter itself being the best evidence of its
contents so long as it was in existence.

Again, if the object was to impeach the witness, then the
fact that he had or had not received a letter from defendant,
which was the only fact about which the preliminary inquiry
and predicate were allowable (Walker v. The State, 6 Texas
Ct. App., 577), would be wholly immaterial in the case. And
the witness having answered that question in the negative,
that would be an end of the investigation, under the well estab-
lished rule that " when a witness is cross examined on a matter
collateral to the issue his answer can not be subsequently con-
tradicted by the party putting the question." (Whart. Crim.
Ev., 8 Ed., sec. 484; Brite v. The State, IQ Texas Ct. App, 368;
Hart V. The State, 15 Texas Ct. App., 234; Johnson v. The
State, 22 Texas Ct. App., 207; Rainey v. The State,. 20 Texas Ct
App., 474.)

But the State did not stop the investigation of the matter
with the denial of the witness that he had ever received such
a letter, but called Wash Boulding, Jr., to the stand to contra-
dict and impeach the witness Ford in this matter. This waa
in violation of the rule of evidence above quoted. This wit*

Digitized by VjOOQIC

Term, 1889.] Johnson v. Thk State. 175

Opinion of the court.

nes8 Boulding was permitted, over defendant's objections, to
testify that Ford had requested him to read a letter directed to
Ford, and that he did not know in whose handwriting the
letter was, nor did he know defendant's handwriting. Bould-
ing's testimony, under the facts, could not in the very nature
of things impeach Ford as to a letter received by him from de-
fendant, because there is no positive, certain or reliabler evi-
dence that defendant ever wrote such a letter, or that Ford
ever received it, or that Boulding ever read a letter from de-
fendant, Boulding may have read such a letter as he describes',
but he can not know, nor do we, that the defendant wrote that
letter, and until it is established by some legal method that he
did write it, he can not in right, justice, good conscience or law,
be held by any admissions it might contain.

It was most unfair and prejudicial to defendant's rights to
conduct the investigation with regard to this letter in the man-
ner in which it was done. No doubt the jury were firmly im-
pressed with the fact that defendant had written a letter to
Ford in which he confessed hi? guilt of this most heinous crime.
The character of the investigation and the facts allowed to be
proven were calculated to have this effect, whether they did or
not. They should not have been permitted in the first place,
and in the second place the only possible, if at all possible,
manner in which'the error could have been retrieved and in-
jury avoided, would have been for the court to have stricken
out the illegal testimony and instructed the jury to disregard
it. We are constrained to repeat in this connection the re-
marks of Judge Willson in Gazley's case, a case involving a
crime of the same nature. He says, "in a case like this, the
very mention of which arouses public indignation, and fires the
minds and passions of a community with a desire for venganoe
against the guilty party, the court and counsel engaged in the
trial should be scrupulously cautious to accord to the defendants
a fair and impartial trial, as free as possible from excitement
or prejudice. There should be no clap trap or sharp practice
made use of by counsel for the State. No improper means
should be resorted to to prejudice the minds of the jury against
the defendant in the remotest degree. No testimony should be
offered on the part of the prosecution that is not relevant and
legal" (17 Texas Ct. App., 283.)

Where the testimony was so doubtfully 'balanced as to the
identity of defendant, who can say but that a bare intimation

Digitized by VjOOQIC

176 27 Texas Court op Appeals. [Galveston

Opinion of the court.

of his having admitted or confessed the crime — unsupported as
it was by any legal or reliable fact — was sufficient to kick the
beam against him in the minds of the jury.

A number of objections are strenuously urged to the charge
of the court to the jury. One or more of the paragraphs may,
we think, be properly held obnoxious to the criticisms made
upop them. For instance, in the sixth paragraph the jury
were instructed that "penetration is necessary to complete the
offense, but penetration only is necessary to complete the
offense." It is declared by our statute that "penetration only
is necessary to be proved upon a trial for rape." (Penal Code,
art. 532.) But this does not mean that proof of penetration
alone will, in and of itself, be sufficient without proof of the
other statutory evidence and ingredients of the offense. The
object of the declaration made in this article of the Code was
simply to lay down one of the rules of evidence in cases of
rape. Mr. Greenleaf says: "In the proof of carnal knowledge
it was formerly held, though with considerable conflict of opin-
ion, that there tnust be evidence both of penetration and of
injection. But the doubts on this subject were put at rest in
England by the statute of 9 George IV, c. 31, which enacted
that the former of the two facts was sufficient to constitute the
offense. Statutes to the same effect have been passed in some
of the United States." (3 Greenl. Ev., 13 ed., sec. 210.) This
is the object and purpose of our statute, to wit, that if penetra-
tion, which is essential to carnal knowledge, be proven, that
will be sufficient, whether there be proof of injection or emis-
sion or not — the latter not being required to be proven.

Though such an instruction is in the language of the statute,
and is abstractly correct law, it will be readily perceived that
it is incomplete and calculated to mislead without some further
explanation. Penetration alone is not the only proof necessary
to complete the offense of rape. There must in addition be
proof of want of consent of the woman, and that the act was
accomplished by force, threats or fraud. (Penal Code, art. 528.)

Again, it occurs to us that the latter clause of the thirteenth
paragraph is objectionable. The court thus instructs the jury,
viz: "It is not sufficient, to secure a conviction for the State,
to make out a prima facie case, but the guilt of the defendant
must be shown beyond a reasonable doubt; and the failure or
inability of the defendant to show his innocence does not lend
any additional probative force to the incriminative facts, if any.

Digitized by VjOOQIC

Term, 1889.] Andbbson bt al. t?. The State. 177

Syllabus.

shown by the State, or raise any presumption of guilt against
the defendant." Abstractly the proposition is corredt, but the
jury may well have inferreci from it that, in the opinion of the
court, the defendant had failed and been unable to show his
iDnocence. No matter what the defendant's evidence was, or
what it amounted to, he would be entitled to an acquittal if the
jury had a reasonable doubt of his giiilt. (Gazley v. The State,
17 Texas Ct. App., 267; Willson's Crim. Stats., sec. 2427.)

Again, we are of opinion that the latter portion of the four-
teenth paragraph of the charge may have operated to the pre-
judice of appellant. The instruction is in these words, viz:
"The defendant is presumed to be innocent until his guilt is
proved beyond a reasonable doubt; and if upon the whole evi-
dence you have a reasonable doubt of his guilt you must acquit
him, and not resolve the doubt by a mitigation of the punish-
ment" The italicized words may have influenced the jury to
inflict, as they have done, the death penalty instead of the
milder punishment authorized by law. '

With regard to the reasonable doubt, as prescribed in our
law by article 727 of the Penal Code, this court has time and
again held that the language of this long standing provision
law was advisedly selected to express the precise meaning of the
maker. "Its entire context should be preserved, and attempts
to paraphrase or supplement it in a charge to the jury tend to
perplex the jury and breed error." (Willson*s Crim. Stats., sec.
2426.)

For the errors we have discussed, the judgment is reversed
uid the cause remanded for a new triaJL

Reversed and remanded.

Ophiion delivered January 30, 1889.

No. 2648.

AUBZ Andbbson and Job Woods v. Thb Statb.

«
t HsaLKHorr Homioidb— iNBicriCBNT.^See the statement of the oase
for the sabstanoe of an indictment field snf&oient to charge the offense
of negligwit homicide.
t Babcb— Wmrsss.— A person cjiarged, either in the same or another in-
dictment, with participation in the offense on trial, is not competent
to te&tify in behalf of the accused. It appears in this case that the

1.2

Digitized by VjOOQIC

178 27 Tbxas Court of Appeals. [Galveston

Statement of the case.

witness proposed by the defense was indicted, by an incorrect name,
for the same offense. Held that the proposed witness was properly
held incompetent
8. NBeLiGKNOB BY OMISSION consists in the omission to perform an mist
with the performance of which the party is especially charged, and
there can be no criminal negligence in the omission to perform an act
which it is not the express duty of the party to perform. Under thlB
rule brakemen on a railway train, whose duty fs shown to pertain in
no degree to the operation of a locomotive, nor to the watching of the
railway track, nor the sounding of the danger signal, can not be held
liable for the killing of a person by the locomotive, operated by tbe
engineer and fireman, upon whom the duty of operating it exclusively
devolved. See the statement of the case for evidence Tield insuiflcient
to support a conviction for negligent homicide.

Appeal from the District Court of Polk. Tried below before
the Hon. Edwin Hobby.

The conviction in this case was for negligent homicide, and
the penalty assessed against each of the appellants was a fine
of two hundred and fifty dollars.

The indictment impleaded O. Torgerson, engineer, J. A,
DeCogne, fireman, and the appellants as brakemen on engine
number eleven of the Houston, East & West Texas Railway-
Company, charging them with negligent homicide of the first
degree, and alleging in substance that on the seventh day of
February, 1887, while engaged as workmen in rimning said en-
gine and tender on said railroad, said Torgerson, DeCogne,
Anderson and Woods did back said engine and tender neg^li-
gently and carelessly, without ringing the bell or blowing the
whistle, and without giving any warning, and without first
looking to see if any person was likely to be injured thereby,
and by said negligence and carelessness one Sing Morgan was
struck by said engine and tender so run, and the death of said
Morgan was caused by said negligence and carelessness — the
said Morgan being at the time in a position to be struck by-
said engine and tender which fact would have been known by
said Torgerson, DeCogne, Anderson and Woods if they had
used that degree of care and caution which a man of ordinary-
prudence would use under like circumstances, there being then
and there an apparent danger of causing the death of said
Morgan and of other persons passing on said raibroad and high-
way.

Digitized by VjOOQIC

Term, 1889.] Anderson et al. v. The State. 179

statement of the case.

J. D. Kelley was the first witness for the State. He testified
that he was at Hackney's mills, in Polk county, Texas, at the
time that /the negro child, Sing Morgan, was killed by engine
No. 11 of the Houston, East & West Texas Railway Company.
He and W. T. Parrish were sitting on the gallery at Hackney's
store at the time the killing occurred. The said gallery was
situated very near the track of the said railway. At the time
the child was killed a train of cars had been divided at a point
a short distance north of Hackney's store, and the half of it
had been hauled to a point beyond a heavy grade south of the
store, and the engine was on its way back to get the other part
of the train when the child was killed. The child was run over
by the engine and killed at a point on the track about eighty
yards north from the gallery of Hackney's store. Witness first
observed the engine backing from the south to the north, when
it reached a point between seventy-five and a hundred yards
south of the gallery. He did not hear the rumbling of the en-
gine until it reached within thirty feet of the gallery. No bells
were rung nor whistles sounded at any time during the backing
of the said engine, nor was any other signal given. As the
enjnne passed the point where the witness and Parrish were
sitting, the witness observed the engineer in his position. He
did not see the fireman, but saw the defendants, who were
brakemen on the train. One of them was standing on the
gaugway of the engine and the other was sitting on the wood
on the tender attached to the engine. Either of the said partiee
by looking down the track could have seen the child in its per-
ilous position. The witness saw the child just about the time
the engine struck and passed over it. There was nothing on
the track to obstruct the view of the parties on the engine and
tender, and they could have seen the child in ample time to
prevent its death had they kept a lookout. No cars were at-
tached to the engine at the time.

Cross examined, the witness said that he could have seen the
child in time to give warning had he been looking over the
track in that direction. Witness identified a letter exhibited
to him as a letter he wrote to M. G. Howe, receiver of the East
& West Texas Railway Company. He had never been paid by
Howe not to testify in this case.

W. T. Parrish, for the State, testified substantially to the
same facts as Kelley, but stated that he did not see the .child
until after it was killed. He was looking another way, when

Digitized by VjOOQIC

180 27 Texas Court op Appeals. [Galveston

Statement of the case.

Zelley remarked: "There is a negro child killed^'* Had he been
looking north he could have seen the child.

On his cross examination, this witness stated that Kelley told
him that he, Kelley, had written to Howe, proposing to leave
the country, or to fail to testify in this case, for the considera-
tion of five hundred dollars. Witness told Kelley that "he
could do as he pleased about it." The witness would not under-
take to say whether or not he would have accepted any part of
the money, had Kelley secured it.

W. H. Dudley was called by the State, and testified that he
did not see the killing, and knew nothing about it until after it
occurred. The deceased was a negro child about eighteen
months old. The place where passengers and freight were
taken on and put oflf the train, and where the public road
crossed the track, was south of the point where the child was
killed. No street or road crossed the track at the place of the
killing.

The State closed.

Two or three officials of the Houston, East & West Texas
Railway testified, for the defense, that the brakemen on their
lines had no duties whatever to perform on an engine or tender.

Their duties are well defined, and are performable only on
the passenger and freight cars or coaches. The operation of
an engine devolves exclusively upon the engineer and fireman,
and principally and primarily upon the engineer. He is
charged with the duty not only of manipulating or operating
the engine, but of keeping a look out over the track and sound-
ing the signals. A heavy grade occupies the space a short dis-
tance north and south of Hackney's mills, and it was the cus-
tom to divide trains going south at a point north of the mills,
and haul them over the grade in sections. The brakomen
always accompanied the first section, and rode on the engine
back to the section left behind. They had no duties whatever
to perform on the engine in returning over the track for the
sections left behind.

The defense next introduced in evidence the letter identified
by Kelley, which reads as follows:

CoRRiGAN, Polk County, Texas, this May 10, 1887.
Mr. M. G, Howe:

* It is with pleasure I seat myself to drop you a few lines to let
you know that court time air near. That trile will come of.

Digitized by VjOOQIC

Term, 1889.] Ant^brson bt al. v. The State. 381

Opinion of the court.

That negro is goin to sue for 2000 dollars. If I be a witness he
will beet you, for I am the only one that saw the child before
it was killed, and if you will pay me 600 dollars I will get out
of the way. W. T. Parrish is gon. Let me no sune.

J. D Kbllbt.

R. S. Lovett, for the appellant.

W. L. DavidsoUy Assistant Attorney Q^neral, for the State.

WtLLsoN, Judge. This appeal is from a conviction of negli-
gent homicide of the first degree. The indictment charges the
appellants and two other persons jointly with the commission
of the offense. Appellants only were put upon trial, and the
punishment assessed was a fine of two hundred and fifty dol-
lars against each of them.

We think the indictment is a good one. It follows the
statute defining the offense, and alleges all the element? of
said offense, setting forth specifically the acts and omissions of
the defendants, and alleging that said acts and omissions
caused the death of the deceased. (Penal Code, art. 579.)

It was not error to refuse to permit Ducoing to testify in be-
half of th6 defendants. It was made to appear by the State
fchat said Ducoing was one of the persons charged jointly with
defendants with the same homicide, but charged under a dif-
ferent name, the true name of said Ducoing having been mis-
taken by the grand jury presenting the indictment. Said
Ducoing was an incompetent witness in behalf of defendants,
he being in fact a principal in the offense and in reality but
under another name charged as such in the indictment. (Code
Crim. Proc, art. 731.)

As we view the evidence and the law applicable thereto, this
conviction is not warranted. These appellants were brakemen.
They had no control whatever of said engine and tender. They
were riding upon the same for the purpose merely of perform-
ing their specific duties as brakemen, which duties had no con-
nection with or relation to the homicide. It was the exclusive
duty of the engineer and fireman to operate said engine care-
fully; to look out for obstructions upon the track; to give
signals of danger when necessary. With these duties appel-
lants were in no way concerned. They had no right to start
the en^pne in motion, to blow the whistle, to ring the bell, to

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182 27 Texas Court of Appeals. [Galveston

Opinion of the conrt

stop the engine, or otherwise. to control its n^ovements. They
performed no act which connected them with the death of the
child. It is only for a supposed omission of duty on their part
that they have been convicted of negligent homicide. They
omitted to look out for obstructions on the track. They might
have seen the child in time to save its life, but they omitted to
see him. Or if they did see him they omitted to stop the train,
or to signal the engineer to stop it.

Were these omissions criminal, within the meaning of the
statute defining negligent homicide? We think not, because,
to constitute criminal negligence or carelessness, there must be
a violation of some duty imposed by law directly or impliedly,
and with which duty the defendant is especially charged. Mr.
Wharton says: "Omissions are not the basis of penal action,
unless they constitute a defect in the discharge of a responsi-
bility with which the defendant is especially invested." (Whar-
ton on Hom., sec. 72.) Again, this author says, in treating of
omissions by those charged with machinery, etc.: "The re-
sponsibility of the defendant which he thus fails to discharge
must be exclusive and peremptory. A stranger who sees that
imless a railway switch is turned, or the car stopped, an acci-
dent may ensue, is not indictable for not turning the switch or
stopping the car. The reason for this is obvious. To coerce,
by criminal prosecutions, every person to supervise all other
persons and things, would destroy that division of labor and
responsibility by which alone business can be safely conducted,
and would establish an industrial communism, by which private
enterprise €ind private caution would be extinguished. Nothing
can be eflfectually guarded when everything is to be guarded
by everybody. No machinery could be properly worked if
every passer by were compelled by the terror of a criminal
prosecution to rush in and adjust anything that might appear
to him to be wrong, or which was wrong, no matter how it
might happen to appear. By this wild and irresponsible inter-
ference even the simplest forms of machinery would be speedily
destroyed." (Ibid, sec. 80.) And upon the subject of omission
to give warning of danger, the same author says: "The test
here is, is such notice part of an express duty with which the
defwidant is exclusively. charged? If so, he is responsible for
injury which is the regular and natural result of his omission;
but if not so bound, he is not so responsible." (Ibid, sec. SI.)

These rules of the common law are not inconsistent with our

Digitized by VjOOQIC

Term, 1889.] McGowan v. The State. 188

Statement of the case.

statute, but are in harmony therewith, as we construe it. As ^
we upderstarid both the common law and the statute, there can
bene criminal negligence or carelessness by omission to act,
unless it was the especial duty of the party to perform the act
omitted. Negligence or carelessness by omission presupposes
duty to perform the act omitted, and can not, in law, be im-
puted except upon the predicate of duty.

In this case the evidence is imcontradicted and clear that
appellants did not do any act or omit to do any legal duty, with
reference to the deceased child. In law they are no more re-
sponsible for the death of the child than any other person who
was present and witnessed the accident. They were strangers
to the transaction, in contemplation of the law, because they
were not charged with any duty with respect to it.

We are of the opinion that the judgment of conviction id
contrary to the law and the evidence, and therefore said judg-
ment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered February 2, 1889.

No. 2527.

John McGowan v. The Statb.

ItevT— Fact Oasb— See the statement of the case for the snbstance of
evidence field InBufQeient to support a conviction for theft of a hog,
because the true ownership is left in doubt, and the taking was in
good faith.

Appeal from the County Court of Walker. Tried below be-
fore the Hon. J. M. Smither, County Judge.

This conviction was for the theft of M. G. Dickie's hog, and
the penalty assessed against the appellant was a fine of ten
dollars and confinement in the county jail for twenty-four
hovrs.

M. G. Dickie was the first witness for the State. He testified,
in substance, that, early in the year 1887, he moved from Doc-
tor Thomaflon's phstce, in Walker county, to another place some

Digitized by VjOOQIC

184 27 Texas Court of Appeals. [(Jalveston

statement of the case.

miles distant in the same county. He left a sow and pigs at
the said Thomason place. They ran on the range near the said
place. He made a practice of going back to the range about
once a week and feeding the said animals, by which means he
was able to keep them gentle. He missed three of the said
pigs from the range in October, 1887, which said pigs at that
time were about seven months old, and were worth about two
dollars each. About a month later the witness and El York
went to the house of the defendant in Walker county, and wit-
ness asked defendant if he had any hogs. Defendant replied
in the affirmative. Witness then told him that he had lost
some hogs, and wanted to look through his stock. Witness,
defendant and York then went to the defendant's field, where
the witness found his said three pigs, and took them home,
with the consent of the defendant. The animals were taken
from the possession of the witness without his consent.

Cross examined, the witness said that he last saw the pigs
(before he found them in defendant's field) about a week before
he missed them. Of the hogs left on the range near Thoma-
son's by the witness, only the old sow was marked. Witness
gave El York one of the pigs for telling him where he yrould
find the missing animals. The witness denied that, on the day
he recovered the pigs, he met- Albert Hightower in front of his,
Hightower's house, and pointed out to Hightower a certain
black sow which he said he would swear belonged to him, wit-
ness. He may have said that he believed the sow to be his.
Witness did not remember that, in defendant's field, before
finding the pigs, he said if they were his pig^ they would come
to his call, and that after he found them he called, but they re-
fused or failed to answer his call.

El York testified, for the State, that, one day in October, 1887,
he met the defendant in the bottom, about a mile from his, de-
fendant's, house, driving a wagon that contained a sow. He
told witness that his son Lee had found, in a certain haw
thicket, a certain sow of his, defendant's, and had tied it down
and that he was going after it. When the defendant, a short
time afterward, again passed the witness, he had three of AT.
G. Dickie's pigs in his wagon. Witness knew those pigs to be-
long to Dickie. Defendant and his son Lee, who was with him,
drove on toward home with the pigs. They were the same
animals that witness and Dickie afterward found in defend-
ant's field. On the day that Dickie and witness got the hogs.

Digitized by VjOOQIC

Tenn. 1889.] McGowan v. The Statb. 185

Statement of the case.

the defendant said that he would have marked all three of
them, but was afraid they would return to the range and some-
body would accuse him of stealing them; that his son did mark
one of them without his consent.

On his cross examination, the witness said that the feeling
existing between him and the defendant was not friendly.
Dickie gave witness one of the pigs for telling him where to
find them.

The State closed.

Albert Hightower testified, for the defense, that he and de-
fendant were neighbors. He knew a certain sow that was
given to defendant by his mother. That sow had pigs, and she
and the pigs disappeared when the pigs were about a month
old. The said pigs were about as old as the pigs that Dickie
claimed and took from defendant. The defendant claimed to
own the three pigs that Dickie claimed and took from him. On
the day that Dickie recovered the three pigs, he directed wit-
ness's attention to a certain black sow, and said that he, Dickie,
would swear that he, Dickie, owned that sow. The witness
knew as a matter of fact that that sow belonged to the defend-
ant.

Bob Handy testified, for the defense, in substance, that he
was present when the defendant and his son caught the three
pigs and put them in a wagon and took them home. When
caught by defendant and his son, those pigs were with a sow
which the witness knew to be an animal that was given to de-
fendant by his mother.

Lee McGowan testified, for the defense, that a certain sow
given to the defendant by his mother, had pigs in February,
1887, and about a month later the sow and pigs disappeared.
Witness passed them in the bottom in October, 1887, and he
and defendant went to the bottom, caught the pigs and took
them home in a wagon. The said pigs were with the defend-
ant's sow and, the witness was confident, were the property of
defendant. They were claimed and taken openly by him in
daytime. Dickie afterwards came to defendant's house and
claimed and took the said pigs.

Peter Oliphint testified, for the defense, that he -was riding
past the field of defendant one day in November, 1887, when
he saw and heard defendant and Dickie, in defendant's field,
engaged in an angry dispute about hogs. Dickie called to
witness to settle the matter— the matter in dispute being the

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186 27 Texas Court of Appeals. [Galveston

Syllabns.

claim of each to some hogs. Witness then asked defendant
hoY many and what kind of hogs were in dispute. Defendant
replied that he and Dickie each claimed three certain shoats.
Dickie was threatening to whip defendant unless he surren-
dered the animals. It was agreed to leave the dispute to wit-
ness, and witness said to defendant: "As Dickie is determined
to whip you or have the hogs, I believe if I were you I would
let hinoL have them rather than fight him, for it will cost you
more to pay for fighting than the shoats are worth." Defend-
ant then said: "As we agreed to leave it to you, and you say I
had better give up the hogs, I will do so, although I believe
they are mine." Dickie then took the hogs home.

Abercrombie & Randolph, for appellant.

W, L, Davidson, Assistant Attorney General, for the 5 late.

Hurt, Judge. This is a conviction for theft of hogs, with
imprisonment in jail twenty -four hours and a fine of ten dol-
lars as the punishment.

The hogs were alleged to be the property of M. G. Dickie.
The evidence leaves the issue, as to whether the hogs belonged
to Dickie or the defendant, quite evenly balanced. But, con-
cede that they were the property of Dickie, the proof fails to show
the fraudulent intent. On the contrary, the facts clearly pre-
sent a case in which the defendant, if not the owner of the hogs,
certainly believed himself to be, and took them so believing.

The verdict is not supported by the evidence, and for this
reason the judgment is reversed and the cause remanded.

Reversed and remanded. .

Opinion delivered February 2, 1889.

No. 2642.

J. H. Leonard v. The State.

AeORAVATBD ASSAULT AND Battbrt— FACT Ca8B.~A husband has the
right to defeud himself agaiost an assault committed upon him by his
•wife, and, unless he employs greater force than is necessary to repel
the violence of his wife, he can not be held guilty of an assault and
battery, dee the opinion for the substance of evidence fuld insuffi-
dent to support a conviction for aggravated assault and battery by a
husband on his wife.

Digitized by*VjOOQlC

Term, 1889.] Leonard v. The State. 187

Opinion of the court.

Appeal from the County Court of Houston. Tried below
before W. A. Davis, County Judge.

The conviction was for aggravated assault and battery, and
the penalty assessed against the appellant was a fine of twenty-
five dollars.

The opinion summarizes the evidence in the case.

W. A. Stewart, for the appellant.

W, L, Davidson, Assistant Attorney General, for the State.

HiTRT, Judge. Appellant was convicted of an aggravated
assault and battery upon his wife. Mary Riley, step-daughter
of defendant, states that she and defendant were in the field,
about one hundred yards from the defendant's house; that de-
fendant was whipping her with a switch; that, while being
whipped, her mother came running down to them, appearing
to be very angry. Defendant told her to leave and not inter-
fere with him, but she refused and defendant and Mrs. Leonard
got together; that she saw him strike her twice with the switch.

Mrs. Leonard states *'that she went down to the field wh^e
defendant was; that she was very angry; that she has quite a
high temper — ^hard for her to control. Defendant asked her to
go to the house and she refused; that she struck defendant; did
not know whether he struck her or not; that he did not hurt
her if he struck her."

Kow there may not be much gallantry or chivalry in repell-
ing with force assaults made by the wife, still, at law, a hus-
band has the right to defend himself even against attacks of
his wife; and unless greater force is used than is necessary to
repel the violence, he would not be guilty of an assault or bat-
tery. In this case the wife was the aggressor, it not being
shown that appellant was in the wrong in chastising the girl,
and the force used by him was very slight indeed.

We are of opinion that the facts fail to show an assault or
battery; that the force used was to repel the violence used upon
him by the wife, and was not greater tiian was necessary.

Reversed and remanded.

Opinion delivered February 2, 1S89.

Digitized by VjOOQIC

188 27 Texas Court of Appeat^s. [Gkdveston

Statement of the ease.

No. 2665.

SusANO Castillo v. The State.

HoRflB Thbft— Fact CASE.—See the statement of the case for eTidanoe
held iDsnfflcient to support a conviction for horse theft.

Appeal from the District Court of Webb. Tried below be-
fore the Hon. J. C. BusselL

The conYiction in this case was for the theft of a horse, the
property of Alejandro Guzman, and the penalty assessed
against the appellant was a term of five years in the peniten-
tiary.

Alejandro Guzman was the first witness for the State. He
testified that he lived at his ranch near the Aguelares depot, in
Encinal county, Texas. On December 20, 1887, he loaned a
mare to Mrs. Paula Orosco, for the purpose of sending Ramon
Alexander to Laredo after provisions. The mare was to have
been returned in three days. Neither Mrs. Orosco nor Ramon
Alexander ever returned the mare. The mare was reported to
have been stolen from a field near Laredo. In consequence of
a letter he received from Mrs. Orosco, the witness went to the
place of Mateo Salazar, in Webb county, and received the ani-
mal from the hands of Salazar. This wa« on the ninth day of
April, 1888. Between December 20, 1887, and April 9, 1888, the
witness twice saw the defendant, but on neither occasion did
defendant say anything to him about the mare.

On cross examination, this witness testified as folio vv^s:
"About January 4, 1888, I made an arrangement with Mrs.
Orosco about the mare. The arrangement was that if the mare
did not turn up, she was to pay me twelve dollars if she could,
and if she could not, then she was to pay me nothing. N"o time
was set when she was to pay. If she had paid the twelve dol-
lars by April 1, it would have been her mare, and I would have
had no right to claim it. I testified in a justice's court that if
she had the money, she was to pay in March. I began to look
for the mare on April 9. I did not look for her before that
time. I had not sold the mare to Mrs. Orosco. I had agreed

Digitized by VjOOQIC

Term, 1889.] Castillo v. The State. 189

Statement of the case.

to take twelva dollars if the mare did not turn up» but was

to claim it if it did turn up. If Mrs. Orosco had paid the

twelve dollars by April 9, I would not have daimed fhe
mare/'

Bamon Alexander testified, for the State, that he was the
•on of Mrs. Orosco and the nephew of defendant. Mrs. Orosco
•ent witness to Laredo, on Guzman's mare, to get provisions.
Od reaching Laredo, the witness, as he customarily did, went
to the defendant's house to stop. On his arrival at defendant's
house, defendant told a man to take the mare to a field. Three
days afterward defendant told witness that the mare had been
stolen. Witness did not then tell defendant whose mare it was,
but defendant must have often seen the animal at Guzman's
ranch and must have known it. Defendant designated no par-
ticular field when he sent the mare oflf. The witness had fre-
quently stopped at defendant's house, and on such occasions
his horse was generally sent to Marcella Garcia's field. The
witness did not consent for defendant to sell the mare.

Mrs. Paula Orosco testified, for the State, that she borrowed
the mare from Guzman, and sent her son, Bamon Alexander,,
to Laredo, to be gone three days. She never afterwards saw
the animal. In April, 1888, a boy told witness that he saw the
mare at defendant's house, in possession of a son of Mateo
Salazar, and she wrote Guzman to go and get the animaL
Witness never gave defendant authority to sell the mare.

Cross examined, the witness said that, on January 4, 1888,
she and Guzman met at defendant's house in Laredo, and she
then told Guzman that, as she was responsible for the loss of
the animal, she would pay him for it. Guzman said he would
settle the matter for twelve dollars. The witness could not say
that defendant knew about that arrangement, but his wife was
present when it wa« made. Under the said arrangement wit-
ness was to pay for the animal in instalments, but if it ' 'turned
up" then she was not to pay for. it. Defendant, who was the
witness's son-in-law, was authorized to sell any property be-
longing to the witness. He had no authority to sell the mare,
because witness had not paid for it. Defen dant never informed
witness that he had found and sold, or otherwise disposed of,
the animal.

Mateo Salazar testified, for the State, that he bought the Guz-
man mare from defendant, in Laredo, about the middle of
February. Defendant said that the animal belonged to his

Digitized by VjOOQIC

190 37 Texas Court of Appeals. [Galveston

Syllabus.

mother-in-law. Guzman afterwards claimed and took the
animal, J. Y. Sanchez being present at the time.

The State closed.

Deputy Sheriff J. T. Sanchez testified, for the defense, that
he arrested defendant on the charge of stealing the Guzman
mare. When arrested, defendant told witness that he thought
he had a right to sell the mare, because his mother-in-law had
paid or was to pay for the animal.

The wife of the defendant testified, in his behalf, that she
was present on January 4, 1888, and heard the arrangement
between Guzman and Mrs. Orosco about the mare. She in-
formed the defendant of that arrangement some time before
defendant sold the animal to Salazar.

Nicholson & Dodd, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This conviction is for theft of a horse. We
have very carefully examined the facts of this case, and are of
opinion that they do not support the conviction, and we are
not willing to sanction it, believing that to do so would be dan-
gerous to the liberty of the citizen. The judgment is reversed
and the cause remanded for a new trial

Reversed and remanded.

Opinion delivered February 2, 1889.

No. d628.
Olabb Ellis v. The Statb.

Jury Law— Vbrdict.— In misdemeanor ccuses a jury may be permitted*
by the court, to separate, as provided by article 688 of the Code of
Criminal Procedure, bat this rule does not authorize the court to re-
convene a jury after it has been finally discharged, in order to remedy
an informality in a verdict rendered by it, or to return another verdicts

Thbft— Fact CASB.-~See the statement of the case for evidence held
insofBlcient to support a conviction for hog theft.

Digitized by VjOOQIC

Term, 1889.] Elus v. Thb State. 191

Opinion of the court.

Appeal from the County Court of Houston. Tried below
before the Hon. W. A. Davis, County Judge.

The conviction was for the theft of a hog, the property of 8.
C. Bitner.

The opinion states the facts reljitive to the verdict.

Stated briefly, the State's proof shows that Bitner's certain
white hog, weighing between ninety and one hundred pounds,
disappeared on or about February 16, 1888. Bitner did not
know whether his said hog was dead or alive, or whether it had
estrayed or had been stolen. Two or three witnesses for the
State testified that defendant owned a white sow and two white
shoats, but if he owned such a white hog as the animal de-
scribed by Bitner, they did not know it.

The principal witness for the State testified that he heard a
shot fired in defendant's field on the morning of February 17,
1888. Going to that point he found the body of a hog that had
just been shot, presumably by the defendant, who about that
time left the said place and afterwards claimed the hog to be
his property. The ears had been freshly removed from the hog
when witness reached it. It was a white hog and would weigh
between ninety and a hundred pounds. The body of the hog
was gone when witness returned to the field on the next day,
and the "drag" pointed towards defendant's house.

The defendant's wife and daughter testified, in his behalf,
that the white hog killed by defendant in his field on February
17, 1888, belonged to him, defendant.

Cooper €& Moore, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WfflTE, Presiding Judge. Appellant was tried for the theft
of a hog of the value of six dollars. He was found guilty by
the jury and the verdict returned by them was, "we, the jury,
find the defendant guilty and assess his fine at five dollars."
The jury were then discharged by the court; they left the court
house and dispersed. In about five minutes afterwards it was
discovered that the verdict was fatally defective in that they
did not assess some imprisonment in the county jail as part of
the punishment, as is required by the statute in cases of theft
of hogs if the value be under twenty dollars. (Penal Code,

Digitized by VjOOQIC

193 27 Texas Court of Appeals. [Gktlveston

Opinion of the ooart

art. 748.) Discovering the error the court had the jury recalled
and reconvened in the court room, and, over objections of de-
fendant, verbally instructed them that they would have to find
imprisonment in the county jail as part of the punishment, and
directed them to retire again and consider of their verdict;
which they did, and afterwards returned a second verdict as
follows: ''We, the jury, find the defendant guilty and assess
his punishment at a fine of $2.60 and one day in the county jail;**
which verdict was received by the court and judgment rendered
in accordance therewith.

In misdemeanor cases, whilst it is true that a court may in
its discretion permit a jury before verdict to separate (Code
CHm. Proc, art. 688), we know of no authority which a court
has to discharge a jury finally after they have returned a ver-
dict, no matter how informal and illegal, and have been per-
mitted to separate, to recall and reconvene them again that
they may retire and find another and distinct verdict in the
case.

"If the jury find a verdict which is informal their attention
shall be called to it, and with their consent the verdict may,
under the direction of the court, be reduced to proper form,"
(Code Crim. Proc, art. 715.) But this, we apprehend, can not
be done after they have once been discharged and permitted to
leave the court room and become separated, and had oppor-
timity to intermingle and converse with outsiders about the
case.

But, aside from this error, we are of opinion the judgment in
this case should be reversed because the evidence is wholly in-
sufficient to support it. There is no evidence establishing the
allegation in the indictment that defendant stole a hog^ the
property of S. C. Bitner, if, indeed, it raises a presumption that
he stole the hog of any one.

The judgment is reversed and the cause remanded. ^m

Reversed and remanded.

Opinion delivered February 2, 1889.

Digitized by VjOOQIC

Term, 1889.] Briscoe v. The State. 193

Opinion of the court.

No. 2681. |»^

S7 193

» ^ r^ r. 31 292

Jeff Briscoe v. The State,

PB^cncB— Bill op Exception. — In this case the trial court charged upon
tQ issue depending upon the evidence. The defendant excepted to the
ehnrge because it was unwarranted by any evidence in the ease. In
his authentication of the bill of exceptions, the trial judge reciter that
there was no such evidence adduced on the trial, and that the evidence
referred to in the charge was evidence adduced on the trial of another
case. The statement of facts does contain evidence which would war
rant the charge, but, a« the bill of exceptions controls, the charge
must be held erroneous as unauthorized by any evidence on the trial.

Appeal from the District Court of Falls. Tried below before
fche Hon. Eugene Williams.

This conviction was for the theft of a horse, and the penalty
assessed against the appellant was a term of five years in the
penitentiary.

The question involved in this appeal does not necessitate a
statement of the evidence.

/• T. Martin and J. D. Oltorf for the appellant.

W. li, Davidson, Assistant Attorney General, for the State.

Wn^LSON, JuDGB. In the charge of the court the jury were
instructed as follows: "Evidence has been introduced of the
loss of other animals from the range about the time this mare
in question was missing therefrom. You will consider the loss
of other animals from the range only so far as this evidence
may tend to develop the transactions out of which this prose-
cution has grown, and may tend in your opinion to identify
the mare in question." This instruction was excepted to by
the defendant upon the ground that it was unwarranted by
any evidence adduced on the trial, and the bill of exception,
duly authenticated by the trial judge, recites that there was no
such evidence in the oase, but that the evidence referred to in
said charge was evidence which had been introduced in the
trial of another cause before said court.

Digitized by VjOOQIC

194 27 Texas Court of Appeals. [Galveston

Statf'iueot of the case.

In the statement of facts there appears evidence which would
warrant the charge excepted to, but, as the bill of exception
expressly states that no such evidence was adduced on the
trial, such statement must control, and we must hold that there
was no evidence to warrant the charge. (Willson's Cr. Stat.,
sec. 2369.) There being no evidence to warrant such charge it
was error to give it. (Willson's Cr. Stat., sec. 2337.) And the
error having been excepted to, the conviction must be set aside,
although the error may have been harmless. (Willson's Cr.
Stat., sec. 2363.) The judgment is reversed and the cause is
remanded.

Reversed and remandecL

Opinion delivered February 9, 1889.

27 1941

2? ^

30 275

30 473

sTiM No. 2542.

4o«

Charles Medis and Ed Hill v. The State.

1. Joint Offenders— Casks Approved— A Verdict against Joint of-
feijders on a joint trial, to be valid, mnst assess a separate peoaltv
agaiDst each oflfender. Flynn v. The State, 8 Texas Ct. App., 889, and
Matlock et al. v. The State, 25 Id., 716, and Cauningham y. The State,
26 Id., 83, approved.

8. Sodomy- Accomplice Testimony — Charob of thb Court.— The
rule that, in rape cases, requires that if the other proof in the case
tends to raise the issue of the female's consent to the carnal act ahe
becomes so far an accomplice that, in order to warrant a conviction
based upon her testimony, she must be corroborated, applies to sod-
omy cases; and if the evideuod tends to show the cotiseot of the pros-
ecuting witness to the act of beastiality committed upon him, he iiiQst
be corroborated. The proof in this case tends strougjy to show the
consent of the alleged injured party, who, upon the main issue, was
the State's principal witness; and in failioK to instruct the jury with
regard to the corroboratioo of an accomplice, the trial court erred.

Appeal from the Criminal District Court of Galveston. Tried
below before the Hon. Gustavo Cook.

The conviction was for sodomy, alleged to have been com-
mitted upon one Milton Werner. The verdict reads as follows:
"We, the jury, find Chas. Medis and Ed Hill guilty as charged

Digitized by VjOOQIC

Term, 1889.] Mbdis bt al. v. Thb State. 195

Opinion of tlie ooort.

of sodomy, and assess the punishment at ten years confine-
ment in the penitentiary."

The details of the transaction involved in this prosecution
are too foul and disgusting to be recorded even in a report of
judicial proceedings. It is enough for the purpose of this re-
port to observe that the prosecuting witness Werner was the
only witness who testified to the fact of the penetration of his
person by each of the appellants, or who inculpated Hill in the
actual performance of the revolting act. Two other witnesses,
however, testified that they discovered the appellant Medis
and the State's witness Werner in fiagrante delicto, with the
appellant Hill lying within six feet of them, reading a news-
paper. After watching the parties a few minutes they entered
the room, and the parties separated. Medis first denied and
then admitted the beastial act. About the time they discov-
ered the parties, they heard the prosecuting witness say that
he was to be served next. They stated further that when they
charged the parties with the act of sodomy, the prosecuting
witness answered that he "did not care a d— n."

McLemore & Campbell and 8. T. Fontaine^ for the appel-
lants.

W. L, Davidson, Assistant Attorney General, for the State.

HiTRT, Judge The appellants were jointly indicted, tried
and convicted of sodomy, the verdict of the jury being: '*We,
the jury, find Charles Medis and Ed Hill guilty as charged, of
sodomy, and assess the punishment at ten years confinement
in the penitentiary."

Appellants contend by their counsel that this is not a p:ood
or legal verdict. This proposition is now well settled in favor
of appellants. (Flynn et al. v. The State, 8 Texas Ct. App., 398;
Matlock et al. v. The State, 25 Texas Ct. App., 716; Cunning-
ham v. The State, 26 Texas Ct. App., 83; 4 Ark., 430; 16 Ark.,
37.)

Appellants were charged with committing the act upon one
Milton Werner. Upon the trial Werner was introduced as a
witness for the State, and his testimony was relied on for a
conviction. The court failed to give instructions to the jury
relating to the necessity of corroborating said witness — counsel
for appellants contending that Werner was consenting, and

Digitized by VjOOQIC

196 27 Texas Court of Appeals. [Galveston

Statement of the case.

was therefore an accomplice. Upon this subject, says Bishop:
"When this oflfense is committed on a non consenting person
who becomes a witness, it appears that his early complaint
may be shown in corroboration, the same as those of the in-
jured woman in rape. If such person had consented, he would
be an accomplice whose testimony would for this reason need
corroboration.'* (2 Crim. Law, 1018.)

Werner was evidently consenting; but if the evidence should
leave this in doubt, it would then become a question for the
jury, and not the court, to determine under the proper instruc-
tions, whether the person was or was not consenting, and the
jury should in such a case be instructed that if they found that
he was consenting, then they must find that he was corrobo-
rated.

Reversed and remanded.

Opinion delivered February 9, 1889.

No. 2538.

37 44? Charles Smith v. The State.

Theft— Accomplice Testimony— Pact Cask.- A conviction based upon
the uncorroborated testimony of an accomplice can not stand. See
the statement of the case for thf^ substance of evidence held In^uffl-
cient to support a conviction for hog theft.

Appeal from the County Court of Leon. Tried below before
the Hon. H. B. Pruitt, County Judge.

The conviction was for the tneft ©f Utsey's hog, and the pen-
alty assessed was a fine of one dollar and imprisonment in the
county jail for one day.

The substance of the testimony of the prosecuting witness
Clements was that he and his family occupied a tent on the
place of the defendant, about one hundred yards from defend-
ant's house. On the morning of November 27, 1887, defendant
sent for the witness to kill a hog for him. Witness went to
defendant's house and defendant pointed out to him a certain
black and white sow, wearing a bell. Witness shot and killed

Digitized by VjOOQIC

Term, 1889.] Smith v. The State. 197

Opinion of the coarc.

the sow at defendant's crib. Smith almost immediately fled
into the house. The witness then discovered three men riding
along the road, and, as it was raining, he went into the house
to prevent his gun from getting wet. He and defendant after-
wards went to the crib, and the defendant covered up the body
of the hog with some potato vines. Witness then asked de-
fendant whose hog he had killed, and defendant replied that it
belonged to old man TJtsey. Witness on the same day helped
defendant butcher the carcass and bury the entrails in two
holes dug behind the crib. He afterwards purchased one-half
of the meat from defendant. The defendant secreted the bell
in the shuck bin. It was afterwards turned over to constable
Linson. About two or three days after the killing of the hog
the witness went to old man Utsey and told him that he had
killed the sow by direction of the defendant. This witness de-
clared that he did not know who owned the animal until told
by defendant soon after the killing.

Utsey testified, for the State, that about a week after the al-
leged killing of the sow, William Clements came to his house
and told him that, by direction of defendant, he had killed a
sow which corresponded with the witness's animal. Witness
then summoned Constable Linson, and Clements guided them
to a place where som6 hog entrails were buried, and from
among some shucks in the crib loft produced the bell which he
said was on the sows neck when killed, and which was on the
witness's sow when the witness last saw her, a day or two be-
fore the alleged killing. Since that time the witness had not
seen the sow. He knew nothing whatever about the killing of
the animal except what he was told by Clements.

W. M. Johnston and J. J. DotsoUy for the appellant.

W. L, Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This conviction is for theft of a hog, with
penalty fixed at a fine of one dollar and one day's imprison-
ment.

On the trial the State introduced one William Clements as a
witness, by whom a very clear case of theft was shown against
the appellant, but this witness is not corroborated in such man-
ner as is required by law. The facts sworn to by the other
witnesses do not tend to connect appellant with the theft of

Digitized by VjOOQIC

-w

198

185

189

|29

«w,

198!

i:^;

276

422

531

414,

198

23U

215

607

228

604

198 27 Texas Court of Appeals. [Galveston

SyllaboB.

the hog. They tend to show that some one had stolen Utsey's
hog, but point to no particular person as being the thief. Clem-
ent's evidence, who was evidently an accomplice, if not the
only thief in this transaction, alone directs the criminative
facts towards appellant. It is Clements who gives direction to
the criminative facts, which show a theft by some person, by
connecting appellant with these; whereas, without his testi-
mony they would point to no person with certainty, and to
Clements as unerringly as to any other person, if not with
greater certainty.

The accomplice, Clements, not being corroborated, the ver-
dict is not supported by the testimony, and therefore the judg-
ment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered February 9, 1889.

No. 2662.
Mack Crook v. Thb State.

1. AccoMPLicB TO Murder— Indictment.— See theopiDioQ in extenso for
the chargioK part of an indiotment Tield to oomprehead bat a siDfarle
count, and to be sufiBlcieDt to charge the accused as an aooomplice to
murder.

3. Same— EviDBNCB— Principal Offenders— CHARes of thb Court.
In order to authorize the conviction of an accused, as an accomplice, it
devolves upon the State to establish the guilt of the principal of the
offense charged against him; and, to establish that specific is^ue (bat
not that the accused is an accomplice), any evidence is admissible that
would be competent against the principal if on trial. Under this rule the
trial court did not err in admitting proof of the confession of the prin-
cipal; and, in limiting the purpose of such proof to the issue of the
principars guilt, the charge of the court was correct.

8. Same— Practice— Evidence— Declarations. — The Staters witness
Holman testified on the trial of the accused as an accomplice to mur-
der, to the acts, declarations and statements of one Harris, and to a
conversation between him, the witness, the said Harris, and the al-
leged principal, to all of which the accused objected upon the ground
that he was not present at any of the times testified about, and that it
had not been shown that a conspiracy to commit murder existed be-
tween him and the said parties. Held that this proof in this case was
dearly hearsay, and was inadmissible except upon the predicate of the

Digitized by VjOOQIC

Terra, 1889.] Crook v. The State. 199

Syllabat.

ezlstenoe of mioh a oonspiraoy. Whether the proof suffioieotly estab-
lished the predicate was, primarily, a qaeetion to be determined by the
eonrt; bat, the eyidence clearly presentiDg the saffioiency of the predi-
cate as an issue in the case, the trial court erred in failing to submit
that issue to the jury, with instructioas to disregard the evidence ad-
mitted unless the predicate was established by other proof. In the
same connection the court should have instructed the jury that a con-
spiracy can not be established by the acts or declarations of a co-con-
spirator, made after the consummation of the offense and in the ab-
sence of the defendant. See the opinion for a special charge on the
subject, which, being correct and demanded by the proof, was errone-
ously refused.

4 Same— PRiCTiCB.— Expressions of the trial judge, in the presence of
the Jury, with reference to the cogency of the evidence, if prejudicial
to the defendant, and exception is promptly reserved, constitute cause
for reversal. Pending the discussion in the presence of the Jury, of
the admi^ibility in evidence of the declarations of an alleged co-con-
spirator, the trial judge interjected questions to counsel which clearly
intimated that, in his opinion, a conspiracy had been sufficiently es-
tablished to admit the evidence; to which action of the judge the de-
fendant promptly excepted. Held^ material error. The jury should
have been retired pending the discussion and the ruling on the ques-
tion.

& Same. — A prosecuting witness having testified to certain inculpatory
facts, the defense sought to imi>each him by proving that he had
made statements contradictory of his testimony on the trial. There-
upon, over objection by the defense, the State was permitted to intro-
duce evidence in support of the good general reputation of the witness
for truth and veracity. Held, that the action of the court was correct,
espeoiaJly in view of the showing that the impugned witness was a
stranger in the county of the trial.

t. Same— Evidence— Prbdio ATE. —As a predicate for the introduction in
evidence of the written testimony of one T., as delivered at the exam-
ining trial, it was proved that the said T. resided in the Indian Terri-
tory at the time of the examining trial and at the time of (his triaL
Held that the predicate was sufficiently established.

7. Same. — The defense offered to prove by the witness N. the statement
made to him by an one D. to the effect that the gun with which it was
daimed by the State the killing was done was found by D..at a certain
place, which proof, upon objection by the State, was excluded as hear-
say. Held that the ruling was correct.

8L Murder— AssAUi/r and Battery— CHABeE of the Court.— The act
of MUing, in this ease, necessarily included an assault and battery,
and the charge of the court defining murder sufficiently embraced as-
satdt and battery, but the trial court, in addition, gave in charge an
independent definition of assault and battery. Held material error
because excepted to. Moreover it was matter calculated only to en-
eomber the charge and confuse the jury.

Ii Same— ^^Malice^'— ^^Malice AFORSTHOuaHT*' — '^Express Malice. **

Digitized by VjOOQIC

200 27 Texas Court op Appeals. [Galveston

Statement of the case.

— A cbarf^e of the court in a trial for mnrder which omits to define the
terms '"malice'* and **malice aforethoaght'*— essential elements of mnr-
der^is fundamentally erroneous, and such error is not cured by a de-
finition of "^express malice.**

10. Same— ^'Express Malice.**— The charge of the court defined express
malice to be *'where one with a calni, sedate and deliberate mind and
formed design kills another,** etc. Held, erroneous, because it omits
to qualify the act as an unlawful killing.

11. Same— Alibi.— Upon the defense of alibi as applied to the alleged
principal, the charge of the court required the jury to believe that the
alleged principal was not present a't the time and place of the killing.
Held error, because the eflfeet of such charge was to eliminate from the
defense of alibi the doctrine of reasonable doubt.

12. Same— Accomplice to Murder— Verdict.— While not essential, it
was proper that the charge of the court should instruct the jury as to
the forms of the verdict they could return in this case. The form of
the verdict, in the event of conviction, as prescribed by. the charge in
this case was as follows: "We, the jury, find the defendant Mack Crook
guilty as an accomplice to murder of the first degree in the killing and
murdering of James H. Black, as charged in the indictment,*' etc.
Held, correct.

18. Same.— Accomplice to Crime is a ch'stinct offense, especially defined
by our code, and punished in the same manner as the principal of-
fender. I<Iote that Hurt, Judce, dissents from this ruling, and main-
tains that being an accomplice to a crime is not a specific offense, and
that the accomplice U guilty of the offense committed by the principal.

Appeal from the District Court of Grayson, on change of
venue from Laniar. Tried below before A. C. Turner, Esq.,
Special Judge.

Tiie indictment in this case charges the murder of James H.
Black by John Middleton, in Lamar county, Texas, on the six-
teenth day of November, 1884, and that the appellant and one
Newt Harris were accomplices to the said murder of Black by
the s:ii(l Middleton; the particular acts charged against them
being that they did, on the twelfth day of November, 1884,
advise and encourage the said Middleton to kill and murder
the said Black, and that they did prepare and furnish to the
said Middleton a certain gun with which to kill and murder the
said B'ack, and that they were not present at the time of the
killing of the said Black. The venue of the cause was chang^ed
by the court of its own motion to Grayson county, Texas, in the
district court of which county, on the nineteenth day of No-
vember, 1888, the appellant was placed upon his separate trial.
His trial resulted in conviction as an accomplice to murder of

Digitized by VjOOQIC

Term, 1889.] Crook v. Thr State. 201

Statement of the case.

tiie first decree, and his punishment was assessed at a lile term
in the penitentiary.

Sam Strawther was the first witness for the State. He testi-
fied that he lived in Paris, Lamar county, Texas, in 1884. The
defendant was sheriff of Lamar county in 1883 and 1884, and
was a candidate at the Democratic primary election in August,
1884. for renomination, but was defeated by James H. Black,
the deceased, his only contestant for the said nomination. He
then announced himself as a candidate before the people for re-
election to the office of sheriflf, and at the ensuing November
election was defeated at the ballot box by the deceased, the
nominee of the Democratic primaries. Newt Harris, J. M.
Tates and Lewis Holman were deputy sheriffs under the defend-
ant during his term of oflSce. Harris was also jailor and had
the custody of the jail keys, and with his family resided in the
residence part of the jail building. The said Harris is now
dead.

Doctor Haden testified, for the State, that he lived in Paris,
Teias, and was county physician of Lamar county during the
year 1884. As such physician he attended John Middleton,
who was then confined in the Lamar county jail on a charge
of horse theft. Middleton was suffering from an acute attack
01 diarrhoea, and some time prior to September 23, 1884, the
witness, apprehending danger to his life by continued confine-
ment in the cells, advised his removal to the residence portion
of the jail, and procured an order for such removal from County
Judge Moore. Newt Harris was then the deputy sheriff in
chart^e of the jail, and he and his wife, who resided in the jail,
waited on the said Middleton after his removal from the cell to
an upstairs room. The witness last saw Middleton when he
went to the jail to attend him on September 23, 1884. When
he went to see him on the next day he learned that he, Mid-
dleton, had effected his escape on the preceding night. Prior
to the removal of Middleton from the cell to the upstairs room,
Jailor Harris expressed to witness his opinion that Middleton
would die if kept in the cell, in which opinion the witness con-
curred. Harris then said that he thought Middleton ought to
be removed to and guarded in the upstairs rooms, and the wit-
ness agreed with him.

Cross examined, the witness said that he procured the order
for the removal of Middleton from the cell to the upstairs
room under the belief that longer confinement in the cell was

Digitized by VjOOQIC

27 Texas Court op Appbals. [Galveston

Statement of the case.

perilous to his life. He had no idea that Middleton would or
could attempt to escape, when he advised his removal. On the
contrary, when, on the morning of September 23, 1884:, Deputy-
Sheriff Yates told witness that the defendant was fearful that
Middleton would escape, and wanted him returned to the cell,
the witness replied that he did not think it physically possible
for Middleton to get away, but that, if defendant feared the
escape of Middleton, he had better return him to his cell, though
his recovery would be greatly retarded by so doing. Defend-
ant went to Sherman on that day in pursuit of a man accused
of an offense.

Mrs. Elta Black, the widow of the deceased, testified for the
state, that her husband was killed about seven o'clock on the
night of November 16, 1884. He was killed by a gunshot, at
his house in Blossom Prairie, Lamar county, Texas—the said
Blossom Prairie being a small town on the railway about ten
miles east of Paris. The house occupied by the deceased, wit-
ness and their children was situated on the north side of the
railroad and near the depot. It was a double box: house of two
rooms, with a stack chimney between the rooms. It fronted
south, and had a south door in each room. The west room was
the one occupied as the family room. The children's bed was
across the door at the south side of the house. A lamp was
burning in the said west room at the time of the assassination.
At about seven o'clock on the night of November 16, 1884, the
said night being dark according lo the recollection of the wit-
ness, some person called ** hello!" at the gate. Deceased
passed through the partition door to the south door of the east
room, and some person asked : "Is Mr. Black in?" Deceased
replied: "Yes." A shot was immediately fired, and deceased
returned to the west room, sank to the floor, near the bedstead,
and expired immediately, without having uttered a syllable.
The witness did not see the shot fired, nor did she know who
fired it.

H. L. Byrn testified, for the State, that he lived at Blossom
Prairie in 1884, in a house quite near the house of the deceased.
The contest for sheriff of Lamar county, at the election of 1884,
between the defendant and the deceased was a very exciting
and bitter one. It produced a hostile feeling between the two
candidates which culminated in a personal encounter between
them in Faught's drug store, in Blossom Prairie. The witness
was not positive as to the date of the encounter, but thought it

Digitized by VjOOQIC

Term, 1889.] Grook v. Thb State. 203

Statoneiit of the mm.

occurred after the struggle at the primary election for the nom-
ination, and he knew that it occurred before the general elec-
tion. He did not witness the encounter, which only amounted
to a fist fight, being engaged in his store at the time, but
he understood that it grew out of a statement during the can-
vass imputed to the deceased. The witness was at his home
on the fatal night, and heard the fatal shot fired. He went at
once to the house of deceased, who was dead when he arrived.
He had been shot in the breast, and several shot had entered
the door facing on the east side of the east room. Other par-
ties soon reached the house of deceased, when the witness, ac-
companied by Mr. Cooper, procured a lantern and proceeded to
look for tracks. He found the tracks of a horse near the front
gate, immediately in front of the house. The said tracks
showed that the horse sprang forward at that point, whence it
continued in a run. The said tracks showed that horse to have
been a medium sized animal. At another point, about fifteen
steps from the gate, the witness found the tracks of another
horse. The tracks of the two horses came together at a point
about thirty five yards distant from the gate, and traveled in
company as far as the witness was able to trail them. From
the gate they went east around the deceased's fence, thence
north one block, and thence west. They went, as far as
trailed, two and a half miles to a branch, towards Paris, over
what was known as the "timbered" road. Witness traced the
tracks a second time with W. D. Nelson and others. He then
found that the tracks went out Main street a short distance,
then left the street, went around through an alley and came
back into the Paris and Blossom Prairie road, which they fol-
lowed to the fork. The left hand at the fork led to Paris by
the prairie route, and the right hand to Paris by the timbered
road. The tracks took the right hand at that fork. The said
road forked again about a mile from the Blossom Prairie depots
the left hand leading to Paris, and the right hand to Sbockey
prairie, in the direction of Slate shoals, on Red river. The
horse tracks took the right hand at the last mentioned fork,
where it seemed they left the road, and witness trailed no fur-
ther. Others of the party followed the said road a short dis-
tance further, but lost the tracks. The country where the wit-
ness lost the trail was covered with black jack and post oak
brush. The witness was not acquainted with, and, so far as he
knew, had never seen either John or Jap Middleton.

Digitized by VjOOQIC

204 27 Texas Court, of Appeals. [Galveston

statement of the case.

■*

Cross examined, the witness said that he was not present at
the fisticuff between defendant and deceased referred to on
direct examination, and was not able to state positively whether
the public speaking at which it occurred was before or after
the primary election. The horse tracks mentioned by witness
showed by measurement to be the tracks of two different
horses. One of. the said horses had a shoe on one of its hind
feet. They came together at a point about thirty hve yards
distant from the house of the deceased, and traveled together
as far as the witness trailed them. The tracks of the horses
showed that they came into Blossom Prairie by the same road
over which they left it. The larger of the tracks were those
nearest deceased's gate.

Tom Nichols testified for the State, that he knew the defend-
ant and Newt Harris and John Middleton. He saw John Mid-
dleton while he was confined in the Lamar county jail, and
once after his escape from the said jail. The time last referred
to was between eight and ten o'clock at night, during the pro-
gress of one of the Democratic demonstrations which followed
the presidential election of November, 1884. On that occasion
he passed Middleton at the corner of Lynch's stable, on the
block south of the court house in Paris. He did not speak to
Middleton, but went on to the White Elephant saloon, at which
place Newt Harris was then employed as bar keeper. Newt
Harris and Sam Smith, who was in the saloon that night, had
some talk about the deceased. The witness did not know the
nature of the defendant's feelings for the deceased. The wit-
ness supported the defendant for re-election both at the primary
and at the polls. Sam Smith, who was a deputy sheriff, also
supported the defendant. On his cross examination this wit-
ness stated that he and Middleton bowed or nodded to each
other as they met and passed on, but did not speak. To Harry
Boyd, who was with witness, the witness remarked: "There
goes a jail bird," but he said nothing more. Middleton went
on towards the court house, in which the Democratic glorifi-
cation was being held. The witness never told any person
about meeting Middleton on that night, although he knew that
Middleton was an escaped prisoner. He said nothing about it
in his testimony on the habeas corpus trial of Harris, because
he was not asked about it. On the said night Middleton was
wearing gray colored pants, a dark coat and a dark colored

Digitized by VjOOQIC

Term, 1889.] Crook v. The State. . 205

Statemeot of the case.

slouch hat. At that time Harris was living in the residence
part of the jail.

Mrs. Laura Williams testified, for the State, that, in the fall
of 1884, she lived on Emberson prairie, nine miles northwest
from Paris. John Middleton, whom the witness knew well,
came to her house between nine and ten o'clock on the thir-
teenth day of November, 1884, got his breakfast, had his horse
fed and then left, traveling north a short distance, and then
east over a road that forked at a point beyond where the wit-
ness last saw him, one of which said forks led to Paris, and
the other to the river. He was then wearing a gray suit of
clothes and a brown slouch hat, and had a black overcoat tied
behind his saddle. He was about twenty -eight years old, and
wore a mustache about an inch and a half long. He was riding
a light sorrel horse with a star or spot in the forehead. The
horse was then in medium condition, and was apparently a
good animal. His saddle was of yellow leather. Middleton
had dark hair. His mustache was of a lighter color than his
hair.

Mrs. C. E. Pickard testified, for the State, that in November,
1884, she lived on the Paris and Clarksville road, about three
miles east of Paris. She was at home on the night that de-
ceased was killed. She started to the house of Mrs. Mary Hunt,
two miles north of her place, between nine and ten o'clock on
the morning after the killing, taking her daughter with her,
and traveling a neighborhood road. En route the witness's
daughter called her attention to a horse, under saddle, standing
a short distance ofif the road. Thinking that perhaps the ani-
mal had escaped from some of her neighbors, she walked
towards it to examine it. As she approached she observed
that the animal was tied to a bush, and about the same time
she observed a man stooping down at the root of a tree, from
which a faint smoke was ascending. He was looking bdck at
her over his shoulder, his back being towards her. The horse
was a bright sorrel animal with a star or blaze in the face. A
dark colored overcoat was spread over the saddle, to which was
attached what the witness took to be a gun scabbard and a
provision bag. The man wore gray colored clothes and a brown
slouch hat, somewhat worn. Witness only saw his side face,
and was unable to say whether he had a mustache or not. He
appeared to be between twenty-five and thirty years of age.
Witness remarked to her daughter: "There is a man; I guess

Digitized by VjOOQIC

27 TsxAS Court of Appuals, [Galveston

Statement of the ease.

it is his horse." The man said; *'I can't imagine what you aw
up to." Witness replied that she thought the horse belonged
to a neighbor and had escaped, adding: ''I suppose it makes
no diflferenee." He replied: "It's all right with me if it is with
you."

Cross examined, the witness said that she described the man
and horse to some gentlemen on the next day, but could not say
that Mr. Roland was or was not one of those gentlemen. Some-
thing may have been said about the horse belonging to Charley
Moore, but witness had no recollection of it. W. D. Nelson,
John A. Gose, Mr. Tiernan and Jake Duncan came to witness's
house after the arrest of defendant and Harris, and witness
pointed out to them the place where she saw the man and
horse.

Tom Buckner testified, for the State, that he lived in Paris,
and was bar tender in Schilling's saloon in November, 1884.
The said saloon belonged to the Schilling brothers and the de-
fendant. The latter, however, had nothing to do with the man-
agement of the said saloon. Some time in November, 1884,
Jim Simpson, alias "Kicking Jim," who subsequently died in
jail, brought Captain Parish's double barreled shot gun to the
saloon and left it, remarking that it had been taken from Par-
ish, who was drinking. The gun remained in the saloon sev-
eral days, standing at times at one end of the counter and at
times at the other end. The saloon had the front doors on the
west end. The center (counter?) was on the north side of the
house, and there was a screen between the outside doors and
"the house where the bar was," and there was a screen door
between the north wall and the west end of the counter. The
witness did not know when nor by whom the gun was taken
away. Captain Parish came into the saloon one day, while
sober, and recognized the gun, and requested witness to take
care of it for him.

L. B. Enlow testifieu, tor the State, that he lived in Delta
county, Texas. He was in Paris purchasing goods on the elev-
enth day of November, 1884. He and C. D. Rogers went to
Schilling's saloon between ten and eleven o'clock on that night
and got into a conversation with Henry Schilling while stand-
ing at the stove, which was some distance from the front of the
house. While thus engaged the witness saw a man reach his
hand through the screen door and attempt to seize a gun. He
failed in that effort and appeared to be watching the witness.

Digitized by VjOOQIC

Tenn, 1889.] Cbooc v. Tkk Statb. 207

Statement of the case.

Witness then turned his head as though not observing the man,
when he thrust his hand through the door a second time and
got the gun. The witness then called the attention of Henry
Schilling and Rogers to the fact that the man had taken the
gun. Fifteen or twenty minutes later the man who got the
gun came into the saloon where witness was, and the witness
learned that his name was Mack Crook. That man was the
defendant. When removed, the gun was at the west end of
the counter, next to the screen leaning against the shelving.

This witness, on his cross examination, stated that he was at
the depot in Paris on the day in 1886 when the witnesses in
this case went to Sherman. He was drinking on that-day, but
had no recollection of drinking with the defendant. He had
no recollection of saying on that day, in the presence of Andy
Gray, J. B. Belcher and Sam Smith, that Mack Crook was not
the man he saw take the gun from Schilling's saloon. If he
made any such statement it was not true. The witness re-
membered nothing that occurred at the depot, except that he
had a "little row" and a "tussle" with a policeman, who took a
pistol away from him.

C. D. Rogers testified, for the State, that he was in Schil-
ling's saloon with the witness Enlow on the night referred to
by Enlow. Enlow called witness's attention to a man who, he
said, was trying to take a gun through the screen door from
behind the saloon counter. Witness saw no effort by anybody
to remove a gun, but saw, through the slats of the screen, the
outlines of a man in the front part of the house. Some minutes
afterwards that man came into the saloon, and Enlow remarked:
"That is the man who got the crun." The witness did not know
that man, and could not identify the defendant as that man.

Lewis Crook testified, for the State, that his brother, the de-
fendant, was in Hot Springs, Arkansas, at the time the deceased
was killed. Witness telegraphed him that the deceased had
been killed by unknown parties, and he returned to Paris by
the next train.

Sam Strawther, recalled by the State, testified that Lewis
Holman went home with him to tea on the fatal night. Early
in the night Newt Harris came to witness's house after Hol-
man. He said that he had just received a telephone message from
Blossom Prairie to the effect that the deceased was killed; and he
and Holman left witness's house together. A day or two be-
fore the arrest of the defendant and Harris, the defendant

Digitized by VjOOQIC

208 27 Texas Court of Appeals. [Galveston

Statement of the case.

came to witness and asked witness if his son-in-law Jim Gk)od-
join or Lewis Holman were in town. Witness replied that
Goodjoin was in town unless he had left within a very short
time. He then said: ''If you see Goodjoin, tell him to tell
Lewis Holman to come to town, as I want to see him." Good-
join at that time^was merchandising on Emberson prairie, and
Holman was in his employ.

James Goodjoin testified, for the State, that Lewis Holman
was a deputy sheriflf under the defendant. He went out of of-
fice with his chief, and entered the service of the witness, who
was a merchant .on the Emberson prairie. A few days before
the arrest of the defendant the witness met the defendant in
Paris, when defendant asked the witness if Holman was at his
store. Witness replied that he was, and defendant requested
witness to tell Holman to come to Paris to see him, and to
come prepared for an absence of at le^Bt ten days. He left the
impression on the mind of the witness that he wanted Holman
to help him get up some cattle. Witness delivered the mes-
sage, and Holman went to Paris, and was not again seen by
the witness until after his arrest.

Frank Morris testified, for the State, that some time between
the primary and general election in 1884, he heard the defend-
ant, speaking of deceased, say: "I will bet five hundred dol-
lars that the d — d son of a bitch will never be sheriflE of Lamar
county."

J. M. Yates was the next witness for the State. He testified
that he was a deputy sheriff under the defendant in 1884. He
was office deputy in November, and from September until the
close of defendant's term, was jailer. John Middleton escaped
from custody on the night of September 23, 1884. The de-
fendant was at that time in Sherman, and Jim Crook and Newt
Harris were on the river with a prisoner in custody. Defend-
ant was' not in Paris when Middleton was removed from the
cell to the upper room in the jail. As he was leaving for Sher-
man on the morning of September 23, the witness spoke to him
about the removal of Middleton from the cell. He appeared
to be angry about it, and directed witness to ask Doctor Haden
if Middleton could not be returned to the cell. He said he "did
not want any d— d horse thief to get away from him." The
witness saw Doctor Haden about the matter. The doctor ob-
jected, and said that, though the man had better be returned to
the cell if there was danger of his escape, he did not believe

Digitized by VjOOQIC

Term, 1889.] Crook v. The State. 209

statement of the case.

that he could survive re-incarceration in the cell. When Harris
left Paris on that morning he delivered the jail keys to the wit-
ness, and it was on the night of that day that Middle ton es-
caped. Witness wanted to remain at the jail that night, but
Mrs. Harris objected, and he went off. On the return of Harris
to Paris, the witness sent him to Red river in pursuit of Middle-
ton, but he failed to find him. The defendant soon returned from
Sherman, and went immediately to Bonham, where, he said,
he heard of a man whom he thought might be Middleton. Re-
turning from Bonham unsuccessful, he went to Red river, in
the neighborhood in which Middleton's relatives lived.

Continuing his testimony, this witness said that he remained
in the sheriff's oflBce imtil Sheriff Gunn qualified, after the
death of deceased. Deceased came to Paris to qualify on Sat-
nrday— the day before he was killed — but a formal defect being
found in his bond, he postponed assuming charge. He, how-
ever, went through the office and inspected the jail, told wit-
ness that he would take charge on Monday, and requested him
to retain a deputyship until he familiarized himself with his
duties. Defendant went to Hot Springs, Arkansas, on the
Tuesday or Wednesday preceding the fatal Sunday night. He
•^ent to the Indian Territory a few days before that, in pursuit
of a criminal. Witness knew nothing of his visiting the house
of Threlkeld in the Nation on that trip. Lewis Holman was
the first person to inform the witness about the killing of
deceased. A short time after the killing of Black a letter
addressed to the sheriff of Lamar county was received — de-
fendant at that time being absent. The envelope enclosed two
letters, one addressed to the defendant and one to Harris.
Witness delivered the two letters to Harris, and on the return
of defendant told him that Harris had the letters, but had no
other talk with him about the letters. The said letters were
sigped either "Cross" or "Collins," and came from Briarton,
Indian Territory. On or about February 10, 1885, the witness
received a letter addressed to him, post marked and addressed
from Wamego, Kansas, and. signed "John Howard." After
reading the said letter, and finding it to refer to the kilHng of
Black, the witness became afraid that it would involve him in
troubla Acting upon that fear, he took the letter to Schilling's
saloon, where he found the defendant, and he and defendant

read the letter and discussed it, after which the witness burned
u

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210 27 Texas Coubt of Appeals. [Galveston

Statenipnt of the case.

it. As soon as he read the letter the defendant said: "That
d — d fellow has been writing to this country for some time;
they will get him; he will give the whole thing away, and then
I will have trouble." The witness understood the letter to h%
from John Middleton when he spoke of "that d — d fellow,"
though he could not now say that Middleton's name was men-
tioned in the conversation. The witness asked defendant what
he should do about the letter. He first advised that no atten*
tion be paid to it, but upon reflection concluded that the witness
had better answer it, and so advised.

The witness was able to recall some parts of the letter from
Howard. It asked if "old Joe had given him away;"' wanted
information as to who was sheriff, and if the sheriflE was a
friend of the defendant. It requested witness to "tell Newt I
will send that present soon;'' the said present, according to the
explanation of the defendant, being a gold watch which, the
defendant remarked, he "guessed was stolen by the fellow."
Defendant then advised the witness to answer the letter and
advise the "fellow" to leave the country and go to Mexico; but
to keep track of him. "Old Joe" mentioned in the letter was
a negro **trusty," who was under conviction for a felony, and
whose case was on appeal. The letter now exhibited in evi-
dence is the letter written by the witness in reply to the said
"John Howard" letter. It was mailed by the witness on the
train, as advised by the defendant. Some time after this, and
before the arrest of defendant and Harris, the witness met the
defendant in Schilling's saloon, where he said to witness: "I
have got another letter from that d — d fellow." Witness asked
him "what fellow?" and he replied: "The same fellow you got
the letter from." He then said: "I don't know what to do.'*
Witness asked him what was in the letter, and he replied:
"The fellow is writing back here that all of his friends have
gone back on him, but one there where he was, that was a
friend." Defendant presently said: "I have got to get that
d — d fellow out of the way, for if they get him I will have
trouble." He then asked witness if he could find the fellow.
Witness replied: "I think it wiU'be a hard job. He only had a
mustache when he got away, and from all I can hear he now
has beard all over his face." Defendant then asked if witness
thought Lewis Holman could be relied on. The witness re-
plied that he did not know, and then added: "Mack, I don't
want to be mixed up in this affair, for I did not know anything

Digitized by VjOOQIC

Term, 1889.] Crook v. The State. 211

statement of the case.

about it." Defendant replied: "Yes, this is one thing you did
not know anything about." Defendant then asked what the
witness was going to do. Witness replied that he wanted to go
to bis farm and go to work. Witness then- said that he wanted
to see Holman, and defendant loaned him a horse to go to Qood-
join's store on Emberson prairie for that purpose. He told
witness to tell Holman that he wanted to see him, and to come
prepared to be absent a week or ten days, which message the
wi: ness delivered to Holman. He never saw Holman again until
after he, Holman, was arrested. A few days before the killing
of Black, the witness met the defendant on the court house
steps in Paris, when defendant asked witness if he thought
John Middleton had been in the vicinity of Paris since his es-
cape. Witness replied that he thought not; to which the de-
fendant replied: **If he has, it was for a purpose." Witness
remarked: "He might try to kill Bill Nelson, as he has threat-
ened to do." Defendant then said to witness: **If you run up
on Middleton don't try to arrest him unless you get the ad-
Tantage, or you might get killed." Defendant appeared
anxious and "flustrated" by the Howard letters, and, referring
to the last one received by him, remarked: *'I will have trouble
over this matter, yet." Witness understood this remark to re-
fer to the killing of Black."

The defense, on cross examination, read in evidence the let-
ter addressed to "John Howard, Wamego, Kansas," admitted
by the witness to be the letter written by him to John Middle-
ton. It reads as follows:

"Dear Friend:

I am just in receipt of a letter from you. Was glad to hear
from you. Hope you may soon recover from your afflictions,
so you may be able to ride again. You may be assured that I
am just as you regard me to be, and am glad you view it in
the light as you express yourself. The question of the money
you speak of is true, only more so. But I give you no name
of the parties; and some persons are working for it and have
made some long trips. The party you asked about giving
away, he was not the one. He left the country. But I am
credibly informed it was some one of your relatives. Do not
know which one. I can't say the party is uneasy, but there
has been a g^eat deal said. As the next time will soon be here
I am looking for another siege of investigation. The citizens

Digitized by VjOOQIC

213 27 Texas Court of Appeat.s. [Galveston

8t«ti»mpnt of the oaf>e.

made up the amount and placed it in the bank (standing.) The
party you asked about is no friend, as he was a friend to some
one else, and the party is blamed by some people to some ex-
tent. Do not go among your relatives, as they are closely
watched. I can't advise you to ever come back to Texas, al-
though I would like to see you very much, and would say many
things I can*t write. I use no names for fear of accident. I
have not seen any of the boys you were best acquainted with,
for some time, as some people are very curious, you know.
You must be on the alert and keep a close watch, or some gal
might get away with you. In our correspondence we must use
no names. First letters will be sufficient. I hardly know how
to do to keep my own folks from knowing we have any corres-
pondence, as they sometimes open my mail, and I assure you I
want all this kept very close; and be sure you destroy this as
soon as you get it, and I will do the same. If you should ever
want to visit Texas, I want you to write me what time and
place, so I may see you, though I can't advise you to do so. I
think if I was a young man and had no encumbrance I should
liketo go to Mexico, although that seems out of the world al-
most. I believe this is all I can now write* Do not mail your
letters where you write from, and use no name unless you
want addressed diflferent from this one. Take care of yourself
and be a good boy.

^TTours forever & etc.
''February 10, 1885. From your friend."

"Write once in a while so I may keep you posted about all the
girls, and may be so they may forget the past. You know.
The principal man you asked about is named Bill Gunn.'*

Continuing, under cross examination, the witness said that
prior to the writing of the above letter he had been told by
Lewis Holman that .John Middleton killed Black, and that the
defendant had nothing to do with it, and had no connection
with Middleton in the killing. Defendant had nothing to do
with the composition of the letter in evidence, and never read
it. It was the individual production of the witness. When
writing that letter the witness thought he was writing to the
man who killed Black, and that that man was John Middleton.
It was on the Saturday after Sheriflf Gunn took charge of the
jail that Holman told witness about the killing of Black by
Middleton. He told witness in that connection that defendant

Digitized by VjOOQIC

Term, 1889.] Crook v. Thb State. 213

Statement of the case.

had nothing to do with the killing of Black, and knew nothing
about it, and that "it was all Newt Harris." The witness
never divulged what Holman told him until he was confronted
with the letter in evidence which he had written to Howard.
On the day he was confronted with his letter, the witness re-
oeived a note from Sheriflf Gunn, inviting him to the office.
When he entered ^he office he found Sheriff Gunn and Jack
Duncan, the detective, and was told by them that they had
oaught John Middleton, who had "given the whole thing
away." They then showed witness the letter he had written
Middleton. Witness then told Gunn and Duncan all he knew
which had been told him by Lewis Holman. It was under-
stood, before the witness testified on the examining trial, that
he would not be prosecuted. On the day after he was shown
his letter, the witness met Bill Nelson and told him that he was
"in it, and did not know whether or not he could swear enough
to save himself." The witness had no recollection of telling
Jerry Crook and Bill Nelson that defendant knew nothing
about the purpose to kill Black. He did tell them that he did
not think defendant knew anything about it. He thought then,
and thinks yet, that defendant had no knowledge of, nor part
in, the plan, and no connection with the murder. Defendant
announced a reward of fifty dollars for the capture of Middle-
ton as soon as he learned of his escape. About the time Mid-
dleton escaped, defendant and Harris had a falling out, when
Harris quit the service of the defendant and went to work for
Dave Moore, in the White Elephant saloon.

On re-direct examination the witness stated that that part of
the letter in evidence which speaks of money was in answer
to inquiries in Howard's letter about a reward being oflfered
for the capture of Black's murderer. That part about parties
having made trips was in reply to questions in Howard's letter
which spoke of Sheb Williams going to the Indian Territory,
and offering a reward of a thousand dollars for the arrest of
Middleton. When Jack Duncan showed witness the letter in
evidence he remarked that Middleton had confessed, and that
witness knew all about the killing of Black. Witness replied:
"That is a lie. I know only what I have told you and Mr.
Gunn." In fact the witness knew no more, and it was for that
reason that he told Nelson that he did not know whether or not
he could swear enough to save himself.

S ay ton Ashford testified, for the State, that he lived two

Digitized by VjOOQIC

214 27 Texas Court of Appeals. [Galveston

Statement of the case.

miles west from Blossom Prairie, in Lamar county. About a
year after the killing of Black, the witness and Jeff Sisson
went cow hunting in the vicinity of Reno, a station on tiie
Texas and Pacific railway, about half way between Paris and
Blossom Prairie. At a point about a half or three-quarters of
'a mile north of Reno, they found an old rusty, muzzle loading
shot gun. It was hanging in a black jack tree by a leather
strap. Witness did not know who owned the gun nor who
hung it in the tree. They took the gun home, and on the next
day Sisson and Benton East took it to Paris.

W. H. Roland testified, for the State, that some time after
the killing of Black, Jeff Sisson, accompanied by Benton East,
brought an old rusty, muzzle loading shot gun to his house in
Paris. Witness took that gun to Colonel Cooper's shop.
Qooper examined it and then delivered it to sheriff Gunn.
Captain Parish afterwards saw the gun and claimed it as his
property. On his cross examination the witness stated that he
did not recollect testifying as a witness on the inquest upon
the body of deceased, nor that on that occasion he described
Charley Moore and his certain sorrel horse, or that Mrs. Provine,
now Mrs. Pickard, clain^ed to have seen a man in the woods,
on the morning after the killing of Black, who corresponded
with the description of Charley Moore, and that he had a horse
which corresponded witli the description of Charley Moore's
horse. Being shown the record of his testimony as delivered
upon the inquest, the witness identified his signature and ac-
knowledged it as his testimony. It was then read by the de-
fense as follows: "Charley Moore is about thirty years old,
and will weigh about one hundred and fifty pounds. I am re-
liably informed that Charley Moore left Cavines's on Emberson
prairie, ten miles north west of Paris, the day before Black was
killed, riding a bright sorrel horse with a star in the forehead.
He told parties when he left that he was going to the Nation to
buy hogs. He was seen five miles east of Paris, on the Pine
Bluff road, on Sunday evening — ^the evening Black was killed.
Mrs. Provine informed me that, on the next day after Black
was killed, she saw a man on a sorrel horse in the woods, about
three miles east of Paris, which Henry Evans thinks suits the
description of Charley Moore and his horse. Harvey Young-
blood told me he heard Sam Smith say that Black would never
be sheriff of Lamar county.''
Continuing on his cross examination, the witness said that

Digitized by VjOOQIC

Term, 1889.] Crook v. The State. • 215

Statement of the ease.

he did not go with Bill Nelson to Mrs. Provine's house. Mrs,
Provine's said house was about three miles east of Paris, and
about the same distance west of Reno. Reno was about five
miles west from Blossom Prairie. The citizens of Lamar
oounty subscribed a fund to be paid as a reward for the appre-
hension of the murderer of Black. Detective Jack Duncan
was employed to discover the murderer. The next day and
nijfht, and for several days and nights, several large parties of
citizens scoured the country in search of the assassin. Wit-
ness and John Milsap hunted the western part of the county.
Intense excitement prevailed throughout the county. On his
redirect examination the witness said that Doctor Rush told
him about meeting Charley Moore on the Pine Bluflf road on
Sunday evening. Investigation showed that Charley Moore
spent the fatal night on the Pine Bluff road, four or five miles
east of Paris. The said Pine BluflE road was north of the Paris
and Blossom Prarie road.

C. H. Schilling testified, for the State, that he was one of the
proprietors of Schillings's saloon, in Paris, Texas, in Novem-
ber, 1884, in which concern the defendant was then a silent
partner. Witness knew nothing about Captain Parish's gim
ever being in that saloon or taken away from there. Newt
Harris worked in that saloon as bar tender in July, 1884, but
quit just after the primary election, and was about the place
but Uttle afterwards. Defendant was often in the saloon when
not busy at his office. He was at liberty to go behind the
counter, but rarely did so at that time. The witness did not
know whether or not defendant and Harris were particular
friends, nor did he know whether Harris supported or opposed
defendant at the said primary election. Guns were often left
and kept in the witness's saloon, but witness could not say that
he had ever seen or had not seen Parish's gun in that saloon.

Upon the adnKission of the defendant's counsel that John
Threlkeld lived in the Indian Territory at the time of this trial,
and at the time of the examining trial in February, 1885, the
State read in evidence the record of his testimony as delivered
<m the said examining trial. The substance of that testimony
was that the witness heard of the killing of Black on the
morning after it occurred— being Monday morning. On the
preceding Wednesday the defendant came to the witness's
gin in Kiomitia county, Choctaw Nation, I. T. He road up to
the gin from a northwest direction. Witness shook hands with

Digitized by VjOOQIC

216 27 Tbxas Court of Appbals. [GWveston

Statement of the ease.

him and asked him what he was doing in that neighborhood.
He replied that he had been into Arkansas, but did not say
what he had been there for. Witness then told defendant that
he understood that John Middleton was at the wagon yard in
Paris on the preceding Thursday night. Defendant replied
that he did not think that information could be true. Witness
replied that it was his imder^tanding that his uncle, Doc Mid-
dleton, saw him on that night. Defendant remarked that it
was strange he was not captured if in fact he was at the wagon
yard, and that if he, defendant, had been in Paris on that
Thursday night, and John had gone to the wagon yard^ he
would have secured him. Witness then told him that it was
also reported that John Middleton was at his father's house on
Friday. He replied that he doubted the truth of that report, as
he had a deputy named Charley Johnson in that neighborhood
who most probably would have captured him. Defendant re-
mained at the gin about an hour, either just before or just after
noon, and left over the Golden Bluflf road towards Paris. He
was alone and was traveling on horseback. The witness next
saw the defendant and Captain Sam Johnson in a wagon near
Golden Bluff. That was on the Friday after the killing of
Black, the witness then being on his way to Blossom Prairie to
attend the inquest. Defendant was at witness's house on the
next day, when the witness delivered to him a bale of cotton
in settlement of a debt he owed him. He then left for Paris
with the cotton.

Wesley Cooper testified, for the State, that W. H. Roland
and Mr. Milsap brought a rusty muzzle-loading shot gun to his,
witness's, blacksmith shop, in Paris, some time in 1885. Wit
ness identified it as a gun he had often worked on, and as often
borrowed for use from Captain Parish. Parish afterwards
claimed it. A ^un will look as old and rusty from exposure to
the weather for a few days as it will from such exposure for a
long time. Witness could not tell how long that gun had been
exposed, but it was very rusty.

Sheriff Gunn testified that an old rusty muzzle-loading
double-barreled shot gun was brought to his office in 1885 by
either Roland, SiSson or Milsap. Witness put that gun in the
Farmers' and Merchants' Bank, and afterwards delivered it to
Captain Parish, wlio claim<»d it.

On cross examination this witness stated that the assassina-
tion of Black created profound excitement throughout Lamar

Digitized by VjOOQIC

Term, 1889.] Crook v. The State. 217

statement of the casa

county, and led to the organization of large bodies of citiz^ns»
who sooured the country in search of the assassin. A large
•urn of money was aubscribed and offered as a reward for the
apprehension of the guilty party or parties. A detectire
named Jack Duncan, who lived at Dallas, was employed and
pat to work on the case. Witness kneTw nothing about Dun-r
can visiting Blossom Prairie in connection with the murder,
but knew that he and others went to the woods to look for a
gun after the arrest of defendant and Harris. Duncan also
went with the witness to arrest defendant and Harris. On
Sunday, February 21, 1885, the witness, at the request of Dun-
can, sent for Ydtes to come to the sheriff's office. When Yates
got into the office the witness showed him the letter to John
Howard, and Yates admitted that he wrote it to John Middle-
ton. He then told witness and Duncan about what he has
testified to on this trial. He was then kept about the jail
building until the following evening, and in fact pretty much all
ef the time until the following twenty-sixth day of February,
when he testified on the examining trial. The letter to Howard
was given to the witness by Duncan. According to the recollec-
tion of the witness, Duncan told Yates that he had caught John
Middleton and secured his, Yates's, letter. It was agreed that
no per3on would be permitted to talk to Yates until Monday
evening. One of the attorneys for the prosecution objected to
permission being granted to J. G. Dudley to see Yates. Upon
that objection Dudley refused to see Yates.

Re examined, the witness stated that Yates did not as]c to
see a lawyer until about the time of the examining trial, when
he asked to see J. M. Long, one of the defendant's attorneys.
No objection was interposed to Yates seeing an attorney after
the examining trial commenced. Duncan started to Kansas
on Tuesday after the arrest of defendant and Harris.

J. W. Ownby testified, for the State, that he was county at-
tomevy of Lamar county in 1884 and 1885. Some time after the
killing of Black the defendant called on the witness to consult
him about the sheriff's office. He wanted to know whether,
Black never having qualified, his death would necessitate an-
other election for sheriff, or would require him, defendant, as
the incumbent, to hold over. The witness could not say that
defendant sought his advice with the view of holding on to the
oflBce. Witness was interested to the extent that he did not
want criminal process returned trt his office, worthless because

Digitized by VjOOQIC

218 27 Texas Court op Appeals. [Galveston

Statement of the case.

served by an illegal sheriff, and consequently, in connection
with Captain Hale, investigated the question. As a result, he
wrote to the Attorney General, who replied by citing to him
certain decisions of the Supreme Court on the question. De-
fendant, at first, did not want to retain the office of sheriff,
but when rumor got to ^connecting his name with the assassi-
nation of Black, he declared that he had no connection with
the killing, and that he would hold on to the office if he could
legally do so. Defendant's name was, to some extent, coupled
with the murder of Black as soon as he got back from Hot
Springs, and before his arrest.

Doctor J. F. Hooks testified, for the State, that Charley Moore
lived on Emberson Prairie, about nine miles northwest from
Paris. He came to witness's office quite early on the morning
after the murder of Black, to get witness to dress his sore arm.
It was then, the witness thought, much too early for Moore to
have ridden from his home to town on that morning. He went
from witness's office toward the public square, riding a sorrel
horse with a star in the forehead.

R J. Patton, testified, for the State, that he went into Schil-
ling's saloon in Paris early on the night of February 10, 1885.
As he stepped into the front door he heard the name ''Middle-
ton" spoken by some person. As he passed into the saloon he
&aw the defendant and the State's witness Yates behind the
counter, talking in a low tone of voice. Yates had a letter
and% buff colored envelope in his hand. Witness heard noth-
ing said by either of the parties.

J. A. Booth testified, for the State, that the candidates before
the primary election in 1884, for the democratic nomination for
sheriff of Lamar county, were the defendant, the deceased,
Jack Wooldridge and himself. The only candidates before the
people at the general election in November were the defendant
and the deceased. Pending the campaign after the primary
election the witness heard the defendant say that Black should
not talk about either him or his friends, and that Black would
never be sheriff of Lamar. By this last remark the witness
understood defendant to mean that he would defeat Black at
the polls. Black, who, after the election, employed witness to
t€ike charge of the jail, came to Paris on the fifteenth day of
November, and, together with witness, was shown through the
jail by Yates. He left town on that evening and was to return

Digitized by VjOOQIC

Term, 1889.] Crook v. Thb Statb. 219

Statement of the

and qualify on the following Monday, November 17. Witness did
not know where Tates was on the night after Black was killed.

Tom Christopher testified, for the State, that he was arrested
in Lamar county, in 1884, on a charge of forgery. He was re-
leased on bail, with the deceased as one of ttie surety on his
bond. Deceased subsequently surrendered the witness on the
bond, and witness was again placed in jail at Paris. John
Middleton was then in jail under indictment for horse theft.
One day the witness got to talking with the defendant about
his surrender by Black, and among other things said to him
that when he got out he intended to find out from Black why
he surrendered him. Defendant said to him: **If a fellow was
to set up two or three hundred to you, you would set Black up
when you get out, wouldn't you?" Witness laughed a little by
way of reply, and John Middleton, who was present, said: "I
would." The witness several times after that saw the defend-
ant and John Middleton talking privately, but never heard
what passed between them. The witness was acquitted of the
charge of forgery, and at the time Black was killed was living
on Pine Bluflf street in Paris, about half a mile east of the
court house. Just after dark on the first or second night after
the killing of Black, the witness, then on his way home, met
John Middleton on Pine BluflE street. He was going west, to-
ward the court house. He recognized witness and called him
to the middle of the road, where he was on his horse, which
was either a sorrel or light bay animal. When witness reached
him he told witness that he had killed Jim Black, and wanted
to know if Newt Harris was at the* jail. Witness replied that
he did not know. He then asked if witness knew where Bill
Nelson was. Witness replied that he did not. He then wanted
to know if witness could find Bill Nelson, and said that, having
killed Jim Black, if he could get Nelson out and kill him, they
could break his d— d neck for all he cared.

Oross examined, the witness stated that he had never testi-
fied before in connection with this case. He told Sheriflf Gunn,
Larkin Hunt and Bill Nelson what he has now testified long
before the arrest of the defendant for the murder of Black. At
the time of the examining trial of the defendant and Harris,
the witness asked Qunn not to place him on the stand, as it
would "give him away" to Middleton, who was still at large.
The point where the witness met Middleton on the first or sec-
ond night after the killing of Black, was about five hundred

Digitized by VjOOQIC*

220 27 Texas Coukt of Appeals. [Galvestai

::>tacement of the case.

yards dislaut from the public square in Paris. He called
witness to the middle of the street, told him that he had killed
Black, and asked him if he, witness, could get Nelson out for
him. Witness replied that he could and would. As they sep-
arated Middleton said to witness: **You will stick to yoar
promise and help me kill Nelson?'' Witness replied that he
would. Witness then and there agreed with Middleton to help
kill Nelson, and renewed the agreement made with him in jail,
that they would adhere to each other through life, with the
understanding that if either <<went back" on the agreement he
should be killed by the other. Defendant had no part in nor
knowledge of the agreements between witness and Middleton.
No agreement was entered into while in jail to kill defendant
and Nelson. The witness denied that he ever told Larkin Hunt,
W. D. Nelson, D. E.Booker or J. M. Long that Middleton was
mad at Nelson for arresting him, and that he, witness, was mad
at Black for surrendering him on his bond, and that he and
Middleton had agreed in jail that Middleton was to kill Black
for him and he was to help Middleton kill Nelson, and that de-
fendant had never talked to him about Black. He did not tell
Hunt that he thought a man named Brinley, who was confined
in jail for a time, was with Middleton when he killed Black.

Re-examined, the witness stated that, when he entered into
the agreement with Middleton to get Nelson out and help kill
him, he had no intention of doing it. He agreed because he
was afraid of Middleton, and the first time he met Nelson he
told him about his meeting and agreement .with Middleton.
Witness was attached as a witness for the defense on the habeas
corpus trial, and again in the trial of Harris. Pending those
trials he associated and boarded at the same house with the
other defense witnesses. Witness first told what he knew
about this case to special Prosecuting Attorney Hodges on the
day preceding this trial, which was the first time Hodges ever
spoke to him about the case.

George Williams testified, for the State, that pending the
election in November, 1884, he heard the defendant say that
Black lied on him, and that in the fight which resulted there-
from he knocked Black down. After the killing of Black, and
before the arrest of the defendant, the witness and Sheb Wil-
liams went into the Chickasaw Nation, and while tbere heard
of the defendant's recent presence in that country. On his
return to Paris the witness mentioned to the defendant that he

Digitized by VjOOQIC

Term, 1889.] Crook v. The State. 221

Statement of the case.

heard of him in the Chickasaw country, to which remark the
defendant replied that he had been up there in search of the
man who killed Black. He added that a white feather should
be placed in the cap of the man who should succeed in captur-
ing the murderer of Black. Immediately upon his return from
Hot Springs, which was but a day or two after the murder of
Black, defendant remarked, in the presence of the witness, that
he would catch the murderer of Black if it took him always
to do it.

Lewis Holman was the next witness for the State. He testi-
fied that he served defendant as deputy sheriff throughout his
term of office. In February, 1885, the witness lived at his home
on Emberson prairie. Yates came to witness's house one day
in February, 1886, and told witness that defendant wanted wit-
ness to come to town, prepared for an absence of a week or ten
days. Good join came to witness's house later on the same day
and delivered to the witness a similar message from the de-
fendant. Witness went to Paris on the next morning and saw
and talked to both defendant and Harris. He first met defend-
ant in Schilling's saloon, where he was then tending bar.
From that saloon the defendant and witness walked down
Lamar Avenue to Britt's wagon yard, and to a point in the
waq:on yard behind a lumber pile. Defendant said to witness:
"Yates has had a letter from that fellow, and we must do
•omething to stop him from writing." He then remarked that
he would see Harris and determine what to do, and he and
witness separated. On the next morning witness, defendant
and Harris met and went to the room of Morgan Crook, which
was over the Schilling saloon. No other person was present.
Defendant said: **We must do something to stop Middleton
from writing, or we will be caught up with." A prolonged
oonf erence about the matter resulted in the decision that the
witness should go to Wamego, Kansas, see Middleton and pre-
vail on him to leave the country. The witness was selected as
the messenger to Middleton upon the supposition that, residing
in the country, his. absence would not be so likely to arouse
suspicion as would that of either the defendant or Harris, who
Kved kk town. Defendant gave witness forty dollars and Har-
ris gave him seventy, the former directing witness, if Middle-
ton would agree to leave the country, to give him all the money
except enough to get home on. Harris remarked that if Mid-
dletihi would not leave the country, and witness would provide

Digitized by VjOOQIC

**» Vt Texas Court of Appkals. [Galveston

Statement of the ease.

the opportunity, he would kill Middleton. Defendant said
nothing about killing Middleton. The witness left Paris on
the twentieth day of February, 1885, and reached Wamego on
the second day thereafter. He at once addressed a letter or
note to John Howard announcing his arrival and his desire for
a meeting, and appointing a place for the meeting. He ex-
pected Middleton to get that note. Hearing nothing from hini,
the witness dropped a second note in the post ofiSce a day or
two later. Several days after, that, hearing nothing from Mid-
dleton, he got the second note out of the post office, and decided
to go home. He did not know what became of his first note
to John Howard. On the evening of the sixth day after his
arrival at Wamego, the witness went to the depot and bought
a ticket on which to return, and was in the act of boarding the
train when he was arrelsted by Jack Duncan and deputy sheriff
Burris, for complicity in the murder of Black. When he got
back to Paris the witness entered into an agreement with the
county attorney to turn State's evidence, the said agreement
being reduced to writing and formulated by Judge R. R. Gaines,
who was the witness's counsel. The conditions of that agree-
ment were that the witness was to testify truthfully and fully
for the State, and was not to be prosecuted himself.

Witness did not see Middleton in Kansas or elsewhere on his
said trip to Kansas. He saw him twice, however, after his
escape from jail. The first time was at night, about ten days
before the murder of Black. Newt Harris came to witness on
the street and told him that Middleton was at the jail, and
asked if witness did not want to see him. Witness went to the
residence part of the jail, where Harris lived — Harris going
with him. They found Middleton and Mrs. Harris in the north
room up stairs. Defendant was not about the jail. Old Joe,
the negro trusty, was somewhere about the premises, but wit-
ness did not know where. If old Joe saw Middleton that night,
witness did not know it. After talking for some time, the wit-
ness went with Middleton to the southwest corner of the court
house, where Middleton's horse was tied. That horse, as well
as witness could tell at night, was a bright bay in color.
While at the jail that night, the witness remarked to Harris:
•*I ought to arrest Middleton." Harris replied: "If yeu try it
and Middleton don't kill you, I will.'* The witness next saw
Middleton on the night of the Democratic jollification meeting,
which was a very few nights before the murder of BlUck.

Digitized by VjOOQIC

Term, 1889.] Crook v. The State. 223

Statement of the case.

Witness went to the jail that night to lock up old Joe, and
found Middleton in the kitchen. He said that he wanted some-
thing to eat. As there was nothing in the jail cooked, the wit-
ness went to the White Elephant saloon and reported the facts
to Harris, who gave him fifty cents with which to buy supper
for Middleton. Witness bought some bread, ham and fish,
which he took to the kitchen to Middleton. While the latter was
eating, witness asked him if he was going to kill Black. He re-
plied he was. Witness asked him why he was going to kill him.
He replied: "Harris is a good friend to me, and I will do anything
he wants me to do.*' The witness's question was prompted by a
remark previously made by Harris to the effect that if Black
fooled with him he would make Middleton kill him. The wit-
ness was in the residence part of the jail on the Monday night
following the murder of Black, and while there saw Middleton
pass through the hall and go up stairs. Some time afterwards
Newt Harris came home, and he, Mrs. Harris and witness
went into the room where Middleton then was with Yates.
The several parties named then had supper. Yates afterwards
went off to lock up old Joe, leaving nobody present except
witness, Middleton, Harris and Mrs. Harris. Middleton then
said that he killed Black, and detailed the circumstances of the
killing. He said that he rode up to Black's gate and hallooed,
expecting Black to come to the door in which the light was
burning, which was the west room; that Black came to the
east door and put his head out; that he then asked if that was
Mr. Black; that Black replied in the affirmative, and he shot
him; that his horse jumped and he dropped the gun, that he
got down and recovered the gun and then left, going east, then
north and then west, and finally turning into the woods, where
he soon got lost; that he then dismounted, hitched his horse to
a tree and remained all night, and came to town next morning.
He further stated in that conversation that while hiding in the
woods that night he saw Bill Nelson and others trailing him,
md cocked the gun to kill Nelson, but became afraid that he
could not get away; that he afterwards hung the gun in a
tree, where he left it

Continuing, the witness stated that he met the defendant on
his return from Bfit Springs, a few days after Black was killed,
and walked with him from the point where he left the street
car to the jail. En route he^ told defendant that Middleton
killed Black, and that he, Middleton, was at the jail on tho

Digitized by VjOOQIC

224 27 Texas Ooubt op Appeals. [Galveston

statement of the

night after the killing. Defendant manifested surprise that
witness knew anything about it, and remarked that it would
not do be seen talking on the street, as they would attract sus-
picion. They went on to the residence part of the jail, where
they found Harris. Defendant then took some shot and caps
from his pocket and put them in a box in a drawer, asking
Harris if the shot were like those with which the gun was
loaded. Harris replied that he did not know, but that they
would do. The shot were placed in the box so that, in case of
search, the box would be found to be full. Harris said that he
gave Middleton thirty dollars. The defendant, J. 0. Hodges,
witness, and, the witness thought. Captain Sam Johnson, ate
dinner at Harris' house on that day. The witness did not aid
in the search for the man who killed Black. He was at Sam
Strawther s house when the news of Black's assassination was
brought to town. Harris came after him and he went to town.
He went to Blossom Prairie on the next night. Some time af-
terwards defendant went to the house of Buck Harris, Newt
Harris* brother, in the Indian Nation, to find Middleton, The
witness once asked defendant if any body saw him get the gun
out of Schilling's saloon. He replied that he did not know;
that he saw two strangers in the saloon at the time, but did
not know whether or not they saw him take the gun. Witness
did not tell defendant all that Middleton said about the killing
of Black; he only told defendant that Middleton killed Black
on Sunday night and was at the jail on Monday night.

On his cross examination the witness denied that when, en
route to the Nation with Harris, he got to talking about the
killing of Black, he told Harris that defendant had nothing to
do with it, and had no previous knowledge of a purpose to
commit the murder. He did not say that he did not believe
defendant had anything to do with it. Witness did not remem-
ber telling Argyle Winn, near Brecon's store, that defendant
was as innocent of the murder of Black as he was, and knew
nothing about it. He remembered that, on the day of defend-
ant's return from Hot Springs, he and defendant met Sterling
Price, and that defendant asked him, witness, why he was not
out looking for the party who killed Black. To that inquiry
witness replied that he went to Blossom Prairie on the fatal
night, and was treated like a dog. Defendant replied: '^That
makes no difference; you must go out and hunt the murders*
of Black." Witness never saw defendant and Middleton

Digitized by VjOOQIC

Term, 1889.] Crook v. Thb Statb. 225

statement of the case.

together, never heard them speak to each other, and did not
know that defendant ever saw Middleton after his escape from
the Paris jail in September, 1884. Witness once remarked to
Harris, while Middleton was at large, that it would not do for
defendant to know of Middleton's visits to the jail, to which
remark Harris made no reply. Witness never heard Middleton
gay that it would not do for defendant to know of his visits to
the jail while he was at large. The witness did not, prior to
the killing of Black, tell defendant or any body else that he
had seen Middleton in Paris after his escape. On each occasion
that he saw Middleton he knew that he was an escaped prisoner,
and knew that he had said he was going to kill Black. He did
not, of course, know that Middleton would execute that threat,
but he knew, as soon as he heard of the killing of Black, that
Middleton did it. When, on Monday night, Middleton told
about killing Black, he said nothing about any body being with
him, biit rather left the impression on witness's mind, if he did
not actually say so, that he was alone. Witness left the jail
that night between ten and eleven o'clock, leaving Harris j Airs.
Harris and Middleton together. He did not know whether
Middleton remained there all night or not. The defewdant was
not in Paris on either of the occasioas that Middleton visited
the jail after escaping. Defendant, so far as witness was
aware, knew nothing about Harris giving witness fifty cents
with which to buy food for Middleton. Burris and Duncan,
after arresting witness at the depot in Wamego, Kansas, took
him to the hotel, where they told him that they had defendant,
and Harris, Middleton and Yates, in jail, and that defendant
had confessed, implicating witness in the murder of Black;
that the defendant wanted to turn State's evidence, but that
they were more anxious to secure the conviction of the defend-
ant than that of the witness, and that, if witness would turn
witness for the State, they would accept him in preference to
defendant. Witness then told them in part what he has re-
lated on this stand, and finished the narrative to them en route
to Paris. They reached Paris late on Saturday evening, when
witness was hastily transferred to jail, where he was kept
under guard, and allowed to see no person except the prose-
cuting lawyers. Jack Duncan, the detective, and Captain J. H.
Wright, witness' nephew. Wright went to see Judge Gaines
for witness, and the witness then entered into the agreement
to turn State's evidence. Just before starting to Kansas wit«^

Digitized by VjOOQIC

XM 27 TBXAa CovBT OK Appkals. [GtalveirtoB

Statement of th^ case.

ness borrowed one hundred dollars from the bank on the en-
dorsement of Henrj Miller, but he did not tell Miller he wanted
to buy cattle with it for Jack Carter, who would pay the note
as soon as he got back. He did not mention Carter's name.

Tom Nichols, recalled by the State, testified that he went into
the White Elephant saloon on the night of the Democratic
meeting after the November election in 1884, and saw Newt
Harris and Sam Smith in there. Harris asked Smith: "Have
you seen Jim Black to-day?'' Smith replied that he had, and
Harris asked: "Did he speak to you?" Smith replied: "No;
we were too far apirt." Harris then said: "I met him and he
did not speak to me. I have got myself into a hell of a fix;
Crook and Black are both mad at me." Some other talk was
had, and when the said parties separated Harris said: "Never
mind; I will have his d — d toes turned up," or perhaps it was:
"I will have somebody's toes turned up." The witness did not
know whether Harris was speaking of the defendant's or
Black's or somebody else's toes, but he had just been talking
about defendant and Black. Witness asked defendant, after
the death of Black, if he was going to hold the office. He re-
plied: "No; the people of Lamar county have said that they
do not want me for sheriff, and I will not have the office."

Harry Miller testified, for the State, that he was in Wamego,
Kansas, in February, 1885, and got a drop letter from the post-
office addressed to John Howard, which note he sent to Jack
Duncan. Witness was then a detective.

After examining two or three other witnesses, and eliciting
no new facts, the State rested.

L. B. Hunt was the first witness for the defense. He testi-
fied that he lived in Paris, and was city marshal in 1884, and
until April, 1885. He was well acquainted with the State's
witness Tom Christopher. Prior to the arrest of the defendant
upon the charge of killing Black, the said Tom Christopher
told the witness that while he was in jail he entered into an
agreement with Middleton to kill Bill Nelson and Jim Black,
because the former arrested Middleton and the latter surren-
dered him, Christopher, after signing his bail bond, and that
af tor the death of Black he met Middleton on Pine Bluff street,
when Middleton called upon him to carry out his part of the
agreement, which he agreed to do. He said that defendant
knew nothing whatever about the agreement between him and
Middleton.

Digitized by VjOOQIC

Term, 1889.] Ckook v. The State. 2*^7

Statement of the

Cross examined^ the witness said that the conyersation be-
tween himself and Christopher occurred in the Mayor^s office.
Witness spoke of the matter to his son. He told H. B. Bir-
mingham and Captain Gunn about Christopher's statement be-
fore the arrest of the defendant or Harris. Some time after the
statement to witness in the Mayor's office, Christopher came to -
the witness with some letters he had received. He and wit-
ness then took the letters to Sheriff Gunn, and Christopher's
previous statement was talked over. It was then agreed that
the letters should be placed in the bank to be taken out only by
either the witness or Gunn. They were placed in the bank on
the twentieth day of January, 1885. After the arrest of Crook
and Harris, the witness, with Christopher and J. M. Long, one
of defendant's attorneys, went to the bank and got the papers.
Witness gave them to Long and Long took them to Captain
Lightfoot's office. Witness had not seen the said papers since
he gave them to Long. A bundle of letters being handed to
witness he identified it as the bundle of papers above referred
to. The several letters contained in the bundle were brought
to witness by Christopher at different times.

W. D. Nelson testified, for the defense, that prior to the arrest
of the defendant, Tom Christopher told him that while confined
in jail he entered into an agreement with John Middleton to
kill the witness and Jim Black ; that Middleton wanted to kill
witness for arresting him and that he, Christopher, wanted to
kill Black for surrendering him on his bond, and that he and
Middleton agreed to help each other, and that Crook was no
party to and knew nothing of said agreement. Christopher
subsequently told witness that after the killing of Black he met
Middleton on Pine Bluff street in Paris, when Middleton said
to him: "Tom, I have killed Black, and I want you to get
Nelson out so that I can kill him ; " that he agreed to do so and
went up town and pretented to hunt for witness and to be un-
able to find him ; that meanwhile Middleton stood in the east
door of the court house watching for witness, and came very
near shooting Roland through mistake. Witness arrested Mid-
dleton for carrying a pistol, and afterwards caused him to be
held for bringing stolen property into the State. Witness went
to Blossom Prairie on the night that Black was killed. He
found the track of one horse immediately in front of Black s
gate, and the track of another horse about fifteen feet distant
from the said gate. Leaving that place they went east, then

Digitized by VjOOQIC

228 27 Texas Court op Appeat.r. [Galveston

8tat<»m<»nt of the case.

north and then west, traveh'nj^ together, and were lost after
entering the woods. As shown by the tracks, one of the horses
was much larger than the other. Witness followed those
tracks twice — the first time on the fatal night with Ryan, Gk>se
and Booth. It was a dark night, but they had a lantern.
Hancock, Gose and Booih were with witness the second time.
After the arrest of the defendant, the witness and Duncan,
Gose and Tinnin went to the place pointed out by Mrs. Provine
(now Mrs. Pickard) as the place where she saw a man and
horse on the morning after the murder of Black. They
searched that place for a gun, but found none. At the root of
the tree where Mrs. Provine said she saw the man stooping
they found a small rag which seemed to have fallen from a
sore. They did not look for a gun at a point about a half mile
north from Reno.

J. M. Long testified, for the defense, that he had known
defendant for thirty-five years. The papers now handed to
witness were certain letters that were taken from the Paris
Exchange Bank by Hunt and Tom Christopher and turned over
to witness by Hunt. Witness was of counsel for defendant
prior to the change of the venue in this case. Witness was
attorney for Christopher on his trial for forgery. One day
Christopher, in talking to witness about the murder of Black,
told witness that, when in jail, he agreed with John Middleton
to kill Nelson and Black; that he wanted to kill Black for sur-
rendering him on his bond, and that Middleton wanted to kill
Nelson for arresting him, and that they agreed to help each
other. In that same connection he said that the defendant
knew nothing whatever about that agreement. He also, at
another time, told witness that, after the death of Black, he
met Middleton at a bawdy house in Paris, when Middleton told
him that he had killed Black.

D. E. Baker testified, for the defense, that pending this trial
Tom Christopher told him, in Sherman, that subsequent to the
killing of Black he met Middleton on Pine Bluff street in Paris,
and that Middleton then told him that he had killed Black, and
asked him to decoy Nelson to a place where he could kill hixn.
Witness then asked him if defendant knew anything about his
agreement with Middleton to kill Black. He replied that de-
fendant knew nothing about it, so far as he was aware.

O. F. Parish testified, for the defense, that he lived in Paris
in November, 1884. He then owned and had owned since 1869

Digitized by VjOOQIC

Term, 1889.] Crook v. Thb Stath, 22»

Statement of the case.

■ — ,-

a certain muzzle loading double barreled shot gun. The last
time be saw that shot gun in the year 1884 it was standing
behind the counter in Schilling's saloon. That was on the
morning of November 14, 1884 — the morning after the last
jollification of the Democrats that followed the general elec-
tion. He was drinking on the night of the jubilee and did not
know how the gun came to be in the saloon, except by hearsay.

Henry Schilling testified, for the defense, that he knew T. B.
Eolow by sight, but did not know him on November 11, 1884.
It was not true that Enlow or any body else, on the night of
November 11, 1884, or at any other time, called his attention,
in his saloon, to a man in the act of removing a shot gun from
the said saloon. Cross examined, the witness said that he
could not remember that he was in his saloon on the night of
November 11, J 884. He did not remember seeing Enlow or
Rodgers on that night. He would certainly remember it if his
attention had been called to such a thing as the clandestine re-
moval of a shot gun from his saloon. Witness knew that Cap-
tain Parish's gun was in his saloon for several days in Novem-
ber, 1884, but he did not know when nor by whom it was re-
moved. No person came into the saloon on the said night and,
leaning on the counter, talked to witness.

W. H. GuUick testified for the defense, that ^'Kicking Jim"
gave him a muzzle loading shot gun one night in November,
1884, which he said he took from Captain Parish. Witness
put the gun in Schilling's saloon.

Ed Thornton testified, for the defense, that he lived in Bon-
ham, of which town he was city marshal in 1884. On or about
September 24, 1884, witness received a telegram from Paris an-
nouncing the escape of John Middleton from jail. On the same
day he saw the defendant in Bonham on the train bound east
towards Paris. He had a prisoner named Chad in custody.
Witness told defendant about the escape of Middleton, and
that he had noticed a strange man about Bonham. Defendant
appeared very angry when told of the escape of Middleton,
and on the next day came back to Bonham in search of him.
Meantime the strange man mentioned by him had disappeared.

Sterling Price testified, for the defense, that he met the de-
fendant when he got off the train on his return to Paris from
Hot Springs, a day or two after the killing of Black. Witness
and defendant left the street car together and walked together
across the square until they met Lewis Holman. When he

Digitized by VjOOQIC

J230 27 Texas Court op Appeals. [Galvaston

Statement of the case.

met Holman, defendant said: '^Well, I suppose Black is
killed. Do you know who did it?" Holman replied that he did
not, and defendant asked him: "Why in the hell are you not
out doin^ something and trying to find the party who did it?^
Holman replied: "I went to Blossom Prairie on the night Black
was killed, and as they treated me like a d— d dog, I did noth-
ing more." Defendant said: "That makes no difference; you
ought to be out hunting the man who killed Black." Witness
left about that time, and did not know where defendant and
Holman went.

Blake Hooks testified, for the defense, that he lived at
Hooks's ferry on Red river, about thirty-five miles northeast
of Paris. Early in the fall of 1884 a man suiting the descrip-
tion of John Middleton, accompanied by a negro, crossed into
the Nation at witness's ferry. He had a shot gun with him.
The negro went back. A few days later defendant came to
witness's place looking for John Middleton, for whose arrest he
announced a reward of fifty dollars.

Charley Johnson testified, for the defense, that he was a dep-
uty sheriff under the defendant in 1884, and lived on Red river.
A few days after the escape of Middleton from jail, the defend-
ant came to the witness's house hunting Middleton. Alex
Lowther was with defendant. From witness's house the wit-
ness, defendant and Lowther went to the vicinity of the house
of Middleton's father, arriving at about eleven o'clock at night.
They searched the farms, cotton pens and out houses until
nearly day light, when they secreted themselves and watched
the house until about sun rise, after which they hunted over
adjacent fields and through the brush. The witness did not go
into old man Middleton's house, and if either the defendant or
Lowther did, the witness did not know it. Defendant offered
a reward of fifty dollars for the capture of Middleton

Argy le Winn testified, for the defense, that in a conversation
with Lewis Holman in Brocin's shop in Paris, the said Holman
told him that defendant was as innocent of complicity in the
murder of Black as he, the witness, was. On his cross exam-
ination this witness said that, on the occasion referred to, Hol-
man overtook him on his way to Brocin's shop. Witness re-
marked: ** Well, you boys will have to go to work now.** Hol-
man replied: "Yes, G— d d— n them, they have turned us out,
but they know no more about how Black was killed than you
do. Mack Crook is as innocent as you are." This last state-

Digitized by VjOOQIC

Term, 1889.] Crook v. The Statb. 231

statement of the case.

ment was in reply to the witness's question whether defendant
had anything to do with the killing of Black.

J. M. C. Yates testified, for the defense, that he lived it
Lamar county, Texas, seven miles north east from Paris. Qn
Sunday — the day of the killing at night — two men passed the
witness's house, traveling from towards Paris. One of them
asked for directions to Blossom Prairie, remarkins: that they
were somewhat lost. They were then between three and four
miles from the Blossom Prairie depot, and the time was an
hour or two before sunset. The men were riding light bay or
sorrel horses, one being considerably larger than the other.
One of the men had a double barreled shot gun. The witness
had no distinct recollection as to whether either man wore a
beard, but thinks that one had a light mustache. That man
was thirty or thirty-five years old. The other was probably
somewhat older.

Isaac Nowlin testified, for the defense, that he lived seven
miles northeast of Paris. On his way home from church, be-
tween two and three o'clock on the evening of the fatal Sun-
day, the witness met two horsemen who inquired the way to
Blossom Prairie. He met them at Sugar Hill, about two miles
from the place where the witness Yates stated that he saw two
men. One of the said men was riding a fair sized light bay or
sorrel horse, and had a double barreled shot gun. The other
was riding a darker bay or light brown horse that was smaller
than the other horse. The man on the small horse had a dark
complexion, and a small dark mustache. He wore a dark col-
ored suit of clothes and a dark colored slouch hat, and was be-
tween thirty and thirty-five years old. The other man had a
light complexion and a heavy sandy mustache. He wore brown
clothes and a light colored hat, and carried a double barreled
shotgun.

H. B. Smith, for the defense^ giving substantially the same
description of the two men as that given by the witness Now-
lin, said tiiat he saw the said men at an old tie mill about a mile
and a half from Blossom Prairie, at about half an hour before
sun set, on the evening of the fatal Sunday. They asked him
if they were on the right road to go to Blossom Prairie. The
said naen were strangers to the witness.

Alex Lowther testified, for the defense, that he lived in Paris
in November, 1884. He spent the night of November 11, 1884,
at defendant's house. Defendant returned from a trip on the

Digitized by VjOOQIC

233 27 Texas Court of Appeals. [Gtalveston

statement of the ease.

evening of that day, and was to, and did, start to Hot Springs
on the next morning. He asked witness to go home with
him that night, and to stay at his house with his children while
he was gone. They went to the house before dark. Defendant
went to bed about eight o'clock, and witness retired about nine
o'clock, sleeping in the same bed. Witness knew that defend-
ant did not leave his house on that night after dark. The ob-
ject of this testimony was to contradict the testimony of
Enlow, to the effect that defendant was the man who re-
moved the gun from Schilling's saloon, between ten and eleven
o'clock that night. The witness located the date — November
11 — particularly, because, on the night that Black was killed,
he counted back, and found it to be on the twelfth day of No-
vember that defendant left for Hot Springs— and it was the
. previous night that he slept with defendant at his house.

On cross examination, this witness was asked if he did not,
on the habeas corpus trial, testify that his attention to the date
on which he spent the night at Crooks house was first at-
tracted by the testimony of Easton (Enlow?). Confronted
with his written testimony to that effect, he admitted that he
so testified, but declared that he then failed to remember the
first time his attention was directed to the said date. The wit-
ness told Mr. Dudley, defendant's counsel, before the habeas
corpus trial, that he spent the night of November 11, 1884, with
defendant at his. defendant's, house. The witness did not then
know Enlow. He was attached as a witness by the defense,
but did not know what was expected to be proved by him until
Enlow testified. The witness was upstairs over Schilling's sa-
loon when he heard of the killing of Black. He did not know
of any search for the murderer of Black being made by defend-
ant or any of his deputies. He knew that defendant, during
the inquest on the body of Black, went in a wagon with Cap-
tain Sam Johnson to the house of Threlkeld, in the Nation, to
get a bale of cotton.

Mrs. Mack Crook, the wife of the defendant, testified that
she went to Hot Springs, Arkansas, some time before the kill-
ing of Black, and being sick, wrote to the defendant to come
and see her. He arrived at Hot Springs on November 13,
1884. On November 17, he received a telegram from his
brother Lewis, informing him of the killing of Black, and he
left Hot Springs by the next train to return to Paris.

Andy Gray testified, for the defense, that he was one of the

Digitized by VjOOQIC

Term, 1880.] Crook v. The State.

Statement of the ease.

parties who went to Sherman in 1886 to attend the trial of this
case, and was among the witnesses congregated at the depot
in Paris waiting for the train. Several of the parties, includ-
ing witness, defendant. Belcher, Sam Smith and Enlow, step-
ped out of the depot building to take a drink from a bottle of
whisky that Smith had. While outside the depot Enlow, in
the presence and hearing of witness, told defendant that on a
previous hearing of this case he testified that he, defendant,
was the man he saw get the gun out of the Schilling saloon,
but that in so testifying he was mistaken, that he, defendant,
was not the man he, Enlow, saw take the gun. Witness
thought that Enlow was then pretty full of whisky, but not so
drunk as not to know what he was talking about.

Dick Owen, conductor on the Texas & Pacific railway, testi-
fied, for the defense, that a day or two after the murder of
Black, the defendant got off the Iron Mountain railway at
Texarkana, and boarded his, witness's, train and traveled with
him as far as Paris, Texas. Hot Springs, Arkansas, was about
three hundred miles distant from Paris, Texas. The only direct
route from Hot Springs to Paris was by the Texas & Pacific
railway via Texarkana.

Richard Moore testified, for the defense, that Newt Harris
was a bar tender in the White Elephant saloon in Paris, in No-
vember, 1884, and was on watch from and after six o'clock in
the evening on the seventeenth day of that month. On his
cross examination the witness said that he could not state pos-
itively who was on watch at the White Elephant saloon on the
night of November 17, 1884. It was a custom for the man on
watch, if he wanted to leave the saloon temporarily, to get some
person to take his place on watch. It was the business of the
bar tender to stay at his post during the period of his watch.

D. E. Booker testified, for the defense, that at no time on the
night after Black's death did he relieve Harris on watch at the
White Elephant saloon. Witness did not visit that saloon that
night.

Harvey Boyd testified, for the defense, that he lived in Paris
and was nineteen years old. He knew Tom Nichols, and was
with him on Main street near Lynch's stable on the night of
the last Democratic celebration after the election in 1884. Tom
Nichols said nothing to witness about a jail bird on that night.
Witness had seen John Middleton in jail and knew that Nichols
did not meet Middleton on that night while he, witness, was

Digitized by VjOOQIC

234 27 Texas Court op Appeals. [Galveston

StatmoQent of tbe ease.

with him, Nichols. On his cross examination the witness said
that he and Nichols, on the night in question, talked about two
negroes who had recently escaped from jail. He and Nichols
may have passed some body on the street near the stable on
that night, but witness had no recollection of hearing Nichols
say: "There goes a jail bird." He had no recollection of ever
telling Birmingham that he was with Nichols when they met
Middleton on that night.

John A. Gk)se testified, for the defense, that he went witti
Duncan and Nelson to Mrs. Provine's house, after the arrest of
defendant, and from there, under the escort of Mrs. Provine,
to the place in the woods where she claimed to have seen the
man in the woods on the morning after the killing. They
searched the neighborhood for a gun, but found none. Duncan
found a piece of cloth which looked as if it had fallen or been
removed from a sore. The place where Mrs. Provine said she
saw the man was about three miles distant from Reno. The
gun was not hunted for at a place a half or three-quarters of a
mile above Reno.

Mr. Pope testified, for the defense, that he lived in Blossom
Prairie and was at home when Black was killed. He heard the
fatal shot fired, and shortly afterwards went to Black's house.
He at once searched for tracks, and found the track of a horse
in front of Black's gate. He trailed that track east and north
and then west to a point in the woods where it appeared to
stop. It appeared that the rider dismounted at that point. At
a point beyond the point in the woods last mentioned, the track
trailed by witness and the track of another horse came together,
whence the two horses traveled in company. From that point the
witness and others trailed the tracks of the said two horses to
Slate shoals on Red river, sixteen miles distant from Blossom
Prairie. One of the tracks thus trailed by witness was the
same track found at Black's gate. There was another horse
track near Black's house, but it was not a fresh track.

Mr. Martin testified, for the defense, that he lived within
three-quarters of a mile of Blossom Prairie depot, and was at
home on the fatal night and heard the fatal shot. Soon there-
after, three horsemen, one riding a gray horse, passed the wit-
ness's house, riding in a lope. One of the Dudley boys owned a
gray horse, and witness afterwards learned that it was the
Dudley boys who passed his house on that night.

Henry Miller testified, for the defense, that a short time be-

Digitized by VjOOQIC

Term, 1889.] Crook v. Tms State. 285

Statement of the case.

fore the arrest of defendant, he saw Lewis Holman in Paris,
and at his request endorsed a note to the Paris Exchan^ bank
for one hundred and eight dollars. Holman told witness that
he was buying cattle for Jack Carter, and had found some ex-
ceedingly cheap cattle which he wanted to buy for Carter; that
Carter was temporarily absent, but would soon be back, when
he would take up the note. Witness afterwards paid that note,
and had not as yet been reimbursed.

Lem Oakes testified, for the defense, that he lived in the
Choctaw Nation, Indian Territory, about twenty-six miles from
Paris. He represented his county in the Senate of the Choctaw
Nation. A sallow faced young man came to the witness's
house in the Choctaw Nation on the morning of November 17,
1884, and got his breakfast. He came on foot and had a slicker
in his hands in which something, which the witness took to be
a gun, was wrapped. He was a slender man and would weigh
perhaps one hundred and sixty pounds His eyes were dark
gray or blue in color. His mustaclie, which was rather thin,
was of a light brown color. He wore dark clothing and a slouch
hat. His hair was light brown in color, and he would measure
about five feet nine inches in height. Witness did not know
him. On the evening of the same day the witness heard of
the killing of Black on the night before.

James Spring testified, for the defense, that he lived in the
Choctaw Nation and was the sheriff of his county. He heard
of the killing of Black on the seventeenth day of November,
1884. On the morning of the said day, November 17, the wit-
ness saw a man on a sorrel hoi*se near the house of Senator
Lem Oakes. That man approached the witness from the di-
rection of a piece of timber to the right of Oakes's house. He
asked if witness could tell him where Doc Middleton and his
hunting party were camped. Witness directed him to the said
camp, which was near the Spence crossing of the Kiomitia
river, about twelve miles distant. That man, whom the witness
described substantially as Oakes described the man who took
breakfast at his house, had a slicker with him, and a gun in a
scabbard attached to the saddle, which the witness supposed
was a Winchester rifle.

Daniel Miller testified, for the defense, that he lived in Kio-
mitia county, Choctaw Nation, and was a local preacher. About
dark on the night of November 16, 1884 — the night of the as-
sassination of Black — a man came to the witness's house in the

Digitized by VjOOQIC

236 27 Texas Court op Appeals. [Galreston

statement of the case.

Choctaw Nation, and asked to stay all night. He got his sup-
per and had his horse f ed, and then decided to leave, which he
did after asking witness if a party of hunters were camped
anywhere on Salt creek. That man was riding either a light
bay or a sorrel horse. He had a slicker tied behind his saddle,
and a Winchester in a scabbard attached to the side of his
saddle. He was twenty-eight or thirty years old, and would
weigh between one hundred and fifty and one hundred and
sixty pounds. He was rather heavy of build, had dark hair
and brown mustache, and wore dark clothing and a black slouch
hat. Witness did not know him. The witness's said house
was about thirty-five miles distant from Paris, and about as far
from Blossom Prairie in Lamar county. The witness was posi-
tive about the date of that man's visit because Dick Lock spent
the very next night at his house, and brought the news of the
assassination of Black on the night before.

Dick Lock testified, for the defense, that he was in Paris on
the sixteenth day of November, 1884. He started to his home
in the Choctaw Nation on the next day, and spent that night
at Daniel Miller's house. He told Miller that night of the mur-
der of Black on the night before.

Lem Cakes, recalled by the defense, testified that Doc Mid-
dleton and a party of hunters, including John Threlkeld and
Armstrong, were camped on Long creek, two miles beyond
Salt creek, until the Thursday or Friday preceding the Monday
morning on which the man described by witness when first on
the stand came to witness's house. Doc Middleton was an un-
cle of John Middleton, and was the same Doc Middleton who,
in 1884, lived on Tinnin's farm on Red river. He now lives in
the Choctaw Nation.

Henry Campbell testified, for the defense, that he lived in
the Choctaw Nation, and in 1884 was a United States deputy
marshal He knew where Doc Middleton and his part^ of
hunters were camped on the Kiomitia river in the said Nation
in 1884. He heard of the killing of Black on the Tuesday after
the fatal Sunday night. He saw Doc Middleton's party in camp
on Monday and Wednesday following the assassination. He
crossed the Kiomitia river at the Spence crossing on the morn-
ing of the said Monday, and about noon was overtaken by
John Middleton, who rode with him as far as a mile. John
Middleton asked for and witness gave him directions to Doc Mid-
dleton's camp. He was riding a light bay or a sorrel horse.

Digitized by VjOOQIC

Term. issr».] Crook v. The State. 237

Statement of the ease.

had a Winchester in a scabbard attached to his saddle, and a
dicker tied behind his saddle. Witness had then known John
Middleton two or three years. The Spence crossing of the
Kiomitia river was forty or fifty miles distant from Paris,
Texas. This witness was severely cross examined, but ad-
hered to his statement that he saw John Middleton at the
Spence crossing of the Kiomitia river, in the Choctaw Nation,
about noon on November 17, 1884, the day after the night of
the assassination of Black. He had never known but the one
John Middleton he then met, but did not know that he was the
same John Middleton who escaped from the Paris jail in Sep-
tember, 1884. The general description of John Middleton, as
given by this witness (and by the succeeding witness Kelly)
corresponded with the description given by Oakes, Spring and
Miller of the man they saw at the times mentioned in their
testimony.

Dick Kelly testified, for the defense, that he lived in Whee-
lock, in the Choctaw Nation. Witness knew John Middleton,
and last saw him on the night of Monday, November 17, 1884,
at the house of Stephen Frazier, in the Choctaw Nation, where
Middleton got supper and had his horse fed. On the following
Wednesday the witness heard of the killing of Black on the
preceding Sunday night. Frazier's house was about fifteen
miles distant from Daniel Miller's house, and about twenty-
five miles distant from Senator Oakes's iiouse.

Four witnesses for the defense testified that they were ac-
quainted with the Stale's witness Christopher, and knew his
reputation for truth and veracity. It was bad, and such as not
to entitle him to credit on oath.

The defense closed.

The State, in rebuttal, read in evidence the testimony of Doc
Middleton as delivered on the examining trial in February,
1885. It is as follows: "I resided during last September on the
river, about a mile, I think, below Tinnin's, and about twenty
miles from Paris. I saw John Middleton at night, about two or
three days after he got out of jail. I saw him between my place
and his father's. I do not know of my own knowledge where
he had been that day. Some time during that day he came to
my house and got a gun. He took it without my permission,
and I don't suppose he stayed there long after that. That was
the last time I ever saw him. His parents then lived about

Digitized by VjOOQIC

23& 37 Texas Court of Appeals. [QalvesUm

Statenieixt of the case.

three hundred yards from me. They moved away after the
killing of Black."

Two witnesses testified for the State, in rebuttal, that they
had known Harvey Boyd all his life, and that his reputation
for truth and veracity was bad. One of the said witnesses did
not consider him entitled to credit on oath, while the other was
unwilling to impugn his reputation to that extent. A third
witness testified that Harvey's reputation for truth and verac-
ity as a boy was bad, but he had not heard it discussed in later
years.

R. F. Scott and T. W. Oarlock testified, for the State, that
they saw Newt Harris in Paris on the day of the general elec-
tion, electioneering for the defendant, who was a candidate for
sheriff.

K. R. Hazlewood testified, for the State, in rebuttal, that he
lived in Delta county ten or twelve years, and had been ac-
quainted with L. B. Enlow about fourteen years. Enlow's rep-
utation for truth and veracity had always been good in Delta
county.

The defense witnesses Oampbell and Kelly, having testified
that the John Middleton they knew had no remarkable peculi-
arity of form or feature, was not stoop shouldered nor in the
habit of looking down or away from a person with whom he
conversed, and that his cheek bones were not materially high,
nor his face particularly full or long, the State introduced
Messrs. Hugh Tinnin and Henry Warren as rebutting wit-
nesses. They testified that the John Middleton who escaped
from the Paris jail in September, 1884, and who was charged
with the murder of Black, was a young man about twenty-
eight or thirty years old. He was about five feet and ten inches
in height; had dark hair and a thin mustache somewhat lighter
in color than his hair; a full face, high, sloping and broad fore-
head, particularly high cheek bones, short chin and blue eyes.
He had a peculiar expression of the eyes, and seemed to be un-
able to look a person in the face while talking to him. EUs
shoulders were wide — much wider than he was across the hips,
and were somewhat stooped. His neck appeared to start out
of his shoulders too low down on his breast.

J. Q. Dudley^ Maxey, Lightfoot <t Denton, H. D. McDonald^
W. B. Wright, and Silas Hare, filed able and exhaustive brie&
and arguments for the appellant.

Digitized by VjOOQIC

Term, 198».] Crock v. Thb Statb. 239

OpifiioD of the court.

W. L. Davidson, Assistant Attorney Qeneral, and J. €,
Hodges, for the State*

WiLLSON, Judge. Eliminating surplusajire from that portion
of the indictment which charges the defendant and Newt Har-
ris with being accomplices to the murder of James H. Black,
it reads as follows: ** That about November 12, 1884, in said
county and State, one Mack Crook and one Newt Harris did
unlawfully, and with their express malice aforethought, advise
and encourage the said John Middleton to commit said offense
of murder before the said John Middleton did kill and murder
the said James H. Black, and did prepare and furnish said
John Middleton with a gun for the purpose of aiding and assist-
ing the said John Middleton in killing and murdering the said
James H. Black as aforesaid; and the said Mack Crook and
the said Newt Harris was not present when the said John Mid-
dleton killed and murdered the said James H. Black as afore-
said." We regard the above as a single count, and while it is
not framed in strict accordance with precedent, and is not crit-
ically correct, it is, in our opinion, substantially sufficient, and
the trial court did not err in overruling the defendant's ex-
ceptions to it.

In a prosecution against a defendant charged as an accom-
plice, it is essential for the State to establish the guilt of the
principal of the crime charged to have been committed by him.
In this case it was essential for the State to establish the guilt
of John Middleton, the alleged principal of the murder of
James H. Black. Without proof of Middleton's guilt as prin-
cipal, the defendant could not be convicted as an accomplice.
In establishing the guilt of Middleton any evidence which
would have been competent, had he been on trial, was compe-
tent on the trial of the defendant as an accomplice, not for the
purpose of proving that defendant was an accomplice, but fop
the purpose solely of proving that Middleton committed^ the
murder, and the degree of the murder. (Penal Code, art. 89;
Arnold V. The State, 9 Texas Ct. App., 435; Boston v. The
State, 12 Texas Ct. App., 408; Whart. Cr. Ev., sec. 602.)

If Middleton had been on trial his detailed confession made
to Holman would have been admissible in evidence against
him, and was therefore admissible evidence in this csuse to
prove his guilt as principal in the murder of Black, but not to
prove that the defendant was an accomplice in that murder^ or

Digitized by VjOOQIC

240 27 Texas Court of Appbals. [GktlvestoB

Opinion of the court

had any guilty connection with it It was not error, we think,
to admit the testimony of the witness Holman, detailing the
confession of Middleton. In the charge to the jury, the purpose
for which this testimony was admitted was clearly explained
to the jury, accompanied by the emphatic instruction that it
could not be considered against the defendant for any purpose,
but could only be considered for the purpose of showing that
Middleton may have killed Black. These remarks are appli-
cable also to the testimony of the witness Christopher, detailing
Middleton's confession made to him of the murder of Black.
(Simms v. The State, 10 Texas Ct. App., 131.)

It is claimed by defendant as error that the acts, declarations
and statements of Newt Harris, and the conversation between
Holman, Harris and Middleton, as detailed by the witness Hol-
man, were admitted in evidence against him, he not having
been present at the time of the transpiring of said acts, de-
clarations, statements and conversation, and it not being shown
that a conspiracy existed between him and Harris, Holman
and Middleton to murder Black. This testimt ny was clearly
hearsay, and was inadmissible except upon the predicate of
the existence of such a conspiracy. It was the province of the
trial judge primarily to determine whether the predicate which
would render the testimony admissible had been established by
the evidence. He concluded that the predicate of conspiracy
had been laid, and admitted said testimony. We shall not de-
termine whether or not this conclusion of the trial judge is sus-
tained by the evidence. It is only necessary to say that the
sufficiency of the predicate laid for the admission of said tes-
timony was a question in the case and a vital one, and that
question should have been submitted to the jury with instruc-
tions to disregard said testimony in case they were not satis-
fied from other evidence in the case, that the conspiracy upon
which the admissibility of said testimony depended had been
proved. (Loggins v. The State, 8 Texas Ct. App., 434.)

The jury should, in this connection, have been further in-
structed that such conspiracy could not be established by the
acts or declarations of a co-conspirator made after the consum-
mation of the offense and in the absence of the defendant.
(Cohea v. The State, 17 Texas Ct. App., 153; Menges v. The
State, 25 Texas Ct. App., 710.) With respect to said testimony
the charge of the court is materially defective in the particulars
above mentioned. Special charge fourteen, requested by the

Digitized by VjOOQIC

Term, 1889.] Crook v. The Statb. Ml

Opinion of the oourt.

defendant, reads as follows: **No acts or declarations of John
Middleton or Newt Harris or Lewis Holman, made after the
killing of Black, can be considered by you in determining
whether the defendant furnished or assisted in furnishing the
gun to John Middleton for the purpose of killing Black, and
unless you find from the evidence some testimony outside
of such declarations tending to connect Mack Crook with the
offense, you will find him not guilty." This charge should, we
think, have been given. It was abstractly correct^ and was
called for by the evidence in the case.

Defendant's bill of exceptions number thirty-four, relating
to the remarks of the trial judg«, made to counsel in presence
and hearing of the jury, upon the admissibility of certain evi-
dence offered by the State, is well taken. The remarks were
in violation of article 729 of the Code of Criminal Procedure,
and might have prejudiced the rights of the defendant. Pend-
iug the discussion and decision of the admissibility of said tes-
timony, the jury should have been retired from the court room.
(Moncallo v. The State, 12 Texas Ct. App., 171; Wilson v. The
State, 17 Texas Ct. App., 525; Roilrigues v. The State, 23 Texas
a. App., 503.)

It was not error to permit the State to prove that the general
reputation of the witness Enlow for truth and veracity was
good. Said witness was a stranger in the county of the trial,
and bis credibility had been attacked by the defendant by
showing, or attempting to show that he had made statements
contradictory to his testimony on the trial. (Coombs v. The
State, 17 Texas Ct. App., 258; Phillips v. The State, 19 Texas
Ct App., 158; Williams v. The State, 24 Texas Ct. App., 637.)

It was not error to admit in evidence the testimony of the
witness Threlkeld, taken before the examining court. A proper
predicate was laid for the admission of said testimony. It was
shown that said witness resided beyond the limits of this State.
The fact that he was a non-resident of this State at the time
said testimony was taken does not render it inadmissible.
(Code CrinL Proc. arts., 772, 773, 774; WiUson's Crim. State.,
sec. 2535.)

It was not error to refuse to permit the defendant to prove
the declarations of Jack Duncan in regard to the gun. This
was hearsay testimony. Defendant should have called Jack
Duncan to testify about the gun.

There are some other exceptions reserved by the defendant

Digitized by VjOOQIC

242 27 Texas Court op Appeals. [Galveston

Opinion of the court.

to the rulings of the court admitting testimony offered by the
State, but they are either embraced in the exceptions already
discussed, or are immaterial, and hence we will not specifically
notice them. We have discussed and determined such of the
excei)tions as in our opinion are of any importance.

Numerous objections are made by counsel for the defendant
to the charge of the court. We shall notice such only as ap-
pear to us to be maintainable. It was unnecessary and im-
proper to define in the charge an assault, and a battery, though
this was an immaterial errror; but it was excepted to by the
defendant at the trial, and thereby became reversible error.
An assault and battery was necessarily included in the act of
killing, and in defining murder a sufficient definition of as-
sault and battery was embraced for the purposes of this case,
and a further and specific definition of the offense of assault
and battery could only tend to encumber the charge, and con-
fuse the minds of the jury with matter not pertinent to the
issue being tried by them.

In all trials for murder it is the imperative duty of the court
to instruct the jury as to the meaning of *'malice," or ''malice
aforethought." It is fundamental error to omit such instruc-
tion, and a definition of *^express malice" will not cure the
omission. (Willson's Crim. Stat., sec. 1061.) In this case the
charge fails to explain the legal meaning of * 'malice afore-
thought." ^

In the charge '^express malice" is defined to be "where one
with a calm, sedate and deliberate mind and formed design
kills another." This definition is incomplete and incorrect
Justifiable or excusable homicide may be committed with a
calm, sedate and deliberate mind, and a formed design to kill
another. The definition should have been "where one with a
calm, sedate and deliberate mind and a formed design unlaw-
fully kills another," etc. (Pickens v. The State, 13 Texas Ct.
App., 351.)

Upon the issue of alibi as to the principal, Middleton, the
charge is defective. It requires the jury to believe from the
evidence that Middleton was not present at the time and place
that Black was killed, when the correct rule is that if the evi-
dence raised in the minds of the jury a reasonable doubt as to
his presence at said. time and place, he should be found not
guilty. This imperfect charge was excepted to by the defend-

Digitized by VjOOQIC

Term, 1889.] Crook v. The State. 243

Opinion of the court.

ant, and is therefore reversible error. (Wilson's Or. Statutes,
sec. 2343.) '

In other respects than those we have specified, we think the
charge of the court is full, fair, correct, and remarkably perti-
nent to the facts, and plain to the common understanding. It
explains very fully and clearly the rules relating to accomplice
testimony, defining who are accomplices within the meaning
of Article 741, Code Crim. Proc, and it applies those rules
not only to the defendant's connection with the offense, but to
the connection therewith of the alleged principal, Middleton.

It was not essential, though proper, that the charge of the
court should instruct the jury in the forms of verdicts which
they might render in the case. (Williams v. The State, 24 Texas
Ct App., 637.) The form of a verdict of guilty, as prescribed
in this case in the charge of the court, is, we think, unobjec-
tionable, and the verdict is in accordance therewith. The in-
dictment did not charge the defendant with the murder of
Black, but with being an accomplice to said murder. Being an
accomplice to a crime is a distinct oflfense, specifically defined
in our code. (Penal Code, Art. 79.) The accomplice is punish-
able in the same manner as the principal offender, (Ibid, Art.
80.) The jury could not legally have found the defendant
guilty of any oflfense but that charged against him in the in-
dictment, which was the oflfense of being au accomplice to
murder in the first degree. We are unable to perceive the force
of the objections made to the verdict.

As to the suflHciency of the evidence to support the convic-
tion, it being unnecessary to a disposition of this appeal that
weshouldpass upon that question, we shall refrain from doing
so, as on another trial of the case the evidence may be essen-
tially diflferent from that now before us.

Because of the several errors in the rulings and charge of the
trial court, which we have specified, the judgment is reversed
and the cause is remanded.

Reversed and remanded.

Opinion delivered February 9, 1889.

Judge Hurt is of the opinion, that being an accomplice to a
crime is not a specific oflfense; that the accomplice ift guilty of
the offense committed by the principal

Digitized by VjOOQIC

244 27 Texas Court op Appbals. [Galveston

Statement of the

27 944

^ 856 No. 26W

27 244
30 316

Mack Green v. The Statb.

L IfuRBBRr— iNDiOTMBNT.^The indictment char^^ed that '^Haek G^reen,
on or about the first day of May, 1888, in the counfy and State afore-
said, did, with malice aforethought, kill Sam Smith by shooting: him
with a gun; contrary, ^^ etc. On motion in arrest of judgment, the in-
dictment is held a good indictment for murder, and sufficient to sus-
tain a conviction in the first degree.

IL Charor op the Court— Murder op the Sbcond DBaRBB— Mait-
sLAueHTRR. — In a trial for murder the inculpatory evidence tended to
prove that the defendant and his brother waylaid the deceased, and
that he was fired upon and killed by one or both of them— both beinz
present and acting together in perpetrating the homicide. Accordini;
to the defense, the meeting of the deceased with the defendant and his
brother was Accidental, and the first shot was fired by the deceived at
the defendant's brother, who, in self defense, and with no co-operation
of defendant, fired upon and killed the deceased. The trial court gave
in charge to the jury the law of murder of the first degree, and of jus-
tifiable homicide in self defense, but refused to give in charge the law
of murder of the second degree and of manslaughter. Held, that the
charge covered the only issues in the case, and properly omitted the
law of murder of the second degree and of manslaughter.

Appeal from the District Court of Comanche. Tried below
before the Hon. T. H. Conner.

At the August term, 18.88, of the district court of Comanche
county Mack Green, the appellant, was indicted for the murder
of Sam Smith by shooting him with a gun on May 1, 1888. A
trial was had at the same term, and appellant was found guilty
of murder in the first degree, with a life term in the peniten-
tiary assessed as his punishment. His motion for a new trial
being overruled he appealed to this court and assigns many
errors. The brief and argument of his counsel discloses the
fact that his brother Tom was separately indicted for the same
offense.

About seventy witnesses were examined in the case, and the
record contains a hundred and fifty pages of statement of faots
and bills of exceptions. The testimony consists largely of local
description and circumstantial details elicited for the purpose

Digitized by VjOOQIC

Term, 1889.] Orbbn t;. Thb Statb. MS

iStateuient of the oase.

of establishing the presence and participation of appellant in
tile perpetration of the homicide. Instead of setting out the
eTidence of the numerous witnesses it is deemed sufficient to
sdect the most important portions, and to give a condensed
statement of such material facts as were not contested at the
trial below.

Late in the afternoon of May 1, 1888, the dead body of Sam
Smith was found in the woods about half a mile from his house
which was situate about six miles west from DeLeon, a village
in Comanche county. Many gunshot wounds were found on
the corpse. John Lewis, a State's witness, testified that he
assisted in removing the clothing from the body, and found and
examined the wounds. "There were bullet holes above and
below one nipple; in the front part of his legs, and two in the
back; one on each side of the back bone. There was one shot
in his arm. There was a large wound where several shot had
entered his head above and back of the ear, and a shot had cut
the under part of the ear. All shot were rather large— -some
buck shot. Shot in the back seemed to have gone in straight.''

Describing the indications at and near the body, George M.
Phillips, who was one of the first persons who saw it, stated
that close to and on both sides of the body he saw the tracks
of a small boot or shoe, number five or six in size, with high
heels, one of them slightly run down. This track was traced
a distance of eighty or ninety yards through some bushes to a
point where two horses had stood. Coming from that point to-
ward the body, the track indicated that the person who made
it moved in a walk, but that, when he returaed to the horses,
he moved iu a run, and the horses went in a run from that point
in a course which would take them a little south of the house
of old man Green,- the father of the appellant. The witness
Phillips saw no other tracks at the body except that of the de
ceased, which he identified by its size and by the fact that
it proceeded no further than to the point at which the body lay.
This track indicated that the deceased was proceeding in a di-
rect, straight forward walk until within about three feet of
where he fell, where it indicated that the deceased careened or
staggered in his walk. That^same night the witness saw the
appellant and examined his boots for the purpose of compar-
ing them with the tracks seen at the body, and the witness con-
cluded that the small tracks at the body were made by the
appellant's boots. The point at which the two horses had stood

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246 27 Texas Court op Appeals. [Galveston

Statement of the case.

waj a little west of north from the body. A man on a horse at
that point could have been seen from the body. This witness
thought that the distance from the body to old nuui Green's
house was about three-quarters of a mile, and about a mile from
said house to the deceased's. In the direction of where the
horses had stood, and twenty or thirty steps from the body, the
witness found a piece of gun wadding, and about two or three
feet north of the body he found a Winchester gun, but did not
examine it.

John Johnson, testifying for the State, said that he was at
his home in the afternoon of May 1, 1888, when a small boy
came from old man Green's and told him that Sam Smith had
been killed. He at once went to Green's, and there found old
man and Mrs. Green, W. C. Burrow and J. W. Martin. Old
man Green told where Smith's body could be found, and wit-
ness, accompanied by Burrow and Martin, started off to find
it. They first went in a northwest direction, but, not finding
it after searching an hour or so, the witness and Martin re-
turned to Green's, and from there they took and followed the
back tracks of some horses to where the body was. They saw
where those horses had stopped. Eellsw (usually called Belyeu
in the record) bad already found the body, and was the only
person then at it. He hailed the witness and Martin when
they got within a hundred yards or so, and told them he had
found the body. This witness observed the tracks of two per-
sons who had approached the body from the point where the
two horses had stood, but the larger tracks stopped some forty-
yards from the body. By the testimony of this and several
other witnesses it was proved that a number of trees and
bushes which intervened between the point at which the horses
had stood and that at which the deceased lay bore the marks of
bullets or shot. Also by this witness and several others the State
made proof that on a hill overlooking the deceased's house, and
about three hundred and fifty or four hundred yards from it
were found the tracks of two horses and the tracks of two men.
The horses had apparently been stopped and hitched a short
distance from a rocky point from which the deceased's house
and premises could be partially seen, and from where the horses
had been hitched the tracks of their riders proceeded to the
said rocky point. One of those tracks was that of a boot or
shoe about a nmnber five or six in size, with high heels, and
the tracks showed that the heel of one of the boots or shoes

Digitized by VjOOQIC

Term, 1889.] Green v. The State. 247

Statement of the case.

was run down. The other track looked like that of a number
seven or eight shoe with broad soles and heels. Indications on
file ground and bushes where the horses had stood showed that
they had been hitched there some time, and that one was a
large and the other a small horse. A peculiarity about one of
these horse tracks showed that in the hoof which made it there
was a gap or broken place which made no impression on the
ground. Some of the witnesses testified that a very similar
peculiarity was apparent in one of the horse tracks found near
the body of the deceased. Several members of the Green fam-
ily, however, testifying for the defense, denied that there was
any such a peculiarity in the hoofs of either of the horses rid-
den on the fatal afternoon by the appellant and his brother
Tom. The trail of the horses was followed by several of the
State's witnesses from the rocky hill which overlooked the de-
ceased's house. With the usual amount of discrepancy in such
testimony, these witnesses described the course of the trail un-
til it led them to the spot at which two horses had stood near
the body of the deceased.

Mrs. M. Smith, the widow of the deceased, testified for the
State, that she first heard of her husbaiid's death about half
an hour before sunset in the afternoon of May 1, 1888. About
the middle of that afternoon he started from his home in a
southwest direction, for the purpose, as he said, of looking for
his goats, as he was in the habit of doing when they failed to
come up in the afternoon. He took with him, as was also his
habit, his Winchester gun. Within an hour after his depar-
ture from the house, the witness heard the reports of some
twelve or fifteen shots, fired in a southerly direction from the
house. Deceased and Belyeu had been working on a fence,
and deceased, when he left to look for his goats, left Belyeu at
the fence.

John Rhoads, for the State, testified that he was the jailer of
Comanche county. When the appellant and his brother Tom
were brought to the jail from De Leon, the appellant was wear-
ing a pair of small boots, about number five or six, narrow
soled, and with high heels, one or both of which were run
down. Tom Green was wearing a pair of shoes about number
eight in size, with broad soles and flat heels.

E. N. Waldrop, for the State, testified that he saw the appel-
lant and Tom Green at De Leon about sunset of the fatal day.

Digitized by VjOOQIC '

248 27 Texas Court of Appeals. [Ckdreston

Statemeot of the ca^e.

Tom Green was riding a mare pony. Appellant was riding a
horse larger than Tom's pony, and with larger feet.

J. B. Belyeu, testifying for the State, said that when he
learned that Sam Smith had been killed he called a man named
Taylor and they went to look for Smith. Not finding him soon,
witness went back to Smith's house, and from there traUed him
by his tracks. The witness described the course of the trail for
some seven hundred yards to the spot at which he found
Smith's body, and near which he observed the tracks of goats.
Some time after Smith left the house to search for his goats,
the witness heard twelve or fifteen shots fired in the direction
of the place where he found Smith's body. This witness was
living with the deceased at the time of the homicide, and they
went to De Leon together in a wagon the day before that event.
At De Leon the witness met the appellant, who cursed and
abused the witness and the deceased, calling them d — d rascals,
d — d fools, etc., because they had caused him to be arrested.
Part of the time the deceased was near by and heard some of
the appellant's talk. Appellant said he would kill the deceased
and witness, if he had to take the brush for it. He came up to
witness and said: "What in the hell and damnation did you
swear out that writ for?" And then followed his abuse already
stated. The witness admitted that he had not testified at the
examining trial about this abuse, inasmuch as he was not ques-
tioned about it. He never heard the deceased say anything about
the appellant^s abusive language on that occasion, and he de-
nied that he and the deceased, just before they started home, had
a conversation in the presence of appellant's brother Frank, in
which the deceased said to witness: "Hurry and load the
wagon and let 's start home, and I will kill the son of a bitch as
they go home."

Dr. S. W. Walker, for the State, testified that the day before
the homicide he saw the appellant and Tom Green talking to
Belyeu in De Leon. Appellant was proposing to whip Belyeu
or any friend of his. Deceased, who was standing near by at
the time, afterwards got witness to go to the Greens and try to
pacify them. Witness told them that the deceased sent them
word that he was sick and unable to fight them, and did not
want to fight them. Finally the Greens said they would not
fight the deceased that day. Witness did not hear the deceased
use any bad language about the Greens on that day.

Mrs. Tims, a sister of Belyeu, testified that, the Sunday night

Digitized by VjOOQIC

Term, 1889.] Gre©n v. Thb State. 249

Statement of the case.

week before the homicide, she attended prayer meeting at the
school house and was seated close to the door. Just outside
of the door the appellant was talking to some one, and she
heard him say that if Smith and Belyeu caused him to pay a
fine he would kill them both.

W. M. Littlefield, for the State, testified tliat Henry Bennett
and he were plowing in his field on the day Smith was killed.
About the middle of that afternoon they heard the reports of
flre arms in the direction of the spot where Smith's body was
found. The first and second shots were so nearly simultaneous
that he could barely distinguish them apart. Then while it
would take a man to walk say twenty or thirty steps, twelve
moire shots were fired as fast as they could be counted, and
then there was a pause and a single shot followed. This single
shot was keener and sharper than the previous ones, and
seemed to be the report of a rifie. The previous reports sounded
like those of shot guns. Witness heard some one in the same
direction halloo just after the first two shots, but could not say
whether it was a cry of distress or not. Witness was about
half a mile distant from where Smith's body was found.

D. J. Rowe, sheriff, speaking of the Winchester gun found
near Smith's body, said it had been struck under the barrel by
a bullet which tore away a part of the stock. The bullet
ranged aoross the barrel, and struck almost centrally on the
magazine. According to this and other witnesses, the gun,
when thus struck, could not have been presented, but must
have had the muzzle turned upward.

J. J. Wynn, for the State, testified that about the middle of
the fatal afternoon he saw the appellant and his brother Tom
riding rapidly in an easterly direction towards their father's
house. They were going in a more rapid gait than a lope, and
went on to old man Green's, By other testimony the State
proved that the horse tracks at old man Green's were back-
tracked to the place where the two horses had stood near tUe
body of the deceased.

Mrs. Lydia Green, the appellant's mother, was his first wit-
ness. She testified that she lived about a mile from the house
of Sam Smith, and was at her home the day he was killed.
She had been informed about the place at which he was killed.
She heard the firing about the middle of the afternoon, and af-
terwards saw the appellant and his brother Tom riding towards
the house from a westerly dirt>i;tioii. They were riding in a

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250 27 Texas Court op Appeals. [Galveston

Statement of the case.

fast trot or gallop. They rode up to where their father was
standing at the bars in front of the house, and thev seemed to
be scared or excited. Witness heard of the killing of Smith
after the middle of that afternoon. A few days previous she
saw him near the southwest corner of her husband's field, in
some brush near where some large posts had been put up. The
Green boys were then grubbing in the field, and she had taken
them some water. Smith was going off, "kinder stooped,"
through the bushes and from behind a tree. He was about
thirty-five or forty yards from the corner of the field, and the
boys were some seventy-five yards from the corner, and inside
the field. Smith had his gun with him. Appellant and his
brother Frank were the boys in the field. Witness was not ex-
cited by thus seeing Smith, and did not return to the field and
tell the boys, but went on to the house and told her husband, and
he went to the field and told the boys. About a week before that
occasion, witness's husband had stopped the appellant from
plowing to the end of the field nearest the road and brush in the
direction of Smith's. Appellant and his brother Tom ate din-
ner at home the day Smith was killed, and left home about
fifteen minutes after two. They went in a northwest direction
to hunt for a yearling, and were gone about three quarters of
an hour. After they came back Tom loaded his gun. Appel-
lant ditl not load his gun, which was capped and appeared to
have been discharged. It was a muzzle loading gun. Appel-
lant did not take with him his shot pouch or powder pouch
when he left to look for the yearling. Witness saw them hang*
ing on the wall after he harl gone. He took no pistol with him.
He was in the habit of carrying his gun with him After wit-
ness heard the report of fire arms, not more than four or five
minutes elapsed before she saw the appellant at the bars in
front of the house. After coming home he and Tom remained
about half an hour, and then left for De Leon. Tom was riding
a bay horse, and the appellant a sorrel which was the larger of
the two. When they started to hunt for the yearling they said
they were going down on Willow, which route would not take
them by Smith's place. Witness was certain they went north-
west toward Willow, and did not go southwest towards Sabanno
creek, and she was confident they were not gone more than
three quarters of an hour.

Bill Green, a brother of appellant, testified that he had
stepped the distance to Smith's house from the rocky hill spoken

Digitized by VjOOQIC

rTerm, 1889.] Green v. The State. 251

Statement of the ease.

of by the witnesses for the State, and he found it to be five
hundred and eighty steps. From no point on that kjioll could
all of Smith's house be seen. The roof and part of t^e wall
and door could be seen from the rocky point. The bars could
not be seen from there, nor the space between them and the
house or yard. Witness did not think that from the knoll a
man could be seen going south or southwest from Smith's
house. On Sunday before the killing the witness was on the
pomt of the hill. The trees were then in full leaf. Witness's
father put him on the trail made by the horses ridden by ap-
pellant and Tom when they left old man Green's on the fatal
afternoon. John Hargrove and witness's brother Frank ac-
companied witness on that trail. It went from old man Green's
over on Sabanno creek and to the mouth of Willow; then up
Willow and back by the DeLeon and Shinoak road, and thence,
after leaving the road, it went to the place where the killing
occurred. Where the horses had left the tracks to the north
of where Smith's body was found, the witness found a bullet
in the south side of a black jack tree, and about seven and a
half feet above the ground. That bullet appeared to have come
from the direction of the body and towards the point where
the horse tracks were. In the afternoon of the killing the wit-
ness heard fire arms, and in about an hour afterwards he
learned of the killing. He was about half a mile from where
the shooting occurred. He was familiar with the sounds made
by different kinds of fire arms. The first two shots were close
together. The first of those two was a rifie shot ; witness was
positive it was not that of a shot gun. The second and third
reports were those of a shot gun. The witness said there was
no "mick" in either of the hoofs of the horses ridden by appel-
lant and his brother Tom. On his cross examination the wit-
ness said that previous to taking the witness stand he had
never told about finding the bullet in the south side of the black
jack tree which stood between the deceased's body and the
place north of it where the horse tracks were. On the Sunday
before the killing the witness and his brother were near the
rocky hill southwest of Smith's house. They were horse hunt-
ing, and they found the sorrel horse under the hill and in the
direction of Smith's house. There was a bay filly which fol-
lowed the sorrel horse.

Frank Green, for the defense, testified very similarly to his
brother BMl, and added that he heard a conversation at De

Digitized by VjOOQIC

M2 27 TsxAS Court of Appeals. [Oalveifeoii

statement of the ease.

Leon between Smith and Belyeu the day before the killing, in
which Smith told Belyeu to ''hurry up and put the things in
the wagon and we will kill the son of a bitch this evening.''
Witness told this to Tom and the appellant the same day.
There was no such peculiarities in the horses' hoofs as had been
described by several witnesses for the State. This witness sta-
ted that he also saw the bullet mark in the south side of the
blackjack tree spoken of by his brother Bill, but he said the
bullet had bounced out. He had never previously told this
fact. He ran his knife into the bullet hole about an inch or an
inch and a half. His brother Bill and his brother in law Har-
grove were present, but he could not say whether they saw him
do so. He told them about his doing so. He made no search
for the bullet. He denied that either of the heels of appellant's
boots was run down at the time ot the homicide. ''There was
no shot marks in line with Mack's tracks to Smith's; the shot
marks were all from direction of Tom's tracks." The witness
stated positively that he knew that Mack and Tom did not ride
from home to the point of rocks southwest from Smith's house.
Witness went on a horse to where the horse tracks were found
north of the body, and could not from there see a person stand-
ing where the body lay. He then went to where the body lay,
and from there he could plainly see a man on horseback where
the horse tracks were. Finally he stated that from the horse
tracks he could, on horseback, see something at the spot where
the body lay, but he could not tell what it was. This witoess
said that his mother, when she saw the deceased with his gun
near the corner of the field, oame back to the field luid told
what she had seen. He said it was not true that she went on
to* the house and first told her husband about it. "When I said
that Tom had told me that he had shot Smith, I meant that
Tom had told father and mother, and they had told me. Don't
think he ever did tell me."

John Hargrove, for the defense, gave, in the main, much the
same testimony as did his brothers-in-law. Bill and Frank
Green, but denied that Frank told him, or said in his presence,
that he had pried into the black jack tree and discovered that the
bullet which struck it had bounced out. Witness and his broth-
ers-in law took no one else with them to trail the horses. From
Smith's body a man on a horse from where the horse tracks
were would be visible from the hips upward, but a man stand-
ing at the body could not be seen from where the horses stood.

Digitized by VjOOQIC

Teim, 1889.] Grsen v. The State. Bfia

Statement of the

Witness told no one about the finding of the ball in the blaok

jack tree, and never mentioned that fact until in his present

testimony.
J. J. Wynn, who had previously testified for the State, was

introduced and further examined by the defense as to what
transpired after the appellant and Tom rode up to their father's
gate or bars in the afternoon of the homicide. He stated that
he was about seventy-five yards distant, and old man Green
called to him to come by. Witness did so, and old man Green
said to him: "My boys have got into trouble with Smith on
the hill." Tom spoke up and said that he had killed Smith;
that he, Tom, was riding on his horse through the woods and
Smith shot at him with his Winchester; that he, Tom, then
fired from his horse, jumped to the ground, took a tree on
Smith, and ran right up and shot him again. Then the appel-
lant spoke up and said: '*Yes, Tom shot him, but Smith shot
at him first with his Winchester." Witness went over to
Smith's to inform his family. The Green boys did not tell wit-
ness where Smith's body was other than "over on the hill.^
Tom had a breech loading gun, and was working with and un-
breeching it. The boys were excited, and Tom was somewhat
agitated while making his statement. Appellant's gun was a
muzzle loader; witness did not see him load it. Tom did not
tell witness of any other shots than those already mentioned
Witness asked him if any one else was at the shooting, and he
replied that the woods were full of armed men. He said he got
right up to Smith, and knew he was dead.

Mrs. Lydia Green, appellant's mother, was introduced by the
defense. She denied that either appellant or his brother Tom
told Wynn that the woods were full of armed men, and she did
not think that Tom said that he went up to Smith and fired on
hina. She was certain Tom did not tell Wynn that he was on his
horse when he fired his first shot, and that he then took a tree
on Smith and fired the other barrel at him. Tom did not tell
Wynn that he fired his pistols at Smith; but, after he went in
the house, he did say that he discharged one of his pistols and
part of another. He did not say where he got his pistols.
'*They said Mack (appellant) did not shoot." Counsel asked
witness what Mack did, and she replied "nothing." Being
Baked whether Mack held the horses, witness replied: "I sup-
pose so; don't know that they said anything about the horses.^
Hack was wearing his fine boots; they were a number seven or

Digitized by VjOOQIC

264 27 Texas Court of Appeals. [Galveston

Statement of the case.

eight in size, and no heel was run down. They had since been
worn out by appellant's brother Frank. Tom had larger feet
than appellant and wore a number eight or nine. Appellant
rode the sorrel horse, which was larger than the bay ridden by
Tom. The sorrel had no *'nick" out of its hoof. On the Thursday
evening after the killing the boys (supposedly Bill and Frank
Green) told witness they had found where shot from Smith's
gun had struck a black jack tree on the east side. When ap-
pellant and Tom rode up to their father in front of the house,
appellant was in advance, and he told his father that Tom had
killed Smith, — that they were riding through the woods when
Smith fired on Tom with his Winchester. Appellant did not
have on a pistol.

Mrs. Tom Green, appellant's sister-in-law, testified that when
Smith was killed she and her husband were living at section
house eighteen of the Texas Central railway, for which road
her husband was working. On the Monday before the homicide,
as she was walking from the section house to old man Grecm's,
the deceased rose up out of the bushes with his Winchester pre-
Bented. Witness was scared and started to run. Deceased
asked her where Tom was. He was eight or ten feet from the
road and directly opposite to witness. "He cursed, — said *d — ^n
it, Where's Tom?'" He snapped his gun while he had it pre-
sented at witness. This occurred about a quarter of an hour
before sunset. Witness told her husband when he returned
home the next day about her meeting with Smith, as stated.

Dick Belyeu (alias Bellew), who had already testified for the
State, was called and examined by the defense. He testified
that a short time before the homicide he had an appointment to
meet the appellant at the corner of the field, and was accom-
panied there by Smith, the deceased, who took with him his
Winchester gun. They saw but did not show themselves to
the appellant, because he did not come as he agreed to come.
Witness does not * 'propose to answer how he was armed.*'
Witness had never stated in the presence of Jim Crowley that
Smith had his gun cocked and said he was just waiting for ap-
pellant to get on his (Smith's) land, when he intended to shoot
him. Nor did witness tell Wess Bender that Smith and wit-
ness went to meet the Green boys, and concealed themselves
in the brush, "and when we got there there were so many of
them that we thought it was dangerous to tackle them. Ben-
der did not say to me, 'don't you know Smith intended to kill

Digitized by LaOOQlC

Term, 1889.] Green v. The State. 255

statement of the cnse.

Mack Green that evening*; and I did not answer that I did noi
think that he did that evening, but that I would not say what
his future intentions were."

Jim Crowley, a boy who had been living at old man Greenes
since about a month before Smith was killed, and who had pre-
viously lived at Smith's, testified for the defense that he had
heard Smith say he would kill Mack Green if he ever got a
chance. About two weeks before the witness left Smith's he
heard Smith and Belyeu say that they went down to the cor-
ner of the field to meet the Greens, and Belyeu said that he
had his hand on his pistol, and that Smith had his gun cocked
oa Tom and Mack, but that there were too many of the Greens.
Smith, before witness left him, said he was going to run him
ofiF the place. Witness had not talked with the Greens about
this case

Wess Bender, for the defense, testified that he was section
boss on the railroad, and that Belyeu had worked for him.
Since Smith was killed witness asked Belyeu if he did not
know that Smith intended to kill Mack Green the evening that
he (Belyeu) and Smith went down to the corner of the field.
Belyeu replied that he did not think Smith intended to kill
Mack that evening, but that he would not say what Smith in-
tended to do after that. He further said that while they were
in the brush he rose to **open up" on the Green boys, but that
Smith tugged him by the coat and told him to sit down, saying
that there were too many of them to tackle. Witness's brother-
in-law was indicted for conspiracy with the appellant to mur-
der Smith. Belyeu did not seem to think that Smith intended
to hurt the Green boys.

Hill Logsdon, for the defense, testified that on the Saturday
or the Monday before the homicide he saw Smith at De Leon.
Smith had something wrapped up in a slicker across his lap; it
was four or five feet long, or about the length of a Winchester.
Smith was talking about the Greens, and said he had come to town
to prevent them from running over the young man who was liv-
ing at his house, and that for his own protection he carried the
thing wrapped up in the slicker. He said he was too old to
fight with his fists^ and that every time he got near the sons of
bitches they went off and would not give him a chance. At
that time the witness did not know the Greens, but was now
"camping*' with them, and they were feeding him and paying
all expenses. Until about a month before this trial the witness

Digitized by VjOOQIC

^256 27 Tbxas Court of Appeals. [Galveston

Statement of the oa«e.

told nobody about what he heard Smith say in De Leon, but he
informed appellant's brother Bill of it whil.e working with him
on the railroad.

After introducing several witnesses who testified that appel-
lant's reputation was good for peacefulness, etc., and that the
deceased's was that of a quarrelsome and dangerous man^ the
defense rested.

For the State, in rebuttal, E. K Waldrop testified that he
was present when Tom Green and appellant came into De Leon
and reported the killing of Smith. Witness asked him partic-
ularly how it occurred, and Tom replied that he and Mack
were riding through the woods when he saw Smith in the act
of shooting; that Smith shot and then he shot; that he saw
Smith strike his breast, leaning forward; that then he, Tom,
jumped from his horse, ran down some thirty yards and fired
again. Tom twice said that but three shots were fired, and
said that Mack was a witness to the afifair. Mack was present
and assented to Tom's account of the matter, and sanctioned.
Tom's statement that but ihree shots were fired. Mack further
said that he was satisfied Smith was dead, but was not certain,
as he and Tom did not go nearer Smith than thirty feet.

The State read in evidence the sworn statement made by ap-
pellant to the coroner's inquest held the night of the fatal day.
It was as follows: **Me and my brother was out cow hunting
May i, 1888. As we come home I saw Sam Smith with his
Winchester. He fire«i on my brother. My brother fired one
shot at him while on his horse; then dismounted, advanced to
him, Smith. Second shot, my brother was thirty yards from
Smith. Smith look like he was falling when my brother fired
second shot. Then my brother shot at Smith several times
with a pistol. Smith look like he was trying to get his Win-
chester after falling. My brother had a pistol, 31 caliber. I
did not know whether Smith was dead when I and my brother
left, or not. Smith fired on my brother without hailing him.
My brother was north of Smith when Smith fired on him. The
killing taken place in Comanche county, State of Texas." The
signature '' J. M. Green" appears to the foregoing, and then
appears the further statement, to wit: "Gronen (intended for
Green) advanced as he shot. Sam Smith went side way ten or
twelve feet from where he fell. I, Mack Green, went in three
or four feet from Smith when he fell. My brother came in
twenty feet of Smith after he fell."

Digitized by VjOOQIC

Term, 1889.] Green v. The State. W

Opinion of the court.

The State proved that Smith, about a month before he was
Jdlled, filed a complaint charging appellant and others with
cursing and horse running, etc., around Smith's residence, but
the complaint was dismissed on account of some informality or
defect. The State introduced a number of witnesses who gave
the deceased an excellent reputation for peace and quietude.
It incidentally appears that old man Green had died since the
homicide.

M my circumstantial details of an equivocal or inconclusive
character have been omitted in this report, and also a mass of
merely cumulative or corroborative testimony; but it is believed
that the material and important evidence has been sufficiently
presented.

Hamilton <b Prosier, and Lindsay & Hutchinson, for the ap«
pellani, filed an able and forcible brief and argument.

W. L. Davidson, Assistant Attorney General, for the State.

White, Pri siding Judge. Eleven bills of exception re-
served to rulings at the trial by defendant appear in the rec-
ord, nine of which are, to our minds, so fully, completely and
satisfactorily explained by the learned judge in his notes set-
ting forth the attendant facts and circumstances that it would
be both a work of supererogation and a useless consumption
of time to recapitulate and discuss them in view of those ex-
planations.

The tenth and eleventh bills were saved to the overruling of
defendant's motions in arrest of judgment and for a new trial.
They first attacked the validity and sufficiency of the indict-
ment, which instrument is in accordance with approved prece-
dents and forms. The latter motion recapitulated all the sup-
posed errors into which the court had fallen during the pro-
gress of the trial.

Two of these errors, and the ones most urgently insisted
upon in the oral argument and brief of counsel for appellant,
are that the court failed and refused to submit murder of the
second degree and manslaughter as issues in his charge to the
jury in this case. Upon the statements both of defendant and
his brother as to how the homicide occurred, and which state-
ments were in evidence, their meeting with deceased was
purely accidental and they were justifiable on the ground of

Digitized by VjOOQIC

S58 27 Texas Court op Appeals. [Galveston

Syllabus.

self defense. According to the testimony of the prosecution,
the homicide was a murder by lying in wait — an assassination
— and, consequently, murder of the first degree.

These were the only issues in the case, in our view of th«
facts as shown by the record. This was the view taken by the
learned trial judge, and upon the various phases upon which
these issues were by the facts required to be submitted we find
his charge a full, clear and suffiaieut exposition of the law of
the carfe.

We have given the record in this case a most thorough and
repeated consideration, and we have found no error for which
the judgment should be reversed, and it is therefore aflBrmed.

Affirmed.
Opinion delivered February 16, 1889.

No. 2695.

G. W. Williams v. The State.

1. Fraudulent Removal of Mortqaoed Property — Indictment—
Terms Construed. — This prosecution was for removing mortgaged
property out of the State, as that offense is defined by article 797 of the
Ponal Code. In the stead of the statutory word '^remove,'' the in-
dictment iises the word **run." Held, that the words are equivaJent
as the word *Vemove^^ is used in the statute. See the statement of
the case for the charging part of an indictment held sufficient to
charcre the offense of removing mortgaged property out of the State.

8. Same— Venue.— Article 205 of the Code of Criminal Procedure provides
that '^prosecutions for ofT 'rises committed wholly or in part withoat,
and made punishable by law within, this State, may be oommenoed
and carried on in any county in which the offender is found." The
mort^a^e in this case was executed in K. county, where the defendant
had posFession of the property. He removed the property from said
county, and, while en route to Louisiana, was arrested in H. county.
Elscaping thence, he went into Louisiana with the property. The con-
tention of the defendant is that U., and not K., county, was the
county of the venue. Hut, ?ield, that the offense on trial bein^ one
that comes within the purview of article 205 of the Code Criminal Pro-
cedure, it was properly prosecuted in K. county.

8w Same — Pact Case.— See the statement of the case for evidence Tuld
sufficient to support a conviction for the fraudulent removal of mort-
gaged property.

Digitized by VjOOQIC

Term, 1889.] Williams v. The State. 259

Statement of the case.

Appeal from the District Court of Kaufman. Tried be-
low before the Hon. Anson Rainey.

The penalty assessed in this case was a term of two years in
the penitentiary. The conviction was had under the first
count in the indictment, which reads as follows: " * * That
G. W. Williams, on or about October 1, 1888, in the county
and Sfate aforesaid, with the intent to defraud W. A. Taylor
<& Brother, a firm composed of W. A. Taylor and George
Taylor, did unlawfully run out of said State certain personal
and movable property, to wit, one brown mare about eight
years old, branded IXL, the. said G. W. Williams having here-
tofore, to wit, on January 27, 1888, executed and delivered to
the said W. A. Taylor & Bro. a valid mortgage in writing upon
the said above described property, and which said mortgage
was at the time of removal of said property a valid, subsisting^
unsatisfied mortgage upon said property, and was then owned
and held by the said W. A. Taylor & Bro. ; against the peace
and dignity of the State."

The State introduced in evidence the mortgage referred to
in the indictment, which, besides the horse mentioned therein,
described iwo other horses and a two horse wagon, and crops
to be raised by the mortgager. The execution of the mortgage
was proved by the mortgagee and the attesting witness, and
the former testified that at the time the defendant left Kauf-
man county with the property described in the mortgage (ex-
cept the crops), no part of the debt to cover which the mort-
gage was executed, was paid.

Demasters testified that defendant lived at his house, and
made crops on two places in the year 1888; that, not having
told witness he was going to leave, nor where he was going to,
the defendant, one evening in September, 1888, while witness
was absent from home, loaded all of his household effects on
the wagon described in the mortgage, and, with the three horses
described in the mortgage (the animal described in the indict-
ment being one of them), and the said wagon and household
effects left witness's house. The witness, on the same evening,
informed the Messrs. Taylor that defendant had gone.

Fields testified, for the State, that acting for Taylor & Broth-
er, he pursued the defendant, and finally brought back the
brown mare and other two horses and wagon, which he deliv-
ered to the Taylors. The defendant was arrested at Wascom

Digitized by VjOOQIC

260 27 Texas Court op Appeals. [Galveston

OpioioD of the court.

station in Harrison county, on a telegram sent ahead by wit-
ness, and was in custody with the property at the quarantine
camp when witness reached Wascom. Defendant, however,
escaped into Louisiana, riding the brown mare, and leaving
the other property in the quarantine camp. He was pursued
by deputy sheriff Pannell, who soon returned with him and
the mare to Wascom, where Pannell delivered the mare to the
witness.

Deputy sheriff Pannell testified, for the State, that he reached
Wascom, in Harrison county, about a mile from the Louisiana
line, just after defendant's escape. He pursued defendant to
Jewella, Louisiana, fti company with a Louisiana officer. The
defendant was then in a house, and the brown mare was graz-
ing in a peach orchard. The Louisiana officer told the defend-
ant that he wanted him to go with him, the officer, and witness,
to Wascom, and identify the properry. Defendant agreed to
and did go back with them to Wascom, where he was turned
over to witness by the officer. Witness then turned the prop-
erty over to Fields, and took defendant to Kaufman. The do
fense introduced no evidence.

Manion d: Huff master^ for the appellant.

W. L. Davidson, Assistant Attorney General, for t-ie State.

WiLLSON, Judge. This is a conviction under article 797 of
the Penal Code. Instead of alleging in the language of the
statute that the defendant did * 'remove" the property out
of the State, the indictment alleges that he did **run" it out
of the State. The word "run" in the connection in which
it is used in the indictment is, we think, equivalent to the
statutory word **remove," and we therefore hold that the
use of **run" instead of **remove" does not render the in-
dictment bad. (Willson's Cr. Stat., sec. 1955.) In all rei?pects
we hold the first count in the indictment, the count upon which
the conviction was had, to be sufficient.

It appears from the evidence that the mortgage upon the
horse in question was executed in Kaufman county, and
that defendant had possession of the horse in said county.
He removed said horse from said county, going in the di-
rection of Louisiana. When he reached Harrison county,
and was in one mile of the boundary line between Te^as and

Digitized by VjOOQIC

Term, 1889.] Williams v. The Statbs. $61

Opinion of the court.

Louisiana, he was arrested by quarantine authorities and while
being held in custody by said autiiorities he escaped, taking
said horse with him into the State of Louisiana.

It is contended by counsel for defendant that the venue of
the offense is in Harrison and not Kaufman county. There
is no provision of statute specifically declaring the venue of
this offense. In Roberson v. The State, 3 Texas Court of Ap-
peals, 502. where the prosecution was for selling mortgaged
property, it was held that the venue of such offense was in the
county where the sale was made, irrespective of where the lien
upon it was executed, or where the property was removed
from. That decision^ however, is not applicable to the question
before us.

There is a general provision of our Code as follows: **In all
cases except those enumerated in previous articles of this chap-
ter, the proper county lor the prosecution of offenses is that in
wliich the offense was committed." (Code Crim. Proc, art. 225.)
But this article does not apply in this case, because the offense
can not be said to have been committed — that is completed — in
any county in this State. It was not an offense to remove the
horse from Kaufman to Harrison, or any other county in this
State. No offense was committed until the horse had been re-
moved out of this State.

This offense is one which we think comes within the mean-
ing of article 205 of the Code of Criminal Procedure, which
reads: *Trosecutyons for offenses committed wholly or in part
without, and made punishable by law witbki this State, may
be commenced and carried on in any county in whi -h the of-
fender is found." This offense is one which can not be com-
mitted wholly within this State, but must be committed partly
without this State, because the property must be removed out of
the State before the offense is complete. 'J'here is no more rea
son for holding that the offense was committed in Harrison
than in Kaufman county. It was not and could not be commit-
ted wholly within this State, and but for the article of the code
last cited, could not be prosecuted in any cotmty in this State.
It was certainly not the intention of the Legislature to denounce
an offense over which the courts of this State could not exer-
cise jurisdiction. We do not think we are giving article 205,
above cited, a strained or unreasonable construction in making
it applicable to this case. On the contrary, we think the plain
meaning of that article embraces this particular offense, as

Digitized by VjOOQIC

262 27 Texas Court op Appeals. [Galveston

27 2081
29 236|

Statement of the case.

well as others of a similar character, where there is no special
provision controlling. We hold, therefore, that this prose-
cution was properly commenced and maintained in Kaufman
county.

As to the evidence, we think it sustains the conviction. The
issue of fraudulent intent was fairly and fully submitted to
the jury by the charge of the court, and the jury were well
warranted by the evidence in concluding that such intent on
the part of defendant existed and accompanied the act of
the defendant in removing the horse out of this State.

We find no error in the conviction^ and the judgment is
aflbmed.

Affirmed*

Opinion delivered February 20, 1889«

No. 2586.
William Davidson v. The State.

1. Occupation Tax.—Ad employe who follows the oocupatioD of selling

inhibited liquors when the tax imposed by law has not been paid is,
eqaally with his principal, amenable to article 110 of the Penal Code.

2. Samk— Penalty — Charge op the Court.— The minimum puoish-

meiit for pursuing an occupation taied by law without having first ob-
tained necessary license, is a fine of not less than the tax imposed
upon such occupation. And as the license of a retail liquor dealer can
not issue for a shorter period than one year, the minimum punishment
for the violation of the said article 110 is a fine in the full amount of
one yearns tax upon such occupation. The charge of the court so de-
fining the penalty, it was correct.
8. Same— Practice— Failing to request instructions to supply omissions
in the charge of the court, the defendant in a misdemeanor case can
not be heard to complain of such omissions, notwithstanding he may
have excepted to the same.

Appeal from the Criminal District Court of Harris. Tried
below before the Hon. Gustave Cook.

The conviction was for following the occupation of a retail
liquor dealer, without having first paid the tax levied by4aw

Digitized by VjOOQIC

Term, ISSy.J Davidson v. The State. 263

Opinion of the court.

on such occupation, etc. The penalty assessed against the ap-
pellant was a fine of four hundred and fift}- dollars.

The proof showed that Alfred Sterne owned the Globe saloon
in Houston, in which saloon intoxicating: liquors were sold by
the drink, and that said Sterne had never paid tho tax levied
on the occupation of selling said liquors, nor obtained license
to pursue the same; that the defendant was merely employed
as a bar tender in that saloon: that as bar tender he had noth-
ing to do with the procuring of license or payment of taxes,
and that as such bar tender he sold said liquors at retail, and,
acting for Sterne, he received pay for the same.

W. H* Cranky for the appellant.

W, L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. An employe who follows the occupation
of selling inhibited liquors when the occupation tax has not
been paid, violates article 110 of the Penal Code, and is subject
to prosecution and punishment therefor equally with his prin-
cipal. (LaNorris v. The State, 13 Texas Ct. A[>p., 33; Tardiff
v. The State, 23 Texas, 100.)

For pursuing an occupation taxed by law without first ob-
taining a license therefor, the minimum punishment is a fine of
not less than the taxes imposed upon such occupation. (Penal
Code, art. 110.) Upon the occupation of retail liquor dealer,
the taxes imposed are for a whole year, and can not be for a
shorter period of time. (Sayles's Civ. Stats., arts. 4()Gf;, 400^'.)
It follows, therefore, that upon a violation of article 1 10 of tlit3
Penal Code by pursuing the occupation of retail liquor dealer,
the minimum punishment is the full amount of one year's taxes
upon said occupation. (Fahey v. The State, ante, 14G.) There
was no error in the charge of the court as to the punishment.

This prosecution beinj^^ for a misdemeanor, the defendant
can not be heard to complain of an omission in the charge of
the court, although such omission was excepted to, he having
failed to request an instruction supplying such omission. (Will-
son's Grim. Stats., sec. 2363.)

There is no error in the conviction, and the judgment is af-
finned.

Affirmed,

Opinion delivered February 23, 1889.

Digitized by VjOOQIC

<*4 27 Taxas Court op Appbals. [Galveston

Statement of the oaae.

No. 2654
Wiley Scott v. The State.

1. Swindling—Indiotment.— See the statement of the ease for an indiot-

ment Tield safficient to charge swindiiDg.

2. Same— CHAReB of the Court— Evidence.— The swindling was al-

Jeged to have been committed by means of a false written instnunent
and the false declaration of the accused that the names appearing to
the same were firenaine signatures. The trial court charged the Jury
in effect that before they could convict they must find that the signa-
tures were on the instrument when it was delivered by the accused,
and that he then falsely and fraudulently declared that they were gen-
uine, and so induced the issuance of the draft. Held, that the instruc-
tion was correct in principle, and applicable to the charge in the in-
dictment and the facts in evidence. But see the statement of the case
for evidence upon which it is held that the verdict of guilty is contrary
to both the instruction and the proof.

Appeal from the District Court of Montgomery. Tried be-
low before the Hon. James MastersoA.

The charging part of the indictment reads as follows: "* *
That heretofore, to wit, on the twentieth day of September, in
the year of our Lord 1886, in the county of Montgomery, in the
State of Texas, Wiley Scott did then and there, intending to
cheat and defraud Hartley Free School Community No. 70, in
and for Montgomery county, in the State of Texas, knowingly,
fraudulently and deceitfully present to J, M. Lewis, who was
then and there county judge in and for said county and State,
and who was by virtue of his said official position then and
there had the supervision of the disbursement of the funds
belonging to the public free school communities of said county
of Montgomery, in said State of Texas, which the said Wiley
Scott then and there well knew, a certain false, fraudulent and
deceitful written petition or request addressed to county judge
of Montgomery county, requesting said official to appropri-
ate sixty-one dollars and forty cents out of the funds of said
school community to build a school house for said school com-
munity with the following names, to wit, 'Sine,' 'Thompson*
and 'Hubert' attached thereto as signers, which the said Wiley
Scott then and there falsely and fraudulently represented to the

Digitized by VjOOQIC

Term, 1889.] Scott v. The State. S66

Statement of the oa«e.

said J. M Lewis, county judge as aforesaid, to be the genuine
signaturea of Canby Sims, Henry Hubert and Joe Thompson,
who were then and there trustees of said school communities,
and as such were by law authorized to make such requests,
which said false, fraudulent and deceitful written request or
petition is in substance, words and figures as follows, to wit:

To County Judge Montgomery County:

*We respectfully ask that sixty one & ^ dollars be appro-
priated for building School House out of free school funds be-
longing to Hartley School Community No 70.

'Sine

•Hubert

*thompson

And the said Wiley Scott did then and there falsely, fraudu-
lenly and deceitfully represent to the said J. M. Lewis, county
judge as aforesaid, that said false, fraudulent and deceitful
request or petition aforesaid, which the said Wiley Scott then
and there produced and presented to the said J. M Lewis,
county judge as aforesaid, was the written request or petition
of the trustees aforesaid of said school community; that said
trustees aforesaid signed the same as such trustees, and the
signatures attached to said false, fraudulent and deceitful peti-
tion or request were placed on the same by the trustees afore-
said as their signatures; that said trustees had authorized him,
the said Wiley Scott, to receive from said county judge as
aforesaid, any draft or order that said oflRcial, in compliance
with said false pretended request, might draw on the funds of
said Hartley school community aforesaid — all of which said
representations then and there knowingly made by the said
Wiley Scott were false, and the said Wiley Scott then and there
knew that the same were false. In fact and in truth the said
false, fraudulent and deceitful written petitioti or request was
not the petition of the trustees of said Hartley free school com-
munity aforesaid; and in fact and in truth the trustees afore-
said of the said Hartley free school community had not signed
the said false, fraudulent and deceitful written petition or re-
quest aforesaid, and the names aforesaid then and there api)ear-
ing thereon were not in fact and in truth placed there by them;
and in fact and in truth the trustees aforesaid had not author-
ized the said Wiley Scott to receive for them any draft or order

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27 Texas Court op Appeals. [Galveston

StatemeDt of the case.

the county judge aforesaid, in compliance with said pretended,
fraudulent and deceitful written petition or request, might draw
on the funds belonging to the said school community; and the
said J. M. Lewis, county judge as aforesaid, then and there
believed that the said pretended, false, fraudulent and deceit-
ful written request or petition, then and there produced and
presented to him by the said Wiley Scott, was in fact and in
truth a bona fide petition of the trustees aforesaid of the Hart-
ley public free school community aforesaid for his approval of an
appropriation for sixty-one dollars and forty cents to build a
school house for said community, and then and there believed
the false, fraudulent and deceitful representations aforesaid,
then and there knowingly and falsely made to him by the said
Wiley Scott aforesaid to be then and there true; and the said
Wiley Scott, then and there, by the said false and fraudulent
and deceitful pretense, pretenses and representations so male
to the said J. M. Lewis, county judge as aforesaid, did unlaw-
fully and fraudulently acquire' from the said J. M. Lewis, county
judge as aforesaid, an order signed by him as county judge afore-
said, directing the Treasurer of Montgomery county. State of
Texas, who was then and there by virtue of his olticial position
the custodian of the funds belonging to the communities of the
public free schools in said county and State, to pay to bearer or
any one of the trustees, sixty one & j^V dollars out of the funds
belonging to the said Hartley free school community aforesaid,
which said order is in words, substance and figures as follows,
to wit:

*The Treasurer of Montgomery County is respectfully re-
quested to pay the above amount 861.40 to the bearer or any
one of the trustees of Hartley School Community No. 70, and
charge the same to said Community.

*J. M. Lewis,
*Co. Judge, Montgomery Co.*

Which the said J. M. Lewis then and there signed and deliv-
ered to the said Wiley Scott, believing that said false, fraudu-
lent and deceitful written petition or request, then and there
produced and presented to him by the said Wiley Scott, was a
genuine and bona fide request and petition of the aforesaid
trustees of the said Hartley Free School Community in com-
pliance therewith, and he would not then and there have signed

Digitized by VjOOQIC

Term, 1889. J Scott v. The State. 267

statement of the case.

and delivered to the said Wiley Scott said order if he had not
then and there believed that the said false, fraudulent and de-
ceitful request or petition was the bona fide request or petition
of the trustees of said community, and that the false, fraudu-
lent and deceitful representations then and there made to him
by the said Wiley Scott were true; which said order is an in-
strument in writing conveying and securing a valuable right of
the value of ^ixty-one dollars and forty cents, which he, the
said Wiley Scott, then and there so unlawfully and fraudu-
lently acquired, with the intent to appropriate the same to the
use and benefit of him, the said Wiley Scott, and with the wil-
ful design to cause an injury to the said Hartley School Com-
munity No. 70 aforesaid; and the grand jury aforesaid, upon
their oaths aforesaid, do say and present in said court that the
said Wiley Scott, at the time and place aforesaid, and in the
manner and by the means aforesaid, did commit the offense of
swindling, contrary to the statute in such cases made and pro-
vided, and against the peace and dignity of the State." The
trial of the defendant resulted in his conviction, and his punish-
ment was assessed at a term of two years in the penitentiary.

The State introduced in evidence the "request," or '"petition,"
as it is designated and set out in the indictment, and the order
of the county judge, as the same appears transcribed in the in-
dictment, and then proved by the trustees of the Hartley school
conununity, viz. : Sims, Hubert and Thompson, that neither ol
them signed the same, nor authorized any person to sign the
same for them.

Ex-County Judge Lewis was next introduced as a witness by
the State. He testified, in substance, that the body of the
"petition," or request, as appears by the handwriting, was
written by him. He did not know who signed the names of
Sims, Hubert and Thompson to the same. The witness also
wrote the order on the county treasurer, as the same appears
in the indictment. He customarily wrote such petitions for
the negro trustees of negro school communities, or the patrons
thereof, and when properly signed or authenticated by the
trustees, or he was satisfied of ti, jir genuineness, he drew his
official orders on the same. He remembered that defendant
afterwards presented him the petition, and while he did not
think he would have drawn the check on it if not signed, he
was now unable to say that the purported signatures of the
trustees were then on it. It was, in fact, as probable that they

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*68 27 Tbxas Court of Appeals. [Galveston

Opinion of the court.

were not as that they were. He could not now say what, if
any, representations were made to him by defendant about
those signatures, or whether he was induced by defendant's
representations to issue the check or order. He would not,
however, have issued it if he was not satisfied in nis own mind
that the money was wanted by the trustees for the purpose
stated in the petition.

It was further proved that the defendant sold the order i/} one
Caldwell, and that the money called for in it was paid to Cald-
well by the county treasurer. The defense offered no evidence.

No brief on file for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. We think the indictment is a good one, as
it alleges every elemeni of the offense of swindling, and sets
out in haec verba the instrument in writing by means of which
it is alleged the offense was accomplished.

Among other instructions given the jury was the following:,
given at defendant's request: '^Unless the proof satisfies you
beyond a fair and reasonable doubt that the signatures to the
document in evidence before you were there at the time of its
presentation to the county judge, and that defendant's false
and fraudulent declaration that they were genuine signatures
induced the issuance of the draft in question, then the defend-
ant is entitled to be acquitted." This instruction was appli-
cable to the charge in the indictment and to the facts in evi-
dence, and is correct in principle. But, in our opinion, the ver-
dict is contrary to said instruction, and unwari'anted by the
evidence. It appears from the testimony of Lewis, the county
judge, that he had no definite recollection about said signa-
tures, as to whether or not they were on the document when
it was presented to him He states that it was as probable
that they were not, as that they were on said paper at said
time. He states further that he does not remember any state-
ment or declaration made to him by defendant in regard to said
signatures or said document.

Because, in our opinion, the verdict is against the law and
unsupported by the evidence, the judgment is reversed and the

cause remanded.

Reversed and rewanded^
Opinion delivered February 27, 1889.

Digitized by VjOOQIC

Term, 1889. J Dbmpsby v. The Statb. 869

Statement of the

No. 2670. jg ggi

27 269

Daniel Dempsey v. The State. ^-^

1. Malicious Prosecution — Information.— In a oriminal action far
malicious proeecntion under article 273 of the Penal Code, it is not
essential that the information shall allege that the prosecution against
the injured party had ended before the information was presented.
Bee the opinion for an information Tield sufficient to charge such a
malicious prosecution as constitutes the offense defined in said ar-
ticle 278.

1 Same.— To autUorize a conviction for malicious prosecution, the proof
mu:»t show that the prosecution alleged to be malicious was actuated
by malice.

t Same— Term Defined— **Lbgal Malice/'— *'Any unlawful act done
wilfully and purposely to the injury of another is as against that per-
son malicious; this wrong motive, when it is shown to exist, coupled
with a wrongful act, wilfully done to the injury of another, constitutes
legal malice/'

i Sams. — Not only must the proof show that the alleged malicious prose-
cution was actuated by legal malice, but it must show a want of prob-
able cause for instituting the alleged malicious prosecution. By prob-
able cause is meant the existence of such facts and circumstances as
would excite belief in a reasonable mind, acting on the facts within the
^owledge of the prosecutor, that the person charged was guilty of
the offense for which he was prosecuted. Under this rule a prosecu-
tion, although instituted with legal malice, would not be a penal
offense if probable cause existed to believe the offense charged was
committed by the party prosecuted. See the opinion on the question;
and note that in this case though legal malice existed, probable cause
also existed.

ft. Same— Evidence.— On the trial, the court below permitted the justice
of the peace before whom the alleged malicious prosecution was had
to testify that he discharged the alleged injured party, because, in his
opinion, the evidence did not support the chiirge brought against him.
Meld, error.

Appeal from the county court of Jackson. Tried below be-
fore the Hon. J, S. McNutt, County Judge,

This conviction was for malicious prosecution, and the pen-
alty assessed against the appellant was a fine of one hundred
dollars. The opinion sets out the charging part of the informa-
tion.

The testimony shows that the prosecuting witness, Tom

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*70 27 Texas Court of Appeals. [Galveston

Opinion of the court.

Kelley, lived with his father in a house and on land rented
from the defendant; that defendant and Tom Kelley mutually
disliked each other, and had frequent quarrels about trivial
matters; that Tom Kelley 's father was prohibited, by written
contract, from turning livestock into the pasture of the defend-
ant. One Tatum went home with Tom Kelley one night, and,
after removing the saddle from his horse, staked him in de-
fendant's pasture, Tom Kelley going with him when he did so.
According to Tom Kelley, Tatum staked his horse in the pas-
ture without the consent or suggestion of him, Tom Kelley,
and likewise without any protest from him. For the staking
of that horse in the pasture by Tatum, Tom Kelley was prose-
cuted by defendant. According to Tatum he staked the horse
in the pasture after Tom Kelley said something about it being
dangerous to stake him outside. On the next morning defend-
ant asked him who staked the horse in the pasture. He re-
plid that he did, against his judgment, and that Tom Kelley
had nothing to do with it; that h' was alone responsible. De-
fendant replied that if witness staked the horse in the pasture
it was all right, but that if Tom Kelley did, it was not. The
justice of the peace testified that defendant prosecuted Tom
Kelley before him for staking a horse in his pasture, and that
he dismissed the prosecution because the evidence did not
support the charge.

J. D. Owen, for appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. This prosecution is imder article 273 of
the Penal Code, which reads: **If any person in this State, for
the purpose of extorting money from another, or the payment
or security of a debt due him by such other person, or with in-
tent to vex, harass or injure such person, shall institute or cause
to be instituted any criminal prosecution against such other
person, he shall be deemed guilty of malicious prosecution^
and, upon conviction, shall be fined not less than one hundred
nor more than one thousand dollars, or be imprisoned in the
county jail not less than one month nor more than one year.**
This article of the Penal Code is an addition to the origincJ
Code made in revising, and this is the first conviction thereun-
der which has been before this court.

Digitized by VjOOQIC

Tenn, 1889.] Dempsby v. The State. 271

Opinion of the court.

In the information the charge is alleged as follows: *'did
then and there unlawfully, for the purpose and with the intent
to vex, harass, and injure one Thomas Kelley, wilfully insti-
tute and cause to be instituted against the said Thomas Kel-
ley, in justice's court of precinct number one, of Jackson
county, Texas, a criminal prosecution as follows, to wit: *The
S^ate of Texas v. Thomas Kelley, number eighty three,' charg-
ing the said Thomas Kelley by complaint made before H. T.
Chivers. county attorney of said county, which complaint was
filed by William Payson, the justice of the peace in and for
said precinct number one, with unlawfully and wilfully tying
and staking out, and causing to be tied and staked out, to
graze within the enclosed lands of the said Daniel Dempsey a
horse."

We are of the opinion that the information is a good one.
It follows the words of the statute, and is sufficiently specific.
The- specific exception made to it, that it does not aver that the
prosecution against Kelley had ended before the presentment of
the information, is not well taken, as the statute makes no such
requirement. In a civil suit for damages for malicious prosecu-
tion, it is essential to allege and prove that the alleged mali-
cious prosecution had terminated before the institution of the
suit, because in such case it can not be known whether or not
there was any injury until there has been an acquittal of the
charge, nor what the extent of the injury might be. And a
civil suit is not maintainable at all if there has been a convic-
tion upon the criminal charge. (Glasgow v. Owen, 6 S. W. Eep.,
527 (Texas); McManus v. Wallis, 52 Texas, 535; Usher v. Skid-
more, 28 Texas, 617; 2 Greenl. Ev., sec. 452; Cooley on Torts,
sec. 186.) But it does not appear to us that the above stated rule
is applicable in the case of a criminal prosecution under article
273 of our Penal Code. In such case, we think it is immaterial
whether or not the alleged malicious prosecution had termi-
nated at the time of the filing of the indictment or information.
The reason for the rule in*a civil suit does not exist in the crim-
inal case, and it does not seem to be contemplated by said
article that it shall exist in such case.

There are certain rules, however, governing in a civil suit
for malicious prosecution which, in our opinion, obtain in a
criminal prosecution such as the one before us. These rules
are not expressly declared or required to be observed by article
273, but they are, nevertheless, within the intention of that

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272 27 Tbxas Court of Appeals. [Oalvestcm

Opinion ot, the court.

article. The first of these rules is that the prosecutioa alleged
to have been malicious must be proved to have been actuated
by malice. Legal malice is defined to be **any unlawful act
done wilfully and purposely, to the injury of another, is, as
against that person, malicious; this wrong motive, when it is
shown to exist, coupled with a wrongful act, wilfully done to the
injury of another, constitutes legal malice.'' (Ramsey v. Ar-
rott, 64 Texas, 322; Glasgow v. Owen, 6 S. W. Rep , 527, Texas.)
The second rule is, that there must not only be legal malice
actuating the wrong done, but there must be a want of prob-
able cause for instituting or causing to be instituted the alleged
malicious prosecution, and the evidence on the trial must show
such want of probable cause. *'By probable cause is meant
the existence of such facts and circumstances as would excite
belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was
guilty of the offense for which he was prosecuted." (Ramsey
V. Arrott, 6^ Texas, 322; Glasgow v. Owen, 6 S. W. Rep., 527
(Texas); Gabel v. Weisensee, 49 Texas, 131.)

In this prosecution, therefore, as we construe the statute
creating this offense, it was essential for the State to prove,
1. That the defendant instituted or caused to be instituted
against Kelley the prosecution named in the information, being
actuated thereto by malice, with the purpose and intent to vex,
harass and injure said Kelley. 2. That he instituted or caused
to be instituted said prosecution without probable cause, as that
term has been above defined.

It is certainly not the meaning and intent of the statute to
punish one for prosecuting supposed crime, who does so with
probable cause, although he may do so for the purpose of vex-
ing, harassing and injuring the person prosecuted. To other-
wise construe the statute would, it seems to us, make it operate
against public policy. It would deter citizens from commend-
able efforts to bring criminals to justice. A man would fear
to institute a prosecution, however •meritorious it might be,
knowing that he might himself be prosecuted and punished
merely upon proof that he instituted it for the purpose and
with the intent to vex, harass and injure the prosecuted party,
without regard to the evidence of such party's guilt of the
charge.

As we understand the statute, it is intended to punish a per-
son who, without probable cause, actuated by malice, not in

Digitized by VjOOQIC

Tenn, 1889.] Hawkins v. The State. 273

Syllabus.

good faith, institutes a criminal prosecution against another
for the purpose and with the intent to vex, harass and injure
such other person. It is intended to prevent groundless prose-
cutions, and not such as there is legal evidence to justify a rea-
sonable belief that the person prosecuted is guilty of the crime
charged.

In this case, while the evidence is perhaps sufficient to show
that the defendant was actuated by malice — by a purpose and
intent to vex, harass and injure Kelley by the criminal prose-
cution— it further shows that he had probable cause for insti-
tuting such prosecution. It shows that Kelley was a principal
in the offense of staking out the horse in the defendant's in-
closure, and was, in fact, guilty of the charge preferred against
him in the alleged malicious prosecution. We are of the opin-
ion, therefore, that this conviction is unwarranted by the evi-
dence and the law.

We are further of the opinion that the court erred in permit-
ting the justice of the peace to testify that, in the alleged crim-
inal prosecution against Kelley, he discharged said Kelley bj-
cause, in his opinion, there was not sufficient evidence to sus-
tain the charge. We think the result of that prosecution was
inamaterial, and the opinion of the justice of the peace as to
the sufficiency of the evidence was clearly incompetent and
calculated to injure the defendant.

For the errors mentioned, the judgment is reversed and the
cause remanded.

Reversed and remanded.

Opinion delivered February 27, 1889,

No. 2678.
Louis Hawkins v. The State,

1. Practice— Incompetent WiTNBSSBs.^Sabdivi8ion 2 of article 780 of
the Code of Criminal Procedure denoanoes ets incompetent to testify
in criminal actions, ''obildren or other persons who, after being exam-
ined by the court, appear not to possess suffloient intelligence to relate
transactions with respect to which they are interrogated, or who do
not imderstand the obligation of an oath.''

t. Samk.— There is no precise age nnder which a child is deemed incompe-
tent to testify, bat when under fourteen years of age competent it

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274 27 Texas Court of Appeals. [Galveston

Statement of the case.

determinable by an examination, and the action of the trial oonrt
thereon will not be revised in the absence of a showing that its discre-
tion was abused, and unless an abuse of discretion is apparent. The
objections to the witness in this case are solely as to his youth and ig-
norance. His examiuation disclosed that while he inadequately, if at
all, understood the obligation of an oath, he knew that it was right to
speak the truth and wrong to speak falsely. He was held competent
and testified, and his narrative of the facts within his knowledge was
not merely clear, concise, positive and intelligent, but was corroborated
by physical facts dif>covered and detailed by other witnesses, ffeld^
that in holding the witness competent, the trial court did not abuse its
discretion.

8. BAME—lMPBACHiNa TESTIMONY.— The wife of the deceased, who had
been previously tried for complicity in the same oflfense, and had been
acquitted, testified for the defense on this trial, and, to impeach her
testimony, the >tate was permitted to prove contradictory statements
previously made by her. The objection urged to this by the defense
was that she was uoder arrest at the time fhe made the said oontradio-
tory statements, and that the evidence was hearsay. Held^ that the
objection was properly overruled. Articles 749 and 750 of the Code cf
Criminal Procedure, excluding confessions made in duress, apply only
to the confessions or admissions of a (Ufendant wTio is on trials made
when under arrest, and they can not be extended to parties not on
trial. Whilst hearsay to far as the defendant was concerned, the said
contradictory statements were admissible to impeach the witness, to
which sole purpose they were properly limited by the charge of the
court.

i. Practice—New Trial.— In support of the motion for new trial, the
defense filed the affidavit of a third person to the effect that after the
trial of Sarah Washington, for the same offense, and before the trial of
the defendant, one of the Jurors who tried the defendant, said that the
said Sarah Washington should have been awarded the death penalty,
and that the testimony on her trial and that on the trial of defendant
was essentially the same. The counter affidavit of the impogned juror
affirms that he had no recollection of making the statement imputed
to him, and that, if he made it, he made it in jest, and that he tried the
defendant without bias or prejudice, and solely upon the evidence ad-
duced and the law given in charge. Held^ that the motion for new
trial was properly overruled,

6. Murder— Fact Case.- See the statement of the case for evidence f^eld,
although circumstantial, to be sufficient to support a capital convic-
tion for murder.

Appeal from the District Court of Falls, Tried below before
the Hon. Eugene Williams.

The death pencJty was assessed against the appellant upon
his conviction in the first degree for the murder of Addison

Digitized by VjOOQIC

Term, 1889.] Hawkins v. The State. 375

Statement of the case.

Washington, in Falls county, Texas, on the twenty-sixth day
of September, 1887.

Minerva Huddleston, the mother of the deceased, was the
first witness for the State. She testified that the deceased was
killed at his home on the Battle farm, on the east bank of the
Brazos river, in Falls county, Texas, on the twenty-sixth day
of September, 1887. Deceased's family at that time consisted of
his wife, Sarah, whom he married in the preceding June, his
infant daughter by a former wife, and Willie Bibb, a youth ten
or eleven years old. The witness had lived with deceased since
his marriage until two or three weeks prior to his death. Sarah
Washington, previous to her marriage with deceased, had lived
in adultery with the defendant. Deceased and Sarah lived con-
tentedly as man and wife, having, so far as witness ever dis-
covered, no trouble other than occasional conjugal spats that
are inseparable from the married state. A few days before the
witness left the deceased's house, Sarah went to Hickerson's
farm, where the defendant was at work, and remained there
all evening. Deceased was not at home on that day.

Willie Bibb testified, for the State, that he was living with
the deceased at the time he was shot and killed. The fatal
shot was fired into the house through a window on the east end
of the house and took effect in the back of the deceased, who
was sitting at the supper table, eating, with his back toward
the said window. It was then about dusk or ''first dark." Just
before sundown the witness and the deceased went to the river,
fishing, but remained only a short time. They merely baited
fheir hooks and set them out in the river, and then returned to
the house, each with a "turn" of wood. They found Sarah
Washington on the bed, complaining of being sick. Deceased
made a fire, cooked supper, put it on a table in the corner of
the room, sat down at the table, with his back to the east win-
dow, and began to eat, when a shot was fired into the room
through the said window. Deceased fell back, but not out of
thechair, uttered a single cry — **0h" — ^and expired. The shot
frightened and confused Sarah Washington and witness, who,
after a few moments of inaction, fled from the house through
the south door, and over a little path around the comer of the
house to the house of Mr. Henry Hickerson. As the witness
passed the comer of the house, in the wake of Sarah, he saw
a man, whom he took to be the defendant, running from the
vicinity of the house toward the slough, and over the trail that

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276 2r Texas Court op Appeals. [Galveston

statement of the case.

crossed the .slough just back or north of the house. That man,
who had a gun in his hands, fell into the slough, and used Ms
gun in gettinf^ up.

Continuing his testimony, this witness stated that he knew
the defendant well, having lived with him when he and Sarah
Washington lived together as man and wife. The defendant
was crippled in his left foot and limped in walking or running.
He owned a musket giln when th-^ witness lived with him A
short while before he and the deceased went fishing on the
fatal evening, the witness went to the point in the rear of the
house near where tbe slough empties into the river, to dig bait,
and while digging bait he saw the defendant squatted behind
a '*clump" of willow bushes that had grown up around a sturap.
He then had a gun in his hnnds. He vvas between twenty and
thirty steps distant from the witness, but did not speak to him.
When the witness went back to the house a few minutes later
he told his aunt, Sarah Washington, about seeing defendant
behind the stump with a gun in his hands, and the said Sarah
told him that if he told anybody about it she would whip him.
As a consequence, being afraid of his aunt Sarah, he did not
tell the deceased about seeing defendant behind the stump.
The killing occurred on Monday night. On the previous Sun-
day the witness visited the Rickelman farm, and there met the
defendant. When he started home defendant stopped him and
told him to tell Sarah to bake him a cake, and that he would
come to her house after it on the first rainy day or night. The
witness delivered the message. The day of the killing was the
first rainy day that followed. Witness frequently heard the
deceased and Sarah quarreling about the defendant.

On his cross examination, the witness stated that deputy
sheriff John T. Barlow came to the house of the deceased on
the morning after the tragedy and made an examination of the
premises and vicinity. Mr. Barlow asked witness if he knew
who killed Addison Washington, and witness told him that he
did not; to which Mr. Barlow replied that he believed the wit-
ness did know; cursed and swore at witness, and finally told
him that if he did not tell who did the killing, a mob would
come and hang witness; but that if witness would tell, he,
Barlow, would see that witness was uot hurt. The witness be-
came frightened and told Barlow the facts to which he has
testified on this trial. Re-examined, the witness said that a
few days after the killing of deceased, he went to the place of

Digitized by VjOOQIC

Term, 1889.] Hawkins v. The State. 877

Staiemeut of the oaise.

the deceased with justice of the peace Elam, and pointed out
to him the place where he dug the fish bait, and the place
where he saw the defendant squatted behind the stump. After
telling Barlow what he knew about the killing, the witness
told him that he was afraid to stay in the bottom among the
negroes, and asked to be placed in the care of the whites pend-
ing the trial of the defendant. At his request he was then
placed in charge of Mr; John Stuart, whom he had known at
Hearne. He remained with Mr. Stuart until the former trial
of defendant, since when he had lived with Sam Patillo, who
was the husband of one of his aunts. The witness was afraid
of his aunt Sarah Washington, and refused to testify on the
examining trial until she was removed from the court room.

John T. Barlow testified, for the State, that he was a deputy
sheriff of Falls county at the time Addison Washington was
killed. He went to the place of the killing — Washington's
house — early on the morning after the assassination, arriving
before sundown. He found tlie df^ad body of Addison Wash-
ington sitting in a chair at a table on which were several plates
of food, cups and saucers, etc. Saw ten or fifteen slugs and
buckshot had penetrated the back and shoulders of deceased.
Witness extracted one slug and one buckshot from the body.
The witness then made a careful examination of the premises
and vicinity. At a point in a slough, just north of the house,
the witness discovered a stump surrounded by willow brush,
behind which some person had sat. A person sitting behind
that stump could not be seen from deceased's house. Near
that stump the witness found the tracks of a man and woman.
The woman's track led from the house to the stump. Witness
trailed the man's track from the stump, along the bank of the
8lough,^to the north side of the house, and thence to the east
window of the house, through which it was said the fatal shot
was fired. That window was an ordinary glass window from
which one of the panes had been broken. A piece of plank was
nailed over the broken pane. It did not entirely close it, but
left an open space wide enough to admit the insertion of the
muzzle of a single barreled gun, but not of a double barreled
gim. There was no powder burn on the sides of the said crack
or open space. From the window the witness trailed the said
track over the trail to the crossing of the slough, where the
ground showed that the man had fallen. At this same place
the witness found the unmistakeable impression of the muzzle

Digitized by VjOOQIC

278 27 Texas Court ott Appeals, [Galveston

Statement of the case.

of a single barreled gun. It had rained on the previous day,
leaving in the slough a bed of red colored mud, but no water.
The track showed to have been made by a man crippled in the
left foot or leg, the left stride, although the man was running,
being much shorter than the right stride, and the ball only of
the left foot making a clear impression, while the impression of
the right foot was perfect, clear and distinct. Witness trailed
that track a considerable distance up the Brazos bottom, and
then, leaving others to follow it in all of its meanderings, he
went to the house of Tennessee Stephenson, where he secured
the defendant's single barreled musket. He soon afterwards
found and arrested the defendant in a house a few hundred
yards distant from Tennessee's house.

While following the trail of the man, between the place of
the homicide and the house where he arrested defendant, the
witness found a point where, as shown on the ground by the
impression of the butt of the gun, the tracks and fragments of
newspaper scattered about, the party stopped and loaded the
gun. The trigger guard, barrel and butt of the defendant's
gun showed distinct mud signs when witness secured it, and it
showed plainly that it had been grasped in muddy hands, the
skin creases of the hand even showing. The witness took that
gun to Jack Brewer, the gunsmith, and had the load withdrawn.
Brewer first drew from the gun a piece of newspaper wadding,
then buckshot, then some powder, and ^rom beneath this pow-
der he took other powder mixed with mud. The substance
nearest the tube was almost wholly moist or wet mud, similar
in color to the mud in the slough near the deceased's house
where the man fell down. The gun in its then condition could
not have been discharged. There was a fresh **hat" or musket
cap on the tube, and the appearance of the barrel at the^muzzle
indicated to the witness, who was a fire arm expert, that the
gun had been recently discharged. The high weeds between
the house of the deceased and that wherein the defendant was
arrested, along the trail pursued by the fleeing man, were wet
from the recent rain, and could not have been passed through
without wetting the traveler.

A.fter arresting the defendant the witness returned to the
house of the deceased, where he met Willie Bibb, a negro boy
about ten or eleven years old. He asked Willie who killed
Addison Washington. He replied that he did not know. The
witness told him that he was satisfied he did know; that he.

Digitized by VjOOQIC

Term, 1889.] Hawkins v. The State. 279

statement of the case.

"witness, had found his, Willie's, track at a place in the sloiigh
near the stump behind which the party had sat, and where
evidently he, Willie, had been digging fish bait; that he, Willie,
would not be hurt if he would tell what he knew about the kill-
ing, but that he, witness, would hang him if he did not tell who
did the killing and who made the tracks behind the stump.
Thereupon Willie Bibb told the witness substantially the s:)me
facts he has testified to on this trial. Willie Bibb then told the
witness that, having disclosed what he knew, he was afraid to
remain in the bottom wiih the negroes, and asked to be placed
io the care of the whites, and at his further request he wq,s
placed with Jolin W. Stuart. He afterwards stayed in turn
with Justice of the Peace Elam, J. E. Bates and Sam Patillo's
wife. The witness observed on the examining trial that Willie
Bibb would weep, in evidtmt fright, instead of replying to
questions, until Sarah Washington was removed from the court
roum, when he related in detail the narrative he has related on
this trial. Witness arrested Sarah Washington immediately
after he secured the statement of Willie Bibb, on the morning
after the murder, and sent her to the Marlin jail in the custody
of Burrell Young and Tom Sanders. It was before the arrest
of Sarah Washington that witness found the woman's track
near the stump mentioned. He then got a new pair of woman's
Bhoes from deceased's house and applied them to tKe said tracks
(which appeared to be fresh). The shoes and the t racks were
about the same in length, but otherwise the fit was not perfect.
He then returned to the house and got an old pair of wom m's
shoes, the soie of one of which was whip-sewed to the upper
with a piece of fishing line or small wire — witness did not
remember which. He applied those shoes to the said tracks
and found them to correspond perfectly, the tracks even show-
inj^ the impression of the fish line or wire. That shoe w is
slightly run down at the heel, which showed distinctly in the
track. Witness asked Sarah Washington who killed Addison,
and she denied that she knew anything about the killing. The
shot taken from the body of the deceased were larger than the
shot extracted from the gun.

Tennessee Stephenson testified, for the State, that she lived
on the Parker place about two miles from Marlin. The defend-
ant boarded with the witness in September, 1^87, occupying
the small shed room which adjoined witness's room. A driz-
riing rain fell on the morning of September 20, 1887, and early

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380 27 Texas Court of Appeals. [Galveston

Opioion of tbe court.

on that morniDg the witness's son, Hiram Robinson, and the de-
fendant left witness's house to go deer huntiDg. Her said son
did not return home until the next day. The witness remained
at home all day on the said September 26, 1887, and knew that
defendant did not come back to the house on that day. Dave
Berry visited witness that night and remained with her until
just before the down train from Waco signalled Marlin, which
was 'at half past ten o'clock. The witness retired immediately
after Berry left and went to sleep. She had been asleep some
time—she did not know how long— when the defendant awak-
ened her to let him in. She opened the door and he entered
with his gun in his hands. After he got to his room he asked
witness for some dry clothes, remarking that those he had on
were wet. The witness gave him his dry clothes and went to
sleep. Defendant was not married. Witness was married, but
did not know the whereabouts of her husband.

Hiram Robinson testified, for the SJate, that he and the de-
fendant left Tennessee Stephenson's house on the morning of
September 26, 1887, to go hunting. Defendant did not have his
gun at the time, but told witness he had it in Hamp Chisholm's
field. He had ammunition, consisting of powder, large buck
shot and **hat-caps" for a musket, and while at the house, the
witness saw him witi^ some slugs. Defendant got his musket
from under sonie mulberry brush in Chisholm's field. He then
told witness to go to the point where some parties were blow-
ing hunting horns, and ascertain if they could join that hunting
party, and to meet him at the foot log crossing of the slough.
Witness went to the parties blowing the horns, and found that
they were not going hunting. He and a boy named Miles then
went to the foot log, and not finding defendant, they went
hunting. Witness spent that night with Miles and returned
home next day.

Deputy sheriff Charles A. Norwood testified, for the State,
substantially as did the witness Barlow as to the indications,
etc., on the ground about the house of the deceased, as seen by
him on the morning after the killing. He measured the track
going from the east window, and afterwards applied that meas-
ure to the track of the defendant made on the jail floor. The
two tracks measured exactly the same. Defendant was lame
in the left foot, only the ball of that foot touching when he
walked. Defendant's gun was examined by witness on tbe

Digitized by VjOOQIC

Term, 1889.] Hawkins v. The Statjb. 281

Statement of the case. *

momiDg after the killing. It had the appearance of hav^ing
been recently discharged,

James Tolliver testified, for the State, that less than two
weeks before the killing of deceased, he met the defendant in
Marlin, and, to tease him, asked him: *'How are jou and Ad-
dison Washington getting along since he married your gal?"
He replied: **Bad; I have heard that Addison has been threat-
ening me. If he crosses my path, I will set him up in less than
two weeks."

Doctor George J. Elam, justice of the peace of the precinct
in Falls county in which the murder of Washington occurred,
was the next witness for the State. His testimony relating to
the dead body, the tracks, etc., about and in the vicinity of the
deceased's house, as viewed by him on the day after the killing
of Washington, was substantially the same as that of Barlow.
He did not, however, find the lame foot track nearer the east
window than six or eight feet, but a great many people had been
on the ground before he arrived He described the trail from,
the house substantially as Barlow, including the indications on
the ground where the refugee stopped and loaded his gun. This
witness ob.^erved that the tracks of the man and woman at the
willow clump were about five feet apart, and, though fresh, it
looked to him like the track of the woman was made before
the rain, and that of the man after the rain of the night be-
fore. According to this witness, a person standing at the east
end of the deceased's house could not have seen the fall of a
person in the slough at the point where the fleeing man fell,
nor from any point in the path that led to Hickerson's house.
Witness followed the lame foot track to the turnpike road
within four or five hundred yards of Tennessee Stephenson's
house.

On cross examination this witness testified that the boy Willie
Bibb was examined before him on the inquest upon the body
of deceased. He first testified that he knew nothing about the
killing. He was apparently watched by Sarah Washington,
and as often as he caught her eye he wept and showed embar-
rassment. Witness then had Sarah removed from the court
room, when Willie Bibb told substantially the same story he
has testified to on this trial.

The State closed.

Ned Carter was the first witness for the defense. He testi-
fied, in substance that, en route to his home, over the turnpike

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282 27 Texas Court of Appeals. [Qalvecrton

Statement of the case.

road, he passed Tennessee Stephenson's house about dark on
the evening of the fatal day — ^that being the hour the fatal shot
was fired, as fixed by the State's witnesses. When he got im-
mediately opposite Tennessee's house, some person uttered a
loud halloo, and the witness felt satisfied that he recognized in
that halloo the voice of the defendant; and so informed Ab.
Begin, on the next morning when Begin told him of the arrest
of defendant. Tennessee Stephenson's said house was between
four and five miles distant from the house of the deceased. On
his cross examination this witness admitted that he drank a
great deal in Marlin on the said twenty-sixth day of September,
and, as a matter of fact, had a very imperfe<ft recollection of
the route he traveled home on that night, and a very indistinct
recollection of what he told Begin on the next day. The wit-
ness did not see the defendant on the fatal evening. Bogin
corroborated Carter as to the statement made to liim by Car-
ter on the morning after the killing.

Sarah Washington, the widow of the deceased, testified, for
the defense, that she was at home when the deceased was
killed, on September 2G, 1887. She had been sick all day. De-
ceased cooked his supper himself, placed it on the table, and
sat down to the table, with his back toward the east window.
About that time the witness went to the fire place to get, for
the deceased, some potatoes she had put in the ashes to roast.
The shot was fired into the house through the east window.
The shot startled the witness, who did not at first understand
what had occurred. She asked deceased: *'What did you do
that for?" and then realized that he had been shot and was
dead. She then fled from the house, followed by Willie Bibb,
passed through the south door, around the east corner of the
house, and over a path through the turnip patch to Hickerson's
house. It was then about dark. Witness did not see anybody
running from the house toward the slough, or in any other di-
rection. She did not see the defendant at any time on the fatal
day. Willie Bibb did not tell her afterwards that he saw de-
fendant running from the house towards the slough, after he,
Bibb, ran out ot the house. Willie did not tell the witness on
that evening that he had seen defendant hiding behind a wil-
low stump with his gun, and she did not threaten to whip Wil-
lie if he told it. Willie Bibb did not tell her that he saw the
defendant on Rickelman's farm on the preceding Sunday, and
that defendant charged him to tell her to make him, defendant.

Digitized by VjOOQIC

Term, 1889.] Hawkins v. The Statb. S83

Statement of the case.

a cake, and that he would come for it the next rainy day, or
night The witness protested that she did not know who killed
deceased, and declared that if she did know who €he murderer
was she would denounce him.

Cross examined, the witness said that for several years prior
to her marriage to the deceased she lived with defendant as his
wife. She married deceased in June, 1887, having left defend-
ant about three weeks before that time. The defendant begged
witness not to leave him and marry deceased, and became an-
gry with deceased about witness. Deceased often quarreled
with witness about defendant. It was the witness's shoe that
Mr. Barlow took from the house and applied to the track near
the stump. The witness had not been about that stump on that
day, and could not explain how her track came to be there.
Witness went to town after her arrest, in the custody of Bur-
rell Young and Tom Sanders. She had no recollection of tell-
ing Sanders, on the way to town, that defendant killed de-
ceased. She had no recollection of telling Sanders that Willie
Bibb delivered to her a message from defendant to bake him a
cake, and that he, defendant, would call for it on the first rainy
day or night. Witness did not know who killed deceased, but,
being asked: **Who do you believe killed Addison Washi.ig-
ton?'' she replied: "I think defendant killed him "

R. Ledbetter testified, for the defense, that, while confined
in jail with deceased, some time prior to the latter'5 death, he
beard the deceased say that somebody had threatened his life,
and that he was afraid of being killed. At another time he
heard Mr. Tom Battle tell deceased to be cautious or he would
be killed.

E. Anderson and William Watson testified that they were
acquainted with the defendant, and knew his reputation as a
peaceable, law abiding citizen, and that it was good. The de-
fense closed.

Tom Sanders testified, for the State, in rebuttal, that) le
knew the defendant, who was well known throughout the
neighborhood by his nickname ** Spider. " Just before the
arrest of Sarah Washington, the witness asked her who killed
Addison Washington, and she replied that she did not know.
She was afterwards arrested, and was taken to jail by witness
and Mr. Young. On the way to town, she spoke of being a
member of the church, and addressed witness as **Brother
Sanders.'* Witness replied: **If you are a member of the

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284 27 Tbxas Coubt of Appeals. [QalTe8t(m

Statement of the case.

church you ought to tell the truth about this; and if you will
tell the truth, Mr. Rice (the prosecuting attorney) will turn you
loose, and nbt put you in jail." She then said that ''Spider**
killed the deceased. Wicness asked her who? and she replied:
"Louis Hawkins." In answer to another question by witness,
she said that Willie Bibb told her on the previous Sunday that
he saw defendant at Rickelman*s farm, and that defendant
charged him to tell her to bake him, defendant, a cake, and
that he would come for it on the first ensuing rainy day or
night. Witness then called Mr. Barlow, who was riding along
8ome distance behind, and when he came up Sarah repeated to
him what she had said to witness. Just as she was being placed
in jail Sarah said that, contrary to witness's assurance, they
were going to put her in jail, and that what she had said to
witness on the road she would retract because it was a lie. She
had just then passed through a large crowd of negroes.

Recalled, later in the trial, this witness stated that he did not
use any violence or threats to extort the said statements from
Sarah Washington.

John Barlow was then recalled by the State, and corroborated
Sanders as to the declarations of Sarah Washington on the road
to town.

Sarah Washington, recalled, by the defense, admitted that
she made the statements imputed to her by Sanders and Bar-
low, on th6 way to jail, but declared that she made them be-
cause Sanders told her that Barlow was behind with a rope,
and that a mob would be organized and hang her if she did
not admit that defendant killed deceased. She thereupon made
that and every other declaration Sanders and Barlow required
of her. and would have made any other dictated by them, as
she was afraid of mob violence. Those statements made by
her while in arrest were false, and her present testimony true.

William Shelton testified that he examined the defendant's
gun^s soon as it and the defendant were brought to jail on the
morning after the killing, and before the load was drawn out.
The inside of the barrel was rusty, and the witness, who had
a great deal of experience with fire arms in the Confederate
army, did not think that gun had been recently discharged.

J. R. McDonald and W. Shelton^ for the appellant.

W. L, Davidson, Assistant Attorney General, for the State.

Digitized by VjOOQIC

Term, 1889.] Hawkins v. The State. 285

Opinion of the coart.

White, Presiding Judge. This appeal is from a death pen-
alty inflicted upon a conviction for murder of the first degree.

Several questions are propounded by the bills of exceptions
reserved for appellant during his trial. 1. One of the main
witnesses for the prosecution was a boy eleven years old, and
he was examined at the instance of the defendant, with the
purpose of testing his competency as to intelligence, and his
understanding of the obligations of an oath. It appears that
after his examination by defendant's counsel, he was re-exam-
ined by the court, but the statement, in the bill of exceptions
gives us but a very meagre account of the extent of the exam-
ination. He seems to have known but little, if anything,
about the obligations of an oath, but he knew that it was
wrong to tell a lie, and that it was right to tell the truth. That
portion of our statute relative to the matter denounces as in-
competent to testify in criminal actions 'Children or other per-
sons who, after being examined by the court, appear not to
possess sufficient intellect to relate transactions with respect to
which they are interrogated, or who do not understand the
obligation of an oath." (Code Crim. Proc , art. 730, sub-div. 2.)

As stated in the bill of exceptions, the objection made to the
witness was that he '* was incompetent to testify because of his
youth and ignorance" It is not objected that he did not
"understand the obligation of an oath." If that had been the
objection it might, and perhaps could, have been obviated then
and there by a further examination — and, if necessary, by in-
structions given the witness under direction of the court. (Tay-
lor v. The State, 22 Texas Ct. App., 529; Hoist v. The State, 23
Texas Ct. App., 1; Comm. v. Lyons, 9 Crim. Law Mag., Mass.,
68.)

The objections urged are solely as to his ^ 'youth and ignor-
ance.'' ** ihere is no precise age under which a child is deemed
incompetent to testify, but when under fourteen years of age,
competency is determinable by an examination, and the action
of the court thereon will not be revised in the absence of a
showing that its discretion was abused, and unless an abuse of
discretion is apparent.'* (Willson's Crim. Stats., sec. xJ435.)

Objection, therefore, simply upon the ground of "youth"
was no objection. As to the objection under the ground of
*1gnorance," suffice it to say that this witness's testimony, as
detailed in the statement of facts, is as clear, circumstantial,
positive and intelligent as most witnesses of mature years and

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286 27 Texas Court of Appeals. [Galveston

Opinion of the court.

good, ordinary education could give concerning the same facts
and circumstances, and, more than that, his testimony through-
out is corroborated by the physical facts discovered and. de-
tailed by other witnesses in the strongest possible manner.
No error is perceived in the court's overruling the objections
to his testimony upon the grounds of "youth and ignorance.'*

2. For the purpose of impeaching the testimony given by
the wife of deceased at the trial the prosecution was allowed,
over objection of defendant, to prove contradictory statements
made by her to officers who had her under arrest as one of the
parties implicated in the murder, whilst they were con\|pying
her to jail the day after it occurred. The objections to the
testimony urged by defendant were that she was under arrest
or in duress at the time, and that her declarations were hear-
say. Prior to the trial of this defendant she had herself been
tried and acquitted. The objection that the witness was under
arrest at the time she made the contradictory statements was
not available by this defendant. It is the confession or admis-
sion of a defendant who is on tricU, made when he is under
arrest, which can not be used against him except under the
circumstances and upon the conditions mentioned in the stat-
ute. (Code Orim. Proc, arts. 749, 750.) This statute does not
apply nor extend to parties not defendants on trial As to the
declarations being hearsay, whilst that was true in so far as
this defendant was concerned, they were nevertheless admissible
to impeach the witness, and that was the sole purpose of their
admission, as the jury were very properly and explicitly told
by an instruction given them upon the subject by the learned
trial judge. They were expressly limited and restricted in its
consideration to the only purposes for which the evidence was
admitted, and they could not have been misled as to the objects
and purposes of its admission.

3. On defendant's motion for a new trial he assailed one of
the jurors who tried the case for bias and prejudice against
him as shown by statements of the juror made before he was
placed upon the panel. This matter, in our opinion, is satis-
factorily explained and settled against the objections urged to
the juror, by the coimter affidavit of the juror himself.

4. Some objections are raised to the charge of the court to
the jury, but we have found it to be a clear, comprehensive
and fair presentation of the law to the various phases of tlie
case.

Digitized by VjOOQIC

Tenn, 1889.] Moody v. The State. 287

Statement of the case.

As to the evidence, though it is circumstantial, it is to our
minds as cogent and convincing as such a case could well be.
That the defendant is the guilty agent who assassinated the
deceased in his own house whilst at his meals and unconscious
of danger, and that he did so from revenge and jealousy, we
have no doubt. After a fair and impartial trial he has had the
extreme penalty of the law denounced against him, and because
we have been unable to find in this record, which he has sub-
mitted to us on his appeal, any good or sufficient reason why
his conviction should be set aside, the judgment is in all things
aflSrmed.

Afflrmed.
Opinion delivered February 27, 1889.

No. 2679.
E. Q. Moody v. The State.

KuRDBR— EviDBfircE— Fact Case.— 8ee the statement of the ease for erl-
denoe objected to by a defendant on trial for murder, held^ in view of
the other proof io the case, to have been properly admitted; and note
that the evidence as a whole is held amply suifloient to support a oon-
vietion for murder in the second degree.

Appeal from the District CJourt of Falls, on change of venue
from the District Court of Limestone. Tried below before tho
Hon. Eugeue Williams.

The indictment in this case charged the appellant and Mitch
Sanders, as principals, with the murder of Sam Scott, in Lime-
stone county, Texas, on the thirteenth day of March, 1885, and
likewise impleaded John P. Bagwell and Joe Bowers asaccom-
plices to the same murder. The venue as to the appellant and
Sanders was, upon their motion, changed to Falls county, in
the district court of which county the appellant, being alone
upon trial, was found giuilty of murder in the second degree,
his punishment being assessed at a term of five years in the
penitentiary.

J. W. Towers was the first witness for the State. He testi-
fied that in March, 1886, he lived in the town of Thornton, in
Limestone coimty, Texas, at which time he followed the occu-

Digitized by VjOOQIC

288 27 Texas Court of Appeals. [GJalveston

Btatement of the case.

. pation of a retail hardware dealer. About nine o'clock on the
morning of March 13, 1885, two parties, then strangers to him,
but who he afterward saw and recognized in 4;he Groesbeck jail
as John P. Bagwell and Mitch Sanders, came into the witness's
store in Thornton, and Sanders purchased from him a box of
thirty eight calibre, center fire pistol cartridges. The box which
contained said cartridges was made of paper, and the witness's
private cost mark was endorsed on the same. The witness
could not now remember that cost mark. Two or three days
after the said sale to Sanders, the witness saw the said box, or
one exactly like it, bearing his private cost mark, in the grand
jury room in Groesbeck, Texas. A small part of the box was
then gone, and appeared to have been torn oflf. The witness
observed the said parties when they left Thornton. They went
south over the Kosse road toward Kosse. They had three horses
with them, and were riding two and leading one of them. The
witness did not remember the description of the said horses.
They also had a new black leather saddle, which they pur-
chased that day from Mr. J. C. Spencer. The witness had no
regular customers residing beyond Kosse on the Kosse and
Franklin road, and had no recollection of ever selling cartridges
to any other person who lived beyond Kos^e.

Cross examined, the witness said that he had transient cus-
tomers at that time, and had frequently sold such cartridges as
he sold to Sanders in similar boxes, bearing the same cost mark.
While witness could not swear positively that the carlridge
box he saw in the grand jury room was the box he sold San-
ders, it was, in every respect, the same kind of a box.

J. C. Spencer testified, for the State, that he kept a harness
and saddle shop in Thornton, in March, 1885. On the thir-
teenth day of that month, in the forenoon, he sold a station-
ary covered red leather saddle to two young men whom he did
not know at the time. A day or two after the murder of Sam
Scott and Savannah Brown the witness saw and identified the
said two young men in the Groesbeck jail, and then learned
their names to be John P. Bagwell and Mitch Sanders. Bag-
well and Sanders had three horses with them in Thornton —
riding two and leading one. When they left they went south
toward Kosse, which was eight miles distant from Thornton.

George Herrod testified, for the State, that he kept a retail
liquor saloon in Thornton on the thirteenth day of March, 1885,
and on the morning of that day had a call from two joung

Digitized by VjOOQIC

Term, 1889.] Moodt v. Thv Stat«. 289

statement of the ease.

men £wr a quart of whisky. He put the whisky in two pale
green whisky bottles or flasks. He remembered the flasks dis-,
tiactly, because he had to open a fresh box to get them, and
when he took them out he saw for the first time that he bad
whisky flasks of that description. The sale of the whisky to
the said parties was particularly impressed upon the mind of
the witness by the fact that the older of the two handed the
witness a twenty dollar greenback bill from which to take
his pay. Being unable to change tha bill, he took it to every
merchant in town, but could get no smaller change than two
ten dollar bills. He then returned to his saloon and reported
to the young men that he could not get the bill changed. The
young man then turned to his companion and borrowed a dol-
lar from him, with which he paid the witness for the whisky.
Witness afterward identified those two young men in the
Groesbeck jail, and learned that their names were John P.
Bagwell and Mitch Sanders. Bagwell was the man who bought
the whisky and offered the twenty dollar bill in payment, and
Sanders was the man who loaned him the dollar with which he
finally paid for the whisky. Witness did not see the horses
ridden or led by Bagwell and Sanders, nor did he see those par-
ties when they left Thornton. The witness was afterward be-
fore the grand jury in Groesbeck. He had a faint recollection
of seeing a pale green whisky fiask in the grand jury room,
but was not certain that he did. The witness had no regular
customers who lived below Kosse on the Kosse and Franklin road.

Cross examined, the witness said that he sold a great deal of
whisky in flasks to transient customers— cow boys and others,
—in March, 1885. While he could not now recall any other
particular transaction, he thought he could safely say that he
sold to other parties than Bagwell and Sanders, on the same
day, whisky put up in flasks of the same kind, taken from the
same case. Witness bought the said flasks from UUman, Lewis
& Co., of Galveston. There were other retail liquor dealers in
Thornton who, as witness supposed, bought flasks from Ullman,
Lewis & Co., and it was quite probable some of them had sim-
ilar pale green flasks in stock on the said March 13, 1885, and
it was quite possible that some of those retail dealers had cus-
tomers living beyond Kosse on the Franklin road. r

John Grissum testified, for the State, that he was in Herrod'e
saloon throughout the transaction detailed by Herrod, and cor-
roborated Herrod's statement in every particular.

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290 27 Texas Court of Appeals. [Galveston

Statement of the ca*e.

Cab. Hood testified, for the State, that he lived in the town
of Kosse in March, 1885, and was then engaged in the livery
stable business. On the thirteenth day of that month he was
hired by a drummer to take him to Thornton in a bugger. At
about eleven o'clock a. m. , the witness and the drmnmer met
two men, each riding a bay horse, and one of them leading a
bay horse somewhat larger than either of the other two. It was
the recollection of the witness that the led horse had a saddle
on, but the witness was now unable to say whether it was a
new or an old saddle. Each of those men was dressed as cow
boys, wearing broad brimmed stockmen hats. Each had a
slicker tied behind his saddle, and one of them wore a ducking
round-about jacket. The witness afterwards saw John P. Bag-
well and Mitch Sanders in the Groesbeck jail,* and recognized
them as the men he met on the road between Kosse and Thorn-
ton, on the said thirteenth day of March, 1885.

Alex Graves testified, for the State, that he was a blacksmith
by trade, and, in March, 1885, lived in Kosse, where he kept a
shop. His said shop was situated on the east side of the rail-
road, about one hundred yards east of Autry's barber shop.
About noon on the thirteenth day of March, 1885, just as the
witness was closing his shop to go to dinner, two young men,
then strangers to witness, but whom he has since known as
John P. Bagwell and Mitch Sanders, came to his shop, each
riding a bay horse, and one of them leading a somewhat Ifwger
bay horse that had a white spot on the belly, about the girth.
One of them inquired if witness was closing up. Witness re-
plied that he was, and asked if they wanted any work done.
They replied that they wanted their horses shod, but would
wait until witness got back from dinner. They then dismounted,
and hitched their horses at the shop, and witness went to his
dinner. Witness returned to his shop about one or half -past
one o'clock, and, after working an hour or more, the parties not
having returned, went up town to hunt for them. At Autry's
barber shop he found the two strangers in company with the de-
fendant and Joe Bowers, both of whom he knew. Autry had just
finished shaving the defendant when witness reached the shop.
Witness asked the strangers if they wanted their horses shod.
The younger man of the two, — Sanders, — stepped to the door,
looked at the sun and replied that it was then too late, as they
had to reach the neighborhood of Franklin by night, but that
they would return on Tuesday, when they would get witness to

Digitized by VjOOQIC

Term, 1889.] Moody v. The Statb. 291

Statement of the case.

shoe their horses. About that time the defendant asked the
strangers if they were ready to go. They replied that they
were, and defendant and Bowers said that they would go down
town, get their horses and meet the said parties at witness's
shop. Witness went back to his shop with Bagwell and San-
ders, who got on their horses. They were soon joined by the de-
fendant and Bowers on horseback, and the four then left wit-
ness's shop, going towards Franklin over the Kosse and Frank-
lin road. In traveling that road to Franklin the parties would
necessarily pass the houses of George Lewis, Pitts, Welch,
Wadsworth and Samuels. None of the parties called each
other by name in the hearing of the witness, and witness did
not know whether Bagwell and Sanders were personally known
to defendant and Bowers. On the Sunday following the mur-
der of Sam Scott and Savannah Brown, the witness saw the
white bellied bay horse in constable Early's lot. The said four
parties left Kosse about three o'clock in the evening, traveling
in a fast walk or fox trot, — a gait that would take them four
and a half or five miles an hour.

Henry Autry testified, for the State, that he kept a barber
shop in Kosse in March, 1885. The witness closed his shop
about twelve o'clock, noon, on the thirteenth day of that month
and went home to dinner. Returning about one or half past
one o'clock, he found two strangers sitting on a bench in front
of the shop, waiting for him. Witness opened his shop, cut
the hair, shaved, shampooed and dyed the mustache of the
elder of the two men, whom he afterwards identified in the
Qroesbeck jail as the man called John P. Bagwell. He shaved
the other man, whom he afterwards saw in the Qroesbeck jail
under the ii^me of Mit'Ch Sanders. While Sandens was being
shaved, the defendant and Joe Bowers came into the shop and
met the other two men, Bagwell and Sanders, like old and
intimate acquaintances. They shook hands *^all round" and
entered into familiar and friendly conversation with each other.
After shaving Sanders, the witness shaved defendant, and
the four parties then agreed to leave town together. Either
defendant or Bowers asked Bagwell and Sanders where their
horses were. They answered that their horses were tied at the
blacksmith shop across the railroad. Defendant and Bowers
then said they would go down town, get their horses and join
Bagwell and Sanders at the blacksmith shop. A few minutes
later the witness saw the two parties, whom he took to be de-

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293 27 Texas Coubt of Appeals. [Galveston.

Statement of the casa

fendant and Bowers, ride across the railroad towards Graves's
blacksmith shop. The witness did not recollect that Alex
Graves came to the barber shop while the several parties were^
there, and asked Bagwell and Sanders if they wanted their
horses shod. The said four parties were dressed in ordinary
citizens clothes. Witness did not remember what kind of hats
they wore, and if either of them was armed the witness did
not know it.

The testimony of the witnesses Towers, Spencer, Herrod,
Autry and Graves, as above set out, is the testimony referred
to in the head note as that objected to by the defendant on the
trial. The objection urged to the testimony of the first three
was that It related to the acts of Bagwell and Sanders before
they are shown to have had any connection with the defendant,
and that their testimony about the articles purchased by Bag-
well and Sanders, and afterwards seen by the witnesses in the
grand jury room, did not connect the defendants in any manner
with the said articles. The objection urged to the testimony of
Graves and Autry was that they should not have been permit-
ted to express, inferentially or otherwise, any opinion as to
whether or not defendant was acquainted with Bagwell and
Sanders prior to meeting them in the barber shop.

Martha Brown testified, for the State, that she was the mother
of Savannah Brown, and the mother-in-law of Sam Scott, the
parties for the murder of whom the defendant was now on trial.
The witness lived about two and a half miles east of the town of
Kosse, and about a quarter of a mile north of Mrs. Martha
Brooch's place. Witness's daughter Savannah lived with her
until the day of her death." Sam Scott, at the time of his death,
lived on Mr. Cole Roebuck's place. Mr. George Lewis and his
wife lived about a mile and a quarter from Kosse on the Kosse
and Franklin road. The witness spent the fatal day — March
13, 18>5 — at the house of the said Mr. Lewis, scouring. A few-
minutes after the clock struck three on that evening, Mrs.
Lewis called the witness's attention to four men riding past
the house on the Kosse and Franklin road, going towards
Franklin. Mrs. Lewis then asked witness if she knew the
men, to which inquiry the witness replied that she did not.
The men were all riding separate horses, and one of them was
leading an extra horse. The horses were all nearly of a color,
being bays or sorrels. The witness paid no attention to the
dress of any of the men. They were riding in a fast walk or

Digitized by VjOOQIC

Tenn, 1889.] Moody v. The Statb. 293

statement of the case.

fox troty and were laughing and talking as they passed the
house.

The witness left her daughter Savannah at home on that
morning. She was expecting Sam Scott to come to the house
during that day, bringing witness's younger daughter, Mary,
with him, the said Mary having been at Sam's house attending
his wife who, about a week before, gave birth to a child.
Savannah was to return with Sam and spend a week attending
her sister. Sam and Savannah were to take with them a lot of
baby clothing and a quilt, which said articles the witness, be-
fore leaving home on that morning, arranged in a tow sack.
The quilt was placed at the bottom of the sack for the purpose
of closing a torn place in it. The baby clothes were tied in a'
sheet and placed in the sack, above the quilt. About one
o'clock, p. m. witness's daughter Mary came to Mrs. Lewis's
and asked witness if Savannah was to go home with Sam.
Witness replied that she was, and directed Mary to return and
tell Sam and Savannah to start at once. Witness got home
about sunset and found that Savannah had left to go home
with Sam Scott. About ten o'clock on the next morning a man
came to witness's house and reported the discovery of the dead
bodies of Sam Scott and Savannah, near the Persimmon pond,
on the Kosse and Franklin road. Witness repaired at once to
the point indicated. She found the body of Sam Scott lying
on the right hand side of the road. There was a large bullet
hole in his right side, and a smaller one in his head. The
absence of blood about the wound in the head indicated that it
was inflicted after death. From Scott's dead body Savannah
was tracked in a circle, first south, then west, then north to a
point, under a black jack tree, across the road, about one hun-
dred yards distant from the said road, and about the same
distance from Scott's body, where her dead body was found.
There was a bullet hole through her head, entering about the
center of her forehead. There was also a flesh wound on the
right arm, which had bled profusely over her clothes on that
side. The forehead about the wound was powder burned, and
the wound contained many fragments or crumbs of tobacco.
A roll of home cured leaf tobacco was grasped in one of the
hands of the girl, and it was evident that she must have had
her hand before her face when shot, and that the ball passed
through the roll of tobacco before entering her forehead. The
leaves and ground where her head was resting were covered

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294 27 Texas Court of Appeals. [Galveston

StatemeDt of the case.

with blood and brains. The back part of the skull was sliat-
tered and reduced almost to jelly.

The track of the girl was followed from the dead body of
Scott to the point where her body was found, and tobacco
crumbs were scattered throughout the length of the trail be-
tween the bodies. The tracks showed the girl to have been
running when shot down. The tracks of a horse followed the
tracks of the girl throughout her flight. The tracks at one
place showed the girl to have run into a tree top, in which tree
top her bonnet was found. The horse tracks at that point
showed the horse to have been suddenly checked. At another
point on the trail the tracks showed the horse to have passed
the girl, who evidently got behind a tree to avoid her pursuer;
and the broken bark on that tree showed the horse to have run
against it or to have struck it with his feet. At a point on the
trail about fifteen steps from Scott's body a spot of blood was
found which most probably had fallen from the girl's wounded
arm, and from that point to the girPs body her flight over the
trail was marked by blood spots as well as foot tracks. Wit-
ness had the bodies removed to her house, whence they were
buried on that evening. Sam Scott's bench legged flee dog
was lying by the side of Sam's body and protested savagely
against interference with his dead owner. The bed quilt was
partly in the sack on the road side, and the clothes which had
been done up in a bundle were scattered along the road for
some distance. Savannah's underclothing, when the body was
found, was wadded and stuflfed between her legs, and her dress
was pulled smoothly down.

Cross examined, the witness stated that a large number of
people were on the ground, and had hunted over it, when she
reached the dead bodies. Savannah was about fourteen years
old, and was having her menstrual flow for the third time when
killed. Witness could not say that she discovered about the
body of her daughter any indications of rape or attempted rai>e.
Sam Scott was about thirty years old. The dead bodies were
found on the Ko^se and Franklin road, about two miles from
the point where that road was intersected by the road which
led to the witness's house via Mrs. Brooch's place, which place
was about a mile and a quarter from the said point of intersec-
tion. It was the track of an unshod horse that followed the
flight of the girl from the dead body of Scott to the point where
she fell.

Digitized by VjOOQIC

Term, 1889.] Moody v. The State. 295

Statement of the csuse.

R. E. Pitts testified, for the State, that in March, 1885, he
lived about a quarter of a mile from Kosse, on the Kosse and
Franklin road, his field being immediately across the said road
from his house. He was plowing in his said field on the even-
ing of March 13, 1885. About four o'clock on the said evening
he observed the approach over the said road from the direction
of Kosse of four men riding bay or sorrel horses, and one of
them leading a bay horse. They wore cowboy hats, were oth-
erwise dressed like cowboys, and witness took them to be cow-
boys. The fact that those parties appeared to be intoxicated
arrested witness's particular attention, and he stopper! his plow
about seventy-five yards from the said fence and observed them
uniil they passed. It was about ten o'clock on the next morn-
ing when the witness heard of the finding of the dead bodies
of Sam Scott and Savannah Brown, near the Persimmon pond.
He went to the place where the bodies were found as soon as he
got the news. The bodies had been takeu up and were in a
wagon when he reached the place of the tragedy. He did not
get out of his conveyance when he reached the fatal place, and
saw nothing picked up from the ground, either at that place or
along the road. He noticed a tree just across the Lowery
branch from Jim Wadsvvorth's house, which had been recently
Bhot into, but he did not leave his conveyance to examine it.
On the Sunday following the fatal Friday, the witness was in
Kosse and saw the defendant and another person. Defendant
and the said other party suited the general description of two
of the four parties who passed the witness's house, as stated,
on the fatal Friday. The horses they then had looked like
two of the horses ridden past the witness's house by two of the
four parties mentioned on the said Friday.

On his cross examination, this witness stated that *'any other
two men of anywhere in the neighborhood of the size of Moody
and the man I saw under arrest riding bay ponies, would have
suited my idea of the men who passed on Friday (as well) as
Moody and the other man did." The witness plowed in his
field until late in the evening on the fatal Friday, but saw no
other crowd of four men pass along the road. The rows
plowed by the witness ran to and from the road, and not par-
allel to it, and consequently the witness's back was toward the
road about half of the time, and it was possible, perhaps, tliut
other parties may have passed while he was plowing from the
road, without being seen by him. That, however, was not

Digitized by VjOOQIC

)996 27 Texas Coubt of Appeals. [Galveston

Statement of the ease.

probable, as the patch he was plowing was a small one, enclos-
ing not more than three or four acres. The spring "round
ups** were about commencing in March, 1885, when the party
of four men passed the witness's place on the fatal Friday,
and a great many cowboys about that time of the year passed
over that road going to the cattle ranges. The point where
the dead bodies of Sam Scott and Savannah Brown were found
was in Limestone county, on the Kosse and Franklin road,
about midway between the five and six mile posts out from
Kosse.

Willie Welch testified, for the State, that, on the thirteenth
day of March, 1885, he was living at his father's house, on the
Kosse and Franklin road, about two miles from Kosse. He
was planting corn in his father's seventy-five acre field on the
evening of that day. A party of four men, riding bay or sor-
rel horses, and one of them leading another horse, passed wit-
ness's father's said field, on the said road, going toward Franklin
about mid afternoon on the said day. As they passed along that
part of the road, about opposite where the witness was at work,
they were hallooing, and one of them was firing off a pistol.
He fired four or five shots. The witness heard other shots fired
further down the road, about or nearly opposite Wadsworth's
house. On the next morning the witness heard of the finding
of the dead bodies of Sam Scott and Savannah Brown, and he
and his father and Church Samuels went to the point in the
road opposite the corn field, where the witness saw the shots
fired on the evening before, and from the ground about that
point Mr. Samuels picked up four or five thirty-eight calibre^.
center fire pistol cartridge shells. The witness plowed near
the said road during the entire evening of March 13, and saw
no other crowd of men pass than the one described.

Cross examined, the witness stated that, so far as he knew,
but one of the said four men had a pistol. The bodies of Sam
Scott and Savannah Brown were found about five and a half
miles from Kosse on the Kosse and Franklin public road. It is
about half a mile from Kosse to Pitts's house; about two miles
from Kosse to the point in the field where the witness was
plowing on the said Friday evening; about three miles from
Kosse to Wadsworth's house; about four miles from Kosse to
the intersection of the Kosse and Franklin road with the road
that led to Martha Brown's house, via Mrs. Brooch's house,
which last mentioned house was about a mile from the said

Digitized by VjOOQIC

^enn, 1889.] Moody v. The State. 297

Statement of the ease.

point of intersection, and abont two and a half miles from the
point on the Kosse and Franklin road where the dead bodies
w6re found. A person going from Mrs. Brooch's place to the
Cole Roebuck place would travel the Brown-Brooch neighbor-
hood road to its intersection with the Kosse and Franklin road,
and then the Kosse-Franklin road toward Franklin to the point
beyond the six mile post from Kosse, where the neighborhood
road leading to Roebuck's place left it.

James Wadsworth testified, for the State, that he lived on
the Kosse-Franklin road, about three miles southeast from
Kosse. On the evening of March 13, 1885, the witness was
plowing in his field about one hundred and fifty yards from the
said road. About an hour and a half or two hours before sun-
set on that evening four men, dressed like cow boys, all riding
bav or sorrel horses, and one leading an extra horse, passed
along the said road going from the direction of Kosse towards
Franklin. All the said parties appeared to be drunk, and the
witness, expecting them to stop for water at the well at his
house, unhitched his team and started to the house. The parties,
however, did not stop, and witness went back to his work. A
few minutes after the said parties passed, the witness heard
four or five pistol shots fired down the road in the direction
they went, and at about the point where, on the next morning,
he observed a tree that had been recently shot into. On the
next morning after seeing those men the witness heard of the
discovery of the dead bodies of Sam Scott and Savannah
Brown, near the Persimmon pond, and was summoned by con-
stable Early to serve on the coroner's jury to view the bodies.
Witness reached the bodies between ten and eleven o'clock on
that morning — too late to serve on the inquest. The holies
lay about one hundred yards apart, midway between the five
and six miles posts, out from Kosse. Scott's body lay on the
side of the road. A large ball had entered his right side, passed
through the body, and lodged under the skin on the opposite
side. A smaller ball had entered his head at the comer of one
«ye. He had evidently been shot dead in his tracks, there be-
ing no indication on the ground that he took a step after re-
<5eiving the first of the shots. The girl's tracks showed that she
fled in a semicircle from Scott's body across the road, to the
left hand side of the said road, about fifty yards from the road,
and a hundred from Scott's body, where she fell, and where her
body was found. One of her hands clasped a ro 1 of home

Digitized by VjOOQIC

298 27 Texas Court of Appeals. [GalvestoD

Statement of the case.

cured leaf tobacco. A bullet had entered her head at the cen-
ter of the forehead; which wound contained tobacco crumbs,
the skin around it being powder burned. There was also a
flesh wound on one of her arms. Tobacco crumbs were fotmd
along the trail passed over by the girl in her flight, and her
bonnet was found in a tree top where she had evidently sought
refuge from a pursurer. The track of an unshod horse fol-
lowed the track of the girl throughout the distance between
the two bodies. That track showed that the horse was sud-
denly checked at the tree top, and that at another point his
feet struck the trunk of a tree behind which the fleeing girl
sought shelter. The two wounds in the body of the girl and
the wound in Scott's head were made by the same sized balls,
while that in Scott's body was made by a larger ball. At or
near the bodies one loaded cartridge and four exploded cart-
ridge shells were found. One of the four shells was that of a
forty-five calibre Colt's improved pistol cartridge, and was of
the size of the bullet hole in Scott's side. The others were
thirty-eight calibre Smith & Wesson pistol cartridge shells, and
were of the size of the wounds on the girl's body and on Scott's
head. A sack, some clothes and an old quilt were found lying
near Scott's body. The clothes and quilt seemed to have been
pulled out of the sack. A bench legged flee dog was squatted
near Scott's body. Just after crossing Lowery's branch, en
route to the dead bodies, the witness and the parties with him
saw a tree into the trunk of which several bullets had been re-
cently fired, and at the root of that tree they picked up a part
of a paper thirty-eight calibre center-fire cartridge box, and
the hull of a forty-five calibre center-fire cartridge, and in the
load opposite the tree they found four or five empty thirty-
eight calibre center-fire cartridge hulls. The cartridge box had
evidently been torn open at that place and the cartridges taken
out. Near this same tree an empty pale green pint whisky
flask was found; all of which said articles the witness turned
over to justice of the peace Hodges, and he afterwards saw
them in the grand jury room at Groesbeck.

Cross examined, the witness said that he would not under-
take to swear that no other crowd of four men than that re-
ferred to by him passed his house on the said Friday evening.
There was a great deal of blood about the body of the dead
girl, who wore pads, such as women generally wear during
their menstrual flows; the said pads being in proper position.

Digitized by VjOOQIC

Term, 1889.] Moody v. The State. 899

Statement of the case.

Witness saw no indication of rape or attempted rape. The
witness saw a horse track leading from Sam Scott's body up a
hog trail to the girFs body, near which body it appeared to join
the horse which followed the girl in her flight. From that
point the two said horses went ^together over the trail to the
road. Neither of said horses was shod. The four men who
passed witness's house on the fatal evening were dressed like
cow boys, wore cow boy hats, and each had a slicker tied to
his saddle. There was no saddle on tlie led horse.

Pres Brooch testified, for the State, that he lived with his
mother two and a half miles east of Kosse, in March, 1885. He
was plowing in the field on the evening of the thirteenth day
of said month. The witness went from the field to the house,
about four o'clock on that evening, to get a drink of water.
While at the house he saw Sam Scott and Savannah Brown,
whom he knew well, pass the house, traveling the road known
as the Brooch road, going towards the Kosse and Franklin
road. Scott, followed by his bench legged dog, had on his head
a bundle of clothes done up in a bed quilt, and Savannah had
a roll of home cured leaf tobacco in her hand. They were
walking leisurely at a gait of two and a half or three miles an
hour. The witness remained at the house between ten and
fifteen minutes, and when he started back to his work he called
to his mother in the house to look at the clock and tell him the
time. She replied that it was just four o'clock. Witness went
back to his work, and had, plowed about fifteen or twenty
minutes when loud talking and a pistol shot fired on the Kosse-
Franklin road attracted his attention. Looking in that direc-
tion he saw four men corresponding in description with those
mentioned by previous witnesses. The said men were riding
along the road talking loudly, laughing boisterously, and at
least one o^ them was discharging a pistol. They appeared to
be drunk. The witness could not see their horses, and only
the bodies and heads of the men. Those men were traveling
at a gait of four and a half or five miles an hour, and when
seen by the witness they were on the Kosse-Franklin road,
about a mile and a quarter from its intersection with the Brooch
road, which intersection was about two miles from the point
where the dead bodies of Scott and Savannah Brown were
afterwards found.

Church Samuels testified, for the State, that in March, 1885,
he lived on the John Welch place, on the Kosse-Franklin road^

Digitized by VjOOQIC

800 27 Texas Court of Appbals. [Gkdveston

Statement of the case.

about two miles from Kosse. He stated that he was in the field
at work with Willie Welch on the evening of March 13, 1885,
and he corroborated in detail the testimony of Willie Welch,
adding that he took the cartridge hulls (picked up by hira at
the point on the road where he saw one of the parties shooting)
before the g^and jury and turned them over to the foreman of
the same. He then testified that he reached the dead bodies on
the next morning before they were removed from where found,
and. he corroborated in detail the narrative of the witness Wads-
worth as to everything appearing on the ground, the character
of the wounds on the bodies, the finding of the cartridge hulls,
cartridge box and the pale green whisky flask.

On his cross examination he stated that he thought, but was
not certain, that one of the four parties who passed Welch's
house, on the evening of March 13, had a gray horse.

Mrs. Martha Brooch, for the State, corroborated the testimony
of her son Pres., except that she stated nothing about seeing
four men on the Kosse-Franklin road soon after Sam Scott and
Savannah Brown passed her house.

Justice of the Peace M. P. Hodges testified, for the State, that
he reached the scene of the tragedy just after the dead bodies had
been placed in a wagon for removal. He did not examine the
bodies critically himself, nor did he examine the ground at all.
He saw the tree across Lowery's branch into the trunk of which
several pistol balls had been recently fired. Somebody handed
to the witness some cartridge hulls, the larger part of an empty
paper cartridge box, and a pale green pint whisky flask; which
articles the witness subsequently delivered to the grand jury.
The cartridge hulls were of two sizes — thirty-eight and forty-
five calibre — and, on a test in the grand jury room, they fitted
respectively the two pistols which the witness saw in that
room.

A. W. Proctor testified, for the State, that he was the fore-
man of the grand jury of Limestone county at the March term,
1885, which grand jury investigated the murder of Sam Scott
and Savannah Brown, and presented this and other indict-
ments. They had several witnesses before them on this case,
and al^o certain cartridge hulls, the larger part of a paper car-
tridge box, and a pale green pint whisky fiask; which were
delivered to witness by Esquire Hodges. The cartridge hulls
were of two sizes — thirty-eight and forty-five calibre. They
also had two pistols before them, both of which were obtained

Digitized by VjOOQIC

Term, 1889.] Moody v. The Statr. 301

Statement of the

from Deputy Sheriff John Kimball, who reported that he took
o&e— a forty-five calibre centre-fire improved Colt's revolver —
from John P. Bagwell, and the other— a thirty-eig^t calibre
centre-fire Smith & Wesson revolver — from Mitch Sanders.
The thirty eight calibre cartridge hulls fitted the Sanders pistol,
and the forty-five calibre, the Bagwell pistol. Mr. Towers was
before the grand jury, and identified his private cost mark on
the cartridge box.

Deputy Sheriff John Kimball testified, for the State, that he
heard of the murder of Sam Scott and Savannah Brown on the
morning of March 14, 1885, and started out immediately in
quest of the murderers. He arrested defendant and Joe Bow-
ers on Sunday, March 15, 1885, and Bagwell and Sanders on the
following Tuesday or Wednesday. The witness arrested Bag-
well at the house of Charley Moody, some eight miles east of
Qroesbeck, about ten o'clock in the morning, just after his re-
turn from a deer hunt. Bagwell's pistol was hanging up in
Charles Moody's house, over a door. It was a forty-five calibre,
center-fire improved Colt's revolver. It had been recently well
cleaned and thoroughly oiled, and was not loaded. Witness ar-
rested Sanders about nine o'clock on the night of the same day
at the house of his aunt, Mrs. Bates, about fourteen miles east
of Groesbeck. Sanders, when arrested, had in his possession
a thirty-eight calibre, center fire Smith & Wesson six shooter
pistol. The witness delivered the said pistols to the grand jury
then in session at Qroesbeck, and while in the grand jury room
he saw same cartridge hulls inserted into the cylinder of each
pistol, which they fitted perfectly. Bagwell, after his arrest, rode
to Groesbeck on a large bay horse branded L4 on the shoulder.
One of the feet of that horse had been cut on a wire. Sanders
rode to town on a small, young black pony. From the places
where witness arrested Bagwell and Sanders, to the Tom Bates
place where the defendant lived, the distance was about twenty
miles. The witness knew a certain forty-five calibre Colt's pis-
tol that once belonged to Mr. Anglin, and which Major B. M.
Burrows afterwards owned. The defendant and Charley Moody
were not related to each other.

Charley Moody testified, for the State, that in March, 1885, he
lived in Limestone coimty about eight miles east of Groesbeck,
and about thirty miles distant from the T. J. Bates place, where
defendant was said to have lived. He did not know the de-
fendant, and was not related to him. He knew John P. Bag-

Digitized by

Google

302 27 Texas Court of Appbals. [Galveston

Statement of the case.

well, whose acquaintance he formed in Erath county. Deputy
Sheriff John Kimball arrested Bagwell, for the murder of Sam
Scott and Savannah Brown, at the witness's house in Limestone
county, about March 18, 1885. Bagwell came to witness's house
about eleven o'clock on the day preceding his arrest, hunting
work. Witness had no work to be done and did not hire him.
He brought to witness's house a forty-five calibre, center fire
Colt's six-shooter, and was riding a bay horse about fifteen
hands high. The horse was branded, but witness did not re-
member the brand, nor did he remember that the horse had a
foot cut by wire. Bagwell fired his pistol off, oiled and hung it
up over the door on the morning of his arrest. He was ar-
rested immediately after he and witness got back from a deer
hunt.

Harriet Scott testified, for the State, that she was the widow
of Sam Scott, and the sister of Savannah Brown. She lived,
on March 13, 1885, with her husband on Mr. Cole Roebuck's
placa She was sick on Friday, March 13, 1885, having about a
week before that date given birth to a child. On the morning
of the said Friday her husband and her sister Mary, who had
been attending her since her confinement, left home to go to
the house of Martha Brown, witness's mother, which house was
near Mrs. Brooch's place. Sam was to return home that night,
bringing witness's sister Savannah with him. Witness had
never seen her husband nor her sister Savannah since. She
heard on the next day that their dead bodies had been found on
the Kosse-Franklin road near the Perfeimmon pond. The wit-
ness knew the defendant. He lived in 1885, until his arrest, on
the T. J. Bates place. Defendant knew Sam Scott. Some time
in 1885, prior to the killing of Scott, a party of men passed Sam
Scott's house. Sam Scott's fice dog ran at and barked at them,
when one of the party shot at the dog. A voice, which the
witness took to be the voice of the defendant, exclaimed:
"Shoot him again!" Sam Scott was in his yard at that time.
The witness had seen the defendant at Jim Sapp's house on that
day. To go from Sapp's house to where the defendant lived a
person would necessarily pass Sam Scott's house. The witness
told Mr. Roebuck about the dog being shot at, and told the same
thing to Mr. T. J. Bates about a month before this trial, and
soon afterwards she was attached as a witness in this case.
She had never before testified on the trials of this defendant
nor on the trial of Sanders.

Digitized by VjOOQIC

Term, 1889.] Moody v. The State. 303

Statement of the case.

Cole Roebuck testified, for the State, that he lived in Robert-
son county, about a mile and a half from the point in Lime-
stone county where the dead bodies of Sara Scott and Savan-
nah Brown were found. Sam Scott, at the time of his death,
was a tenant of the witness and lived on his place. Mr. John
Roy, who with his brother, en route to Kosse, on the morning
of March 14, 1885, discovered the dead bodies, informed the
witness of the discovery, and witness went to the bodies, arriv-
ing there before any other persons than the Roys did. This
witness's narrative and that of James Wadsworth (except that
part of Wadsworth's which related to the men who passed his
house on the evening of the thirteenth) is substantially the
?arae and need not be repeated. He stated in addition that the
lefendant, to his knowledge, knew Sam Scott. Witness heard
about Sam Scott's dog being shot at, near Sam's house, in the
preceding fall, as testified by Harriet Scott.

T. J. Bates testified, for the State, that, on March 13, 1885, the
defendant lived on his place, about four miles distant from the
place where the dead bodies of Sam Scott and Savannah Brown
•were found. On the said March 13 the defendant had in his
)ossession a certain forty-four calibre, center fire Colt's pistol,
vhich belonged to the witness — a present to him from Major
B. M. Burrows, of Qroesbeck. He borrowed that pistol from
witness two or three months before for the purpose, as he said,
)f killing hogs. The witness reached the dead bodies between
aine and ten o'clock on the morning of March 14. From this
point his nalrative with respect to the bodies, tracks, discover-
ies, etc., is substantially the same as that of the witnesses
Wadsworth and Roebuck. Continuing his testimony, he stated
that he went to the defendant's house on the evening of the
said March 14, 1885, and got his said pistol. Joe Bowers, who
was at the defendant's house, gave the pistol to witness. It
was then unloaded, clean and in good order. Subsequent to
the arrest of defendant and Bowers, the witness was shown
two horses which were pointed out to him as the horses ridden
to Kosse by the defendant and Bowers after their arrest. The
witness up to that time had known defendant's horse stock,
but had never known him to own those two horses, nor a
strange horse that was then in his, defendant's, lot. He after-
ward saw the horses on which Bagwell and Sanders were
brought to town, and knew that, a short time before, those
horses belonged to the defendant. According to this witness^

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304 27 Texas Court of Appeals. [Galve^toa

statement of tbe case.

the track of the horse which followed the flight of Savannah
Brown over the trail showed that horse to be unshod, but the
track of the other horse which went from the body of Scott
over the hog path to the body of Savannah Brown, showed
that horse to be shod in front, but not behind.

On cross examination, this witness said that he critically ex-
amined his pistol after getting it from Bowers on the evening
after the murder, but he could find no indication of it having
been recently discharged. It was unloaded when witness got
it back. The witness denied that on all the previous trials of
this case he testified that the pistol was loaded when he got it
back, and that the heads of the cartridges where they came in
contract with the metal had cankered, showing that the said
cartrides had been in the pistol for a long time. Although the
witness knew little about the calibre of pistols, he was certain
that his said pistol was a forty-four calibre. He denied that
he had ever conversed with Harriet Scott about this case.

N. B. Hamilton testified, lor the State, that in March, 1885,
he lived about two miles from defendant's residence. The de-
fendant spent several hours at the witness's house early in De-
cember, 1884, and during a conversation with witness asked
him: "What kind of a nigger is that who lives on Cole Bee-
buck's place?" Witness asked him if he meant Sam Scotk
He replied that he did, and witness replied: "He is a very
good sort of a nigger, so far as I know. Why do you Cisk?"
He replied: *'0h, I don'C know. I hear that he calls Mrs. Boo-
buck ^Aunt Sue,' and the wives of John Stuart and Jim Sapp
*Sook' and 'Sal.' Before I live in this country six months I
will throw him oflf his feet," Defendant had just prior to that
time moved into that neighborhood. Witness did not know
whether defendant was acquainted with Bagwell or Sanders
prior to March 13, 1885.

Cross examined, the witness stated that no person but he and
defendant were present at the conversation about Sam Scott,
above detailed. Witness attached no importance to defend-
ant's said threat against Scott. Defendant's wife, Mrs. Maggie
Moody, who was the sister of John Stuart, died during the
January preceding this trial. The witness denied that after
the defendant's arrest, and while his wife and child were at
home alone, he went to defendant's house, cursed and swore
boisterously, and discharged a pistol in the house, and in the
yard in front of the house. He admitted that he went to that

Digitized by VjOOQIC

Tenn, 1889.] Moody v. The State, 305

Statement of the

house the night of the day on which Mrs. Moody gave a cotton
picking, thinking there was to be a dance, and he insisted that
she should give a dance, but he did not curse and swear, and
discharge his pistol on that occasion. The witness was a
nephew of T. J. Bates.

Constable W. D. Early testified, for the State, that he heard
of the killing of Scott and Savannah Brown, about nine o'clock
on the morning of March 14, 1885, and at once summoned a
jury of inquest and went to the bodies. With respect to the
bodies, tracks, etc , this witness testified substantially as did
the witnesses Wadsworth and Roebuck. At the conclusion of
the inquest a warrant for the arrest of four unknown parties
was placed in witness's hands, and he and Doctor Manuel
started out in quest of said parties. At Bates's gate witness
and Manuel met the defendant and Joe Bowers. Defendant
said that he had heard of the discovery of the bodies of two
dead negroes, down the road, and that he and Bowers were
going to see them. Witness told him that the bodies had al-
ready been taken to Kosse. Doctor Manuel then said that he
could go no further with witness, and advised witness to take
defendant to help him in his search for the four unknown
parties. Defendant consented to go, and told Bowers to go
back to the house and finish up the work. Defendant did not
know who witness was hunting. Witness asked him if he did
not pass over the Kosse-Franklin road on the previous evening.
He replied readily that he did, in company with Bowers and
two other young men whose names he did not remember, ex-
cept that one of them, with whom he traded for the horses he
and Bowers were then riding, had a name that sounded some-
thing like Howell. He further stated that those two young
men left his house on the previous evening, saying that they
were going to Headville. The witness and defendant then
went to the house of a deputy sheriff in Robertson county to
get him to help hunt the murderers. Not finding the deputy
the witness, telling defendant to go home and to be ready to
accompany him on the search the next day, went to the house
of a friend and spent the night. On the next morning witness
got the deputy sheriff he looked for the night before, went to
the defendant's house, arrested him and Bowers, and took them
V) Kosse and delivered them to a deputy sheriff from Groes-
oeck. The horse ridden by defendant to Kosse was a large bay
animal^ with a white spot on his belly, and the horse ridden

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306 27 Texas Court op Appeals. [Galveston

statement of the case.

by Bowers was a small bay animal — ^being the same horses
they were riding on the previous evening. When arrested, de-
fendant asked if witne wanted his pistol. Witness replied
that he did. Defendant then opened his trunk, exposing his
pistol, which witness secured. It was a forty-four calibre,
center fire British Bulldog pistol, and had not been recently
discharged.

Cross examined, the witness said that defendant talked
freely with him about traveling the Kosse -Franklin road with
the other parties, on the fatal evening, and about his horse
trade. He made no manner of resistance to arrest.

H. G. Sander.-s, the uncle of Mitch Sanders, testified, for the
State, that he lived in Falls county, three miles northeast from
Marlin. On his way to Marlin on Saturday, March 13 (14?),
>68o, witness met his nephew, Mitch, and a man who called
himself Scott, but whose name witness afterwards learned was
John P. Bagwell, going to his house from towards Marlin.
Their horses appeared to be jaded. Witness talked with them
a few minutes and told them to go on to his house and that he
would soon be back. When witness returned from Marlin he
found the said parties at his house. They said they were going
to a point below Kosse where they had a horse that would suit
the witness for buggy work, and which they wanted to sell him.
Witness declined to buy. They spent that night at witness's
house, and on Sunday morning left, going towards Marlin.
They acted suspiciously while at witness's house, going oflf to
themselves with great frequency and talking privately.

John Stuart was the next witness for the State. He testified
that he was the brother-in-law of the defendant — defendant's
late wife being his sister. In March, 1885, the witness lived on
the Bates place, near the house on the same place occupied by
the defendant. On the thirteenth day o*f March, 1885, the wit-
ness began to plow with one of defendant's horses, a bay cmimal
branded L4 on the shoulder, which said animal had a foot cut
by wire. About an hour by sun on that evening the defendant
came to the field and got the horse which witness was plowing,
and told witness that he had traded that horse to some boys for
some horses which witness afterwards saw in defendant's lot.
That night the witness went to the defendant's house, where he
found the defendant, his wife, Mrs. Ellen Button, Joe Bowers and
John Sinclair. In the presence of those parties the defendant
told the witness that he and Bowers and two men named Bag-

Digitized by VjOOQIC

Term, 1889.] Moody v. The State. 307

Statement of the case.

well and Sanders came together from Kosse on that eveninif,
and that en route, near the Persinmion pond, they mobbed the
negro Sam Scott and a negro girl; that they overtook the ne-
groes walking along the road when he, defendant, rode up and
shot Sam Scott down; that the girl then fled, and that he pur-
sued, overtook and shot and killed her; that the negroes did
nothing for which they were killed. He then said that he was
afraid of being mobbed on that night, and asked witness and
Sinclair to get their guns and sit up with him that night.
Witness and Sinclair got their guns and stayed at defendant's
house until about eleven o'clock. While at supper the defend-
ant kept his pistol across his lap. Had a mob come to defend-
ant's house that night the witness would have done nothing to
help or protect the defendant.

Cross examined, the witness said that he was now testifying
on the fifth trial of this case, and that he testified on the trial
of Mitch Sanders involving the same transaction. On each of
the previous trials the witness testified to matter which, if true,
would establish an alibi for the defendant and Sanders, and
that he did not hear of the killing of the negroes until Saturday
evening, and on cross examination on each trial, he testified
that defendant had never at any time said anything to him
about killing two negroes on the evening of March 13, 1885— all
of which said testimony was utterly false. After the fourth trial
of defendant the witness attempted to evade testifying again
on this trial, and his bond as an attached witness was forfeited.
He was finally caught. Mr. Mynatt was the first man to whom
the witness told the truth about his knowledge of the facts in
this case, and he explained to Mr. Mynatt that be was and had
been afraid to testify to the truth, — that he was afraid of the
defendant, his two brothers and half brother — which statement
to Mynatt was true. Mr. Mynatt told him, however, that in
testifying truthfully, he would be protected by the good citi-
zens of the country, and he decided to do so. The reason why
the witness suffered the forfeiture of his bond as a witness was
tfiat he did not want to again swear to lies for the defendant,
and was afraid to swear to the truth.

James Sapp testified, for the State, that to his knowledge the
defendant was acquainted with Mitch Sanders prior to the fatal
March 13, 1885.

County Attorney Rice testified, for the State, that he prose-
cuted the defendant on his four previous trials for this offense.

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27 Texas Court of Appeals. [Galveston

Statement of the case.

Mrs. Moody, defendant's wife, since deceased, testified on each
of those trials that defendant, riding a brown horse named
"Wide-Eye," and Bowers a gray mare, went to Kosse on March
13, 1885, and returned an hour and a half or two hours before
sun set, bringing two strangers, whom she afterwards learned
were named Bagwell and Sanders, with them; that the strangers
and defendant and Bowers ate dinnpr saved over by her; that
after dimier the defendant traded horses with the strangers,
giving two horses and some boot for three horses; that the
strangers then left, it being an hour or an hour and a half by
sun, going back towards Kosse; that defendant, on getting
home from Kosse, gave her Bates's pistol which he had; that
she put it under the head of the bed, whence it was taken the
next morning and given to Bates, and that she did not hear of
the killing of the negroes until the day after it was done. She
was then asked about N". B. Hamilton going to her house while
defendant was confined in jail, and she answered that Hamil-
ton came to her house one night after a cotton picking given by
her, and after she had declined to give a dance, and her guests
had gone, threatened to throw out her bed, cursed, and dis-
chaiged his pistol inside and outside of her house, and then left.

This witness stated that on the said previous trials T. J. Bates
testified that his pistol was loaded **all round" when he got it
from defendant on the day after the tragedy, and that the car-
tridges appeared to have been in it for a long time, and that it
had no appearance of having been recently discharged. John
Stuart's testimony on the said previous trials was substantially
as on this trial the said Stuart confessed it to have been. Z. L
Harlan, of counsel for the defendant on this and his previous
trials, testified, for the State, substantially as did the witness
Rice.

Joe Thomas testified, for the State, that in January, 1885, he
sold to the defendant the brown horse known as "Wide-Eye/>
which horse the defendant subsequently used as his saddle
horse. Witness saw that horse at defendant's lot about March 1,
18S5, when the horse was shod in front with heavy cork shoes.
Witness did not see that horse on March 13, 1885, and did not
know whether or not the horse had on those shoes on that day.

The State closed.

Mrs. Ellen. Button, the sister-in-law of the defendant, was his
only witness. She testified that defendant and Joe Bowers
went to Kosse on the fatal Friday morning, defendant riding

Digitized by VjOOQIC

Tenn, 1889.] Moody v. The State. 309

Opinion of the court.

the brown horse known as "Wide-Eye," and Bowers a gray
mare; that they returned an hour and a half or two hours be-
fore sun set, bringing with them two strangers whose names
afterwards transpired to be Bagwell and Sanders; that after
eating dinner defendant went to the field and got the horse
with which John Stuart was plowing, returned to the house and
made a horse trade with the strangers, who afterwards left,
going back towards Kosse; that she, the witness, did not hear
of the murder of the negroes until the next day. She denied
positively and emphatically that defendant made any such
confession or statement about the killing of the negroes as tes-
tified by Stuart on this trial. She stated that Stuart came to
the house immediately after defendant took the plow horse from
him, but that he remained but a few moments, and that neither
he nor Sinclair came there that night armed with guns.

OUorf <t HarlaUy for the appellant.

W. L. Davidson^ Assistant Attorney General, for the State.

White, Presiding Judge. Defendant's bills of exception to
the admission of testimony over his objections are none of them
well taken. Under the peculiar facts and circumstances of this
case, as well as under the allegations in the indictment, the
testimony was legitimate for the purpose of identifying the
parties who perpetrated this most wanton and horrible murder.
These bills of exception appear to have been waived or aban-
doned by counsel for appellant, as no mention is made of them
in the able brief they have filed in this court.

The principal grounds argued and relied upon for a reversal
are supposed defects and errors in the charge of the court to
the jury. Appellant's fifth and sixth bills of exception present
the only exceptions taken to the charge at the trial, and no re-
quested instructions were asked in behalf of appellant. Taken
as a whole, the charge, in our opinion, is not obnoxious to any
of the objections urged against its correctness and sufficiency.
In certain of the particulars complained of in the brief of
counsel, but not excepted to, the charge would doubtless have
been amplified, as it is contended ought to have been done, had
special requested instructions been asked upon those points.
Considering it as a whole, and in the absence of additional re-
quested instructions, we find no substantial error, either of

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810 27 Texas Court op Appeals. [Galvestoiv

Syllabus.

omission or commission, and it appears to have fully and suffi-
ciently submitted the law applicable to all the legitimate phases
of the case as made by the evidence.

It is most urgently insisted that the evidence is not sufficient
to sustain the verdict and judgment. We are told that this is
at least the fifth time this case has been tried, and that there
have been four mistrials. One of the witnesses who testified
for defendant on each of the other trials, and whose testimony
established for him in part his defense, which was an alibi,
on this last trial recanted his former statements and testified
that defendant, on the evening of the homicide, when he
arrived at his, defendant's home, actually confessed to him and
others that he, this defendant, with his own hands, shot and
killed both of the murdered parties. This witness was, besides,
a brother-in law of defendant. If his testimony is to be be-
lieved, then, taken in connection with other facts in the case,
there can be no question of this appellant's guilt. The judge
and the jury who saw him upon the witness stand, and who
heard him testify, must have given him credit for telling the
truth on this, the fifth trial. It was for the jury alone to pass
upon his credibility and the weight of his testimony. It is not
for us to say that we might have done otherwise had we been
one of their number, for of this it is impossible for us to de-
termine, with nothing but the record before us. Suffice it for
us to say that, with this evidence, the testimony disclosed in
the record is amply sufficient to support the verdict and judg-
ment, and, having found no error which authorizes us to re-
verse the case, the judgment is affirmed. Affirmed.
Opinion delivered March 2, 1889.

27 810
90 119|

38 192

,g ti?i No. 2578.

William Chappell r. The State.

1. EXHIBITINO A Gamino Table—Evidkncb.— Whether omot the table
on which the game was exhibited was made specifically for fi^aming pur-
poses can not, ordmarily, affect the issue in a prosecution for exhibit-
ing or keeping a gaming table for the purpose of gaming, it beings
**rather from the character of the playing, or the game which is played,
that it (the table) receives its specific designation." Another test i»
that it is any table on which any game is played **which in common

Digitized by VjOOQIC

Term, 1880.] Chappell v. The State. 311

Statement of the case.

Uuifiroage is said to be played, dealt, kept or exhibited." The charao-
teristios of a gaming table or bank, as correctly declared in Stearnes's
ease, 21 Texas, 693, are: *'l. It is a game. 2. It has a keeper, dealer
or exhibitor. 8. It is based on the principle of the one against the
many— the keeper, dealer or exhibitor against the betters, directly or
indirectly. 4. It must be exhibited for the purpose of obtaining
betters."
** 8amb— ''Craps"— Case Stated— This indictment charges that the ap-
pellant * » * "did unlawfully keep for the purpose of paming a
gaming table used for gaming, to wit: for playing a game with dice,
commonly called **craps.'" It was proved on the trial that "craps is
played by one man taking two dice in his baud and throwing them on
the table; and the man who throws bets on seven or eleven to win,
and the other party bets against him. First one and then another
will throw the dice. The game can be played on any flat surface."
The same witness testified that he did not know that the accused bad
any interest in the saloon in which the game was played or in the
table on which it was played; that he only knew '*the defendant held
the bets and received five cents for each two throws that were thrown."
Held, that the proof does not support the allegation in the indict-
ment. The table was in no way essential to the game, which could
have been played on any flat surface; the game included no keeper or
exhibitor, and was played only by the parties who participated in the
throwing of the dice.

Appeal from the Criminal District Court of Galveston.
Tried below before the Hon. C. L. Cleveland.

This conviction was for exhibiting a gaming table, and the
penalty assessed against the appellant was a fine of twenty -
five dollars, and confinement in the county jail for ten days.

The opinion sets out the substance of the proof for the State,
except that the testimony inculpated the defendant as the man
who held the money bet by the crap thowers, and received the
table fees of five cents for every two throws.

Charles Jessup testified, for the defense, that he was the ex-
clusive owner and proprietor of the saloon in which the game
was played, and of the table on which it was played. Defend-
ant was his employe, had no interest whatever in the saloon
or table, and, in receiving the table fees for the game played,
acted under and by the orders of the witness, and for the wit-
ness.

Frank M. Spencer^ for the appellant.

W. L. Davidson^ Assistant Attorney General, for the State.

Digitized by VjOOQIC

313 27 Tbxas Court of Appeals. [Galveston

Opioion of the court.

White, Presiding Judge, It is charged in the indictment
that the defendant, "in the said county of Galveston, in the
State of Texas, with force and arms then atid there unlawfully
did keep, for the purpose of gaming, a gaming table used for
gaming, to wit, for playing a game with dice commonly called
craps," etc.

As shown by the evidence, **the game of craps is played by
ono man taking two dice in his hand and throwing them on
the table, and the man who throws bets on seven and eleven
to "v^in, and the other party bets against him; first one and then
another will throw the dice. Uie game can be played on any
flat surface.^* The witness further said: "Don't know that
the defendant had any interest in the saloon (in which the play-
ing took place), or table on which the playing took place. I
only know that he held the bets, and received five cents for
each two throws that were thrown."

Our statute with regard to keeping or exhibiting a table or
bank provides that, "if any person shall keep or exhibit for the
purpose of gaming any gaming table or bank of any name or
description whatever, or any table or bank used for gaming
which has no name," etc. , he shall be punished, etc. (Penal Code,
art. 358.) With regard to the character of "table or bank,'' as
used in article 358, it is expressly declared that "it being intended
by the foregoing article to include every species of gaming de
vice known by the name of table or bank of every kind what-
ever, this provision shall be construed to include any and all
games which in common language are said to he played, dealt,
kept or exhibited.'' (Penal Code, art. 359.) Article 360 enu-
merates certain games which are specifically declared to be in-
cluded, but further provides that "the enumeration of these
games specially shall not exclude any other properly within
the meaning of the two preceding articles." And article 361
provides that *in any indictment or information for the class of
offenses named in the three preceeding articles it is sufficient to
that the person accused kept a table or bank for gaming, or state
exhibited a table or bank for gaming, without giving the name
or description thereof, and without stating that the table or
bank or gaming device was without any name, or that the
name was unknown."

In the early case of Estes v. The State, 10 Texas, 300, it was
in proof that defendant bet at a game called "rondo," played
upon a billii^rd table. The court say: "We do not understand

Digitized by VjOOQIC

Term, 1889.] Chappbll v. The State. 313

OpiDion of the court.

that it is litterally the table or structure, whatever that may
be, on which the game is played that gives the character and
designation of a gaming table; but it is rather from the char-
ter of the playing, or the game which is played, that it receives
its specific designation."

In the case of Stearnes v. The State, 21 Texas, 693, it was
held that "Grand Raffle," as described in that case, was a
gaming table exhibited for gaming. It was further said in
that case that "it is difficult to imagine any species of table or
bank, or gaming device resembling either, that is kept for
gaming, that would not be included. Parties are liable to be
misled by the words 'table and bank/ by attributing a meaning
too restricted and literal." But in that case the leading elements
characterizing a gaming table or bank are deduced and declared
to be: 1. It is a game. 2. It has a keeper, dealer, or exhibitor.
3. It is based on the principle of one against the many — the
keeper, dealer or exhibtor against the betters directly or indi-
rectly. 4. It must be exhibited, that is, displayed, for the pur-
pose of obtaining betters. And the description of the game in
that case, had all "the leading characteristics of a common
gaming table or bank, viz. : one against the many — the exhib-
itor with an interest in the game against the betters." There is
no question in our minds but that the Stearnes case showed a
case of exhibiting a gaming table and bank.

In Webb's case, 17 Texas Court of Appeals, 205, defendant was
convicted upon a charge of unlawfully keeping and exhibiting
**a bank for gaming purposes," the evidence showing that the
game was fifteen ball pool, played upon a billiard or pool table,
and in which game the loser was to pay for the drinks or cigars
ordered from defendant's bar by those engaged in the game.
It was held that the game proven was not a bank but a gaming
table, and it was said "the statute uses the words gaming table
or bank, evidently meaning two dilBFerent things."

The question we have in the case before us is, do the facts in
evidence support the allegation in the indictment that the de-
fendant "kept for the purposes of gaming a gaming table?"
It seems that the structure of the table — that is, whether it was
made specifically for gaming purposes — can not ordinarily
affect the question; "it is rather from the character of the
playing or game which is played that it receives its specific
designation." (Estes v. The State, supra.) Another test is
any game which in common language is said to be played.

Digitized by VjOOQIC

814 27 Texas Court of Appeals. [Galveston

Opinion of the court

dealt, kept or exhibited. Is the game of "craps," as described
above, one which in common language is said to be played,
dealt, kept or exhibited by a dealer or keeper? We think clearly
not. There is no dealer or exhibitor in it. The game is played
by the parties throwing the dice, the participants in the game,
without the intervention of any third or outside party. All
the defendant did waa to collect five cents for every two throws
by the players, evidently, we think, as pay for the use of his
dice, and not for table fees. It might, with equal propriety, be
claimed that he charged and collected the five cents for the
privilege granted of permitting the parties to play the craps in
his saloon as that it wa3 for permitting them to play it on his
table, the table not being in any manner essential to the game,
it being a game which could be "played upon any fiat surface,"
as upon his bar counter or the fioor of the saloon. The char-
acter of the game would not cause any table or place upon
which it was played to be designated as "a craps table" or a
gaming table. It could be played as well upon a rock or a
smooth surface of the ground as upon a table. A table is not
in fact one of the essential elements of the game as we under-
stand it, nor does it in any manner enter into the contempla-
tion oiE the game as one of its requisites.

This case is in no essential particular different from Whit-
ney's case, 10 Texas Court of Appeals, 377, in which case it
was held that the evidence did not support the allegation in the
indictment. We are satisfied of the correctness of that decis-
ion as to the particular facts of that case, and do not believe
that it substantially confiicts with any of the decisions of the
Supreme Court or of this court, when the facts of each particular
case are considered in reference to the points decided in them.

We are clearly of opinion that the evidence in this case does
not sustain the charge in the indictment, and the judgment is
reversed and the cause remanded.

Reversed and remanded.

Opinion delivered March 6, 1889.

Digitized by VjOOQIC

Term, 1889.] Nbeley v. The Statb. 815

Statement of the case.

No. 2633.

George Neeley v. The State.

rranT—EviDBNCE— Charge of the Court.— On a trial for horse theft
the court admitted hearsay evidence of the contemporaneous theft of
a saddle, which evidence, on motion of the defense, was stricken out.
Thereafter evidence for the State was admitted identifying as the
property of one P. a certain saddle found in the p j^seasion of the de-
fendant when he was found in possession of the horse, and the court's
charge limited the application of such evidence to the identification of
the transaction and the intent of the defendant, eta Held, that, in
the ahsence of proof that the saddle was stolen, the evidence was er-
roneously admitted, and the charge was erroneous because not based
upon legal proof.

Appeal from the District Court of Wilson. Tried below
before the Hon. George McCormick.

The conviction in this case was for the theft of a horse, and
the penalty assessed against' the appellant was a term of five
years in the penitentiary.

R 8. Games testified that his certain horse, branded H* con-
nected, was stolen from his stable in the town of Stockdale, on
the night of May 24, 1888, and he had never seen that animal
since. He was accompanied in his search for that horse by
Hr. Charles Palm, who claimed to have had a saddle stolen
from him on the same night. Witness knew nothing about the
theft of the saddle except what Palm told him. At this point
the court, upon the defendant's motion, struck out the testi-
mony of this witness as to what Palm told him about the theft
of the saddle. The witness afterward saw a saddle in the pos-
session of J. M. Sauer, which saddle he verily believed was the
saddle of Charles Palm.

J. M. Sauer testified, for the State, that he was a deputy
sheriff of Kimble county. On the thirty-first day of May, 1888,
the witness made an affidavit before a justice of the peace of
Kimble county, against the defendant, but not for the offense
now on trial. . On the day last mentioned the witness and Cap-
tain Jones, of the State ranger force, arrested defendant about
two miles from Boerne, in said Kimble county. They con-
fronted him suddenly on the road and ordered him to halt.

27 315:
29 184!

Digitized by VjOOQIC

516 27 Texas Coubt of Appeals. [Galveston

Opinion of the court.

instead of doing which he extended his person on his horse
and fled. Witness and Jones then fired with intent to kill the
horse, and thus secure defendant. They killed the horse and
wounded defendant. The horse corresponded in description
with the horse of the prosecuting witness Carnes. Witness
had the saddle which he took from the said horse in court.

Captain Jones testified, for the State, circumstantiiiUy as did
Sauer, except to the procurement of the warrant.

B. B. Mayes testified, for the State, that he had examined
the saddle brought into court by the witness Sauer, and, while
he did not wish to go on record as swearing positively to its
identity, he was confident that it was the saddle of Charles
Palm.

Surges dk Dibbrell and J. H. BurtSy for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. This conviction is for the theft of a horse.
On the trial, hearsay evidence as to the theft of a saddle at or
about the same time and place that the theft of the horse oc-
curred was admitted, but upon motion of defendant was ex-
cluded. Thereafter evidence ofiFered by the State was admitted
identifying a saddle found in possession of the defendant at the
same time he was found in possession of the alleged stolen
horse, as a saddle belonging to one Palm. Defendant moved
to exclude all testimony relating to said saddle, which motion
the court overruled, and instructed the jury with respect to said
testimony that it should not be considered unless it tended to
show the identity of the transaction of the theft of the horse,
or to explain the intent of. the defendant, etc. This instruc-
tion was excepted to by the defendant.

We are of the opinion that the court erred in not excluding
all the evidence relating to the saddle. There was no legal evi-
dence before the jury that the saddle had been stolen, and the
testimony in regard to it, and which the court refused to ex-
clude, was irrelevant, and was calculated to prejudice the
rights of the defendant, especially when the attention of the
jury was directed to it by the charge of the court. There be-
ing no legal evidence relating to the theft of a saddle, or of
other property than the horse, the instruction as to other stolen
property was not warranted and was therefore error.

Digitized by VjOOQIC

Term, 1889.] Reed v. The State. 317

Statement of the case.

It is unnecssary to notice other questions made in the record.
For the errors mentioned the judgment is reversed and the
cause is remanded.

Reversed and remanded.

Opinion delivered March 6, 1889,

No. 2724.

Miles Bebd v. The State.

Assault to Rape— Newly Disoovbrbd Evideitcb— New Trial.— The
indict meat in this case charged an assault to rape by force, and the
allegation was supported by the testimony of the prosecutrix. The
proof for the defense, however, not only contradicted her testimony
materially, but tended to prove her consent. Upon this state of evi-
dence the defense asked a new trial to produce newly discovered evi.
dence strongly supporting the theory of consent. Held that, under
the facts in proof, the new trial should have been awarded on the newly
discovered evidence adduced by the defense.

Appeal from the District Court of Williamson. Tried be-
low before the Hon. W. M. Key.

The conviction in this case was for an assault with intent^
by force, to rape one Sallie Colvin, in Williamson county,
Texas, on the twenty- third day of November, 1888. The penalty
assessed against the appellant was a term of four years in the
penitentiary.

Sarah Colvin, the alleged injured party, was the first witness
introduced by 'the State. She testified that she was eleven
years old, and lived in the town of Georgetown, Williamson
county, Texas. On the day alleged in the indictment, the wit-
ness went to a point in the brush near Georgetown, frequented
by negroes for the purpose of answering calls of nature. The
witness went there for that purpose. Defendant soon came to
where she was and said to her: "Come and do it with me."
Witness replied: "No, I will not; my mother does not allow
me to do that.'* She then started home, when the defendant
overtook, threw her down, pulled up her clothes, tore off her
drawers, and by force, without her consent and against her

Digitized by VjOOQIC

318 27 Texas Court of AppBAiiS. [Gahreston

Statement of the capse.

will, had carnal knowledge of her, by inserting his male mem-
ber into her sexual organ. During the period of thte enforced
act of copulation, the witness was held down by the d^endant,
who likewise kept one hand pressed over her moutR\^ She
struggled with all of her strength, but was unable to pusl
defendant off, or to utter a cry for help. He remained on
of witness, moving his male member to and fro in her sexud
organ, until witness's cousin, Dora Cook, suddenly appea^e(i^
on the scene, when he jumped off and fled.

The cross examination of this witness, which was close and
searching, was directed to the development of the issue raised
by the defense of the witness's consent to the carnal act. It
disclosed that the defendant was a local preacher of the Meth-
odist Episcopal Church, and that he lived in a house near the
house of the witness's mother, with whom the witness lived.
The bushes to which the witness went to answer a call of nature
were nearer the defendant's house than to the witness's mother's
house, and in going to the said bushes from the last named
house one would necessarily pass near the defendant's house.
There were other bushes in the opposite direction from the
witness's mother's house, but they were somewhat further off
than the bushes to which the witness went. Both of said places
were customarily used by the colored people as privies. On the
day of but before the outrage, the witness went to the house of
the defendant in search of her mother. The defendant was at
home when witness arrived at his house, but not when she left
it. He came to her in the bushes soon afterwards. The wit-
ness was on the outside of Lee Taylor's fence when the defend-
ant asked her to copulate with him She replied as stated in
her direct examination^ and crawled through the fence into
Mr. Taylor's lot, and was stooping down picking up acoms
when the defendant seized and threw her down and had forci-
ble connection with her. She neither ran nor hallooed while
the defendant, in a half run, was pursuing her, for the reason
til at she did not believe he would hurt her. From the point
where he solicted the carnal favor of the witness to the point
where he followed her and helped himself, the distance was
about one hundred yards. When he seized her he put his left
hand over her mouth, threw her down, and with his right hand
pulled her legs apart, unbuttoned her drawers and tore them
off one of her legs, took out his male member while on his knees
between her legs^ lay down on the witness^ with his breast

Digitized by VjOOQIC

Term, 1889.] Reed v. The State. 319

Statement of the case.

against hers, inserted his penis into her private organ, and
made two or three excentric motions with his buttocks before
he succeeded in introducing his penis into witness's private
organ. He then continued the copulative process until Dora
Cook intruded upon the scene, when he suddenly released the
witness and decamped. He was on the witness but a short
time As soon as she was released the witness raised up on
her elbow, and saw Dora Cook through an opening iu the fonco
Neither the witne'-s nor Dora spoke to th*^ other, nor did Dora
cro s the fence into the lot where the outrage occurred. The
drawers worn by the witness were button drawers. Defend-
ant first undid the buttons, and then tore the drawers off one
leg. The place of the outrage was in the northwest corner of
Mr. Taylor's lot, under a hill, about twenty-five steps from
Taylor's house. The houses of Mr. Williams and Mr. iioberts
were not a great distance from the place of the outrage. The
witness reiterated that the copulative act was committed upon
her by the defendant by force, without her consent, against
her will, and despite such resistance as she was able to make.
Asked by the defendant's counsel if she enjoyed the sexual act
forced upon her, she replied that she did not, and, in response
%o the further inquiry of persistent counsel as to why she did
not like it, she replied laconically: ' 'Because I was mad."

Dora Cook, the cousin of the prosecutrix, testified, for the
State, that on the day alleged in the indictment she went to
the bushes in the rear of Mr. Taylor's lot for the purpose of
responding to a call of nature. As she approached the north-
west corner of Taylor's lot from the outside she saw the defend-
ant on top of Sallie Colvin, "shufBing up and down" on Sallie,
who was lying back down on the ground. His breast lay on
Sallie's breast, and his face was held close to hers. As soon as he
discovered the witness, the defendant jumped up and ran off.
Sallie raised her head to rest on one elbow, and looked through
the fence at witness. She did not speak to witness, nor did
witness speak to her. Witness went immediately to Sallie's
mother, reported what she had seen, and within a few minutes
a complaint was lodged against defendant and he was arrested.
Taylor's house stood in the southeast corner of his lot, diago-
nally across from the comer in which witness discovered de-
fendant on Sallie Colvin. The said house was on a hill, and
the said northwest corner of the lot was under the hill, some
trees and brush intervening between the two points.

Digitized by VjOOQIC

820 27 Texas Court op Appeals. [Galveston

Statement of the case.

Bettie Colvin, the mother of the prosecutrix, testified, for the
State, that immediately on her return from the brush Dora
Cook told her of the discovery by her of the defendant on wit-
ness's eleven year old daughter Sallie. Witness started at one©
to the place indicated, and met her said daughter coming to-
ward home. Her daughter then told her about defendant's
outrage upon her, and witness at once took the child to town
and had a- complaint lodged against defendant. . She then ex-
amined the girl's underclothing, drawers and private parts.
The drawers, which were not button drawers, and did not open
in front, were ripped open between the legs at the place where
they covered the private organ. They were not torn when
Sallie put them on, the Sunday previous. Witness could not
swear that defendant tore those drawers, but they were torn.
Witness observed no blood on Sallie's private parts.

County Attorney R. A. John testified, for the State, that the
corner of the fence in which Sallie Colvin claimed she was
assaulted by the defendant was about two hundred and seventy
feet distant from Taylor's house, and a little further from Rob
erts's house. A few trees, brush and undergrowth intervened
between the said houses and the said corner, and, while wit-
ness would not swear positively that two persons copulating in
said corner could not be seen from said houses, he did not
think they could.

Doctor Foster testified, for the defense, that he examined the
sexual organ of the girl Sallie Colvin about an hour after the
outrage was alleged to have been committed. He found the
girl's drawers torn, but there was nothing about the appear-
ance of the sexual organ to indicate recent penetration. As a
matter of fact her sexual organ had not been penetrated. It
could not have been penetrated by the penis of such a man as
the defendant without retaining indubitable evidence of siich
penetration.

Henry Smith and Monroe Sansom testified, for the defense,
that they were familiar with the ground between the place of
the alleged outrage and the houses of Taylor and Roberts, and
in their opinion two persons copulating in the northwest cor-
ner of Taylor's lot could be seen from either house. It was
possible, however, that, while lying on the ground, if copulat-
ing in that position, they could not be seen from Taylor's house.
The opinion sets out the substance of the newly discovered
evidence upon which the motion for new trial was based.

Digitized by VjOOQIC

Term, 1889.] Reed v. The State. 331

Opinion of the court.

No brief for the appellant on file.

W, L. Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This conviction is for an assault with intent
to commit rape.

The only issue upon the trial to be determined by the jury
was consent vel non. If what the prosecutrix swore was the
truth, appellant used the force required in such cases to ac-
complish his purpose. She is shown, however, not only to have
sworn falsely regarding material matters, but her conduct,
when they were discovered by Dora Cook, upon the hypothesis
of rape, or assault to rape, was unnatural and inconsistent.

The issue being force or consent — force shown by the evidence
of the prosecutrix, and consent strongly presented by the at-
tending circumstances — we are of opinion that a new trial
should have been granted to obtain the newly discovered evi-
dence shown in the affidavit of Barbara and Alice Brown,
Nellie Brown and Eliza Smith.

Barbara and Alice Brown swore **that, a few minutes after
the alleged assault, the prosecutrix came to their house and
told them that Miles Reed had got on top at her, and done it
to her, and that Miles Reed gave her ten cents to let him do it;
and that she showed them the ten cents, and said she was
going up to town and buy some candy with it; that she would
give them some of it; that she saw some women coming to-
wards them and thought it was her mother and ran ofiF, and
when she found that it was not her mother she came back.'*
Barbara relates the matter about the prosecutrix running oflf
when she thought she saw her mother coming.

Nellie Brown saw the ten cents, and places the prosecutrix
at her house with the children Barbara and Alice at the time
sworn to by them.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered March 6, 1889.

Digitized by VjOOQIC

322 27 Texas Cuurt of Appeals. [Galveston

Statement of the

27 892;

28 06

i 200 No. 2727.

28 417

WiNNiB LuoAS V. The Statb.

1. Pbrjury— Indiotmbnt.— The oommon law rale that an Indiotmaot for

perjury must allege correctly the day on which the perjury was com-
mitfed, and that a variaDce between the time alleged and that proved
would be fatal, has been so changed by statute in this State, that the
indictment need only allege some time anterior to the presentment of
the same, and not so remote as to be barred by the statute of limita-
tions; with which allegation the proof, to be sufficient, must concur.

2. Misconduct of the Jury— New TRiAL.—When it is shown that a

verdict of guilty was probably influenced by the statement of a juror
to his colleagues assailing the credibility of a witness for the defend-
ant, a new trial should be granted. See this case in illustration.

Appeal from the District Court of Williamson. Tried below
before the Hon. W. M. Key.

Upon a complaint filed by this defendant, charging that, in
Williamson county, Texas, on the sixteenth day of December,
1888, one Sallie Brown did commit an assault and battery upon
her by striking her with a rock, and did use abusive language
to her, calculated to cause a breach of the peace, by calling
her a **bitch," a "whore" and a "liar," the said Sallie Brown
was tried in the justice's court of precinct number one of Wil-
liamson county, on the twenty-first day of December, 1888.
Upon that trial the defendant appeared as prosecuting witness,
and testified that, on the said sixteenth day of December,
1888, the said Sallie Brown did strike her with a rock, and did
call her a "bitch, a whore and a liar." The testimony so de-
livered on that trial is the perjury assigned in indictment in
this case.

The State proved that the defendant was sworn as a witness
on the said trial of Sallie Brown, and that on that trial she tes-
tified as alleged in this indictment. Sallie Brown, who appeared
on this trial as prosecuting witness, testified to the transaction
between herself and the defendant on the said sixteenth day of
December, 1888, and, among other things, that it was not true
that she struck the defendant with a rock, and that she did not
call the defendant either a "bitch," a "whore" or a "liar;" that,
in fact, all of the quarreling which took place on that occasion was

Digitized by

Google

Term, 1889.] Lucas v. The State. 323

Opinion of the court.

done by the defendant, and none of it by the witness. Several wit-
nesses who were shown to have been present at the time of the al-
leged assault by the said Sallie Brown on the defendant testified
that they did not see the said Sallie Brown strike the defend-
ant with a rock or anything else, and did not hear her call the
defendant either a **biteh," a "whore" or a "liar."

Insanity was the defense set up in this case. Sallie Brown,
the prosecutrix, and other witnesses testified that the defend-
ant was possessed of a very nervous and excitable temper-
ament, and that, in their opinion, she was at intervals, and
particularly when excited, totally crazy. The testimony, on
this issue, of Elias Brown, the witness impugned by the two
jurors in the manner set out in the second head note of this re-
port and in the opinion of the court, was somewhat more spe-
cific and circumstantial than that of the other witnesses.

E. A. Strickland and J. F. Taulbee, for the appellant.

TT. L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. At common law an indictment for per-
jury must allege the day on which the perjury was committed,
correctly, and a variance between the time alleged in the in-
dictment and the time proved would be fatal. (2 Whart. Crim.
Law, sees. 1291, 1314; Whart. Crim Ev., sec. 103; 1 Qreenl.
Ev., 87, 88.)

But this common law rule has been changed by statute in
this State. All that is required as to the allegation of the time
of the commission of the offense is that it state some date an-
terior to the presentment of the indictment, and not so remote
that the prosecution of the offense is barred by limitation.
(Code Crim. Proc, art. 4*^0.) And the date proved need not
be the exact date alleged in the indictment. All that is re-
quired as to proof of the time is that the time of the commis-
sion of the offense be proved, and IJiat the time proved be some
date anterior to the presentment of the indictment, and not so
remote as to show that a prosecution for the offense is barred
by limitation. (Temple v. The State, 15 Texas Ct. App , 304.)

We are of the opinion that a new trial should have been
granted the defendant because of the misconduct of two of
the jurors in stating to the jury, while the case was being con-
sidered by the jury, that they knew the witness Elias Brown,

Digitized by VjOOQIC

27 384

28 514

27 324

31 491

27 8M

37 594,

824 27 Texas Court of Appeals. [Galvestoa

Syllabus.

who testified on the trial in behalf of defendant, and that he
was a chicken thief, and, in their opinion, unSvorthy of credit,
and had often lied to them. One of the jurors who made an
aflSdavit in relation to said statements of said jurors, says that
said statements did not influence his verdict, but may have had
some influence on the verdict; that he heard a Mr. Price, who
was on the jury, say that the talk did influence him. Three
other jurors make affidavit that they heard said statements,
but that their verdict was not influenced thereby. When a
verdict was probably influenced by the statement of a juror to
his fellows as to the character for credibility of a witness for
the defendant, a new trial should be granted. (Anschicks v.
The State, 6 Texas Ct. App., 624; McKissick v. The State, 26
Texas Ct. App., 673.) In this case it appears probable that at
least one juror. Price, was influenced in his verdict by the
statements of said two jurors as to the credibility of the de-
fendant's witness, Elias Brown.

Such being the showing on the motion for a new trial, we
think the court erred in refusing a new trial, and for this error
the judgment is reversed and the cause is remanded.

Reversed and remanded

Opinion delivered March 9, 1889.

No. 2634.
George Neelet v. The State.

Pbacticb — Exemption from Prosecution op an Accused Who
Turns State's Evidence.— A particeps criminis who, for the pur-
pose of securiDg exemption from prosecation, agrees to testify in behalf
of the State aRainBt his accomplices in crime, but who subsequently
violates his agrtement by refusing lo testify in good faith fairly and
fully to facts within his knowledge, cao not claim the benefit of such
agreement, and may be prosecuted and convicted, regardless thereof.

Same— Confession.— Under the common law, the confes ion made by
the accused under his agreement to become State's evidence, can be
ueed against him in a prosecution instituted because of his violation of
his agreement. But, as heretofore held by this court, such confession,
to be admissible, must have been voluotariiy and freely made, unin.
fluenced by persuasion or compulsion; not induced by any promihe

Digitized by VjOOQIC

Term, 1889.] Neelby v. The State. 826

Btatement of the case.

creating hox>e of benefit, cor by threats creating fear of paoishmeDt.
A promise, such as will render the confession inadmissible* must be
positive, mu9t be made or sanctioned by a person in authority, and
must be of such character as would be likely to influence the party to
speak untruthfully. A confession induced by the mere fear of legal
punishment is not thereby rendered inadmissible.

t. Same— Case Stated.— The defendant in this case, being at large and
not in castody, agreed with the county attorney to testify for the
State against his accomplices in this and other thefts, upon the con-
sideration of immunity to himself from prosecution for such offenses.
He, however, repudiated the agreement, although, when he entered
into it he made a confession which, upon his subsequent trial, was
introduced in evidence against him. The proof shows that such con-
fession was not voluntary, and that it was made upon the promise of
exemption from prosecution. Held that, having violated his agree-
ment to testify for the State, the accused was properly placed upon
trial for the offense charged against him, and that the confession,
being an involuntary one, was properly excluded upon that ground.

4 Same. — But the trial court admitted the said confession under the pro-
visions of article 750 of the Code of Criminal Procedure, which legal-
izes a confession in duress as evidence, if it states facts afterwards
found to be true, and which conduce to establish the guilt of the ac-
cused. Held that, if verified in the manner prescribed by said article
750, such confession would be admissible. But in this case there is a
total absence of verifying proof; wherefore, the trial court erred in ad-
mitting the confession in evidence.

Appeal from the District Court of Wilson. Tried below be-
fore the Hon. George McCormick.

The conviction in this case was for the theft of seven head of
cattle, the property of W. R. Park, in Wilson county, Texas,
on the first day of February, 1887. The penalty assessed
against the appellant was a term of two years in the peniten-
tiary.

District Attorney Spooner testified, for the State, in substance,
that, in November, 1887, he procured the arrest of defendant
and of George Brown, Will Mathews and Will Chaney, on a
charge of horse and cattle theft. Pending the examining trial
in Wilson county, John McDaniel, the uncle of defendant, pro-
posed to the witness that if he would agree to exempt the de-
fendant from any prosecution for theft of horses or cattle about
which he would testify, he, defendant, would turn State's evi-
dence, and testify against the other parties charged in this
case, and also in other theft cases. The witness told McDaniel
that he would look into the matter and determine whether he

Digitized by VjOOQIC

826 27 Tbxas Court of Appeals. [Galveston

statement of the case.

would accept defendant as State's evidence. After the said
examining trial, McDaniel renewed the proposition on behalf
of defendant. He renewed it again in December when the
witness, having satisfied himself that without more testimony
than he had he could not sustain the prosecutions against the
parties chatged, and against one Barber and one Blain, who
were also implicated in that and other thefts, agreed to confer
with defendant, stipulating that he would make no agreement
until he had heard the proposed evidence of the defendant,
and satisfied himself that, wherein it was material, it could be
corroborated. Accordingly McDaniel arranged a meeting be-
tween witness. Park and defendant. Referring to McDanieFs
proposition, witness stated to defendant distinctly that if he,
defendant, could and would give material evidence for the
State, on the trials of the other parties named, and such as
could be corroborated, and would take the stand, fearlessly,
and "come up like a man," and give that testimony fully, cir-
cumstantially, and truthfully, he, witness, would accept him
as State's evidence, and would not prosecute him for complicity
in any of the said offenses; but that if he, the defendant, did
not comply with those conditions literally and to the fullest
extent, he, witness, would retire from the agreement and with-
draw the exemption thus promised. The defendant accepted
the conditions, and, in the presence of Park, made the follow-
ing statement to the witness, which was then and there reduced
to writing, and afterwards was read to defendant and pro-
nounced by him to be correct. The said writing reads as fol-
lows:

"George Neeley says that he and George Brown and Jodie
Blain took five head of W. R. Park's cattle out of the 'com-
pany' pasture, in Wilson county, about February, 1887. These
cattle were branded CUT on hip, and two head in UNO on the
ribs; at same time took seven head of W. D. Runnels's cattle,
branded thus (reversed EHD connected) on hip; carried them
to Barber's pasture, near Gonzales, Texas. These cattle were
carried in a bunch of shipping cattle for J. D. Houston, in
February. Jeflf Griffin, George Simons and Bill Rogers as-
sisted in taking the cattle over, and we met Mat Patton near
Talley's. Patton turned out of the road to the left, and stood
until the cattle passed by. These cattle were cut out at or near
the bridge, known as the Jobe bridge, where cattle go under it
into the river. Clarke Barber and George Brown took the

Digitized by VjOOQIC

Term, 1889.] Nbeley v. The State. 327

Statement of the case.

stolen cattle on to his, Barber's, pasture. Hiram Stevenson
oame out to us and helped to drive the shipping cattle to the
raUroad pens."

After securing this written statement the witness had the
parties named in it, except Blain, Barber and Brown, taken
before the grand juries of Wilson and Gonzales counties, and
secured the indictment of Blain, Barber, Brown, Chaney and
Mathews — some in Wilson and some in Gonzales county. He
then had defendant attached as a witness for the State against
Blain and Brown. Defendant was in Gonzales when the term
of the court was held, at which, under his agreement, he was
to testify for the State, but got to drinking, and, not withstand
ing the protest of the witness, continued to drink and to asso-
ciate with the parties against whom he was to testify, until the
first case was called, when he left town. Witness had him
brought back by a deputy sheriff, but when he was placed on
the stand he was so drunk he couid testify to nothing, and the
party on trial was acquitted. When, at the ensuing term of
the Wilson county district court, the witness took up the other
cases in which defendant was to testify, he ascertained that
defendant, in attempting to leave the country, had been shot
by oflSeers. Being unable to get him to comply with his agree-
ment, the witness had him indicted in this case.

W. R Park, for the State, testified to the theft of the seven
head of cattle belonging to him, from the "company" pasture,
in Wilson county, in February, 1887, which cattle were branded
and described as stated in defendant's written confession in
evidence. The witness was present when the agreement between
District Attorney Spooner and the defendant was entered into.
He corroborated the testimony of Spooner as to the details of
the conference in which that agreement was entered into, and
identified the writing in evidence as the written statement of
the defendant made on that occasion. He further slated that
he attended the term of the district court of Gonzales county
referred to by Spooner in his evidence, and corroborated Spooner
as to the conduct and actions of the defendant at that time.

Hiram Stevenson (at the time referred to in defendant's con-
fession, a stock drover in the employ of J. D. Houston) and
Mat Patton, introduced as witnesses for the State, corroborated
the confession of defendant so far as it referred to them.

Burges <fc Dibrell and J. H, Burts, for the appellant.

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328 27 Texas Court of Appeals. [Galveston

Opinion of the court

W. L, Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. This conviction is for the theft of cattle,
and is based upon a confession made by the defendant, admit-
ted in evidence against him over his objections. With respect
to said confession the facts are, substantially, that the defend-
ant and others were under accusation for the theft of said cat-
tle. Defendant's uncle, McDaniel, made repeated proposals to
the district attorney that the defendant would testify as a wit-
ness in behalf of the State against said other parties accused
of said theft, and testify also as to other thefts committed by
said parties, upon condition that the defendant would not be
prosecuted for said crimes.

In response to these proposals the district attorney had a con-
ference with the defendant in which it was agreed that the de-
fendant would testify in behalf of the State, and would testify
to material facts against said parties as to said thefts, such
facts as could be corroborated by other testimony, and that in
consideration of his so testifying he would be exempted from
prosecution for said theft; but that, should he violate said
agreement and refuse to so testify, he would be liable to prose-
cution for said thefts. He thereupon made the confession in-
troduced in evidence against him, and thereafter refused to
fulfill his agreement with the district attorney to testify against
said parties, and the district attorney caused him to be indicted
for the theft to which his confession related. At the time he
made said confession he was not in jail or other place of con-
finement, or in custody of an officer.

Having violated his agreement to testify in behalf of the
State, tlie defendant was not entitled to exemption from prose-
cution by virtue of said agreement. It is well settled that
where a pariiceps criminisy for the purpose of securing exemp-
tion from prosecution, agrees to testify in behalf of the State
against his accomplices in crime, and violates such agreement
by refusing to testify in good faith, fairly and fully to facts
within his knowledge, he can not claim the benefit of such
agreement and may be prosecuted and convicted regardless
thereof. (1 Bish. Grim. Proc, sec. 1164; 1 Greenl. on Ev., sec.
379; Roscoe's Crim. Ev., sees. 132, 133; Whart. Cr. Ev., sees.
443, 656; Holmes v. The State, 20 Texas Ct. App , 517.) And
the common law authorities above cited further lay it down
that in, such case the confession made by the defendant under

Digitized by

Google

. Term, 1889.] Neeley v. The State. B29

Opinion of the court.

such agreement may be used in evidence against him. (See
also Com. v. Knapp, 10 Pick. , 477, which holds the same doctrine.)

But this court has held, and we think correctly, that even in
such case the confession is not admissible, unless it was volun-
tarily and freely made, uninfluenced by persuasion or compul-
sion, not induced by any promise creating hope of benefit, or
any threats creating fear of punishment. A promise such as
will render confession inadmissible must be positive, nnd made
or sanctioned by a person in authority, and must be of such
character as would be likely to influence the party to speak
untruthfully. And a confession induced by the mere fear of
legal punishment is not thereby rendered inadmissible. (Will-
son's Crim. Stat., sec. 2472.)

In this case, it is evident that the confession was induced by
th»^ hope of thereby securing immunity from prosecution and
punishment for the theft of which defendant was accused. It
was made upon the positive promise of the district attorney
that, if the defendant would testify to the matters stated in
the confession, he would not be prosecuted. Defendant's subse-
quent bad faith in refusing to so testify could not per se render
said confession admissible evidence against him. It was not a
voluntary confession within the meaning of the law, and, not
being voluntary, was inadmissible upon the ground that he had
violated his agreement to testify. (Womack v. The State, 16
Texas' Ct. App., 178.)

The learned trial judge did not admit the confession in evi-
dence upon the ground that it was a voluntary confession,
such as was admissible under common law rules of evidence,
and in this view we think he was correct. He admitted it un-
der article 750 of the Code of Criminal Procedure, upon the
ground that statements were therein made of facts and circum-
stances which were found to be true, which conduced to estab-
lish the guilt of the defendant, of the theft; and he instructed
the jury that, if the confession had not been so verified, they
should disregard it.

We are of the opinion that, although the confession was in-
admissible at common law because not voluntary, and although
not such a confession as is named in article 750, Code of Crim-
inal Procedure, that is, one made by a person in jail or other
place of confinement, or in custody of an officer, yet, if it was
verified by other evidence as provided in said article, it would
therebv be rendered admissible.

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330

343

330

503

^-Hl

387

3:<0

490

330 27 Texas Coubt of Appeals. [Galveston

Syllabus.

•^-

But there is no such verification of the confession in this
case. No fact or circumstance was discovered by means of
defendant's statement, which conduced to establish his guilt of
the theft. The corroborating evidence was as to immaterial
matters, not inculpatory of the defendant, apd not matters
found to be true by means of information afforded by defend-
ant's statements. (Willson's Crim. Stat., sec. 2473.)

Such being the case, we are of the opinion that the court
erred in admitting said confession in evidence, and for this
error the judgment is reversed and the cause is remanded.

Reversed and remanded.
Opinion delivered March 9, 1889.

No. 2715.
Olay Brown v. The State.

1. Rapb--*'Force"— Charge op the Court.— Rape by force^ as defined
by article 628 of the Penal Code, is carnal knowledge of a woman, ob-
tained by force, without her consent. '^Force/^ as used in the said ar-
ticle, is such force as might reasonably be supposed sufficient to over-
come resistance, taking into conbideration the relative strength of the
parties and other circumstances of the case (Penal Code, art. 589), and
upon a trial for rape by force it devolves upon the trial court to give
in charge to the jury such statutory definition of "force."

8. Same— Assault to Rape.— To constitute the offense of assault with
intent to rape by force, the offender must have committed an assaalt
or assault and battery upon the female with the specific intent to rape
by force, and the force thus intended must be such force as might rea-
sonably be supposed to overcome resistance, taking into consideration
the relative strength of the parties and the other circumstances in the
ca«e; and on a trial for assault with intent to rape by force the trial
court must 60 instruct the jury. But see the opinion of Willson, Judge,
dissenting from the ruling of the majority of the court, and holding
that, though to constitute the offei^se of assault with intent to rape by
force, the assault must be accompanied by the specific intent to rape
by force, the character of the force intended is immaterial* and that it
is not the duty of the trial court, upon a trial for assault with intent ,
to rape by force, to give in charge to the jury the definition of '*force,'*
as prescribed by article 529 of the Penal Code.

Appeal from the Criminal District Court of Galveston*
Tried below before the Hon. C. L. Cleveland.

Digitized by VjOOQIC

Term, 1889. J Brown r. The State. 331

Statement of the case.

'■*

•The conviction in this case was for an assault with intent to
rape Katie Ford, in Galveston county, Texas, on the first day
of October, 1888. A term of seven years in the penitentiary
was the penalty assessed against the appellant.

Katie Ford was the first witness for the State. She testified,
in substance, that she was fourteen years old, and on the first
day of October, 1888, resided with her mother and her sister
Alice in. the city of Galveston. She and her mother and her
said sister retired on the night of the said day, occupying the
same bed. Between one and two o'clock, at which time she
was thoroughly awake, she felt a heavy pressure on her body,
and remarked to her mother that there was a box on her. At
that instant a hand clutched her throat, and her sister Alice
exclaimed: "There is a black hand around her neck!'' The
defendant was then on top of witness, his knees pressing on
her stomach, one hand on her thigh, and the other clutching
her throat. Witness's mother, when Alice uttered the excla-
mation above stated, raised up in bed, when the defendant
sprang out of the bed, off the witness, and fled towards the
front door. Just before reaching the front door, he ignited a
handful of matches to. enable him to find the door, opened it
and ran out, followed by the witness and her mother. The
house stood in a yard, the front of the said house being about
ten feet from the front gate. The moon was shining brightly
on that night. On getting out of the house, the witness and
her mother looked in front for the defendant, but saw no per-
son. Witness's mother then Went into the back yard through
the back gate, leaving the witness near the gate in front.
Within a very short time after witness's mother passed through
the back door, the defendant, in rapid fiighjt from the back
yard, passed the witness at a vQry short distance, and ran out
at the front gate. The witness, her sister and mother pursued
him as far as the neighboring corner of the street, the latter
exclaiming; '*Fire! Murder! Help! Catch Clay Brown!'^
By the time the witness, her mother and sister got back to the •
house they found a number of persons, who hacf been attending
a dance across the street, collected in front of the house. The
witness stated that she was well acquainted with the defend-
ant. Defendant had frequently caught the family horse for
the witness, her mother or sister, and on such occasions would
come into their yard. While in the said yard about two weeks
before the assault upon witness, the detendant, while being

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332 27 Texas Court of Appeals. [Galveston

Statement of the case.

passed by witness, remarked to her: "Some how, I like you all
mighty well." Witness did not respond to this remark of the
defendant, but pursued her way to the house. Witness had
never had sexual intercourse with any man.

Cross examined, the witness denied that on the night of, and
soon after the attempted outrage upon her, she told Mr. Potts
that she did not know who assaulted her, and that she did not
know whether the man was white or black. As a matter of
fact she and her mother both knew who the man was, and that
he was Clay Brown, this defendant, and her mother, knowing
the assailant of the witness to be the defendant, cried, as she
pursued him: "Catch Clay Brown!" The witness did not learn
from Ada Dodds that Clay Brown was the man who assaulted
her. and she had never talked with Ada Dodds on the subject
of this assault.

Mrs. Ford, the mother of the prosecuting witness, testified
for the State that she occupied the same bed with her daughters
on the night of October 1, 1888. She did not rest well that night,
in consequence, perhaps, of a dance that was in progress in a
house nearly opposite to hers on the same street. Between
twelve and one o'clock Alice related a dream she had had,
when witness advised her to go to sleep. Some time afterwards,
the witness not yet having gone to sleep, Katie remarked "to
witness that a big box was pressing on her. Alice exclaimed:
*'TJhere is a big black hand around her neck!" Witness raised
up in bed, when a man sprang oflf the bed and ran towards the
door. He struck several matches together, opened the door
and ran out. Witness followed, and, failing to see him out the
front way, turned and looked into the back yard, where she saw
and in the clear moon light recognized the defendant, who was
pulling up and buttoning his pants. As soon as he saw wit-
ness he fled from the yard through the front gate, passing the
witness's daughters at a very short distance. Witness and her
daughters pursued the defendant as far as the nearest comer,
the witness exclaiming: "Fire! Murder! Help! Catch Clay
Browi^I" When she and her daughters returned to the house,
they found a large number of persons collected before the gata,
to whom she reported what had occurred.

On her cross examination the witness denied that she told the
several parties collected in front of her gate that she did not
know the party who assaulted her daughter, and did not know
whether he was a white or a black mar She made no such

Digitized by VjOOQIC

Term, 1889.] Bhown v. The Statb, 333

Statement of the case.

statement to Mr. Potts. She did know who the man was, and,
in giving the alarm, she did not merely cry murder! and fire!
but, as well, "Catch Clay Brown!" The witness never told Mrs.
Jones nor any other party that she did not know who the man
was. Ada Dodds did not tell the witness that the man was
Clay Brown. The witness told her son that if he did not go to
the jfolice headquarters at once — that very night — and file com-
plaint against defendant, she would go herself. Thereupon
her said son left to go to the said headquarters. The testimony
of Alice Ford was circumstantially the same as that of her
mother and sister.

The State rested.

Julia Rhodes testified, for the defense, that the defendant
came home about seven o'clock on the night of the alleged as-
sault on Katie Ford. He at once complained of feeling unwell.
About eight o'clock on the same night, Bob and Mary Ander-
son and Eddie James came to the house, and about half past
eight o'clock the said parties and the witness and defendant
went into the business part of the city for a walk. They
entered but one store, in which the defendant purchased a
shirt and a pair of shoes. They got back to the house about
half past ten o'clock. Bob and Mary Anderson and Ed James
left about half past eleven o'clock, when witness and defend-
ant went to bed. About half past twelve o'clock Mr. Solomon
knocked at the door. Defendant got up and went to the door
in his underclothes, opened the door and talked to Mr. Solo-
mon, who had come to collect some monej* for playing music
at a recent birthday party given by defendant and witness.
After Solomon left, the defendant came back to bed and re-
mained in bed, without leaving it, until next morning.

8. A. Solomon testified, for the defense, that he resided in
Harris county, and was in attendance upon this trial as an at-
tached witness for the defense. About twelve o'clock on the
night before he left Galveston, soon after the defendant gave
a birthday party, the witness went to defendant's house to col-
lect his pay for playing the music at said party. The defend-
ant came to the door in his night clothes, complained of being
unwell, talked with witness awhile, and went back to bt d.

John Q. A. Potts testified, for the defense, that he lived with
his mother in the house next to, but separated by a half lot
from, the house of the Fords. Tte lattice gallery of the wit-
ness's house faced the Ford house. About one o'clock on the

Digitized by VjOOQIC

834 27 Texas Court of Appeals. [Galveston

Statement of the case.

night of the alleged assault the witness was awakened by the
cry of "fire! murder! thief!" Running out of his house to the
sidewalk, the witness met Mrs. Ford and her daughters, who
told him that a man had been in their house. Witness asked if it
was a white or a black man. Mrs. Ford, in the presence and hear-
ing of her daughters, replied that she did not know who it was.
About that time a man whom witness did not know stepped
forward and said: **It was a white man dressed in black, and
he ran off down the alley." (This statement of the witness as
to the declaration of the stranger, was stricken out by the
court, and the defense excepted.) Soon afterward two ladies
came from across the street from the* direction of the house in
which a ball was in progress, and one of them laughingly
asked, "Why didn't you catch him?" Mrs. Ford heard the
stranger say that the man who had been in her house was a
white man, and did not deny or dispute the statement. Wit-
ness's mother was present and heard the conversation between
witness and Mrs. Ford, as detailed above. On the following
Monday morning, being the morning set for the examining
trial of the defendant, the witness heard an angry altercation
on Mrs. Ford's gallery between Mrs. Ford and her son, in the
course of which he heard the son say to Mrs. Ford: "I am not
going to court this morning to swear to a d — d lie for you nor
anybody else." On the morning after the alleged assault the
witness heard Katie Ford say: "Oh, we've got him! Mrs. Dodds
said she just knew it was Clay Brown!"

On his cross examination, this witness said that he did not
know whether or not he, witness, had a strain of negro, nor
whether he was white or black.

Mrs. Potts, for the defense, corroborated her son as to the
conversation between her said son and Mrs. Ford, just after
the latter gave the alarm by crying "Fire! Murder! Thief!" If
Mrs. Ford cried "Catch Clay Brown!" witness did not hear her.
She also corroborated John Potts as to the altercation between
Mrs. Ford and her son on Monday morning, when her son said:
"I am not going to court to swear to a d— d lie for you or any-
body else."

Mrs. Ford and Kate and Alice Ford, for the State, in rebut-
tal, adhered to their previous testimony in detail, and denied,
seriatim, the statements testified to by J. Q. A. and Mrs. Potts.
Mrs. Ford particularly denied that she talked or quarreled with
tier son about his testimony on the examining trial of the de-

Digitized by VjOOQIC

Term, 1889.] Brown v. The State. 835

Opinion of the court

fendant, or that her son made any such statement as that con-
tained in the testimony of the Pottses.

Mr. Ford testified, in rebuttal, that there was not an atom of
truth in the testimony of the Pottses to the effect that he and
his mother had a dispute about his testimony on the examin-
ing trial of the defendant. He was never spoken to by his
mother about his testimony on that trial, before it occurred,
and he made no such statement to his mother as that testified
to by Mrs. and J. Q. A. Potts.

Police Officer Moran testified, for the State, that complaint
against the defendant for assaulting to rape Katie Ford, was
filed at public headquarters between two and three o'clock on
the morning of the alleged assault.

W. L. Wilson, for the appellant.

W. L. Davidson, Assistant Attorney Gteneral, for the State.

HuKT, Judge. This conviction was for an assault with in-
tent to rape. As presented by the facts, an issue in the case
was the intention of the appellant: Did he intend to have car-
nal knowledge of Katie Ford by force or with her consent?

The indictment alleges that the assault to rape was by force,
threats and fraud. Threats and fraud are eliminated from the
case because there is no proof of either. The State's case, then,
is an assault with intent to rape by force, and to warrant con-
viction the evidence must show force, and this force must be
of a certain character, viz: **Such as might reasonably be sup-
posed sufficient to overcome resistance, taking into considera-
tion the relative strength of the parties, and other circum-
stances of the case." (Article 529, Penal Code.) This article
constitutes a part of the definition of rape or assault to rape
when force is relied on 'for conviction. Make this provision a
component part of article 528, Penal Code, and we would have
this definition of rape: Rape is the carnal knowledge of a
woman without her consent obtained by such force as might
reasonably be supposed sufficient to overcome resistance, tak-
ing into consideration the relative strength of the parties and
the other circumstances of the case.

An assault with intent to commit rape is constituted by an
assault or assault and battery with intent to have carnal knowl-
edge of the female by the use of such force as might reasonably

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336 27 Texas Court of Appeals. [Galveston

Opinion of the court.

be supposed sufficient to overcome resistance, taking into con-
sideration the relative strength of the parties and other cir-
cumstances of the case. To be guilty of this ofifense the
accused must have intended to accomplish his purpose by the
use of this character of force. This proposition is absolutely
correct; for, if his intention falls short of this, it would be im
possible for him to be guilty of an assault with intent to rape.
Because we have seen (threats and fraud not being in the case)
that to constitute rape such force must be actually used. There-
fore the conclusion is inevitable that, to be guilty of an assault
with intent to rape, the accused must have intended to use
such force; it being impossible' for him to intend to rape with-
out intending to do that which constitutes rape. These propo-
sitions are self-evident, demonstrating their inherent infallibil-
ity. The authorities are harmonious on this question. Mr.
Bishop says: **An attempt is committed only when there is a spe-
cific intent to do a particular criminal thing, which intent im-
parts a special culpability to the act performed toward the doing.
It can not be founded on mere general malevolence. When we
say a man attempted to do a thing, we mean that he intended
to do, specifically, it, and proceeded a certain way in the doing.
The intent in the mind covers the thing in full; the act covers
it only in part." [Sec. 731, 1 Bishop's Criminal Law.)

And the same author, in section 731, says: "The offender's
purpose must be to commit an entire substantive crime; as, if
the alleged ofifense is an assault with intent to commit rape, he
must, to be guilty, have meant to use force, should it be nec-
essary, to overcome the woman's will."

And again, in section 745, Mr. Bishop says: "There must, in
the words of Cockburn, C. J., *be an attempt which, if success
f ul, constitutes the full ofifense.' There can be no doubt of the
soundness of tliis doctrine. We have seen that, in law, a man
does not intend to commit a particular ofifense if the act he in-
tends would not, when fully performed, constitute such ofifense "

The conclusion from all the authorities is that nothing short
of the specific intent to commit the substantive ofifense will
answer. And in rape, and in assault with intent to conunit
rape, the party can not be said to intend to commit the sub-
stantive ofifense unless he uses or intends to use all such force
as is necessary to overcome all resistance. And unless the
jury are so charged, the charge will fail to inform them as to
what is required to constitute the substantive crime.

Digitized by VjOOQIC

Tenn, 1889.] Bbown v. The State. 837

DissentiDg opinion.

In rape under the circumstances all resistance must be over-
come. In assaults to rape the accused must intend to over-
come all resistance, and in passing upon the question as to
whether the accused, in either rape or assault with intent to
rape, did in rape, or mtended to use in assault to rape, such
force, relative strength of the parties, and all other circum-
stances must be looked to. In the substantive offense, rape,
Buch force must be used. In the intended offense such force
must have been intended; and if such force was intended, it
will matter not that the accused did pot have the ability to
overcome resistance in fact. The assault, with intent by force
(that force defined in article 529, Penal Code), to have carnd.1
knowledge of the woman, is the test; and if these exist and
concur the oflfense is complete. Just what facts and circum-
stances are sufficient to show an intention to resort to such
force can never be enumerated; each case must depend upon
its own circumstances.

The court below failed to define force. This should have
been done, because article 629 is a part of the definition of
rape, and for this reason enters into and constitutes one of the
elements of assault with intent to rape.

The judgment is reversed and the cause remanded for an-
other trial.

WiLLSON, Judge* I do not assent to the proposition that in
a prosecution for assault with intent to commit rape, it is es-
sential for the court to charge that the force intended to be
used must be such as might reasonably be supposed sufficient
to overcome resistance, taking into consideration the relative
strength of the parties and other circumstances of the case.
Such character of force is necessary to constitute rape by force,
and in a prosecution for that offense it is essential that the
court should so instruct the jury. (Penal Code, art. 529; Jen-
kins V. The State, 1 Texas Ct.^ App., 346; Jones v. The State, 10
Texas Ct. App., 552.) I do not think that article 529 of the
Penal Code, defining the force necessary to constitute rape, ap-
plies or was intended to apply to an assault with intent to com-
mit rape.

Our code provides that "An assault with intent to commit
any other offense is constituted by the existence of the facts
whicly bring the offense within the definition of an assault,
coupled with an intention to commit such other offense, as of

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338 27 Texas Court of Appbat^s. [Galveston

DiFsenting cpinioD.

maiming, murder, rape, or robbery." (Penal Code, art. 506.)
This seems to be the view entertained by this court in Carroll
V. The State, 24 Texas Ct. App., 366.

According to my understanding of the statute, if a man as-
saults a woman with the specific intent to have carnal connec-
tion with her by force, against her will, he commits the offense
of assault with intent to rape. The assault is the use or at-
tempted use of force, and the intent requisite to constitute the
crime is not an intent to use the force contemplated in article
529, supra, or any specific character of force, but is an intent
to forcibly and against the will of the woman have carnal con-
nection with her. The force intended to be used by the as-
saulting party may not be such as might reasonably be sup-
posed would be sufficient to overcome resistance, taking
into consideration the relative strength of the parties and
other circumstances of the case; yet, if there was an assault,
and the assaulting party intended to ravish the woman, or at
least to make the attempt to do so, taking the chances of be-
ing able to accomplish his design, I think he would be guilty
of an assault with intent to rape.

To illustrate: A man meets a woman in daylight in a city
on a public street, in the presence of hundreds of people. He
is a small, delicate man; she is a large, athletic woman. He
assaults her and attempts to throw her down, and the evidence
conclusively shows that his intent is to have carnal knowledge
of her without her consent. He could not reasonably suppose
that he could overcome her resistance or that the people pres-
ent would allow him to accomplish his design, yet he may Un-
reasonably believe that perchance he can succeed, and may
make the effort under such unreasonable belief, willing to take
the chances of the venture. Would he be guilty of an assault
with intent to rape? I think he would, but, under the opinion
of a majority of the court, as I understand it, he would not be
guilty of that ofifense. It is with deference and hesitation that
I dissent from the opinion of the court, which opinion, I con-
cede, is supported by authority. My dissent is founded upon
articles 503 and 506 of our Penal Code, and with reference to which
article 529 has no connection or applicability, in my opinion. I
think the charge of the court in this case was unobjectionable
and that the conviction should not be set aside upon the ground
of the insufficiency of said charge. Reversed and remanded.

Opinion delivered March 9, 1889.

Digitized by VjOOQIC

Term, 1889.] O'Bryan v. The State. 8^9

Statement of the case.

No. 2722.
J. B. (yBRYAN V. The State.

1 iHDiCTMBirr— Terms Construed.— **Writing" or *'written," as thoee
terms are used in the statutes of this State, include "printing" or
'^printed'^; and it is not a valid objection to an indictment that it is
partly written and partly printed.
% Same— False Swearing— Perjury.— The affidavit of a public free ^
school teacher to the voucher for his salary is **required by law," and
therefore, If false, is matter assignable for perjury, and not for the dis-
tinct offense of false swearing.
Z, A County Judge is an officer authorized to take affidavits in the body
of his county.

. Charge op the Court— Verdict— Practice in the Court of
AppeaIiS. — In its preliminary statement to the jury the charge of the
court designates the offense on trial as * 'false swearing,*^ but subse-
quently designates it as perjury— the offense charged in the indictment
The verdict was general, and found the defendant '^guilty,** and as-
sessed his penalty at five years in the penitentiary, the minimum
I>enalty for pe rjary, and the maximum penalty for false swearing. The
judgment of the court on the verdict declares the defendant ''guilty of
false swearing as found by the jury,'' but the final judgment and sen-
tence declare that he has been ''adjudged guilty of perjary." The
State moves this court to reform the judgment and sentence so as to
conform them to the verdict, maintaining that, as the verdict is general,
It r&«poods to the indictment, which charges perjury. But held that
though this court, in cases wherein the verdict is certain, will exercise
its power to conform the judgment or sentence, or both, thereto, it
will not do so in cases wherein, as in this case, there is any uncertainty
about the import of the verdict.

Appeal, from the District Court of Navarro. Tried below
before L. J. Farrar, Esq., Special Judge.

The appellant rendered an account against the county of
Navarro for services performed by him as a teacher of one of
the public schools of that county, and made an affidavit before
the county judge verifying the same. The said affidavit is the
matter assigned as perjury. His trial resulted in a verdict of
guilty, and his punishment was assessed at a term of fivQ years
in the penitentiary.

None of the rulings of this court involve the evidence ad-
duced on the trial

Digitized by VjOOQIC

840 27 Texas Coubt of Appeals. [Oalveston

OplQion of the court.

William & C. W. Croft, for the appellant.

W. L. Davidson, Assistant Attorney Gteneral, for the State.

White, Presiding Judge. Whilst it is declared by statute
that "an indictment is the written statement of a grand jury
accusing a person therein named of some act or omissiou
which by law is declared to be an offense," (Code Crim. Proc.^
art., 419), still it is no objection to its validity that it is in form
partly printed and partly written. The word '^writing'' or
^'written/' under our statutes, civil as well as criminal, includes
'^printing.^^ (Rev. Stats., art 3140, subdivis. 3; Penal Code,
art. 30; Wise v. The State, 5 Texas Ct. A^)., 621.)

The affidavit made by a public free school teacher to the
voucher or check drawn by the trustees on the county treasurer
for his pay, as required by article 3776, Revised Statute, is a
legitimate subject upon which perjury may be assigned. (Penal
Code, art. 188.) It is an oath required by law, and, if falsely
made or taken, is **perjury" and not "false swearing," the lat-
ter being a voluntary declaration or affidavit which is not re-
quired by law or made in the course of a judicial proceeding.
(Penal Code, art. 196; Willson's Crim. Stats., sec. 316.) Any
affidavit taken within this State may be made before a county
judge within his county. (Rev. Stats., art. 7, subdivis. 1.) The
indictment in this case is sufficient to charge and does suffi-
ciently charge the crime of perjury. (Anderson v. The State,
20 Texas Ct. App., 312.)

In his preliminary statement of the nature of the case, in the
charge to the jury, the learned special judge told them that the
defendant stood charged by indictment with * 'false swear-
ing." This was evidently an inadvertence for the law as an-
nounced in the remainder of the charge relates alone to the
crime of perjury as applied to the facts, and the jury were ex-
plicitly instructed that defendant, if guilty under the law and
the facts, would be guilty of perjury, and his punishment
should be assessed as is provided for that crime. It may be
the jury could not have been misled as to the nature and char-
acter of the crime for which they were trying the accused.
But their verdict is in these general terms: "We the jury find
the defendant guilty and assess his penalty at five years con-
finement in the State penitentiary.** This period of punish-
ment is the lowest affixed to perjury (Penal Code, art. 194),
and the highest affixed to false swearing. The judgment

Digitized by VjOOQIC

Term, 1889.] O'Bryan v. The State. S41

Opinion of the court.

which was rendered upon this verdict by the court is a judg-
ment denouncing the defendant as **guilty of the oflEense of
false swearing as found by the jury."

If the verdict and judgment are, as stated, for false swear-
ing, then they are not warranted by the indictment, which
alone charges perjury, which is a separate and distinct offense
from false swearing. In the final judgment and sentence of
the defendant it is recited and declared that he "has been
adjudged guilty of the offense of perjury." We are asked by
the Assistant Attorney General to exercise our authority under
article 869 of the Code of Criminal Procedure, and reform and
correct the judgment as required by the law and the nature of
the case. In a proper case this court will reform either the
judgment or sentence, or both, so as to make them conform to
each other and to the verdict. (Rivers v. The State, 10 Texas
a. App., 177; Hill v. The State, Id., 673; McDonald v. The
State, 14 Texas Ct. App., 504; Short v. The State, 23 Texas Ct
App., 312; Robinson v. The State, 24 Texas Ct. App., 4.)

But in no case has this court ever exercised the authority to
reform a judgment where there was any uncertainty whatever
as to tlie verdict. It is the verdict which constitutes the basis
of all judgments, and. where it is certain, judgments to be ren-
dered thereon should and may be made to conform thereto.
But where it is uncertain what the finding is, the judgment
has noihing by which it can be reformed. In this case the jury
were told that the defendant was being tried upon an indict-
ment which charged him with false swearing, and, for aught that
appears, they may have intended to find bim guilty of that of-
fense. Such a conclusion is not unwarranted by their verdict,
and the court certainly, it seems, so understood the tenor and
effect of the verdict, because the judgment rendered upon it
was for false swearing.

We are not willing to assume, nor do we feel that we would
be warranted in assuming, the responsibility of changing or re-
forming the judgment where there is such uncertainty about
it. We feel that the safer course will be to have the matter
made certain by another trial.

The judgment is reversed because not warranted by the

charge in the indictment nor by the evidence adduced at the

trial, the charge in the indictment being for perjury.

Ee versed and remanded.
Opinion delivered March 9, 1889.

Digitized by VjOOQIC

27 941
36 253

34^ 27 Texas Court of Appeals. [Galveston

Argument for the appellant

No. 2555.

Henry Bautsoh v. The City of Galveston.

L Appeal from Municipal Courts— jDRiSDicTiON.--Beinir eonvicted
and fined in the recorder's court of Galveston City for a violation of
a penal ordinance of the city, the defendant appealed to the criminal
district court of Galveston county, by which court his appeal was dis-
missed on the ground that it had no jurisdiction of such municipal
offenses, inasmuch as no right of appeal in such cases was conferred
by the special charter of Galveston City, nor by the laws of the State;
and because the offense was not ajzainst the laws of the State nor pros-
ecuted in the name of **The State of Texas." Held that the appeal
was erroneously dismissed. See the opinion in extenso for a colloca-
tion and construction of the various statutory provisions relevant to
the question.

3. Same— Right of Appkal.— In all criminal cases tried before mayors
and recorders of incorporated cities, the general policy and intent of
the statutes of Texas secure to defendants a right of appeal commeo-
surate with that from convictions in justices' courts. The fact that
the special charter of a city wholly ignores such right of appeal from
convictions for violation of the municipal ordinances can not frustrate
the right of appeal from such convictions, notwithstanding the mu-
nicipal offense consists in an act which is not penal under the general
laws of the State.

8. Prosecutions for Municipal Offenses— Practice —All prosecu-
tions for State offenses must be carried on in the name of "The State
of Texas,'' but an incorporated city may ordain that violations of its
penal ordinances may be prosecuted in its municipal name. (Ex parte
Boland, 11 Texas Ct. App., 159, approved on this subject)

Appe A L from the Criminal District Court of Galveston coimty.
Tried below before the Hon. Gustave Cook.

All material facts appear in the opinion. The penalty as-
sessed was a fine of one hundred dollars.

F, M, Spencer and W, B, Lockhart, for the appellant: In
support of our proposition that the criminal district court of
Galveston county has jurisdiction to hear appeals from the
recorder's court of the city of Galveston, in convictions for the
violation of the city ordinances, we respectfully refer the court
to the following authorities: Constitution of Texas, section 1,
article 5; Drum v. The City of Fort Worth, 25 Texas Court of

Digitized by VjOOQIC

Term, 1889.] Bautsch v. The State. 343

Argument for the appellee.

Appeals, 664; Casey v. The City of Paris, unreported; Revised
Statutes, article 1497; Penal Code, articles 26,* 837, 856 and 857;
Code of Criminal Procedure, article 839.

W. L. Davidson, Assistant Attorney General, contra.

George P. Finley, City Attorney of Galveston, also contra:
The appeal to the criminal district court of Galveston was
properly dismissed by that tribunal. (Rev. Stats., art. 361;
Charter of City of Galveston, sees. 17 and 159; Penal Code,
art. 26; Code Crim. Proc, arts. 52, 56, 78, 79, 837, 838, 83^, 894
and 895.)

Article 837 of the Code of Criminal Procedure provides that
'"a defendant in any criminal action, upon conviction, has the
right of appeal under the rules hereinafter prescribed."

Article 26, Penal Code, provides that '*a 'criminal action' as
used in this code means the whole and any part of the proced-
ure which the law provides for bringing offenders to justice."
Article 61, Code of Criminal Procedure, under the head of
definitions, defines a criminal action as follows: **A criminal
action is prosecuted in the name of the State of Texas against
the person accused, and is conducted by some officer or person
acting under the authority of the State, in accordance with its
laws."

Counsel for the city respectfully submits that the case at bar
is not a criminal action as herein defined; that it is not prose-
cuted in the name of the State of Texas against the accused,
and is not conducted by some officer or person acting under
the authority of the State in accordance with its laws, and
therefore it is not a criminal action which entitles the defend-
ant to the right of appeal imder article 837, Code Criminal Pro-
cedure.

Section 17 of the Galveston City charter defines the jurisdic-
tion and powers of the recorder's court, and it nowhere pro-
vides for the right of appeal. But, to compensate for this,
section 169 of the charter provides that the city council shall
have the power to remit fines and penalties belonging to the
city.

Neither the city charter nor the Code of Criminal Procedure
provides for an appeal from the recorder's court, and in the
absence of such a provision the court below was correct in dis-
missing the appeal.

Digitized by VjOOQIC

344 27 Texas Court op Appeals. [(Jalveeton

Opinion of the court.

The unreport^ case of Casey v. City of Paris, cited by ap-
pellant and filed with his brief, and Drum v. The City of Fort
Woriih, 25 Texas Ot. App., 664, do npt decide the point of juris-
diction in this case, as both Fori; Woriih and Paris are incor-
porated under the general incorporation law of the State, which
provides: "That all prosecutions, trials and proceedings had in
said court (recorder's court), under this title, shall be governed
by the laws and rules regulating trials, prosecutions and pro-
ceeding in justices* couri«, in force at the time.** (Ari;. 361,
Rev. Stat.) This provision is broad enough to admit of an ap-
peal from a recorder's court, and its existence certainly accounts
for the fact that the question of jurisdiction did not arise in the
above quoted cases.

It is submitted that it was not intended that there should be
an appeal from the recorder's court of the city of Qalveston;
that such appeals have never been allowed by the criminstl dis-
trict court of Qalveston county, and that in the absence of
some law — either charter or general law — providing therefor,
this court must decide the law as it finds it, and therefore aflSrm
the decision of the court below.

White, Presiding Judge. Appellant was convicted and
fined in the recorder's court of the city of Galveston for a vio-
lation of an ordinance of the city. His conviction was for an
offense unknown as such to our Penal Code, viz: repairing a
wooden building in the city of Galveston in violation of the
city ordinances. The proceeding was instituted by a complaint
filed in the recorder's court, and the trial was by jury and re-
sulted in defendant being fined in the sum of one hundred dol-
lars and costs. From that judgment the defendant appealed
to the criminal district court, in which court the city attorney
filed a motion to dismiss the cause upon the following grounds,
viz:

"1. This court has no jurisdiction to try a cause for a vio-
lation of a municipal ordinance of the city of Qalveston. 2.
The charter of the city of Galveston, in creating a recorder's
court, does not provide for an appeal by the defendant in case
of conviction. 3. The Code of Criminal Procedure does not
provide for an appeal from a recorder's court, except for vio-
lations of the Penal Code which are cognizable before a justice
of the peace, or before a recorder acting in his capacity as ex
oflBcio justice of the peace," etc. This motion was sustained

Digitized by VjOOQIC

Term, 1889.] Bautsch v. The State. 345

OpinioQ of the court.

and the appeal dismissed, and from that judgment this appeal
is prosecuted.

It seems that the city of Galveston is incorporated under a
special charter and not under the provisions of the general
law as contained in title 17 of the Revised Statutes. (Arts.
340-541 b.) We have not been furnished with, nor have we
had access to, the special charter, but it appears to be conceded
by attorneys on both sides of this case that in such cases no
right of appeal from the recorder's court is conferred or denied,
but that the charter is simply silent upon the subject. Such
being the case the question is whether or not the right of appeal,
being neither expressly withheld nor denied by the charter, it
would obtain otherwise under the general statutes.

Under provisions of our general law it is expressly declared
that **all prosecutions, trials and proceedings had in said court
(recorder's) under this title shall be governed by the laws and
rules regulating trials, prosecutions and proceedings in justices
courts in force at the time." (Rev. Stats., art. 361.) And under
articles 894, 895 and 896 of our Code of Criminal Procedure,
mayors and recorders are empowered to exercise within the
corporate limits the same criminal jurisdiction, are governed
by the same rules and have concurrent jurisdiction with jus-
tices of the peace. (Code Crim. Proc, art. 78.) By article 837,
Code Criminal Procedure, defendant in any criminal action is
given the right of appeal under the rules prescribed thereafter.
And by article 839 it is provided that "appeals from judgments
rendered by justices of the peace and other inferior courts, in
criminal actions, shall be heard by the county court, except in
counties where there is a criminal district court, in which
counties such appeal shall be heard by such criminal district
court." By article 1497 of the Revised Statutes it is declared
that the criminal district court of Galveston and Harris coun-
ties '*8hall have exclusive appellate jurisdiction over all crimi-
nal cases tried and determined by justices of the peace, may-
ors and recorders in the said counties of Galveston and Harris,
under the same rules and regulations provided by law from
justices of the peace, mayors and recorders to the county court
in criminal cases."

But it is contended that all these provisions refer to and were
only intended, if they can apply at all, to criminal cases or to
crimirtal actions, and that the case under consideration does
not come within the definition of a * 'criminal action" or a

Digitized by VjOOQIC

346 27 Texas Court of Appeals. [Galveston

Opinion of the court.

"criminal case," and consequently does not, everything else
being equal, come within the rules prescribed for such cases.
* We are cited to ari;icle 26 of the Penal Code and article 61 of
the Code of Criminal Procedure for the definition of criminal
action, as follows: "A criminal action, as used in this code,
means the whole and any part of the procedure which the law
provides for bringing offenders to justice;" **and a crimi-
nal action is prosecuted in the name of the the State of Texas
against the person accused, and is conducted by some oflBcer
or person acting under the authority of the State, in accord-
ance with its laws."
"An offense which a justice of the peace or the mayor or
- other officer of a town or city may try and punish is called a
petty offense." (Penal Code, art. 56.)

We think the distinction sought to be drawn and made be-
tween "criminal actions" and "offenses" or "'petty offenses" is
hypercritical and not maintainable. It is expressly declared in
terms by the code that "the provisions of this code shall be lib-
erally construed so as to obtain the objects intended by the Leg-
islature, the prevention, suppression and punishment of crime."
(Code Crim. Proc, art. 26.) Every provision of the code gov-
erning justices courts applies to mayors' and recorders' courts.
(Code Crim. Proc, arts. 78, 895.)

Nor do we think there is anything in the position that the
rales do not apply to this class of cases because they are not
prosecuted in the name of "The State of Texas." "Though all
prosecutions for offenses against the laws of the State must be
carried on in the name of 'The State of Texas.' yet an incor-
porated city or town may ordain that offenders shall be prose-
• cuted in the name of the municipality." "It is only necessary
that the prosecutions should be carried on in the name of the
State when the prosecution shall be for a violation of the laws
of the State." (Ex parte Poland, 11 Texas Ct. App., 159.)

It is unquestionably the general object and purpose of our
statutes to give the right of appeal in all cases tried before
mayors and recorders, to the same extent and in the same man-
ner as they are permitted to be prosecuted from justices courts.
The charter of the city of Galveston, as we understand it, does
neither limit nor withhold this right — in fact is wholly silent
upon the subject. The charter, being a special one, it should
have expressly regulated the matter if it was intended that a
different rule should obtain than that provided for cities incor-

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 347

Syllabus.

porated under the general law. Not having done so, we hold
that the rules announced by the general law and the policy of
the law govern the question, and that in all criminal cases for
violations of the city ordinances of the city of Galveston, tried
by the mayor or recorder, an appeal lies to the criminal district
court under the same regulations as apply to justices* trials.

We are of opinion the court below erred in dismissing the ap-
peal for want of jurisdiction, and the judgment is reversed and
the cause remanded for trial in said court.

Reversed and remanded.

Opinion delivered March 18, 1889.

No. 2725. ^ '

A. P. Thurmond v. The State.

1 Practioe— Change op Vknue.— The triSl court, of its own motion,
changed the venue from V. county, in which the indictment was pre-
sented, to D. county, whereupon the d«fen iant, in the district court
of V. county, moved to vacate the 8«id order, and requested the venue
to be changed to another than D. county, upon the ground that an
influential combination, etc., existed against him in D. county. The
court overruling the motion and denying the request, the defendant
excepted. Held that the ruliog of the court was not error. The rem-
edy of the defendant was in the district court of D. county, from which,
upon a showing of sufficient cause, he would have been entitled to a
change of the venue.

1 Same— Evidence to Sustain Reputation— Predicate.— The State
introd^ced a witness who testified to a confession made by the accused,
and subsequently introduced witnesses to support the reputation for
truth and veracity of the witness by whom the confei>sion was proved.
Those witnesses testified that for geveral years preceding the removal
of the said witnes*^ (about eighteen months before the trial) they lived
in the same neighborhood with him. The defense objected that this
evidence did not establish the necessary predicate for the supporting
testimony. But Jield that the predicate was sufficient.

t. Same— Impeaching Testimony— Charge op the Court.— It is only
under extraordinary or peculiar circuuistanees that it is proper for the
trial court to instruct the jury as to the law governing impeaching tes-
timony, and the failure of the court to do so in this case was not error.

i. Bame. — A witness for the def*»nse testified that he 8aw the killing;
that one Owens and not defendant shot and killed the deceased, nnd
that the defendant was not present at the time of the killing. The

* 347
80 55
32 238*

Digitized by VjOOQIC

848 27 Texas Court of Appeals. [Galveston

Statement of the case.

State produced several witnesses who testified that the reputation of
the said defense witoess for truth and veracity was infamous. To sap-
port the credibility of its said witness, the defense offered tg prove
that he testified to the same facts on previous trials involving: the same
subject matter. Held that the rejection of the said proposed proof
was correct.

5. 8amb— Rbasonablb Doubt.— The charge of the court on the doctrine

of reasonable doubt is ^ufficieot if it applies the said doctrine to the
whole case.

6. 8amb— Corroboration of Accompliob Testimony.— See the state-

ment of the case for a charge of the court upon the law applicable to
the corroboration of accomplice testimony, Tield sufficient.

7. 8amb.— Upon the ground that it was warranted neither by the indict-

ment nor the evidence on the trial, the defense excepted to the charge
of the court to the effect that the jury might convict if they believed
that Owens killed the deceased, and that defendant was present and«
knowing the unlawful intent of Owens, aided hiui by act or encour-
aged him by word or gesture in the commission of the act Held that
the legality of such charge can not be made to depend upon a corres-
ponding allegation in the indictment, and that the evidence on the
trial fairly raised the issue; wherefore the charge was correct
S. Same— Accompli CB Testimony.— The defense requested the following
special instruction: *'You are further instructed that, if you believe
from the evidence that the witness Owens was testifying to save him-
self from punishment or moral obliquy of guilt, then his testimony
can not be convicted upon, unless corroborated as the evidence of an
accomplice. ^* Held that the court did not err in refusing the instruc-
tion.

Appeal from the District Court of DeWitt, on change of
venue from Victoria. Tried below before the Hon. H. 0.
Pleasants.

The appellant in this case was convicted in the second degree
for the murder of Lewellen Sloan^ on the third day of January,
1887, in Victoria county, Texas. The penalty assessed against
him was a term of fifteen year^ in the penitentiary. The venue
of the case was changed from Victoria to DeWitt county, by
the court of its own motion.

T. A. Cahill was the first witness for the State. He testified
that he lived in the town of Victoria, Texas, in January, 1887,
and was employed at that time as a private night watchman
at what was then known as the Wertheimer, but is now known
as the Schwartz corner. After supper, on the evening of Jan-
uary 3, 1887, the witness stepped into Sitterlee's saloon, in
Victoria, and there met the deceased, who was very muchun-

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 9^9^

statement of ;the case.

der the influence of liquor, and, as usual, when in such condi-
tion, he was very boisterous and disorderly. Louis Sitterlee,
one of the proprietors of the saloon, requested the defendant,
who was present, and who at that time was a deputy sheriff,
to keep deceased out of the Baloon. Defendant agreed to do
so.

The witness then left the saloon but s6on returned, finding the
deceased flourishing a pistol and creating a disturbance. The
defendant was then standing near the deceased. Witness
called his attention to deceased's conduct and pistol. Defend-
ant replied that he cared nothing for the deceased's pistol.
Soon afterwards George Williams succeeded in getting the
pistol away from deceased, and deceased turned and appealed
to the defendant to recover his pistol for him. Defendant re-
plied to him: "Tou don't need a pistol." Soon after this the
witness left Sitterlee's saloon, met city marshal Ragland, and
reported lo him that .deceased was drunk and disorderly and
ought to be locked up. Ragland then got defendant and the
two went to Jecker's saloon, whither the deceased had gone
from Sitterlee's saloon% Witness followed. Deceased was
found at the bar of Jecker's saloon, talking with John Dyson.
Bagland and defendant seized deceased and escorted him out
of the saloon, followed by witness and Ed Sitterlee and R. L.
Owens. After they got outside defendant asked Ragland if
the calaboose was a safe enough place to confine deceased.
Ragland replied that it was not, when, at the suggestion of de-
fendant, they took deceased to the jail, and put him in the
sheriflTs private oflBce. When the jail was reached, deceased
several times appealed to Ed Sitterlee and others present to
become bail for him so that he might be released. Ragland
replied to that appeal that he would not take bond. Defendant,
addressing deceased, said: "Sloan, behave yourself now, and
I will get you a bond that Ragland will have to take." De-
ceased replied to defendant: "AL, I know you are my friend."
Defendant then closed the door, leaving the deceased in the
office. Witness told defendant that if he left deceased alone in
the office he, deceased, would "break things up." Defendant
replied: "No he won't. He thinks I am going to get bond for
him and will be quiet." Witness and defendant then went to
Jecker's saloon, where defendant requested witness to write a
note for him to his uncle, sheriff C. L. Thurmond, to send him
the keys to the jail cells. R. L. Owens, who was present^'

Digitized by VjOOQIC

880 27 Texas CorRT of Appeals, [Galveston

Statement of the case.

proflFered to and wrote the note, which was dispatched to the
sheriff by Luis Garza,

A short time afterwards the witness, while standing on the
street, saw somebody moving about the jail yard with a lantern.
He then went to Sitterlee's saloon, where he foundthe defend-
ant playing cards. He and defendant went to the jail, where
they found sheriff Thurmond, swearing and cursing in a violent
manner. He, sherifif Thurmond, turned on defendant and
abused him severely for putting deceased in his oflBce, and de-
clared that deceased had set fire to and burned valuable papers
and books pertaining to his oflBce, and that he, the sheriff, was
ruined, as those papers could not be replaced. Papers were
then burning in the office, and, in the confusion which attended
the efforts of the parties present to rescue some of them from
the fire, the deceased escaped. About that time some person
reported that deceased had gone in a westerly direction from
the jail, and the witness and Ragland went a short distance in
that direction in pursuit of deceased. Failing to find or hear
anything of him, Ragland said: "He has gone home. Let him
go; I have no place to put him, any way." Witness and Rag-
land then returned to the jail, and found old man Thurmond
still abusing the defendant for putting the deceased in the ofSce.
Witness then called defendant out and advised him to let the
old man alone for the present. Defendant replied that the oc-
currence pained him very much. He and witness then went
from the jail to the court house yard gate, where they met
Ragland, R. L. Owens and Luis Garza. At the same time wit-
ness observed another man, whom he did not recognize, and
whose identity he has never yet fixed, standing under a tree,
a short distance from the said gate. Witness again cautioned
defendant to say nothing to his unclb, the sheriff, for the
present, and left defendant and Owens and Garza at the eaid
gate, and with Ragland went back to town.

At a later hour on that night the witness was informed that
j^ome shots had been fired in the vicinity of the jaiL He started
hurriedly to the jail, overtook Ragland, and went with him to
the court house, in the yard of which, near the cistern, they
found sheriff Thurmond with a lantern. Witness asked him
where the shooting occurred. He pointed towards the north-
west comer of the court yard, and said: **Over there." Wit-
ness and Ragland went in the direction indicated. Witness
mounted the west fence of the court house yard, and from the

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 351

Statement of the case.

top of that fence saw the dead body of the deceased lying in
the street. He then called to sheriff Thurmond: "Here he is,
dead." Sheriff Thurmond replied: *'Don't touch him. I will
be there in a minute." Sheriff Thurmond soon arrived, when
the body and the space around it were unsuccessfully searched
for a pistol or other weapon. The coroner was then sent for,
and witness went back to his post at the Schwartz corner. En
route the witness met defendant, who asked him if it was true
that Sloan was dead? Witness replied that it was, to which
defendant replied: "Ohl You are joking!" Soon afterwards,
at a point near Sitterlee's saloon, witness met Owens, who
asked him if it was true that Sloan was dead, and who,
on being answered in the affirmative, said, "you are jok-
ing."

Witness next met the defendant about four o'clock a. m., on
Main street near Levy's corner. He was with Ragland. With
those two parties the witness walked towards Regan's comer*
The subject of Sloan's death came up, when witness remarked
that Sloan brought his death upon himself. Defendant re-
plied: •'You are wrong, CahiU. I knew Sloan well. I went
to school with him, and I kijiow he was a good boy. I have
been in a great deal of trouble, Mr. Cahill, but this is the worst
I ever had. If I had a million dollars I would give it all to get
my uncle out of his trouble by restoring his papers destroyed
by Sloan." The witness directed but little attention to the man
he saw behind the tree near the court house steps. The witness
walked from the jail to the court house fence with defendant
and Owens, but did not hear defendant propose to Owens to
pursue defendant just after his escape, nor did he hear Owens,
in reply to defendant's question: "Can we catch him?" reply:
"If any two men can, we can." Sloan and Owens were xiot
friendly at all times. They alternately quarreled and asso-
ciated on friendly terms. The witness, several months prior to
the killing, heard Sloan say that he could "whip all the Thur-
monds, beginning with the sheriff and ending with the defend-
ant." The defendant, who was present, told Sloan to "hush
up"; that he, Sloan, did not know who his friends were. The
witness never heard the defendant utter a threat against the
deceased. Defendant and Sloan associated with each other a
great deal, and appeared to be close friends. Sloan was a very
quarrelsome man when drunk or drinking. When found, thd
body of Sloan lay north and south — the head south.

Digitized by VjQOQlC

862 27 Tbxas Court of Appeals. [Ckdveston

Statement of jbhe case.

Henry Ragland testified, for the State, that he was city mar-
shal of Victoria at the time of Lewellen Sloan's death. About
ten o'clock on the fatal night, the witness was notified that
Sloan was drunk and disorderly. Witness then went to Sitter-
lee's saloon, and was informed that Sloan had just left and
gone to Jecker's saloon. He found defendant at Jecker's
saloon, and called on him to help arrest Sloan, who was bois-
terous and disorderly. This witness's narrative, as to what oc-
curred from the time of Sloan's arrest until his dead body was
found, was substantially the same as that of the witness Cahill.
Continuing his testimony, the witness said he met the defend-
ant and Owens about the time that Cahill did, and heard both
defendant and Owens ask Cahill if Sloan was dead, and, on
being assured that he was, replied that Cahill must be joking.
He also heard defendant tell Cahill that he was wrong in say-
ing that deceased brought his death on himself, and that he,
defendant, had lost his position as deputy sheriff by reason of
the deceased burning the papers of the sheriff, and* that the
sheriff had taken the office keys from him. On one occasion,
after the killing, Owens, then drunk, began to tell witness
something about the killing, but some person joined them at
the time, and that prevented the discWure — if it was to have
been a disclosure. Defendant and deceased spent a large part
of their time together on apparently the most friendly terms.
Deceased and Owens frequently quarreled, but as often ap-
peared to "make up." Sloan's body lay with the head south
and feet north when witness saw it. Witness saw one bullet
hole in the head and another in the breast.

E. A. Perrenot testified, for the State, that, at the time of the
killing of deceased, he lived in what was known as the King
hopse, which house was separated from the Ash worth place by
an open lot. Not long before the shooting on the fatal night,
the witness was awakened by the barking of a small dog in
his house. Soon afterward he heard a loud halloo which ap-
peared to come from the remote corner of the vacant lot. He
then got up, and soon heard the murmur of voices which indi-
cated that two or more persons were going down the street
from the direction of Mrs. Borden's house toward that of Elein.
Klein's said house was across and down the street from wit-
ness's house. When the parties reached a point near Elein's
house the witness heard a voice, which he recognized as the
voice of deceased, utter the supplication: "Boys, don't do me

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The Statb. 858

statement of the case.

that way." Other voices responded but in a tone too low for
witness to understand what was said, or to form an idea as to
who were speaking. The witness could only judge that there
were more than one person with Sloan, by the fact that Sloan's
appeal to the "boys" distinctly addressed the plural. The wit-
ness, a few moments later heard Sloan's voice at Jane Daven-
port's gate. He could not distinguish what was said, but from
the tone of the voice was satisfied that Sloan was supplicating
or apologizing to some body. A few moments later the wit-
ness heard three shots which sounded as if fired about the
Barnes comer, which was distant from Jane Davenport's gate
the width of the block. There was a short interval between
two of the shots, but whether between the first and second or
second and third, the witness did not remember. From the
witness's house to Jane Davenport's gate the distance was about
one hundred yards. It was about one hundred and seventy-
five yards from the witness's house to Mrs. Borden's place.
From where the witness stood on the gallery to the nearest
point in the street passed over by Sloan and the persons with
him, the distance was about sixty-five feet. No names were
called by any of the parties, so far as the witness heard. He
recognized none of the parties except Sloan, and recognized
him only by his voice. He did not hear the words: '*Don't
Al.," uttered at Jane Davenport's gate.

Larkin Moore testified, for the State, that he was at Jane
Davenport's house on the night of and at the time of the kill-
ing of Sloan. Just before the shots were fired Louis Daven-
port, Jane's husband, and Solomon Gibson were playing cards,
and witness and Jane were sitting near the stove, Jane with
her head resting in her hands. Witness heard voices at the
Davenport gate a few minutes — perhaps as long €ts thirty min-
utes—before the shots were fired. One voice said: "AL, don't!"
Witness did not recognize that voice. Jane Davenport re-
marked to her husband: **That is Al. Daniels, who was here
this evening. He is coming back with somebody drunk; don't
let him come in." Neither Jane nor her husband got up and
went out of the house. It was a cold night, and all the doors
and windows of the house were closed. Al. Daniels was a ne-
gro commonly called "Al.," who lived in Victoria.

R. L. Owens was the next witness for the State. He testified
that he was present and witnessed the killing of the deceased
by the defendant on the night of January 3, 1887. The wit-

Digitized by VjOOQIC

854 27 Texas Court op Appeals. [Galveston

statement of the case.

ness walked into Sitterlee's saloon early on the said night, at
which time a great deal of disorder and confusion was prevail-
ing in said saloon. Witness asked Louis Sitterlee, one of the
proprietors, why he did not preserve order. He replied that all
of the deputy marshals, including the deceased, were drunk,
and that he could not maintain order. He, Sitterlee, then asked
the defendant, who was present, if he was not a deputy sheriff.
Defendant replied that he was. Sitterlee then requested de-
fendant to preserve order in the saloon. Defendant thereupon
summoned witness as a posse, remarking that he did not like
to undertake to preserve order without aid. About that time
the deceased came to the table where the witness and Woods
were playing cards for drinks, and asked the witness if he
could not treat. Witness took a drink check from his pocket
and replied to deceased: *'I can; call for your poison." The
drinks were then brought and swallowed, and deceased crossed
to the table at which defendant and Felix DuBoise were sitting.
He threw his arms around defendant and DuBoise and over-
turned the table. Defendant seized the table, a^mall one, held
it in a position as though he intended to place it on deceased's
head, and said to deceased: "God damn you, boy, behave
yourself or you might get hurt." Sloan soon afterward left
the saloon. A few minutes later Marshal Ragland came in and
inquired for Sloan. On being told that he had gone to Jecker's
saloon, Ragland summoned witness to go with him to find
Sloan. Witness, defendant and Ragland went at once to Jeck-
er's saloon, where they found Sloan, whom Ragland and de-
fendant arrested, and started with to the court house, followed
by the witness and others. Just before the gate of the court
house was reached, the witness saw the defendant draw his
pistol, and heard him ask Ragland if the calaboose was a safe
place in which to confine Sloan. Ragland replied that he did
not think it was safe, when defendant proposed to confine him
in the jail. Reaching the jail, defendant discovered that he did
not have the cell keys, and proposed putting deceased in the
sheriff's office until he could send for the keys. Sloan appealed
to witness and others present to go on an appearance bond for
him in order that he could be released. He was, however,
locked in the sheriff's oflBce, and witness, defendant and others
went back to Jecker's saloon, where defendant asked witness
to write a note to his uncle asking for the keys. The witness
wrote two or three notes before he got one to suit the defend*'

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 355

Statement of the case.

ant, which one was despatched by defendant to his uncle, the
sheriff, by hands of Luis Garza. .

Having despatched the note, the witness and defendant went
to Sitterlee's saloon, where, after the lapse of a considerable
time, they were told that "the old man" — Sheriff Thurmond —
was at the jail. They went at once to the court house, in
company with Ragland and Cahill, and found the **old man"
storming around, and cursing violently. Witness remained
outside the jail, and Ragland, Cahill and defendant went
inside. Sheriff Thurmond at once asked them who put that
drunk man in his oflSce, and said: "I am ruined. He has
burned up important papers that I can't replace." He then
turned on defendant and abused him violently for putting
Sloan, while drunk, in the oflBce. Sheriff Thurmond finally
ordered Sloan **to get out of there." Sloan left the said office
in a run, and crossed the court house yard in the direction of the
site of the old jail. Soon afterwards Cahill exclaimed: **Ho is
gone,'' and he and Ragland came out of the jail and looked
around for -Sloan without finding him. The witness, defend-
ant, Ragland and Cahill then walked off together as far as the
court house gate. On reaching the gate the defendant re-
marked that he was ruined. After passing through the gate,
he said to witness: ^Tve a notion to go and get Sloan; do
you think we can get him?" Witness replied: **If any two
men can get him, you and I can." Defendant said, "come on,"
and he and witness left, in pursuit of Sloan. They went from
the gate to the northeast corner of the court house square,
turned west to Moody street, up Moody street on the east side,
to where Perrenot lived, whence they went towards Ash worth's
house, the defendant a short distance in advance of witness.
About that time the witness discovered a man on horseback
near Ashworth's house, and about the same time, or a few mo-
ments later, he saw Sloan at or near Mrs. Borden's gate. De-
fendant, being ahead of witness, crossed the street diagonally
to Sloan, seized him with one hand, jerked him around, and
snapped a pistol in his face, just as witness reached them. De-
fendant and witness then started down the street with Sloan.
Sloan, who endeavored to keep near witness, asked him what
was the matter. Witness replied: '*He just snapped his pistol at
you." Defendant said: **Yes, God damn you; if it hadn't snapped
you would have been in the lowest pit of hell before now!"
From near Klein's comer the witness, deftnJant and Sloan

Digitized by VjOOQIC

866 27 Texas Court op Appeals. [Galveston

Statement of the ca^e.

crossed the street diagonally to Jane Davenport's gate. Sloan
seized the gate, and defendant began to jerk him violently,
when witness said to him: ''AL, for God's sake, don't do that!
We are now near the court house; let's go on and lock him up.**
When they reached Barnes's corner, Sloan began to struggle,
and got between witness and defendant. Witness, fearing de-
fendant would shoot through Sloan and wound or kill him, re-
leased Sloan and fell to the ground. Sloan then made two or
three quick steps towards the Barnes corner, then turned and
ran towards defendant with both hands up, exclaiming: "For
God's sake, Al., don't do that!" Defendant extended his pistol
to touch Sloan's br.east, and fired. Sloan stepped across wit-
ness's body and fled towards Mrs. Ashworth's house and Cole-
man's house, and then came back towards defendant, who fired
two more shots in quick succession, and Sloan fell oflf the side-
walk. Defendant then said to witness: "Come, let's go." The
witness replied: "No, by God; you go your way, and I'll go
mine." They then separated.

Leaving the defendant at the place of the killing, the witness
retraced his way over the route he had come as far as Jane
Davenport's corner, where he turned south. He went thence
two blocks and turned east, and thence three blocks to Main
street, and thence up Main street to Sitterlee's saloon, where
he found the defendant, and Houston Thompson, John Strat-
ton, Joe Sitterlee and others. Some person remarked that
Sloan had been killed, when witness and defendant both re-
plied: "That can't be true; you are joking." The witness de-
nied that defendant then proposed to go and see if Sloan was
dead, and that he refused; denied that defendant repeated his
proposition, and that he again refused; or that defendant then
said: "Well, as you won't go to see about it, may be you are
the man that killed him," and that he replied: "Yes, by God,
that is what I am, and (exposing his pistol) this is the thing
that did it;" nor did he, witness, then ask the parties present
to take a drink. Ragland, Cahill and others were present at
the court house gate, and were in a position to hear the defend-
ant say that he was going after Sloan. The witness, at the
time of the killing, was not in a position to be seen by any per-
son standing at Olnock's gate, nor could a person at Olnock's
gate see a person at Jane Davenport's gate. Witness stated
before the coroner's jury that he knew nothing about the killing.
He was not sworn when he made that statement, or, if he was.

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 357

Statement of the case.

he paid no attention to the oath. On his way to the room in
which the inquest was being held, the witness met the defend-
ant, who asked him not to attend the inquest. After making
his statement before the coroner's jury, the witness hurriedly
left, as it looked like **things were getting too warm" for him.
Witness had no misunderstanding with Sloan on the night of
the killing. Previous to that tilne he and Sloan had had fre-
quent misunderstandings, but none of a serious nature. At
the time of the killing he and l^oan were on friendly terms.
The witness denied that some time subsequent to Sloan's death,
he told Henry Jones that the defendant did not know anything
about the killing of Sloan, and that he, witness, was glad he
did not, as he, defendant, and Sloan were good friends. The
witness denied that, while taking a drink with Tom Hathaway
on the morning after the killing, he told Hathaway, in reply
to Hathaway's invitation to go and see Sloan's body, that he
'*did not want to see the d — d son of a bitch." Sloan did not
say in Sitterlee's saloon, on the fatal night, that he could "whip
any d — d son of a bitch who voted for Pridham." He said that
he could "whip any d — d son of a bitch who voted against Prid-
ham." Witness had never been on friendly terms with sheriff
Thurmond, and had always opposed the said sheriff in the
elections. The witness admitted that he wore his pistol to the
inquest upon the body of Sloan, but did so upon the advice of
defendant. He denied that, on the morning after the killing,
he met Joe Sitterlee on the street and threatened him if he did
not "keep his mouth shut." Some time after the killing of
Sloan, the witness had a conversation with defendant in which
defendant said: "I have killed three or four men, but I gave
them all a fair chance, except Sloan; and I hope Sloan is now
roasting in hell." Witness had testified in this case three dif-
ferent times, but had never before testified to the above state-
ment made by defendant. He was never asked directly about
it, although he was always directed to tell all he knew about
the killing. Witness suppressed the truth about the killing of
Sloan because he was afraid to tell the truth about it. Witness,
on the night of and after the killing, started to relate the facts
to Ragland, but the defendant joining them, abandoned the
purpose. The witness and Sloan did not quarrel in Sitterlee's
saloon on the night of the killing.

Eugene Sloan, the brother of the deceased, testified, for the
State, that he last saw deceased alive on the evening of Janu-

Digitized by VjOOQIC

358 27 Texas Court of Appeals. [Galveston

StatemeDt of the case.

ary 3, 1887, in Sitterlee's saloon. At the time of the killing, the
defendant had the deceased's pistol, which he borrowed some
months before. On the morning after the deceased was killed,
the witness went to the defendant and asked him for his
brother's pistol. Defendant said that he oould not then sur-
render it, but that witness could go to Sitterlee's saloon and get
his, defendant's, pistol, which deceased had left there. A day
or two afterwards witness got deceased's pistol from defend-
ant. That pistol was a weapon of forty-five calibre. Witness
had one of the balls taken from the body of the deceased. It
was the ball which inflicted the wound in the thigh. That ball
not having struck any of the bones, it was not in the least bat-
tered. It fitted the deceased's pistol perfectly. Deceased,
when killed, had on a * 'stockman" hat. That hat showed a
bullet hole corresponding in location with the bullet hole in the
bead of deceased. The breast of the deceased's coat was
powder-burned. Witness slept at the house of his mother on
the fatal night, which house was situated three or four blocks
distant from the court house. He did not hear of the killing
until next morning.

James Mumford testified, for the State, that he had occasion
to pass the court house on the fatal night, and in doing so hi^
attention was attracted by confusion that prevailed in the jail,
— ^the sheriff's voice being particularly distinct. Soon after his
attention was first arrested by the noise, the witness observed
a man approaching him from the direction of the court house
fenoe. That man passed the witness at a short distance, and
spoke to him, witness recognizing him by his voice as the de-
ceased. Deceased then came up to witness, who was on horse-
back, and asked witness to let him ride behind the witness.
Witness cautioned the deceased, who was evidently under the
influence of whisky, to be careful about getting too near the
horse, and told him that the said horse, being young, wild and
unbroken, would not carry double. Deceased then offered wit-
ness a drink of whisky from a bottle he had, and remarked:
*' They jugged me and got my pistol, but didn't get my whisky.**
Deceased then walked alongside of witness's horse until they
got near Mrs. Ash worth's house, when deceased yelled. Wit-
ness then quickened the gait of his horse, and got a short dis-
tance ahead of deceased, when he observed the approach of
two men. Not knowing the two men, but fearing they might
be marshals and arrest him as a participant with the deceased

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The Statbl 359

Statement of the case.

in disorderly conduct, the witness rode on. One of the men
walked up to and seized Sloan, and walked with him back to
the other man, who was in the middle of the street between the
houses of Mrs. Ashworth and Dr. Sutherland. Witness dis-
tinctly heard Sloan say: ** I will go with you anywhere." The
man who first got with Sloan and seized him did not jerk him
round, and snap a pistol in his face, so far as the witness saw.
The witness did not ^ee either of the men have a pistol. The
three parties, from where witness last saw them, went down
the street, and the witness went on hoshe. Witness knew both
the defendant and R. L. Owens, but did not recognize either of
them as one of the men who arrested Sloan. From the place
where the witness last saw 4;he parties he had gone a little
further than a block when he heard the shots. While travel-
ing with the witness, Sloan was on his way to his mother's
house, and had nearly reached it when he was overtaken by
the parties. He was overtaken by those parties at a point near
Mrs. Borden's gate.

Jane Davenport was the next witness for the State. She tes-
tified that she was at home at the time of the killing of Sloan*
Her husband and Solomon Gibson, a few minutes before the
killing, were engaged in playing a game of cards, and witness
and Larkin Moore were seated at or near a stove, talking, the
witness with her head resting on her hands. A few minutes
before the shots were fired the witness heard voices of some
parties running from the (direction of Mrs. Borden's house to-
ward her house.

Presently the fence attached to witness's house was shaken,
and a voice said: "/I., don't! Don't, Al. " The witness
did not recognize the voice, but said to her husband: "Go
out and see that A) Daniels does not bring that drunk
man in here. " Al, Daniels was a negro who, under the
influence of liquor, had been at witness's house that evening,
and the words spokon induced witness to believe that he had
returned. Louis Davenport did not go out of the house. Within
a very few minute * thereafter the witness heard three shots
fired at or near Bf rnes's corner, which was the northeast cor-
ner of the block f n which witness lived — her house occupying
the northwest corner. Just before the shots were fired the
witness distincily heard the words: "Let me say my last
prayer." Tho^*) words were spoken at or about the place where,
a momp^* * ler, the shots were fired.

Digitized by VjOOQIC

360 27 Texas Coubt of Appeals. [Galveston

Statement of the case.

C. L. Thurmond, Sr., was the next witness for the State. He
testified that he was sheriff of Victoria county at the time of
the killing of Sloan. On that night he received a note from
defendant, his nephew, stating that Sloan, drunk and disor-
derly, was in his custody, and that, as the calaboose was un-
safe, he wanted the jail keys in order to get Sloan in jail. Wit
ness got up and went to the jaiL As he approached the jail he
beard the smashing of windows in the jail office, and when he
got into that office he found that some books and papers had
been thrown into the fire and were burning. Witness then
directed his energies toward saving such of the books and pa-
pers as were not yet entirely consumed, and while thus en-
gaged the defendant, with Cahill, Ragland and others, came to
the jail office. Witness, who was enraged about the burning
of his books and papers, asked defendant why he had confined
a drunk man in his private office, scolded him for doing so, de-
manded the keys, with the remark that no man with so little
discretion could be entrusted with them, and finally told him
that he had no further need for his, defendant's, services.
While the witness and defendant were stamping out the flames,
and thereby creating some confusion, Sloan slipped out, and
soon afterwards somebody — witness thought it was Cahill— re-
marked: *'Boys, he's gone." The several parties then left,
and witness began to search for a bundle of important papers-
which pertained to a large land suit, and which he feared was
among the papers burned. He found them after a short search,
and then closed and locked his office and started home. Reach-
ing the northeast corner of the public square, and remember-
ing that the defendant's note stated that Sloan and all of the
marshals were drunk, he concluded to go down town and see if
there were any disturbances going on. When he got in front
of Jecker's saloon on the south side of the public square, he
heard three pistol shots fired. He saw the flashes from the last
two shots. He then returned to the court house, where he was
soon joined by Ragland and Cahill. Those two parties then
went off in the direction of Barnes's corner, and soon one of
them hallooed to witness that Sloan was lying in the road,
dead. Witness called to them not to touch the body, and im-
mediately went to it himself. The witness and Cahill and Rag-
land then examined the body and the ground around it for
weapons, but found none. Witness then sent for the coroner*
who came, viewed the body, had it removed to the court house

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 861

Statement of the case.

and adjourned the inquest until the next day. The pistol shots,
judging from the flashes, were all fired from the same position,
and either from the north to the south or the south to the north.
There was a short interval between the first and second shots,
but not long enough to have enabled a man to run across the
street between the two said shots. The second and third shots
were fired with a barely perceptible interval of time — ^just
enough to distinguish two shots and to indicate that if fired by
one man, they were fired from a self acting pistol. They were
fired too near together to have been fired by a man who had to
cock the weapon with his hand or thumb. Defendant was gen-
erally called Al. Sloan fell with his head pointing south and
his feet north.

George Williams testified, for the State, that he was in Sit-
terlee's saloon on the fatal night, but before the shooting oc-
curred. Sloan was in that saloon, drunk, and was making a
Mexican play a guitar and dance. While in that saloon Sloan
t»aid that any man who voted for Pridham was a son of a bitch.
He afterwards said that any man was a son of a bitch who
did not vote for Pridham. Defendant and R. L. Owens, a
brother-in-law of Pridham, were in the saloon at the time. The
witness got Sloan's pistol away from him and gave it to the
bar keeper. He afterwards saw Sloan trying to get a pistol
from the defendant.

James Brown was the next witness for the State. He testified
that, late one evening either in November or December follow-
ing the killing of Sloan, he went to Sitterlee's saloon in the
town of Victoria, in front of which saloon he found the de-
fendant abusing R. L. Owens. Witness got Owens and took
him down the street to Heaton*s store, and then returned to the
defendant, with whom he walked as far as the corner of Main
street. On that walk witness asked defendant: "Why were
you abusing Owens? In a little while more you would have
hurt him." Defendant replied: **No, I do not want to hurt the
cowardly son of a bitch. On the night of the shooting he
fainted and fell over, and I had it all to do." This meeting and
conversation occurred subsequent to the indictment of defend-
ant for the murder of Sloan, and while he was on bail. The
witness and the defendant were not on friendly terms. They
had had two difficulties, in one of which they exchanged shots.
The first of those difficulties occurred some time before the de-
fendant niade the above statement to witnes, and prior to the

Digitized by VjOOQIC

362 27 Texas Court of Appeals. [Galveston

Statement of the case.

* previous trial of this defendant, which occurred in June, 1888,
and at which trial the witness testified. On that trial the wit-
ness testified that he did not have a pistol on his person at the
time of the said difficulty with defendant in Sitteriee's saloon,
which said testimony was not true, as he did have on a pistol
that night. He did not know why he testified on the defendant's
former trial that he was not armed at the time of the said dif-
ficulty with defendant. The second difficulty between witness
and defendant in whicli they exchanged shots likewise occurred
prior to the trial in June, 1888, of the defendant. Witness was
friendly with both defendant and Owens in November and De-
cember, 1887, and interposed in their said quarrel to keep down
trouble. Witness was on good terms with Owens, but could
not be said so be on particularly friendly terms with him. He
did not associate with Owens to any great extent; did not like
to be seen with him, and as a rule avoided him as much as pos-
sible. The witness never told anybody about what defendant
said to him after abusing Owens as stated, except R. L. Owens,
F. R Pridham and John Powers, and he charged each of them
not to repeat it, as he did not want to appear as a witness in
this case.

The State rested.

The defense recalled T. A. Cahill as its first witness. He
testified that he was one of the jury of inquest which sat upon
the body of Sloan. R. L. Owens testified before that inquest that
he knew nothing whatever about the killing of Sloan. The
witness was a member of the party which accompanied de-
fendant and Ragland to the jail with Sloan on the fatal night
If, at the court house gate, en route to that jail, the defendant
drew his pistol at that time and place, he, witness, would have
seen it. Defendant did not draw his pistol at any time or place
while he and Rag land had Sloan in custody and were taking
him to jail. If at the court house yard gate the defendant pro-
posed to Owens to follow and catch Sloan, and Owens replied,
"If any two men can catch him we can," the witness did not
hear it. The witness did not see defendant and Owens leave the
court house fence to overtake Sloan. It was his impression th^t
defendant and Owens followed him, witness, and Ragland to
town. When witness last saw defendant and Owens before
the killing, they were standing at the court house gate with
Luis Garza. The witness knew Jane Davenport, and knew her
reputation for truth and veracity. It was infamous, and she

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 863

Statement of the case.

was totally unworthy of belief under oath. Ex-county judge
of Victoria county, Coleman, corroborated the testimony of
Cahill as to the reputation for truth and veracity of Jane
Davenport.

Ed Sitterlee was the next witness for the defense. He testi-
fied that he was one of the proprietors of Sitterlee's saloon, in
Victoria, Texas. The witness was up stairs over his saloon
during the earlier part of the fatal night. He was notified that
a disturbance was being created in his salojn, and soon after-
ward went down stairs. Sloan had then left, but parties pres-
ent, including R. L. Owens, gave witness an account of his re-
cent conduct. The witness then sent word to Ragland that
Sloan was drunk and disorderly. He then went behind the bar
and was looking under it, when Owens came to him and said:
"Are you looking for a pistol? If you are, here is mine; take
it." Ragland soon reached the witness's saloon, and he and
the defendant left together. They had been gone but a few
minutes when the witness walked to the corner of the street,
from which point he saw Ragland and defendant taking Sloan
from Jecker's saloon toward the calaboose in the court house
yard. Witness followed them and saw all that occurred from
that time until Sloan was put into the sheriflf's oflSce. He did
not see the defendant draw a pistol at any time or place be-
tween Jecker's saloon and the sheriflf's office. When they
reached the sheriff's office Sloan appealed several times to wit-
ness and others to become bail for his appearance next day, in
order that he might not be put in jail. The witness had known
the defendant and Sloan for years, during all of which time
they associated closely and appeared to be particularly inti-
mate friends. The witness had also known R. L. Owens for
several years, and he knew that, at times, at least, the said
Owens and Sloan were not on good terms. He knew person-
ally of several quarrels between them. The witness knew the
State's witness James Brown, and knew that he and the de-
fendant were not on friendly terms. He did not think they
had been friendly since their first difficulty, of which Brown
testified. Witness also knew Jane Davenport, whose reputa-
tion for truth and veracity he knew to be so bad that she was
not entitled to credit on oath.

Louis Sitterlee testified, for the defense, that he was one of
the proprietors of Sitterlee's saloon in Victoria, and was in his
saloon on the night of the killing. Sloan was in that saloon

Digitized by VjOOQIC

Z64: 27 Texas Court of Appbals. [Galveston

statement of the case.

conducting himself in a disorderly manner, when witness asked
defendant to preserve order. During the evening Sloan and
Felix DuBoise got to scuffling in the billiard room and over-
turned a table. The witness saw both difficulties between the
defendant and the State's witness Brown, about which Brown
testified. During the first quarrel referred to, defendant, whu
was standing at the end of witness's counter, said something
about having his thumb greased. Brown, pulling up his vest
and exposing a pistol in the waistband of his pants, replied:
**I would like to see the color of the man's hair who can get
there quicker than I can." Somebody present pushed Brown
out of the door, when defendant handed witness his pistol, re-
marking: "I don't want a fuss; put my pistol away." At the next
difficulty between defendant and Brown, shots were exchanged,
defendant shooting from the inside and Brown from the out-
side of the saloon. The witness knew that defendant and
Sloan were friends, but knew nothing about the personal feel-
ing between Owens and Sloan.

Ed. Hathaway testified, for the defense, that one evening, a
few days prior to the killing of Sloan, he and Sloan took a seat
in a door at Schwartzes corner. Owe.ns passed without speak-
ing while they were sitting there, and Sloan remarked: "Owens
is the only enemy I have in Victoria, and I am afraid that he
and I will have trouble some time." The witness had often
before heard Sloan speak of Owens being at enmity with him,
and he had often heard him, Sloan, speak of the friendship ex-
isting between himself and the defendant.

Tom Hathaway testified, for the defense, that he met R L
Owens on the streets of Victoria, between six and seven o'clock,
on the morning after the killing, and went with him to a saloon
to get a drink. While standing at the bar the witness, who
havl just heard of the killing, proposed to Owens to go and see
Sloan's body. Owens replied: **I don't want to see the damned
son of-a-bitch."

George Williams testified, for the defense, that while he was
in Sitterlee's saloon on the fatal night he heard Owens and
Sloan at the bar counter, quarreling. They appeared to be
quarreling about the spilling of some whisky. Owens said
to Sloan: "It was a damned dirty trick," or "you did me a
damned dirty trick" — the witness was not certain which.
Owens made some other angry remarks, which witness could
not now recall.

Digitized by VjOOQIC

Term, 1889.] Thuriionb v. Thb Statb. 865

Statement of the case.

Henry Ragland was recalled by the defense, and testified
that, judging by their close association, he considered the de-
fendant and Sloan, up to and including the time be last saw
them together, to be good friends. The feeling between Owens
and Sloan, to judge from appearances, was alternately good
and bad. They had several quarrels to the personal knowledge
of the witness. Owens testified, under oath, before the coro-
ner's jury, that he knew nothing whatever about the killing of
Sloan. He repeated that declaration under cross examination
by the jurors.

Joe Sitterlee testified, for the defense, that he and John Strat-
ton were in Sitterlee's saloon, playing billiards, on the fatal night,
when somebody came into the saloon and reported the killing
of Sloan. Defendant, Owens and others were present. Some-
body remarked: "It can't be true that Sloan is dead.". De-
fendant then proposed to Owens: "Let's go and see if it is
true." Owens refused to go. Defendant repeated his propo-
sition, and Owens again refused, when defendant remarked to
him, Owens: "Since you refuse to go and see about it, perhaps
you are the man who killed him." Owens replied: "By God,
that's what I am; and (exposing his pistol) here is the thing
that did it." He, Owens, then staggered to the bar, and called
the crowd to drink with him. Speaking to witness, Mr. Strat-
ton said: "Let's get out of here," and he and witness left.
Meeting Owens on the next morning, Owens said to witness:
'Ton had better keep your mouth shut. Some cases are yet
standing against you, and me and my friends can break your
neck." Stratton corroborated this witness as to the conversa-
tion between defendant and Owens in the saloon.

Henry Jones testified, for the defense, that soon after the
killing of Sloan, and before the indictment of the defendant,
he met Owens in a saloon in Victoria, and said to him: "Lee
(Owens), some people seem to think that Al. Thurmond had
something to do with, or knows something about, the killing
of Sloan.'* Owens replied: "No, Al. knows nothing about it,
and I am damned glad he doesn't, as he and Sloan were
friends."

Allen Nelson testified, for the defense, that, on the evening
of the Sunday preceding the killing of Sloan, the said Sloan,
witness and defendant were sitting together on the court house
steps. Owens's name was mentioned, when Sloan remarked:
"I have heard that Owens has said that the next time I get

Digitized by VjOOQIC

366 27 Texas Court of Appeals. [Galveston

Statement of the case.

drunk and make a play at him he will take me in. I am on a
spree now, and I believe I will go down and tackle him and see
if he will take me in." Defendant said to Sloan: "You had
better let Owens alone; he might fool you." Sloan replied:
"He is not quick enough," and went down the street. The
witness knew as a matter of fact that defendant and deceased
were on particularly friendly terras.

C. L. Thurmond, Jr., testified, for the defense, that he was
the son of the sheriff of Victoria county, and was himself a
deputy sheriff of that county, and held that position during
the time the defendant was confined in jail on the charge of
killing Sloan. A day or two after the arrest of the defendant,
the State's witness James Brown came to the jail and requested
an interview with defendant. Witness told defendant that
Brown wanted to see him, and advised him to have nothing to
say to or do with Brown, as he did not think Brown was
friendly to him. Defendant replied that he did not want Brown
admitted unless accompanied by a sheriff or deputy sheriff.
Brown never afterward called at the jail to see defendant.

Dick Klamberg testified, for the defense, that he saw the oflS-
cers taking Sloan to jail on the fatal night, and a half or three-
quarters of an hour later saw the defendant standing on
Schwartz's corner. Nobody was then with defendant. Wit-
ness knew as a matter of fact that defendant and the State's
witness Brown were not friends, and had not been friendly
since their first diflSculty in Sitterlee's saloon. The State's wit-
ness Brown and Owens were good friends, so far as appear-
ances go. They associated with each other a great deal, and
the witness had often seen Brown go to the store of 'Owens's
brother, hunting Owens. Brown always appeared to witness
to hunt for Owens as an associate, and never to avoid him.

Kate Coleman testified, for the defense, that on the night of
and a short while before the killing, Sloan came to her house
and asked for Judge Coleman. He said that he had just es-
caped from jail and wanted protection; that Owens and an-
other man, whom he did not name, were after him, and he was
afraid they would kill him. Witness tried to get him to bed in
her house, but he refused to go into the house, and left, saying he
was going home to see his mother. During the time that witness
and Sloan were talking at the gate, a man, whom the witness
distinctly recognized as R. L. Owens, passed rapidly on the op-
posite side of the street. When Owens reached Silas's comer

Digitized by VjOOQIC

Term, 1839.] Thurmond v. The State. 367

statement of the case.

Sloan left the witness in a run toward Barnes's corner. Wit-
ness then went into the house, and had taken off her shoes,
laid down and covered up when she heard the shooting. The
witness testified on the examining trial of Owens, but did not
state on that trial that in the man who passed her house on the
opposite side of the street she recognized Owens, because she
was not asked if she recognized theman. When witness last
saw Sloan he was at or near Barnes's corner, in a run. Barnes's
said corner was distant from witness's house the length of a
block and the width of a street. ' The Olnock house was across
the street from the Barnes corner.

Gus Albrecht testified, for the defense, that he was an eye
witness to the killing of Sloan, viewing it from Mrs. Olnock's
gate, which was across the street, northwest from the north-
west comer of the public square. The witness had been stand-
ing at that gate fifteen or twenty minutes when he saw Sloan
running towards the Barnes corner from the direction of Eate
Coleman's house. About the same time he saw R. L. Owens
approaching the Barnes corner from the direction of Jane
Davenport's house. Owens and Sloan met at the Barnes cor-
ner, when Owens said to Sloan: "By God, I have got you nowl'*
and drew a pistol from his overcoat pocket. Sloan said : * *I know,
Mr. Owens, that you are 'going to kill me, but for Gtod's sake
let me say my last prayer." The words had scarcely passed
Sloan's lips when Owens fired. Sloan fell, and Owens in a
very few moments fired two more shots into the prostrate
body, and left, going back over the route ho had come. The
defendant was not present at the killing, nor was any other
person •present or near, that the witness saw. The distance
intervening between the Witness and Owens and Sloan at the
time of the shooting was the width of the street. The witness
knew Owens well, and recognized him by the outline of his
figure, his voice and, at the fiashes of the pistol, by sight. He
had, however, recognized him before he reached the corner.
The moon, although occasionally obscured by fioating clouds,
was shining.

Continuing his testimony this witness said that he was at
Mrs. Olnock's gate to meet a negro girl with whom, earlier in
the night, he had made an appointment. Immediately after
the shooting the witness went home over a route the mean-
ders of which he detailed. It was then a little after eleven
o'clock. He fixed the hour by the fact that, while standing at

Digitized by VjOOQIC

868 27 Texas Court of Appeals. [Galveston

Statement of the case.

Mrs. Olnock's gate he heard her clock strike eleven. The wit-
ness went to bed immediately, on reaching home, sleeping with
his brother. He did not go to town on the day following the
killing, but went on the day succeeding that, and met Joe Sit-
terlee on the street, to whom he divulged the circumstances of
the killing. Joe Sitterlee then called deputy sheriff C L. Thur-
mond, Jr., who went with witness to a magistrate, where a
complaint charging Owens with the murder of Sloan was filed.
The witness was at Buck Bates's house about nine o'clock that
niglit, but remained a short time only. From Bates's house he
started to the railroad section house, about two miles north of
town, and was on his way to the section house when he met
the negro girl and arranged to meet her at Mrs. Olnock's gate
and go home with her. It was not true that witness slept at
Bates's house, with George Bates, on the night of the killinj?,
and was in bed with George Bates when the shots were fired,
and was awakened by George Bates and askfed by him if he
heard the shooting. It was about nine o'clock when witness
left Bates's house, and it was about half-past twelve when he
got home. He did not, on reaching home, tell either his brother
or mother about seeing Owens kill Sloan. He got up next
morning and ate breakfast with his mother and brother, but
did not go to town on that day. When Sloan fell, his head lay east
Owens then, without changing position, fired two more shots.

The defense rested.

George Bates was the first witness called by the State in re-
buttal. He testified that he lived at the house of his aunt,
Ann Bates, between a half and three quarters of a mile distant
from the Barnes corner where Sloan was killed. Gus Albrecht
slept with the witness in the house of the said Ann Bates all
night, of the fatal night. He came to the house between seven
and eight o'clock, remained all night and left between seven
and eight on the next morning. The shots which killed Sloan
aroused the witness, and he waked Albrecht and asked him if
he heard the shooting. Witness heard other shots on that
night, but paid no attention to them.

Jake Wertheimer, Ed Sitterlee, Louis Sitterlee, Ragland and
Oahill, as impeaching witnesses for the State, testified that the
reputations of Gus Albrecht and Kate Coleman, for truth and
veracity, in the neighborhood of their residence, were bad.

John Power, Buck Power and Dave Emerson were then
called by the State as witnesses to support the reputation, for

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 369

Btatement of the case.

truth and veracity, of the State witness James Brown. The
predicate established by these witnesses is the subject matter
of the ruling of this court as announced in the second head
note of this report. They testified that they lived in the Mis-
sion Valley neighborhood in DeWitt county, and that, for sev-
eral years, until about eighteen months before this trial, James
Brown lived in the said neighborhood, during which time they
knew him well. During his said residence in the Mission
Valley neighborhood, the reputation for truth and veracity of
the said witness Brown was above reproach. They did not
know what reputation in this respect the said witness has
borne in Victoria county during the eighteen months of his
residence in that county. Emerson further testified that he
and R. L. Owens slept together at Owens's father's house on
the night of the killing. When witness got up for breakfast
about eight o'clock he waked Owens, but Owens did not get
up. The State closed.

Mrs. Albrecht and Valentine, the brother of the defense wit-
ness Qus Albrecht, testified, for the defense, in the most posi- .
tive and circumstantial manner, that the said Gus Albrecht
came to his said mother s house between twelve and one o'clock
on the fatal night, and went to bed and slept with Valentine
Albrecht throughout the said night.

John Harris testified, for the defense, that he passed Barnes's
comer about eleven o'clock on'the night Sloan was killed, and
in passing the said corner saw Gus Albrecht standing at Mrs.
Olnock's gate. When he reached the east side of the court
house square the witness met the negro girl Harriet Johnson,
who asked him if he knew where Gus Albrecht was. Witness
told her that Gus was then standing at Mrs. Olnock's gate.
He then went to Jecker's saloon, and had about reached that
saloon when he heard three shots fired at or near the Barnes
comer.

The charge of the court referred to in the sixth head note of
this report reads as follows: "IIL If the jury believe from
the evidence that the deceased was unlawfully killed by the
defendant, as charged in the indictment, and that the witness
Lee Owens was present, and, knowing the unlawful intent of
the defendant, did aid by act, or encourage by word or gesture
the defendant in the commission of the offense; or, if they be-
lieve that the deceased was unlawfully killed, as charged, by
the defendant, and that the witness Owens, knowing that the

Digitized by VjOOQIC

870 27 Tbxas Court of Appeals. [Galveston

Opinion of the court.

defendant had committed the offense, did in any manner aid
the defendant to escape arrest or trial — in either case the testi-
mony pf Owens will not be sufficient to justify the jury in con-
victing the defendant, unless the jury believe that the testi-
mony of said witness is corroborated by other evidence of some
material fact or facts tending to convict (connect?) the defend-
ant with the commission of that offense; and the corroboration
is not sufficient if it only shows that the offense has been com-
mitted; but, to be sufficient, the corroborative evidence must
tend to connect the accused with the commission of the offense.
This rule of law, however, does not require that the corrobora-
tion itself, disconnected with the testimony corroborated, shall
establish the guilt of the accused."

A. S. Tliurmond filed an able and elaborate brief and argu-
ment for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

HuBT, Judge. This conviction is for murder in the second
degree, with fifteen years imprisonment in the penitentiary
assessed as punishment.

The indictment was presented in the district court of Victo-
ria county. That court, of its own motion, sent the case to De
Witt county. After this order was made, but on the same day,
appellant moved to vacate it, and requested the court to send
the case to some other county, upon the ground that there ex-
isted in De Witt county a combination of influential persons
against him, etc. This motion was overruled and appellant
excepted.

In this there was no error. The change of venue being made
by the court on its own motion, and not at the request of the
appellant, when the cause was called for trial in De Witt
county, if there existed any ground for a change of venue
from that county, appellant could bring it forward; he was not
depri^red of this right by the order made in the first instance.

The witness Brown testified to confessions of appellant.
« The State introduced several witnesses who swore that his rep-
utation was good. Appellant objected on the ground that the
witnesses did not qualify themselves to speak to his reputation,
etc. The facts were that the sustaining witnesses for years
lived in the same neighborhood with Brown, and so lived until

Digitized by VjOOQIC

Term, 1889.] Thurmond v. The State. 371

Opioion of the court.

eighteen months before the trial, at which time Brown moved
to Victoria. Under these facts the witnesses were competent
to speak to the reputation of Brown, notwithstanding he had
moved out of their neighborhood and had been in Victoria for
eighteen months.

We also hold that Wertheimer, Ed Sitterlee, Cahill, and
Louis Sitterlee show themselves competent to speak to the
character of Albrecht.

Appellant's sixth assignment is: **That the court erred in
failing to instruct the jury upon the law governing impeach-
ing testimony." We do not think, unless it be under extraor-
dinary or peculiar circumstances, that it would be necessary or
even proper for the court to charge the jury upon this matter.
Such a rule was announced in Henderson's case, 1 Texas Court of
Appeals, 432, but the rule has never been enforced indiscrimi-
nately, and its correctness as a general one is, to say the least
of it, questioned in Rider's case, 26 Texas Court Appeals, 334.

The witness Albrecht swore that he saw the killing; that
Owens, and not appellant, shot and killed deceased, and that
appellant was not present when the killing occurred. The
State proved by several witnesses that Albrecht's character for
truth was bad. Appellant offered to prove that, on the exam-
ining trial and at other times, he swore to the same facts. Ob-
jection by the State was sustained, and defendant reserved his
bill. In this there was no error. (1 Whart. Ev., 570, 571.)
Williams v. The State, 24 Texas Court of Appeals, 637, is not
in point.

The eighth assignment is that the court erred in faiUng to
instruct the jury that, if they believed that Owens killed de-
ceased, or if they had a reasonable doubt whether or not Owens
killed deceased, they should acquit defendant. The cases cited
in support of this proposition are not in point, except Black v.
The State, 1 Texas Court of Appeals, 368, and in that case the
charge was requested and refused. In King v. The State, 9
Texas Court of Appeals, 515, it is held that if the reasonable
doubt is applied to the whole case, that will suflSce. '*

Ninth assignment: "The court erred in failing to charge all
the law relating to the necessity of corroborating a witness
who was an accomplice." The court's charge upon this subject
was full, correct and applicable.

The tentji assignment is that the court erred in charging the
jury **that they might convict defendant if they believed from

Digitized by VjOOQIC

27a 3?i|

27a_404)

I 27 872i

I 30 537

872 27 Texas Court of Appeals. [Galvestoo

Syllat^us.

the evidence that the witness Owens killed deceased, and that
defendant was present, and, knowing the unlawful intent of
Owens, did aid him by act or encourage him by word or ges-
ture in the commission of the offense." The objections to this
charge are, first, that there is no allegation by the State of this
state of facts. Answer to this: None were required. Sec-
ond. That there was no evidence warranting this charge.
Answer: There were cogent facts demanding this charge.

Eleventh assignment: '*The court erred in refusing to give
the following at the request of defendant: *You are further
instructed that, if you believe from the evidence that the wit-
ness Owens was testifying to save himself from punishment
or moral obiiquy of guilt, then his testimony can not be con-
victed upon, unless corroborated as the evidence of an accom-
plice.'"

There was no error in refusing this charge. In fact, the
charge of the court is correct in every particular, being a clear
and pertinent application of the law to every phase of the
case.

There was no error in overruling the motion for new trial
The witness Owens was very strongly corroborated by the at-
tending circumstances, as well as by the testimony of several
witnesses to distmct facts, quite corroborative in their charac-
ter.

We have found no error in the matters complained of by ap-
pellant, nor any other for which the judgment should be re-
versed, and it is affirmed.

Affirmed.

Opinion delivered March 16, 1889.

No. 2730.

Juan Trbvinio v. Thb State.

1. Indictment— Grand Jury— Practice.— The defendant's motion ta
set aside the iDdictment was based upon the statutory ground that a
person not authorized by law was present when the grand jury delib-
erated and voted upon the accusation against him. It appears by the
defendant's bill of exceptions that the grand jury for the term was
duly organized on December 8, and that it wad discharged for the term

Digitized by VjOOQIC

Term, 1889.] Trbvinio v. The State. 373

statement of the CAse.

on December 13; that soon afterward the court took a recess, and, upon
reooDTenin^? after the recess, ordered the sheriff to reassemble the six-
teen persons selected originally by the Jury commissioners at the Jane
term to serve at the said December term, viz., the twelve who had been
imi>aneled and the four who had not. Of the sixteen thas summoned,
the twelve who had, and one W., who had not, been impaneled reas-
sembled, when one of the said twelve was excased by the court, and
the said W. was placed upon the panel in his stead. The contention
of the defense is that the trial coui t had no power to excuse the grand
Juror after he had been duly impaneled; that the status of the excused
person as a legal grand Juror was not affected by the action of the
court, and that the legal effect of impaneling the substituted juror,
W., was to create an unconstitutional grand jury of thirteen persons;
and that the presence in the grand jury room of the said W. was the
presence of ^'a person not authorized by law.^ Held, that the motion
to set aside the indictment was properly overruled, and that the action
of the court was correct, as conforming to article 891, of the Code of
Criminal Procedure, which provides as follows: ^^When a grand jury
has been discharged by the court for the term, it may be reassembled
by the court at any time during the term, and in case of failure of one
or more of the members to reassemble, the court may complete the
panel by impaneling other qualified persons in their stead, in cuscord-
ance with the rules prescribed in this chapter for completing the grand
Jury in the first instance/' See the opinion in extenso for an elucida-
tion of the question.

1 AssAVur TO Murder— EviDBNCR— Intent.— An assault and a specific
intent to murder are two elements which must concur in order to con-
stitute the offense of assault with intent to murder. The intent must
be established as an inference of fact to the satisfaction of the jury,
hot the' jury may draw that inference, as they draw all others, from
any fact in evidence which to their minds fairly proves its existence.

t Samb^-Presumption— Fact Case.— If the assault is voluntary, is com-
mitted with deliberate design, and with 'an instrument capable of pro-
ducing death, and there are no extenuating circumstances, it is an as-
sault with intent to murder. And '^whenever it appears upon a trial
for assault with intent to murder that the offense would have been
murder had death resulted therefrom, the person committing such as-
sault is deemed to have done the same with that intent." See the
statement of the case for evidence held sufficient to support a convic-
tion for assault with intent to murder.

Appeal from the District Court of DeWitt. Tried below
before the Hon. H. C. Pleasants.

The conviction in this case was for an assault with intent to
murder Lorenzo Hernandez, in DeWitt county, Texas, on the
eighteenth day of January, 1889. The penalty assessed against
the appellant was a term of three years in the penitentiary^

Digitized by VjOOQIC

874 27 Texas Court of Appeals. [Galveston

Statement of the case.

Lorenzo Hernandez was the first witness for the State. He
testified that on the day alleged in the indictment^ while be,
Tulerio Trendez and Bias Martinez were standing at the cor-
ner of Keller's store in Cuero, DeWitt county, they were joined
by the defendant, who asked Tulerio about getting some work.
Tulerio told him of some parties who were building a brick
house in town, and paying their hands a dollar and a half per
day, and of some other parties with a contract to furnish wood,
who were paying woodchoppers a dollar and a quarter per
day. The defendant replied that he would not work for as
little as a dollar and a half a day, which was too cheap, aud
remarked: "I have heard that there are some Mexicans who
have been cutting wood for seventy-five cents a day." Wit-
ness then asked defendant: "Do you mean that remark for
me? If you do, why don't you come out and say so like a man?*'
Defendant, with an oath, replied: **I can say that to twenty
men like you. If you don't like what I have said, just follow
me and we will settle it." Defendant then walked off towards
the railroad crossing, and the witness followed him at a distance
of about six or eight steps behind. Maintaining this distance
apart, the defendant and the witness crossed the railroad, and
turned down it, at right angles towards Buchel's gin. When
they reached a point about one hundred yards beyond the rail-
road track, and nearly opposite the gin, neither having uttered
a word, the defendant drew a knife from under his coat, with
which he made several thrusts at the witness. The witness re-
treated rapidly, facing defendant, to a point about ten steps
from where the first thrust was made, when the defendant
reached and stabbed the witness in the right side. The witness
fell into a small hollow or depression in the ground, which was
full of mud. Defendant struck two or three more blows at him
with the knife, but witness kept him off by kicking at him
with his feet. Finally the defendant stepped back a step or
two from the hollow, and looked at witness as he lay on his
back. The witness then attempted to get up, when the defend-
ant turned and walked off. The witness, when he regained
his feet after the affray, saw no person near the scene of action.
No person attempted to interfere in the fight, and not a word
was spoken to defendant by any body while the fij^ht lasted.
After the last thrust at witness by the defendant, the witness
told defendant that he had enough. Defendant thereupon
made no other effort to cut or stab witness, but put his knife

Digitized by VjOOQIC

Term, 1889.] Trbvinio v. The State. 875

Statement of the case.

back under his c6at, stepped back and looked at witness who
was still lying in the hollow. The wound inflicted upon the
witness by the defendant was a severe one. The knife struck
him in the left side and made a cut across a rib, about an inch
and a half wide. If the defendant was drunk or drinking at
the time of the trouble, witness did not observe it. Witness
had seen the defendant but two or three times before the affray.
He was unarmed and did not follow the defendant to fight,
but to hear what further the defendant had to say to him.

Tulerio Trendez and Bias Martinez testified for the State sub-
stantially as did Hernandez, as to what occurred at the corner
of the street near Keller's store. Neither of them followed the
parties to the place where the cutting occurred, and could tell
nothing about it.

Amison testified for the State that he witnessed the affray
between the defendant and Hernandez from a wagon at
Buchel's gin. The men were struggling with each other when
witness first observed them. Defendant had Hernandez by the
back of the neck, pushing him. Just about the time the wit-
ness caught sight of the parties defendant stabbed Hernandez
with a knife. They were then in a little depression or hollow
in the ground. As soon as he stabbed Hernandez, who fell,
the defendant stepped out of the hollow, and looked at him for
a very few moments. He then wiped his knife on his coat tail
and put it away under his coat. Defendant struck but one
blow at Hernandez that the witness saw. Hernandez, while
on bis back in the hollow, so far as witness saw, did not kick
at the defendant with his feet, nor strike at him with his hands.
When Hernandez got up he trotted off towards the railroad
crossing, went acroas the railroad and back towards town.
When he had gone ten or twelve steps, defendant started after
him in a brisk trot, and followed him across the railroad. After
crossing the railroad the defendant ran down the cut parallel
with the track, a short distance, and then stopped and stuck his
knife into the ground — the witness following him at a short
distance in his wagon. Defendant then went a little further
down the railroad, recrossed the track, and went into a house
in the yard in the rear of Hausmann's saloon. He left the knife
sticking in the ground. Nobody interf erred in the fight be-
tween defendant and Hernandez. The witness saw but one
Wow given by defendant, and from the positions of the parties
that blow coiild have taken effect in Hernandez's right sid^, but.

Digitized by VjOOQIC

376 27 Tex^^s Court of Appeals. [Galveston

Opiaion of the court.

not in his left. Witness notified Sheriff Breeden, and pointed
out to him the knife and the defendant.

Sheriff Breeden testified^ for the State, that Amison reported
to him the fight between defendant and Hernandez, and led him
to a point near the railroad and pointed out to him a knife stick-
ing in the ground. That knife was a deadly weapon, being a
butcher knife, sharpened at the point, and, including the
handle, about a foot long. Amison theil conducted witness
to a small restaurant in the rear of Hausmann's saloon, and
pointed out the defendant as the man who stabbed Hernandez,
and witness arrested him.

F. B. Proctor y for the appellant

W. L. Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. A motion was made by defend-
ant to set aside the indictment because a person not authorized
by law was present when the grand jury were deliberating and
voting upon the accusation against the defendant. This mo-
tion presented one of the two statutory grounds for which
alone under our practice an indictment can be set aside. (Code
Grim. Proc, art. 5:^3; Willson's Grim. Stats., sec. 2119.) The
facts, as shown by defendant's bill of exceptions, upon which
this motion was predicated, are substantially as follows:

The grand jury for the term was duly organized on the third
day of December. On the thirteenth of December, they hav-
ing informed the court that they had completed their labors,
the court discharged them for the remainder of said teruL
Shortly afterward the court took a recess for perhaps a month.
Upon reconvening at the expiration of its recess, the court was
advised that during its recess or adjournnient several parties
had been arrested for felonies, who had not been indicted and
who were unable to give bond. Upon this information the
court ordered the sheriff to summon the sixteen persons se-
lected originally by the jury conunissioners at the previous
June term for the said December term — the four who had not
been impaneled on the third of December as well as the twelve
who had been, and who had acted up to the time they were
discharged on the thirteenth, as aforesaid. In obedience to the
summons thirteen of the original sixteen appeared and an-
swered to their names; that is, the entire twelve who coniposed

Digitized by VjOOQiC

Term, 1889. J Trkvinio v. The State. 377

Opinion of the court.

the original panel when discharged, and one Wofford, who had
been one of the sixteen selected by the jury commissioners at
the June term. All arrested parties, including defendant,
were brought into court and afforded an opportunity for inter-
posing challenges to the jury, as proposed to be organized, but
no challenges were interposed. Lorance, one of the grand
jury as originally impaneled and previously discharged, asked
to be excused from the panel on account of sickness of his fam-
ily, and the court excused him, and the man Woflford was re-
tained—substituted in his place — to make out the panel of
twelve men, and was, with the other eleven of the old grand
jury, sworn and impaneled, and, as one of the grand jury,
voted upon, found and presented the bill of indictment in thia
case.

It is insisted in substance that the court, under the circum-
stances, had no authority to excuse Lorance, he being one of
the jury as originally impaneled for the term; that, the action
<rf the court being without authority and void, Lorance was,
notwithstanding said action, still a legal member of the jury;
and that the swearing and impaneling of Wofford in his stead
was in legal effect the placing and impaneling of thirteen in-
stead of twelve men, the maximum constitutional and statutory
number allowed for a grand jury; that, such being the case,
Wofford was a person not authorized by law to be present
when the indictment was found; and that, if the court's action
gave him any authority, or constituted him one of the grand
jury, then that body, being composed of thirteen men, was an
illegal body and any indictment found by it was absolutely
void.

If the grand jury was in fact composed of thirteen men un-
der the facts stated, then there can be no question that the in-
dictment would be void. (Lott v. The State, 18 Texas Ct. App.,
«27; McNeese v. The State, 19 Texas Ct. App., 48.) Nor can
there be any question that, after a grand jury is once impan-
eled, it is beyond the authority and province of the court to
excuse or discharge one of its members so as to relieve him
from his obligations and duties as such, and that any attempted
discharge by the court, until the discharge is final for the term,
would be a nullity and void, leaving the juror, in legal effect,
still one of the grand jury. (Smith v. The State, 19 Texas Ct.
App., 95.) The power to discharge during the term, or before
a final discharge of the body after completion of their labors,

Digitized by VjOOQIC

^ 378 27 Texas Court of Appeals. [Galveston

OpiDion of the coart.

is not vested either in the court or the grand jury, and in fact
no such power exists anywhere by authority of law. (Watts v.
The State, 22 Texas Ct. App., 572; Drake v. The State, 25
" Texas Ct. App., 293: Jackson v. The State, Id., 314; Woods v.
The State, 26 Texas Ct. App., 490.)

But all these rules apply alone to a grand jury whose personnel
is fixed by its being organized and impaneled, and during the
existence and continuance of such organization. After a grand
jury has completed its labors and as a body has been discharged
for the term by the court, as a body it ceases to exist, and its
autonomy and personnel are in a measure, if not completely,
changed and destroyed when it is sought to reassemble them.
Our statute upon the subject is that, **when a grand jury has
been discharged by the court for the term it may be reassembled
by the court at any time during the term, and in case of failure
of one or more of the members to reassemble, the court may
' complete the panel by impaneling other qualified persons in
their stead, in accordance with the rules prescribed in this
chapter for completing the grand jury in the first instance."
(Code Crim. Proc, art. 391.)

We think it clear from the phraseology of this statute that it
was within the contemplation and intention of the legislature
that when the grand jury were reassembled they could only be
reorganized and impaneled with twelve men; that there must
be at least that many present; that no less number would
sufSce, and that, if there were not twelve present, the number
should be completed by impaneling other qualified persons to
make up the deficiency to twelve. If this were not the inten-
tion, and they intended the original personnel to control, it is
evident that they would have provided that any nine of the
original body who appeared could be entrusted with the duty
of transacting the business for which they were reassembled,
as is provided in article 390, Code of Criminal Procedure. W©
think it equally clear that when less than twelve appear it is
made the duty of the court to fill up the deficiency, if practicable,
out of the sixteen originally selected by the jury commission-
ers. (Art. 357, Code Crim. Proc.)

We think it equally apparent that, when the jury are re-'
assembled after having once been discharged, they must be
again "impaneled'^; that is, tested as to qualification and sworn
again. (Code Crim. Proc, art 379.) If so, then the jury is in
effect a new one entirely.

Digitized by VjOOQIC

Term, 1889.] Trevinio v. The State. 879

Opinion of the court.

If upon the reassembling twelve are requisite, and twelve
appear, can the judge excuse, for good cause, one of the num-
ber and take another of the original sixteen in his place? There
is no question but that, if the juror had stayed away, the court
would have had the power. Does the fact that he came to
court to render his excuse deprive the court of the authority to
excuse him and place a new man in his stead? He had not
been sworn anew and impaneled it must be remembered, and
we will concede that the court might and could have impaneled
him with the other eleven and left him to settle his excuses with
the foreman and his fellows of the grand jury, who could and
would doubtless have relieved him. Suppose the juror had
appeared and had been insane, will any one for a moment
doubt but that the court not only had the right, but that it
would have been its duty, to excuse and stand him aside and
put another in his place? Before the grand jury had originally
been organized and impaneled would any one doubt that the
court could have excused the juror on account of serious sick-
ness of his family? We think not.

If the intention of the statute is that twelve men must be re-
organized at the reassembly, what would be the use or the com-
mon sense in taking as one of the members a person who could
not act and who would not act because of a good and sufficient
reason why he should be excused from acting? Would the
court do right and be carrying out the intention of the Legis-
lature to impanel such a party? We think not. The law never
requires a useless or unnecessary thing to be done. If the ex-
cuse of the juror was a sufficient one, it would have been use-
less for the court to have impaneled him, knowing that he
would be excused and would not act nor be called upon to act
by the grand jury in the matter before them. To the extent
which the court had the power to hear and grant excuses in
the first instance, it was authorized to act in the second; and
we think the power was exercised in this second legitimately,
and in conformity with the spirit and intention of article 391,
Code of Criminal Procedure.

The court did not err in refusing to set aside the indictment
for the grounds specified. Otherwise the indictment is not ob-
jected to, and is amply sufficient to charge assault with intent
to murder.

But it is most urgently insisted that the evidence is wholly
insufficient to support the verdict and judgment finding appel- ^

Digitized by VjOOQIC

27 Texas Court of Appeals. [Galveston

OpiDion of the court.

lant guilty of assault with intent to murder. It is contended
that the specific offense of intent to murder is not only not
shown, but is disproved by the facts, because, as claimed, ap-
pellant was armed with a deadly weapon with which he stabbed
the injured party, it is true, but without killing him; that he
<30uld have killed him, but he did not do so; on the contrary,
that he discontinued and ceased his assault of his own motion
after having inflicted the single blow with his deadly weapon.

In assaults with intent to murder, the specific intent to kill
is the essential element, and it must be proven to the satisfac-
tion of the jury. *'Two things must concur, an assault and a
specific intent to kill. Without the simultaneous concurrence
of these two constituent elements there can be no assault with
intent to murder." (Willson's Crim. Stats., sees. 857-859; Mc-
Collough V. The State, 24 Texas Ct. App., 128; Moore et al. v.
The State, 26 Texas Ct. App., 322.)

"The intent to kill must undoubtedly be established as an in-
ference of fact, to the satisfaction of the jury; but they may
draw that inference, as they draw all other inferences, from
any fact in evidence which to their minds fairly proves its ex-
istence. Intentions can only be proved by acts, as juries can
not look into the breast of, the criminal." (People v. Scott, 6
Mich., 287-296; 1 Bish. Crim. Law, 7 ed., sec. 735.)

If the assault is volimtary, committed with deliberate design,
and with an instrument capable of producing death, and there
are no extenuating circumstances, it is an assault with intent
to murder. (Yanez v. The State, 20 Texas, 656.) And "when-
ever it appears upon a trial for assault with intent to murder
that the offense would have been murder had death resulted
therefrom, the person conamitting such assault is deemed to
have done the same with that intent." (Penal Code, art. 502.)
We are of opinion the evidence in this case is amply sufficient
to support the verdict and judgment. Having found no re-
-versible error in the record, the judgment is affirmed.

Affirmed.
Opinion delivered March 16, 1889.

Digitized by VjOOQIC

Term, 1889.] Wilks v. The State. 381

Syllabna.

No. 3721.
J. J. WiLKs V. The State.

t Practicb— Disqualification of a District Judge.— A Judge to dis-
qualified to preside at the trial of a criminal case wherein he has been
of counsel either for the State or the accused.

% Same — ^District and County Attorney.— The county attorney of
each couDty Id a Judicial district, except the county in which the dis-
trict attorney resides, is expressly required by law to attend the terms
of the county and other inferior courts of his county, and therein to
represent the State in all criminal cases under prosecution or examina-
tion. The district attorney is not required to aid or asstot the county
attorney in such prose^ations, and the mere fact that a prosecution
carried on by the county attorney may eventuate in the return of an
indictment to the district court which may ultimately be prosecuted
by the district attorney, will not make such district attorney counsel
in the case before the return of the indictment. In this case the
examining trial of the accused was prosecuted by a county attorney
prior to the election of the Hon. Rufus Hardy to the district Judgeship,
and while he occupied the office of district attorney. The indictment
was found subsequent to his election to the district judgeship, and was
presented at a term of court over which he presided. The record fur-
ther shows that the district judge, while district attorney, had no con-
nection whatever with the prosecution of the examining trial. Held
that the objection to the qualification of the judge was properly over-
ruled.

8. Indictmbnt— Yariancb— Idem Sonans.— In the indictment, in one^ *
place, the name of the injured party is spelled ^^Fauntleroy,'* and in
another ''Fontleroy»^^ and the validity of the indictment is attacked
upon the ground of variance in stating the name of the injured party.
But held that the names as set out are idem sonans.

4. Practicb— Continuance— DiLiOENCB.— The application for continu-
ance failiog to show the exercise of legal diligence to secure the absent
testimony, and the said absent testimony, viewed in the light of the
proof on the trial, appearing not to be probably true, the refusal of
the continuance could not constitute cause for new trial.

(fc. Same— Evidence— Bill op Exception.— Objection to evidence ad-
mitted on the trial will not be considered by this court when not pre-
sented by proi)er bill of exception.

^ Assault to Murder— Fact Case. — See the statement of the case for
evidence h^ld sufficient to support a conviction for assault with intent
to murder.

Appeal from the District Court of Nayarro. Tried below
before the Hon. Rufus Hardy

Digitized by VjOOQIC

882 27 Texas Court of Appeals. [Galveston

Statement of the case.

The conviction was for an assault with iatent to murder one
Baylor Fauntleroy, in Navarro county, Texas, on the thirteenth
day of September, 1888. The penalty assessed against the ap-
pellant was a term of five years in the penitentiary.

Baylor Fauntleroy was the first witness for the State. He
testified that, in September, 1888, he was in the employ of the
St. Louis, Arkansas and Texas railway as brakeman on the
passenger train. When the said train arrived at the depot in
Corsicana the defendant and two negro women started to
board it. Witness told defendant to wait until the disembark-
ing passengers could get off. The two negro women soon
mounted to the platform of the smoking car, into which car
the witness directed them to go. Defendant, who meanwhile
, had mounted the second step of the first class coach, and was
holding to the railing, told the women to go into that, the first
class car. Witness asked him; '*Have you a ticket?" Defend-
ant replied: * 'Is that any of your business?" Whereupon the
witness struck him several blows over the head and face with
his fist. While the witness was striking the defendant with
his fists a police officer seized defendant, pulled him off the
steps and arrested both defendant and witness. Very soon
thereafter a second police officer appeared and took charge of
witness, and, at witness's request, took him across the plat-
form to the officers of the railroad in the depot building, to
enable witness to execute an appearance bond. Having ar-
ranged that matter, the witness started back to the train, and
just as he stepped out of the office door to the platform the de-
fendajit struck him a blow with a knife across the side and
back of the neck, inflicting a painful but not a necessarily seri-
ous wound.

Cross examined, the witness said that it was the usual cus-
tom of railway brakemen to cary arms, but that he was un-
armed when he struck defendant, except that, by accident, he
had a razor in his pocket. He struck the defendant with his
bare first and not with "brass knucks." Witness was not a
pugilist, but could strike a severe blow. He owned a pistol at
that time, but it was in the possession of his brother at Qates-
ville, who anticipated serious trouble as the result of a "racket**
in which he and witness had participated a few days before.
This was the first trouble in which the witness had been in-
Tolved. The knife with which the defendant struck the wit-
ness was a three bladed pocket instrument. The blade with

Digitized by VjOOQIC

Tenn, 1889.] Wilks v. The State. 383

Statement of the case.

which the witness was struck was the smaller of the two large
blades, the said blade being an inch and a half or two inches
long. On his re-examination the witness said that when he
left the oflBce to return to the car, after making his bond, he
thought the defendant was on his way to jail with the oflBcer
who had him in arrest. After receiving the cut, the witness
tried to reach the car to get a coupling pin with which to defend
himself, and observed the defendant with the open knife in his
hand struggling with two police officers, and trying to get to
him, witness. It was the duty of the witness as brakeman to see
that no person entered the car without a ticket. He did not
know whether or not defendant was aware of that fact.

City policeman Pittman, who arrested defendant while Faun-
tleroy was striking him, corroborated the testimony of Faun-
tleroy in detail, and, in addition, stated that while City Marshal
Cubley had Fauntleroy in the office, making his bond, he, wit-
ness, guarded defendant at the side of the office door, and was
there with him about fifteen minutes before Fauntleroy came
out. Defendant cut Fauntleroy just as the latter stepped
out of the office. Witness then seized him, and with the as-
sistance of Cubley subdued and disarmed him. Upon being
disarmed the defendant exclaimed: '^Revenge I wanted, and
revenge I have, if I die for it.'*

City Marshal Cubley testified, for the State, that he appeared
upon the scene just as Pittman was dragging defendant off the
car steps. Pittman requested witness to take charge of Fauntle-
roy; which the witness did. After holding Fauntleroy on the
platform five or six minutes, he took him into the office to make
bond for his appearance before the recorder's court. Witness pro-
duced a blank bond, which was filled out and signed and deliv-
ered to him. They were in the office five or six minutes when
Fauntleroy, ahead of witness, started out of the office to the
train. Just as Fauntleroy stepped out of the office the witness
heard, but did not see a blow. He thereupon rushed out and
found Pittman struggling with the defendant, who, with an
open knife in one hand, was trying to get at Fauntleroy. Wit-
ness and Pittman finally subdued the defendant, and witness
took from him a pocket knife, the open blade of which was be-
tween two and two and a half inches long.

John Roberts testified, for the State, that he was on the plat-
form at the time Fauntleroy was cut by defendant, but did not
see the cutting. He saw Fauntleroy standing near the train.

Digitized by VjOOQIC

884 27 Texas Court op Appeals. [Galvestoii

statement of the case.

and saw Cubley and Pittman struggling to disarm the defend-
ant. When they secured the knife, the defendant exclaimed:
'•Revenge is what I wanted, and revenge is what I have, and
now you can kill me if you want to!'*

The testimony of James Craft, for the State, though not as
full, did not vary materially from the witness Pittman as to
what occurj^ed on the platform and at the oflBce door at the time
of the cutting. He could not repeat the exclamation made by
defendant when disarmed. The State closed.

Martha Turner, one of the negro women who were with de-
fendant at the time of the difficulty, testified, for the defense,
that when she and her companion got on the car platform, the
brakeman told them to go into the smoking car. Defendant,
who was then upon the steps of the first class car, told them to
go into that car. The brakeman asked defendant if he had a
ticket. Defendant replied: **That is none of your business,"
whereupon the brakeman struck defendant several blows on
the face and head with his fist, causing the blood to flow. De-
fendant and the brakeman were then arrested. Witness saw
none of the subsequent proceedings.

Green Jamieson, one of the parties named in the defendant's
application for continuance as an absent witness, appeared and
testified for the defense, substantially as did Fauntleroy, for the
^tate, except that he did not hear the conversation between
Fauntleroy and the defendant and the negro women, which
preceded the difficulty.

The application for continuance was filed January 21, 1889.
For diligence it showed that affiant, on the fourth day of Janu-
ary, 1889, sued out subpoenas for Green Jamieson, R Hall, J.
Matilla and B. Collins, and placed the same in the hands of the
sheriff for service; that up to the day of the filing of this appli
cation, he verily believed all of said witnesses resided in Na-
varro county, but that on this day he was informed that Hall
was a resident of Dallas county, Matilla, as shown by the offi-
cer's return, a resident of McLennan county, and Collins of
Limestone county. In this connection the application prayed
for attachments to Dallas, McLennan and Limestone counties
for the said witnesses. The application then stated that the
affiant expected to prove by the said witnesses that, just prior
to the alleged assault, he was beaten over the head most brutally
and mercilessly by Fauntleroy, who in beating him used a pair
of "brass knucks"; that the said beating was administered by

Digitized by VjOOQIC

Term, 1889.] Wilks v. The State. 385

Opinion of the court.

Fauntleroy without provocation, and that the said alleged as-
sault was committed immediately after the said beating ad-
ministered by Fauntleroy, and while Fauntleroy was in an
attitude to continue said beating.

R. B. Molloy and Croft, Blanding <b Croft, for the appellant.

W. L. Davidson^ Assistant Attorney Gteneral, for the State.

White, Presiding Judge. Appellant insists that the judg-
ment should be reversed because the trial judge was disquali-
fied from trying the case. This point was made in the court
below, and the facts pertaining to the question are matters of
record. From these it appears that at the time the offense was
committed the Honorable Ruf us Hardy, who, as judge of the dis-
trict court (recently elected), presided at the trial, was the dis-
trict attorney of his district, one of the counties being Navarro,
the county in which the offense here prosecuted was committed.
After its commission appellant was arrested and tried before
an examining court, at which trial he was prosecuted by the
county attorney. This was before Judge Hardy's election as
district judge. After his election this indictment was found
and presented in his court. It is shown by the bill of excep-
tions that he not only did not participate in the prosecution of
the case before the examining court, but that in fact he never
had heard of the case or had any connection whatever with it
until, as district judge, he called the case upon the docket for
trial.

A judge is inhibited from sitting in a criminal case when be
has been of counsel for the State or the accused. (Const., art.
5. sec. 11; Code Crim. Proc, art. 569; Thompson v. The State,
9 Texas Ct. App., 649; Cock v. The State, 8 Texas Ct. App., 659;
Railroad v. Ryan, 44 Texas, 426.)

It is only in counties where the district attorney resides that
the county attorney does not perform the usual functions of his
office. (Rev. Stats., art. 247.) In all other counties where there
is a county attorney it is made his duty expressly *'to attend
the terms of county and other inferior courts of their respec-
tive counties, and to represent the State in all criminal cases
tmder prosecution or examination in such courts," etc. (Rev.
Stats., arts. 241, 247a, Sayles.) The district attorney is not re-
quired to aid or assist in such prosecution; and the fact that

Digitized by VjOOQIC

37 386

I 28 800
I 29 4M

386 27 Texas Court op Appeals. [Galveston

Syllabus.

the prosecution may eventuate in the finding of an indictment
which he may ultimately have to prosecute in the district court
can not and will not maJse him counsel in the case until the in-
dictment has been found. In this case, the judge having had
no connection with the case in any manner whatever as counsel,
was not disqualified from trying it.

Defendant's motion to quash the indictment was based upon
a variance in the mode of spelling the name of the assaulted
party and the party intended to be killed — the diflFerence being
that in one instance it was spelled Fauntleroy and in the other
Fontleroy. If there was any such difference, then it amounted
to nothing because the two names are idem sonans.

No error is made apparent on account of the overruling of
defendant's application for a continuance. Sufficient diligence
is not shown, and if it had been then we think it apparent
from the trial evidence that the proposed testimony is not prob-
ably true.

Objections to the admission of evidence were not saved by
bills of exception, and consequently are not entitled to be con-
sidered. The charge of the court was a full and fair presenta-
tion of law to all the legitimate phases arising upon the evi-
dence, and there was no error in refusing the special requested
instructions.

In our opinion the evidence is amply sufficient to 8upi>ort the
verdict and judgment. The judgmeht is affirmed.

Affirmed.

Opinion delivered March 16, 1889.

No. 2684.

LoN WiLLARD r. The State.

Corpus Bblicti— Evidence.— The criminal act and the defendants
agency in prodadng the act are issues which the State must prove in
order to warrant a conviction for crime. Bat such issues may be ee-
tablished by circumstantial as well as direct evidence, and the legal test
of its saffloiency is whether it satisfies the understanding and oonscieoce
of the jury beyond a reasonable doubt.

Digitized by VjOOQIC

Term, 1889.] Willard v. The State. 387

Statemeot of the case.

t Same— Confession.— A naked confession is not sufficient of itself to
sappoit a conviction. See the opinion on the subject.

8. Same— Charge of the Court.— Upon the ground that, independent
of the confession of the defendant, the State had adduced no proof
of the corpus delicti^ the defense requested the trial court to in-
struct the Jury, in effect, that before they could consider the confes-
sion of the defendant as inculpatory evidence, the proof of the corpus
delicti must be absolute and beyond a reasonable doubt. One of the .
grounds upon which the court refused the requested instruction wa
that the State, under the peculiar circumstances of this case, was en
titled to have the confession considered by the jury. Held, that the
rtiling, in view of the other proof in the case, and of the general
charge as given by the court, was correct. See the opinion on the
qufstion.

4. Cattle Theft— Fact Case.- See statement of the case on this and
the former appeal (26 Texas Ct. App., 126), for evidence Tield sufficient
to support a conviction for cattle theft. And see the statement of the
CRse for the general charge of the coart referred to in the preceding
head note.

Appeal from the District Court of Eastland. Tried below
before the Hon. T. H. Conner.

This appeal is from a second conviction for cattle theft. (See
Lon Willard v. The State, 26 Texas Ct. App., 136.) Two years
in the penitentiary was the penalty assessed against the appel-
lant on this trial.

Except Ainsworth, who was not introduced on this trial, the
witnesses who testified on the former trial, and whose testimony
is set out in the former report, testified to substantially the
same facts on this trial. Only the additional testimony adduced
on this trial is set out in this report.

J. W. Hague testified, for the State, that the alleged stolen
cow was one of a number in the same brand that belonged to
him, but which at the time of the alleged theft was in the care,
management and possession of J. S. HoUoway. The witness
knew the cow well, not merely by her brand, but by the peculi-
arity of her horns as described by the witness HoUoway. The
witness went to the house of the defendant soon after the al-
leged theft, and, in the presence of defendant, told his brother,
Ed Willard, that he would be able to tell by the horns whether
or not the cow killed by them was his, witness's, cow, and that
if he, Ed. Willard, would show him the head, and the horns did
not prove the identity of the cow, he, witness, would go on the
witness stand at the trial and swear that the said cow was not

Digitized by VjOOQIC

388 27 Texas Court op Appeals. [Galveston

Statement of the case.

iiis, and would thus secure defendant's acquittal. Ed. Willard
replied that he did not know where the head was ; that he took
it oflf the stable to show it to Mr. Ainsworth, and then threw it
on the ground and had not seen it since, and that he supposed it
had been carried off by a dog or a hog. Defendant said nothing
during the conversation between witness and Ed. Willard.

Sheriff Schmick testified, for the State, that the defendant
was one of several prisoners who escaped from the Eastland
jail oh November 24, 1888, by cutting out through the roof. He
was afterwards re-arrested in Tom Green county. Witness did
not know which of the prisoners who escaped contrived the
means of getting out.

Judge J. T. Hammons testified, for the defense, that shortly
after the alleged theft, J. S. Holloway, in a conversation with
him on the steps of the court house in Eastland, told him that
he found a head and horns which he believed to be the head and
horns of the cow referred to in the indictment, but that he was
afraid that that would not amount to evidence enough to con-
vict defendant, although it would do to put him to some trouble.

Major J. H. Davenport testified, for the defense, that he was
present at the former trial of this case, and on that occasion
heard the testimony of J. S. Holloway, including his description
of the alleged stolen cow. After that trial witness saw a cow in
the town of Eastland with horns similar in shape to the descrip-
tion given by Mr. Holloway. Witness could not state the age,
color or brand of the cow he saw in Eastland.

In so far as under the rulings of this court it is necessary to be
set out, the charge of the trial court reads as follows: "* * * 5.
You are instructed that in this case the State relies on circum-
stantial evidence in order to establish the guilt of defendant of
the crime charged. In considering this character of evidence,
you are instructed that, in order to warrant a conviction of a
crime, each fact necessary to the conclusion sought to be estab-
lished, must be proved by competent evidence beyond a reason-
able doubt. All the facts must be consistent with each other,
and with the main fact sought to be proved; and all the circum-
stances taken together, must be of a conclusive nature, leading
on the whole to a satisfactory conclusion, and producing in
effect a reasonable and moral certainty that the accused and
no other person comnytted the offense charged. And in this
case, if on consideration of the evidence, there is any reason*
able hypothesis consistent with the facts proved to your satis-

Digitized by VjOOQIC

Tenfi, 1889.] Willard v. The State. 389

Statement of the case.

faction, and inconsistent with the guilt of the defendant, he
should be acquitted."

'7. I will now apply the law above given you to the facts
of this case. If you should find from the evidence that the de-
fendant, Lon Willard, on or about the fifteenth day of January,
1888, or at any time within five years prior to the time of the
filing of this indictment, which was the thirtieth day of May,
1888, and in the county of Eastland, and State of Texas, did
then and there fraudulently take the particular cattle mentioned
in said indictment; and should you further find that, at the
time and place of such taking by defendant, the J. S. HoUoway
mentioned in the indictment then and there had and exercised
the actual care, custody and control and management of the
animal so taken, and that said animal was so taken by the de-
fendant without the consent of the said J. S. HoUoway, and
with intent then and there, on defendant's part, to deprive the
owner of the value of the said one cattle, and to appropriate it
to the use and benefit of himself, defendant, then and in such
case defendant would be guilty as charged; and if you so find
the facts you will find him guilty and assess his punishment at
confinement in the penitentiary not less than two nor more
than five years.

''8. In considering this cause if you should believe from the
evidence that the one cattle described in the indictment was in
fact stolen as alleged, yet if the evidence should raise in your
minds a reasonable doubt that defendant is the person who
committed the offense charged, you should acquit him; that is,
if from the evidence you should find that defendant's brother,
Ed Willard, or Fordy House, or some other person other than
defendant, committed the offense charged, if committed at all,
you should acquit; or if from the evidence you have a reason-
able doubt as to this you should give the defendant the benefit
of the doubt and acquit him."

"10. Again, if the cow's head and horns found by HoUoway
in the WiUard pen (if he found one) was the head of some other
animal, and not the head of the animal about which he testi-
fiedy then defendant should be acquitted; or if from the evi-
dence you have a reasonable doubt as to this question, defend-
ant should be given the benefit of the doubt. You are further
instructed that the defendant is presumed by law to be innocent
until his guilt be established by legal evidence, and if from the
evidence before you you have a reasonable doubt as to the de-

Digitized by VjOOQIC

390 27 Texas Court op Appeals. [Galveston

Opinion of the court

fondant's guilt you should acquit him. As before given you
in charge, you are the exclusive judges of the credibility of the
witnesses, and the weight to be given to the testimony, and of
the facts proved; but you must receive the law as given you in
charge by the court, and be governed thereby/*

B. F. Cotton, J. T. Hammons and C. F. Clint, for the appel-
lant.

W. L. Davidson, Assistant Attorney Gteneral, contra.

White, Presiding Judge. This is a second appeal from a
judgment of conviction in this case. (See Willard v. The
State, 2G Texas Ct. App., 126.) After a most thorough reading
of the record in this appeal we are of opinion that there is but
one question raised of sufficient moment to require a discussion
at our hands.

It is most urgently insisted that there is no evidence of ap-
pellant's guilty agency in the alleged theft of the animal, save
his own confession, or admissions amounting to a confession,
and that this confession or admission, being uncorroborated, is
not sufficient in law to warrant his conviction. In other words,
it is contended that the corpus delicti of a crime can not be
proven alone by the confessions of a party charged with the
crime.

In all criminal prosecutions the rule is elementary that, to
sustain a conviction, two things must be established, first, a
criminal act, and, second, defendant's agency in the production
of such act. (Whart. Crim. Ev., 8 ed., sec. 325; 3 Greenl. Ev.,
sec. 30.) In other words, there must be proof of the corpits de-
licti and the identity of the prisoner. But, whilst this is so,
there is no one kind of evidence to be always demanded in
proof of the corpus delicti, any more than of any other fact.
It can seldom be proven by direct or positive testimony, and
may be lawfully established by circumstantial evidence, pro-
vided it be satisfactory to the understanding and conscience of
the jury beyond a reasonable doubt. (Brown v. The State,
1 Texas Ct. App., 154, and authorities cited; Merrill v. The
State, 2 Texas Ct. App., 177.)

With regard to confessions, Mr. Wharton says: ** While
voluntary confessions of specific charges or of inculpatory
facts are always admissible under the conditions above stated,

Digitized by VjOOQIC

Term, 1889.] Willard v. The State. 391

Opinion of the court.

they can not sustain a conviction unless there be corroborative
proof of the corpus delicti/^ and he cites a long array of authori-
ties in support of the proposition. (Whart. Crim. Evid., 8ed.,
sec. 632.) "It should be remembered,*' he says, "that the cor-
pus delicti consists not merely of an objective crime, but of the
defendant's agency in the crime, and unless the corpus delicti
in both these respects is proved, a confession is not by itself
enough to sustain a conviction." (Id., sec. 633.)

Defendant's counsel requested a special instruction upon this
point, which the court refused because, as stated by the learned
judge, **not the law as I understand it. A confession in some
cases, uncorroborated, might be insufficient to establish the cor-
pus delicti, but I think certainly in this case the jury may con-
sider defendant's statements in connection with the other proof
in determining the matter." There is no doubt of the correct-
ness of the latter proposition as stated by the court. We liave
seen from the authorities that he is mistaken as to his first
declaration that such an instruction would not be the law. The
question is, if it should occur that the court erred in its opinion
as to the correctness of the proposition of law, did the refusal
of the instruction materially injure the rights of the defendant
in this C€ise? Was the instruction a part of the law applicable
to the facts, and necessary to be given independently of the law
as submitted in the general charge? In this case the court
plainly and, as we think, fully instructed the jury upon all the
legitimate phases of the testimony, including an elaborate in-
struction upon circumstantial testimony.

Now let us recur to the evidence in the case. The alleged
stolen animal was a noted cow, and so peculiar was the size and
shape of her horns that "she was known as old Broadhorns."
The horns were, in addition to their length and size, very pecu-
liarly turned and shaped. As described by the witness Brashear,
"she had noted horns, very large, growing out towards the
front, twisted up and flared out at the top." "Everybody in
the whole country and settlement knew the cow by her horns.''
This cow was fat when last seen on her range near defendant's
house. Defendant and his brother butchered beeves at their
pen. The cow was missed from her accustomed range on the
tenth of January. Shortly afterwards Holloway, the alleged
owner, started to hunt for her, and went to defendant's house.
As soon as defendant saw him, defendant looked excited and

Digitized by VjOOQIC

392 27 Texas Court op Appeals. [Galveston

Opinion of the court.

uneasy and went back to the house. Defendant's brother re-
mained, and Holloway found, in looking around in the field
among the weeds behind the stable, several cow heads and cow
hides, cut all to pieces, and among these heads he found the
head of his cow. He swears positively and emphatically:
'These horns I know came from the cow above described, and
I identified the same." Defendant and his brother denied at
thai time that they knew anything about the killing of the cow.
That afternoon, however, Holloway went back to see them,
and at this time the defendant admitted that he had killed the
cow, and proposed to pay, and finally agreed to pay fifteen dol-
lars for her. We are of opinion that, indepenent of the de-
fendant's confession, the evidence was strong and cogent that
the cow had been killed and at least that he was a guilty agent
in the crime. We are not prepared to say that the evidence
would not have been sufficient without his confession; there
can be no question but that it abundantly corroborates his con-
fession.

This being so, was it necessary that the court, in addition to
the general charge as given, should have given defendant's
special requested instruction with regard to the necessity for
corroboration of the confession in order to establish the corpus
delictif Under the peculiar facts of this case and the charge
as given, we do not think the law of the special instruction
was essential, nor can we perceive how any possible injury
could have been done defendant by the refusal to give it.

We are of opinion that the evidence, outside the confession,
establishes beyond all reasonable doubt that the animal was
identified as the property of the prosecutor, and that it had
been stolen and killed, and that the evidence sufficiently estab-
lishes the guilty agency of the appellant. And whilst the in-
struction in a proper case was unquestionably correct as a legal
proposition, we are of opinion it would have been unjust to
the prosecution to have given it in this case, because it would
perhaps have misled the jury to the erroneous conclusion that
the corpus delicti had not been sufficiently proven independ-
ently of the confession, and have created a doubt where, in our
opinion, no doubt could or should legally have existed.

Other errors assigned and insisted upon are not deemed by
us reversible in their character in so far as the same appear to
be supported by the record. Most of them are so fully ex-

Digitized by VjOOQIC

Term, 1889.] Wood v. The State. 393

Syllabus.

plained by the record that they are made to appe
harmless or without merit.

We have f omid no error requiring a reversal, an
ment is affirmed.

Opinion delivered March 20, 1889.

No. 2701.
Frank Wood v. The State.

1. Assault to Murdkr— Intrnt.— The essential iDgredient <

of assault with intent to murder is that the assault was
by the specific intent of the accused to murder, and tb
must be established to the satisfaction of the jury,

2. Same. — The offense of assault with intent to murder is pr

is f^hown that, had death resulted from the assault, the (
have been murder. Another test is that **if the assault
committed with deliberate design and with an instrume
producing death in such manner as evidences an iotentioi
and there are no eitenuating circumstances, it is an assaul
to murder."

3. Same— Presumption. —The rule is statutory that "theinte

mit an offense is presumed whenever the means used is s
ordinarily result in the forbidden act.^' And it is elemeo
man is always presumed to intend that which is the nece
probable consequence of his acts, unless the contrary app

4. Same— Abandonment— Practice in Court of Appeals.

intendiog to commit murder, uses a deadly weapon in si
as that his intent is apparent or may be fairly inferred \
he can not, by abandoning any further attempt at viole
the effect of his previous act or intention; and it is for tt
termine, under appropriate instructions upon the law,
what he did before he abandoned the further execution
he really and in fact intended to commit murder. Anc
that he did so intend to commit murder, and the facts jui
ing:, then this court will not interfere with the verdict.
^. Assault to Murder— Fact Case.— See the statement of
evidence held sufficient to support a conviction for assau

Appeal from the District Court of Bell. Tried b(
the Hon. W. A. Blackburn.

Digitized by VjOOQIC

394 27 Texas Court op Appeals. [Galveston

statement of the case.

The conviction in this case was for an assault with intent to
murder one Isaac Grubbs, and the penalty assessed by the
verdict was a term of two years in the penitentiary.

Isaac Grubbs was the first witness for the State. He testi-
fied that on the evening of July 13, 1887 — ^the day alleged in
the indictment as the date of the offense — he and his brother
drove some cows from their home to a water hole in a pasture,
and after watering the cows turned them out of the pasture
into a lane. When the last cow was driven out of the pasture
the witness got off his horse to shut the pasture gate. About
that time the defendant, who was in the pasture, rode up to
the gate and said: "Hello!" Witness made no reply but con-
tinued closing the gate until it pressed against the defendant's
horse, when defendant again said: "Hello!" Witness then re-
plied: "How do you do?" Defendant asked: "Do you want to
settle that?** Witness asked, in reply: "Settle what?" De-
fendant said: "That racket at the school house." Witness re-
plied: *No; go away and let me alone; I want no trouble with
you." Defendant said : "You would not have bucked up to me
the way you did at the school house if Henry Easterling had
not put you up to it. He put you up to it." The witness told
him in reply that Easterling did no such thing. Defendant re-
plied: "You are a liar, you son of a bitch!" He then crowded
his horse against witness, and witness said to him: * 'Don't ride
over me." Defendant replied: "I don't want to ride over you;
I want you in the pasture; I will fix you there." He then
struck at witness, or threw out his left hand at witness. Wit-
ness caufi;ht defendant's shirt sleeve and tore it off. Defendant
then said: "I will do you up!" and thrust his hand into his
pocket. He withdrew his hand with nothing in it, and then
thrust it back into his pocket and withdrew it with a knife.
He then opened the knife, got off his horse, and he and witness
went to fighting. Witness was unable to say whether he or
the defendant struck the first blow, but the defendant cut him
in four places with the knife. One of the cuts began in the
hair about an inch above the forehead, and extended down the^
forehead to the corner of the eye and nose, whence it skipped
to the mouth, cutting the under lip and chin, and entering the
neck at the collar or breast bone. Another cut on the left side
of the neck was about five inches long. Another was a short
cut under the left shoulder blade. The fourth was a cut seven
inches long which extended from the left side to the breast.

Digitized by VjOOQIC

Term, 1889.] Wood v. The State. ' 395

Statement of the case.

The said wounds confined the witness to his room about two
weeks under the care of Dr. Mills. No person interfered to
stop the fight — the parties quit of their own accord and caught
their horses. As witness and defendant passed through the
pasture gate after the cutting, the defendant said to witness:
"You know you called me a son of a bitch, and struck me first."
The witness had no weapon of any kind — not even a pocket
knife — ^at the time of the fight.

Cross examined, the witness denied positively that he called
the defendant either a liar or a son of a bitch. Just before the
defendant accosted witness, the witness saw Loony Wood,
the defendant's brother, going up the lane. He did not know
how far Looney was from the pasture gate at the time of the
fight. Dan Elliott and the witness's brother were present when
the fight occurred — Elliott having come with the defendant.
The witness denied that he struck at the defendant before the
defendant dismounted, but, when defendant struck at him be-
fore dismounting, he caught defendant's sleeve and tore it off.
The witness used his fist against the defendant's knife, which,
as well as witness could judge by the view he got of it, was a
medium sized red handled pocket knife. The next time the
witness saw the defendant was in court about six months prior
to this trial.

Dr. Mills, for the State, described the wounds on the person
of Grubbs substantially as Grubbs described them, and stated
that he at no time considered the said wounds as dangerous
except in their liability to cause erysipelas.

Lee Grubbs, the brother of the injured party, was the next
witness for the State. He testified that he was present and
witnessed the diflBculty between his brother Isaac and the de-
fendant, which he detailed in substantially the same language
as that used by Isaac in his testimony. He added thac after
the parties had quit fighting of their own accord, Dan Elliott
said to the defendant: "You have done enough; let him alone."
He was positive that Isaac did not call the defendant either a
liar or a son of a bitch.

William Taylor, deputy sheriflf of Bell county, testified, for
the State, that, about six months prior to this trial (which was
had in January, 1889), he received word from the sheriflf of
Lamar county that he had the defendant in custody. He went
to Lamar county^ about three hundred miles distant, and got
defendant.

Digitized by VjOOQIC

396 * 27 Texas Court op Appeals. [Galveston

Statement of the case.

The State closed.

Dan Elliott was the first witness for the defense. He testi-
fied that he was at the house of his mother-in-law, in Bell
county, on the morning of July 13, 1887, when defendant and
his brother came there on their way to Temple. They asked
witness to go with them, which invitation the witness at first
declined on the ground that he had nothing at the house to
ride except a wild horse, of which he was afraid. The defend-
ant proposed to ride the wild horse and lend his gentle horse
to witness, whereupon witness agreed to and did accompamy
them to Temple. When they reached the lane referred to by
the State's witnesses on their return in the evening, Loony
Wood was riding eighty or a hundred steps in advance of wit-
ness and defendant. The horse ridden by the defendant fright-
ened at a small bridge, and would not cross it until defendant
struck him a severe blow with £^ quirt, whereupon the horse ran
across the bridge, and to the pasture gate where Isaac Grubbs
was. Witness rode on slowly, and, as he approached the gat^,
he heard defendant say to Grubbs: "You would not have
bucked up to me like you did if Henry Easterling had not put
you up to it." Isaac replied: "Don't you ride over me." Defend-
ant said: "I am not going to ride over you." Grubbs replied:
"You lie, you son of a bitch!" and struck or struck at defend-
ant, it being the first blow passed or attempted. Defendant
then said to Grubbs: "You called me a son of a bitch, and you
have got to take it back." Grubbs denied that he had called
defendant a son of a bitch. Defendant then got off his horse
and he and Grubbs went to fighting, in the course of which
fight Grubbs was cut. Grubbs struck the first blow while de-
fendant was on his horse. The parties were not interfered
with, and they stopped fighting of their own accord. As de-
fendant passed out through the pasture gate, he said to Grubbs:
"You know you called me a son of a bitch, and struck me
first."

Cross examined, the witness said that the bridge where the
defendant's horse became frightened was about seventy-five
yards distant from the pasture gate at which Grubbs was stand-
ing and where the fight occurred. The defendant's horse ran
immediately up to Grubbs and was very near Grubbs through-
out the preliminary talk or quarrel. Defendant pulled out and
opened his knife before he got off his horse. He got off his
horse on the side next to and very near Grubbs, and they began

Digitized by VjOOQIC

Term, 1889.] Wood v. The State. 397

Statement of the case.

fighting at once. Witness went to the house of the defendant's
father on the morning after the fight, and while there told the
parties present that when defendant pulled his knife he, wit-
ness, called to defendant: "Don't do that," and attempted to
get down, but that his spur got hung in the stirrup and pre-
vented him. He did not remember that at the same time he
told the said parties that he saw nothing more, after calling on
defendant not to use his knife until the parties began fighting.
If he made that statement it was the truth, as the facts were
then fresh in his mind. As a matter of fact he did, when he
saw defendant pulling out his knife, call on him *'not to do
that.''

Mrs. Wood, the defendant's mother, testified, in his behalf,
that the knife owned by the defendant at the time of the fight
with Isaac Grubbs, was a "small two bit red handled knife,
with a blade about an inch and a half long."

Loony Wood, the brother of the defendant, testified, in his
behalf, that he was between eighty and a hundred yards from
and in advance of defendant when the fight occurred. Wit-
ness's attention was attracted by the voice of Isaac Grubbs
calling defendant a "lying son of a bitch." He then looked
back and f aw the defendant get off of his horse and enter into
a' fight with Isaac Grubbs. He did not go back, nor did he
attempt to stop the fight, supposing it to be merely a fist fight,
and knowing the parties to be about evenly matched. When
the defendant overtook him, after the fight, he saw that one of
defendant's shirt sleeves was torn off, that the breast of his
shirt had a small cut in if, and that one of defendant's fingers
was split. Defendant's knife was a small single bladed, red
handled instrument, the blade being one and a half or two
inches long.

On cross examination, the witness said that he had a conver-
sation with Bal Bingham on the day after the fight, but he did
not remember telling said Bingham that he did not see the fight
because of the corn, which was too high for him to see over it.
Defendant, instead of going home that night, went with wit-
ness and Elliott as far as Mrs. Easterling's house and left.
Witness next saw him on the following Christmas in Corsi-
cana.

The defense closed.

R. A. Bingham testified, for the State, in rebuttal, that Isaac
Qrubbs stopped at his house after the cutting and got him to

Digitized by VjOOQIC

398 27 Texas Court op Appeals. [Gktlveston

Argument for the appellant

examine his wounds. On the next day Loony Wood came to
witness's house and asked him if Grubbs was badly cut, and in
the conversation that ensued remarked that he regretted the
occurrence very much, and that he did not see the figrht because
of the high corn between where he was at that time and the
place where the fight occurred.

D. N. Grubbs, the father of Isaac Gfubbs (corroborated by
C. C. Grubbs), testified, for the State, that Dan Elliott came to
his house on the morning after the cutting, and said to witness:
"You must not think hard of me, for I had nothing to do with if
Witness asked him why he did not stop the fight. He replied
that when defendant started to draw the knife he called to him
"not to do that," and attempted to dismount, but his spur got
hung and prevented him, and that when he got his foot clear
of the saddle the fight was over.

Harris <t Saunders y for the appellant: With reference
to the intent of the defendant we respectfully submit to this
court that there is not a syllable of evidence, either on the
part of the State or of the defendant, showing or tending
to show any intention on the part of defendant to take the
life of Grubbs. On the contrary, all the testimony shows
the very reverse to be the case. While there is some diflference
between the witnesses as to whether the first blow was struck
by Grubbs or the defendant, they all agree that after the boys
had mutually fought a very short time they both stopped fight-
ing of their own accord (no one interfering to stop them), and
boylike walked out of the gate together and went in the same
direction up the lane to catch their horses, and the little fight
was over.

It seems these two boys had a few days before some little
"unpleasantness" at school (as boys have had "from the time
whereof the memory of man runneth not to the contrary," as
school boys have every day all over the world, and as they will
continue to have until schools and school boys are no more), in
which defendant thought Grubbs had, perhaps under the pat-
ronage of one Easterling, unjustly domineered over him, and
by the conjunction of the accident of his horse running away
with him and the coincidence of carrying him up to where
Grubbs was just coming out of a gate into the lane he was,
without his own volition, brought up to Grubbs, when, after
some words between them and. as two witnesses testify^ after he

Digitized by VjOOQIC

Term, 1889.] Wood v. The State. 399

Argament for the appellant.

was called a liar and son of a bitch, and was struck by Grubbs,
he drew his pocket knife and dismounted, and they went to
fighting. True, he inflicted three or four slight wounds upon
Grubbs during the fight, with his pocket knife; but was it a
deadly weapon? We think clearly not. The proof shows it
was a very small red handled two bit pocket knife, with but
one blade and that only an inch to one inch and a half long.
Grubbs evidently did not regard it as a dangerous weapon, for,
after he struck defendant and tore off his shirt sleeve as he at-
tempted evidently to pull the defendant off his horse, he saw
defendant take it out of his pocket and dismount, when, as he
says, he commenced fighting defendant with his fist. And
under all the circumstances, considering the relative strength
of the two boys and the smallness of the knife, it could hardly
be used by the defendant so as to be called a deadly weapon.
Nor was it so used. Dr. Mills, who dressed the wounds on
Grubbs, says he never considered the wounds infiicted as likely
to produce death, or even at all dangerous of themselves.
Then we are forced to conclude that, both from the insignificance
of the weapon used and the manner of its use, it is patent to
the most ordinary unprejudiced mind that the defendant nei-
ther intended or contemplated taking the life of Grubbs.

Is there any other evidence that is uncontradicted that evi-
dently shows that defendant had no murder in his heart?
There is undoubtedly evidence that removes even all doubt on
this point. Evidence I may say ''that pleads like angels trum-
pet tongued against this most unwarranted and inhuman con-
viction.^' It is the unanimous testimony of the witnesses both
for the State and defendant that the boys "stopped fighting of
their own accord; that no one interfered to stop them, and
they walked out of the gate together; went up the lane and
caught their horses,'' and no reference was made to their diffi-
culty except that defendant, evidently giving his reasons why
he had fought, said to Grubbs, just as they came out, "you
know you struck me first, and called me a damned son of a
bitch;" which Grubbs did not then deny. Now we submit that
if (as is universally admitted to be true) the most convincing
test of the intent of a party in a difficulty is what he does, then,
tested by this rule, the mere fact that the defendant volun-
tarily, and without any interference or persuasion on the part
of any one, ceased to fight Grubbs before he had infiicted upon
him any serious bodily injury, when, as is charged, he had in

Digitized by VjOOQIC

400 27 Texas Court op Appeals. [Galveston

Opinion of the ooort.

his hand a deadly weapon and had every opportunity to take
his life, is proof convinsive he had no such intention, and the
conviction in this case is a shock to that sense of "even handed
justice" which should always control juries in their delibera-
tions.

This is nothing more nor less, at worst, than a mutual com-
bat between these two boys, in which defendant took no ad-
vantage of Grubbs after engaging in the fight. For all the wit-
nesses agree that before he got down oflf his horse — ^but not un-
til after Grubbs had torn off his shirt sleeve, in trying evidently
to pull him off his horse — did he draw his little pocket knife,
which he dtd in full view of Grubbs, who says he saw him do
it, and also says he went for the defendant, nevertheless, as
soon as he struck the ground. Now where is the unfair ad-
vantage?

But did not Grubbs also use a knife or some other sharp instru-
ment? We think that the evidence clearly shows that he did
The testimony of Loony Wood is: * 'Defendant's shirt sleeve,
after the difficulty, was off. One of his fingers was also split
open, and he had a little cut place in the front part of his shirt"
This testimony is uncontradicted. Now we submit to this
learned, impartial and honorable court, the facts proved do not
warrant the conviction in this case. He has not had justice
done him — that justice which is the pride and glory of our land
and the heritage of its humblest citizen. We are fully aware of
the disinclination of the courts, particularly in civil matters,
to disturb the verdicts of juries where there is any reasonable
excuse to uphold them; but in cases of the character of this,
where technicalities are disregarded, when the great question of
human liberty is involved, our law deals alone with the solitary
fact of guilt or innocence, and will scrutinize with rigid rules
the acts of juries, and visit their short comings with the prompt
and ready hand of correction.

W. L. Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. At a former day of the present
term we affirmed the judgment in this case without a written
opinion. Distinguished counsel, representing appellant, have
filed a motion for rehearing, and in addition to the able printed
brief originally filed we have been favored and profoundly
impressed with the oral argument submitted upon the issue

Digitized by VjOOQIC

Term, 1889.] Wood v. The State. 401

Opinion of the ooart.

presented in the motion. We are free to confess that the posi-
tions as|sumed in the argument are most plausible and persua-
sive, and, had we been upon the trial jury trying the case, it
may be that under the facts we might have arrived at a differ-
ent conclusion as to the grade and nature of the crime and the
punishment to be awarded. We must, however, take the record
as here presented, and if upon the record it appears that no
material error has been committed in the trial below, and if the
evidence, applied to the law, warrants and sustains the verdict
and judgment, then, whatever might be our private opinion,
feeling or sympathy, our duty is plain and the judgment must
be afSrmed.

Appellant was indicted for and has been tried and convicted
of assault with intent to murder one Isaac Qrubbs. We take
the following statement of the material facts, which we have
verified and found correct, from the printed brief of appellant's
counsel:

Isaac Grubbe testified in substance that on the thirteenth day
of July, 1887, whifehe was at the pasture gate, defendant rode up
and hallooed "hello" twice; that he (Grubbs) said, "how do you
do." That defendant said "do you want settle that?" That he
asked him what ? That defendant referred to a matter that had
occurred at the school house. That he told him to go away
and let him alone; that he wanted no trouble with him. That
defendant accused Henry Easterliog of putting him up to at-
tacking defendant at the school house. That he denied- it.
That defendant said, "you lie, you son of a bitch." That he
told defendant not to ride over him. Defendant said he did not
want to, that he wanted to fix him, etc. ; that defendant threw
out his left hand at him — could not tell whether defendant's
hand was closed or open, — that he caught the defendant's shirt
sleeve and tore it off. Defendant then said, "I'll do you up.'>
Defendant pulled out his knife, opened it and got down, and
they went to fighting; can't say which struck the first blow;
that during the fight defendant cut him in four places with his
pocket knife (describes the wounds); that he and defendant quit
fighting of their own accord; defendant said to him, "now you
can go home;" they both went on in the same direction. As
they went out of the gate, defendant said to him, "you know
you struck me first and called me a son of a bitch;" that he
had no knife and is positive he did not call defendant either a
son of a bitch or liar.

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402 27 Texas Court of Appeals. [Galveston

OpiDioD of the coart.

Dr. Mills, for the State, described the locality and character
of the wounds, and in addition stated, "I did not consider that
the wounds as made were at all likely to produce death, or were
dangerous." Lee Grubbs testified substantially as his brother.
William Taylor, deputy sheriff, testified for the State that he
went to Lamar county and got defendant, and brought him to
Bell county about six months ago.

Daniel Elliott, for defendant, testified substantially that he
went to and returned from Temple with defendant and his
brother; defendant was riding a wild horse of witness's. As
they returned in the evening, defendant's horse scared at a
little bridge; defendant hit his horse with his quirt; the horse
jumped the bridge and ran with defendant down to where the
prosecuting witness, GrAbbs, was at the gate; that he, witness,
rode on after him slowly; heard Isaac Grubbs say to defend-
ant, **you lie, you son of a bitch," and saw him strike defendant,
or strike at him; defendant then said, **you called me a son of
a bitch, and you have got to take it back;" Grubbs denied call-
ing defendant a son of a bitch; defendant then got off his
horse and they both went to fighting one another; Grubbs struck
defendant first while he was on his horse; they quit fighting of
their own accord; he told defendant after they l^ad stopped
that he had done enough; saw all the fight and was not related
to either party.

Mrs. Wood, defendant's mother, testified that defendant was
nineteen years old the seventeenth of October, 1888; was mar-
ried on the tenth of October; his knife was a two bit one bladed
red handled pocket knife, blade one to one and a half inches
long.

A notable and indeed the important fact relied upon by ap-
pellant to show that his offense can not be assault with intent
to murder is that, after inflicting the blows given, he of his
own accord stopped voluntarily and abandoned the further
prosecution of the fight. Learned counsel say in their argu-
ment "now we submit that if (as is universally admitted to be
true) the most convincing test of the intent o( a party in a dif-
ficulty is what he does, then, tested by this rule, the mere fact
that the defendant voluntarily, and without any interference
or persuasion on the part of any one, ceased to fight Grubbs
before he had inflicted upon him any serious bodily injury,
when, as charged, he had in his hand a deadly weapon and had
every opportunity to take his life is proof convincive that he

Digitized by VjOOQIC

Term, 1889.] Wood v. The State. 403

Opinion of the court.

had no such intention, and the conviction in this case is a shock
to that sense of 'even handed justice' which should always con-
trol juries in their deliberations."

There is no better settled rule of law than that, in assault
with intent to murder, there must be a specific intent to mur-
der. This intent is the essential ingredient of the offense, and
it«? existence must be proven to the satisfaction of the jury.
(Willson's Crim. Stats., sees. 857, 858, 859, and authorities col-
lated; McCulIough V. The State, 24 Texas Ot. App., 128; Moore
et al. V. The State, 26 Texas Ot. App., 322.)

Article 502, Penal Code, provides, as a test on the trial of one
charged with this crime, that "whenever it appears upon a trial
for an assault with intent to murder that the offense would
have been murder had death resulted therefrom, the person
committing such assault is deemed to have done the same with
that intent." In Yanez v. The State, 20 Texas, it is held that
"if the assault is voluntary, committed with deliberate design,
and with an instrument capable of producing death in such
manner as evidences an intention to take the life, and there
are no extenuating circumstances, it is an assault with intent to
murder."

In article 50 of our Penal Code it is provided that the **inten-
tion to commit an offense is presumed whenever the means
used is such as would ordinarily result in the commission of the
forbidden act." It is also an elementary rule, and one of tmi-
versal application, that "a man is always presumed to intend
that which is the necessary or even probable consequence of his
acts, unless the contrary appears." (McCoy v. The State, 25
Texas, 42; Aiken v. The State, 10 Texas Ct. App., 610; High v.
The State, 26 Texas Ct, App., 546.)

Mr. Bishop says: **If a man undertakes to do a particular
wrong of the indictable sort, and does some act towards it but
fails to complete what he meant, his evil intent and act together
constitute * * a common law crime, provided the act is not too
trivial and small for the law's notice. For the intent is sufl5-
cient, and the adequacy of the act is the only further object of
inquiry. Therefore an attempt is an intent to do a particular
thing which the law, common or statutory, has declared to be
a crime, coupled with an act toward the doing sufficient both
in magnitude and proximity to the fact intended to be taken
cognizance of by the law, that does not concern itself with
things trivial and small. Or, more briefly, an attempt is an

Digitized by VjOOQIC

404 27 Texas C!oubt of AppKAifi. [Galveston

Opinion of the ooart

intent to do a particular criminal thing, with an act toward it
falling short of the thing intended." (1 Bish. Grim. L., 7e(L,
sees. 727, 728.) Further on the same learned author says: '*0n
an indictment for a technical attempt the jury may take into
view the nature of an act proved, to determine the intent which
prompted it." (Id., sec. 735.)

As was said by Gampbell, J., in The People v. Scott, 6 Mich.,
287: **The intent to kill must be established as an inference of
fact, to the satisfaction of the jury; but they may draw that
inference, as they draw all other inferences, from any fact in
evidence which to their minds fairly proves its existence.
Intentions can only be proved by acts, as juries can not look
into the breasts of criminals." (Trevinio v. The State, ante,
372.) The case of Jeflf (a slave) v. The State, 39 Mississippi, 593,
was where the accused had inflicted several wounds with a
knife, a deadly weapon, but who, when the injured party re-
leased his hold of him, ran off without attempting further vio-
lence. The opinion is a most able and elaborate one, in which
leading authorities, English and American, are reviewed and
the conclusions of the court, as stated in the syllabus, are that
"the law presumes that a party intends to do not only what he
actually accomplishes, but also the natural and even probable
consequences of his own acts when deliberately done; and
hence, in considering technical attempts, the jury may take
into consideration the nature of the act done and the attendant
circumstances as matter of evidence to determine the particu-
lar intent with which it was performed; they may infer the
specific intent to do a particular thing which is the necessary,
natural or even probable consequence of the act proven to have
been done. It is a probable consequence of the use of a deadly
weapon in an assault and battery committed by one person on
another that the death of the party assaulted may ensue; and
hence proof of such use is prima facie evidence of an intent
to kill, which must prevail unless overcome by other proof in
the cause.

If a party intending to commit murder uses a deadly weapon
in such a manner as that his intent is apparent, or may be
fairly inferred from the act, he can not, by abandoning any
further attempt at violence, lessen the effect of his previous
acts and intentions, because they have already become accom-
plished facts. His crime has already been committed; he can
not abandon what he has already done. It is for the jury to

Digitized by VjOOQIC

Term, 1889.] Clark v. Tfim State. 405

Syllabus.

determine, under appropriate instructions from the court upon
the law, as to whether by what he did before he abandoned
the further execution and accomplishment of his plans, he
really, and in fact intended, to commit murder. If they so find,
and the facts are of a character to justify the finding, then
this court can not interfere with the finding.

In the case in hand, the jury might have inferred, as they
did, from the facts proven, that appellant, up to the time he
stopped using his knife, intended to kill Grubbs. We can not
say that such a finding is either against or is not warranted by
the facts proven. There is no question made as to the suflBi-
ciency of the charge of the court in its presentation of the
law applicable to the various phases of the case, and all the
special requested instructions asked by able counsel in behalf
of appellant were given. If there has been any error of omis-
sion or commission in the charge of the court, we have failed
to find it.

We have given this case our most mature consideration, and
we are constrained to say that, as it is presented to us in the
record, we do not feel that we would be warranted or author-
ized to interfere with the verdict and judgment. The motion
for rehearing is, therefore, overruled.

Motion overruled.

Opinion delivered March 20, 1889.

No. 2958.

Jbff Clakk v. The State.

Extra Tbrritoiual Offenses — Thkpt — Evii)bncb. — This was a
proseeation for theft — the indictment charging: the theft of three
horses lo the Oherokee Nation and the bringiog of the same into this
State. The contention of the defense was that, inasmuch as under an
act of the Congress of the United States a white man can not be pros-
ecnted to conviction and punished for a theft committed in the Indian
Territory except in the United States courts, he can not be prosecuted
to convietion in this State for the theft of property in the Indian Ter-
ritory, as theft is defined by the law of said Territory, and the bringing
of the same into this State; that, as no act can constitute an offense
onless a penalty for the commission thereof is provided, and as, un-

! 27' 406|
31 81

Digitized by VjOOQIC

406 27 Texas Court op Appeals. [Galveston

Statement of the case.

der the act of Congress, a white man is not amenable to the law of
the Indian Territory for theft, he can not within the pnrview of that
law commit theft, it follows that he can not be prosecuted in this State
under articles 798 and 799 of the Penal Code, and therefore the trial
court erred in admitting in evidence the statute of the Cherokee Nation
defining theft of live stock. Held^ that the defense can not be main-
tained. The rule is that if a person commits in another State or Ter-
ritory acts which » if committed in this State, would be theft, and the
said acts constitute theft under the laws of the said State or Territory,
and he subsequently brings the stolen property into this State, he can
be prosecuted in this State and punished as if the theft had been com-
mitted in this State. The statute of the Cherokee Mation, admitted
in evidence over objection, excepts no race nor class from its operation
and clearly defines the offense of theft with penalty annexed, and it
was properly admitted in evidence. See the opinion in extenso on the
question .

2. Same — Charge op thb Court. — The laws of the Cherokee Nation
being in evidence, the trial court instructed the jury that, under said
laws, certain acts constituted theft, and left it to the jury to determine
from the evidence whether the defendant committed such acts. Held^
sufficient; and that the court did not err in failing, in its charge to the
iury, to define and construe the laws of the said Nation.

8. Same— Possession OF Recently Stolen Propertt.— See the opinion
in extenso for a charge of the court upon the question of the possession
of recently stolen property, etc', held correct and responsive to the
proof.

Appeal from the District Court of Tarrant. Tried below
before R. J. Boykin, Esq., Special Judge

The indictment in this case, which was framed under articles
798 and 709 of the Penal Code, charged that the appellant did
fraudulently take, steal, and carry away 'from the possession
of G. W. Montgomery, in the Cherokee Nation, Indian Terri-
tory, who was holding the same for the owner, S. S. Cobb,
three certain horses, with the intent, etc.; which said acts, by
the law of the said Cherokee Xation, then in force, did consti-
tute the offense of theft; and that thereafter he brought the
said horses into the county of Tarrant, State of Texas. Under
this indictment the appellant was convicted of theft, and his
penalty was assessed at a term of five years in the penitentiary.

S. S. Cobb was the first witness introduced by the State.
The material facts to which he testified were that he lived on
his ranch in the ''Cherokee Strip," in the Cherokee Nation;
that the horses mentioned in the indictment belonged to him,
but, when taken, were in the possession of his agent, Mont-

Digitized by VjOOQIC

Term, 1889.] Clark v. The State. 407

Statement of the case.

gomery; that the same were taken by some person unknown
to him, and without his consent, about the time alleged in the
indictment — May 5, 1888--and that he subsequently recovered
two of the said horses in the city of Fort Worth, Texas.

G. W. Montgomery testified, for the State, in substance, that
he lived at Cobb's ranch in the Cherokee Strip, and, in the ab-
sence of Cobb, exercised control over the said ranch and the
stock appertaining thereto. The defendant, whom the witness
had known f jr eighteen months, and who, during that time,
had worked on a ranch adjoining the Cobb ranch, in the Cher-
okee Strip, spent the night of May 5, 1888, with the witness at
the said ranch, leaving there late on the next evening, and
going in a westerly direction. Three of Cobb's horses failed
to return to the ranch on that night, and on the next day the
witness instituted diligent but unsuccessful search for them.
He found the south gatej' of the pasture open, and that the said
three horses and others had left the pasture through that gate.
Witness recovered all but the three horses mentioned in the
indictment. Subsequently Mr. Cobb recovered two of the last
mentioned horses in the city of Fort Worth. The said three
horses were taken without the knowledge or consent of the
witness.

T. F. Walker testified, for the State, that he lived in Fort
Worth, Texas, and was the proprietor of the Central wagon
yard, on Main street, in that city. Between ten and eleven
o'clock on the morning of May 17, 1888, the witness met the
defendant on Houston street, in Fort Worth, on which occasion
the defendant told witness that he wanted to sell the horse he
was riding and another horse which he had just left in the wit-
ness's wagon yard. Witness replied that buyers could be read-
ily found in Fort Worth, and that if the animals upon inspec-
tion suited him, he might, perhaps, purchase himself. Witness
and defendant then went to the wagon yard, where the defend-
ant pointed out the second horse, and witness offered him fifty
dollars for the two. The defendant replied that he would not
take less than one hundred dollars for them. The witness then
asked him where he got the animals, and he replied that he
got them in a trade with a hired hand of one B. C. Evans, a
cow man, who, he said, lived ten or twelve miles northwest of
Aurora, in Wise county, Texas — Aurora being about twenty-
five miles northwest of Fort Worth. After a prolonged con-
versation, the witness offered the defendant sixty dollars for

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408 27 Texas Court of Appeals. [Qalreston

Statement of the case.

the two horses, and he agreed to sell them to the witness for
that price. The witness then declined to purchase until the de-
fendant should satisfy him as to his title to the said horses.
Defendant then said that he would go up town and see if he
could find an acquaintance from Wise county through whom
he could satisfy witness. After a prolonged absence he re-
turned and reported that he could find nobody from Wise
county. The witness again declined to purchase until satisfied
about the title. The defendant then proposed to leave one of
the horses in the custody of the witness, and on the other to
go to Decatur in Wise county to arrange the necessary proof
of title. He proposed that if he should satisfy the sheriff of
Wise county and the Decatur bank about his title he would
deliver the horse ridden off by him to the said sheriff for the
witness, if witness would remit him the purchase money
through the said Decatur bank. To this proposition the wit-
ness agreed, and defendant left witness a short while before
sundown, ostensibly to go to Decatur, which was about twenty-
five miles distant. His horse was then very much jaded, and
at that time he had no slicker. It rained during the said night.
At about six o'clock on the next morning the defendant came
to witness's wagon yard and handed witness the note now of-
fered in evidence. Substituting spaces for hieroglyphics— the
design of a heart above a cross — the note reads as follows:

**Mr Walker, those horses that Mr Clark sold to you is all
right. I will bee responsible for them. One black horse, brand

and G on left sholder E on thigh. Bay circle Z

on left sholder E on thigh.

"B. C. Evans."

The witness exhibited the note to several citizens of Fort
Worth, including the merchant of that name, and inquired if
they knew such a man who resided in Wise county. The wit-
ness then returned the note to defendant, telling him that he
was not satisfied with the showing of title. Defendant toUL
witness that he went to see Evans during the night, and got
him to write the note. His horse did not look any more jaded
on that morning than he did on the night before, and showed
no evidence of travel during the preceding night. Witnew
then reported the matter to officer Witcher. Subsequently wit-
ness turned the horses over to S. S. Cobb.

Digitized by VjOOQIC

Term, 1889.] Clark v. The State. 409

Statement of the case.

OflBcer Witcher testified, for the State, that the witness
Walker, on the morning of June 18, 1888, informed him about the
defendant having two horses in his, Walker's, wagon yard, and
witness went to the said yard to investigate the matter. He
asked, defendant if he had any horses for sale. Defendant re-
plied that he had two, and showed them to witness. Witness
asked him for his bill of sale. He replied that Walker had it;
that he went to see Evans on the night before and got him to
write it. He said that he got the horses from a man in the em-
ploy of Evans. Witness then asked him if he made the trip to
Evans's house in one night. He replied that he did not have
to go all the way to Evans's house, as he met Evans between
Aurora and his home between mid-night and one o'clock, when
Evans, by light of a buffalo chip fire, wrote the note. The wit-
ness then arrested defendant and took him to the calaboose.
Upon searching him he found the Evans note in a pass book in
his pocket. The note showed to have been written on a leaf
torn from that book. The defendant's horse— the one he claimed
to have ridden to Wise county on the night before, — showed no
sign of having made the trip. The roads between Fort Worth
and Aurora were very bad in wet weather, and there was a
rainfall on the said night.

R. H. Tucker, a hand-writing expert, was next introduced
by the State. After comparing the note in evidence, purport-
ing to have been signed by B. C. Evans, with two of the de-
fendant's acknowledged signatures, he testified that the said
note was evidently written by the defendant.

The State next introduced in evidence the following extract
from the laws of the Cherokee Nation : **Every person who shall
wilfully take or sieal a horse, mule, ass or cow, shall be deemed
guilty of a felony, and upon conviction be imprisoned not less
than three years nor more than seven years, and be fined for the
benefit of the injured party in a sum double the amount of loss
or damage sustained. And every person found a second time
guilty of a violation of this section, shall be imprisoned not
less than seven nor exceeding ten years, and be fined as above.'*

The State closed.

SamMurrell, the brother-in-law of the defendant, testified, in
his behalf, that he, witness, lived in Cooke county, Texas. De-
fendant left witness's house about two weeks before his arrest
upon this charge. He was then riding his own horse, worth
about seventy-five dollars, and had seventy dollars in money.

Digitized by VjOOQIC

410 27 Tbxas Court op Appeals. [Galveston

Arfi^ument for the appellant.

During the larger part of the three or four years preceding
the arrest of defendant, he, defendant, worked with cattle in
the Indian Territory. Witness knew a man named B. C.
Evans, who claimed to live in Wise county, and had seen that
man in Wise county. He considered that man a "bad egg"

The two remaining witnesses testified that 'they were ac-
quainted with the reputation of the defendant for honesty, etc.,
and that it was good.

C. B, Shiart, for the appellant: I desire to call the attention
of the court to that assignment of error which relates to the
question as to whether or not a white man can commit the of-
fense of theft against the laws of the Cherokee Nation. The
other assignments are fully relied on by appellant, but do not,
we think, need discussion, as they are both based upon elemen-
tary principles of law with which the court is, of course, fa-
miliar. The question then recurs: "Can a white man commit
the offense of 'theft' against the law of the Cherokee Nation?'
or "would the *act' committed by appellant be theft under the
laws of the Cherokee Nation?" These questions embrace both
phases of our statute, and to our minds admit of but one an-
swer.

Of course it will be conceded by the State that a white man
can not be punished or charged with crime under the penal
laws of the Cherokee Nation or any other portion of the In-
dian country. The decisions cited by appellant in his brief
are conclusive of this point; and besides, it is so well settled
by the courts of the country, and is so universally recognized
and conceded both by the Indian and the Federal authorities,
that any attempt to further discuss this branch of the subject
would be a direct thrust at the intelligence of this court. Any
lawyer who is familiar with the political relations of the In-
dian country to the United States, and who will examine the
Federal Statutes and treaties, will conclude in a moment that
white men are not within the purview of the penal statutes of
the Indian country. (Rev. Stats, of The United States, sees.
2145, 2146, 5356; 4 Howard, 567; 47 Wis., 296; 7 Fed. Rep., 894;
20 Id., 299.)

If, then, a white man can not be charged with crime under
the laws of the Cherokee Nation, and can not be punished for
an offense against such laws, can he commit an ^^acV which
would be "theft" under their laws? Clearly not; because, in

Digitized by VjOOQIC

Term, 1889.] Clakk v. The State. 411

Argamect for the appellant.

the first place, if there is no offense there is no crime, and
where there is no punishment there is, in legal contemplation,
no crime or offense: and because, in the second place the In-
dian laws have no reference to white men — were not made for
their benefit, and were never intended to affect them in one
way or the other. Such laws stand as if white men were, by
positive statute of the Uherokees, excepted from the operation
of such laws. The Federal Statutes and decisions both declare
that white men are wholly unaffected by Indian laws, and,
therefore, when the Cherokee Statute declares that "any per-
son" who commits certain acts shall be guilty of theft, it
means, of course, **any person" who is .within the purview of
such law, or who is embraced within its meanii^g. A white
man can not be brought within the spirit and meaning of such
law, because the Federal Statutes say he can not.

It follows, therefore, irresistibly, as a logical conclusion,
that the penal laws of the Cherokee Nation, are, as to white
men, no laws at all, and stand as to such white men as if they
never were enacted. Thus the position that a man can commit
an offense against a law which has no existence is reduced to
a logical absurdity. Our statute linder which this prosecution
is brought declares that, in order for the defendant to be con-
victed in this case, the **act" committed by him in the' Chero-
kee Nation must have been an offense against its laws. The
indictment charges the offense against the ^'Cherokee Laius,'^
and hence the proof must correspond with that allegation.
The *'act," under the indictment, can not be shown to be an
offense against any other law, because there is no allegation to
that effect. The defendant is here to meet the charge as made
by the indictment. The law requires him to do no more.

In order to comprehend more fully the meaning of our stat-
ute which "is applicable to this cause, it is well to look to the
public policy which gave rise to its enactment. It is clear, at
a glance, that the legislature, in passing this statute, intended
to punish those offenses only which were penal in the jurisdic-
tion where the initial act was committed. Why do I say this?
Because the statute declares that, in order to hold the defend-
ant for theft here, the **act" must have been theft in the **for-
eign country, State or Territory" from which the property is
brought. If the defendant has committed no act for which he
may be punished in the foreign jurisdiction, then he has com-
mitted no offense against the penal law of that jurisdiction.

Digitized by VjOOQIC

4:12 27 Texas Court op Appeals. [Galveston

Opinion of the court.

however much he may have transgressed the Divine Commands.
It is true the Cherokee law denounces theft and prescribes a
punishment. But it doesn't apply to the white man. There-
fore I say that the act of the defendant was not "theft" within
the meaning of our statute. Whoever heard of a statute in
reference to theft which did not prescribe a punishment? In
legal contemplation where there is no punishment there is no
theft. Wouldn't it be a foolish thing (it would certainly be an
unlawful one) for the Texas legislature to pass a statute pun-
ishing a man for doing something in another State for which
he could not be held or charged, or punished, in such latter
State. Such a law would be the refinouient of absurdity. It is
needless to €ay more. Men can not demonstrate axioms. The
"self evident" does not come within the legitimate domain of
logic. When the concession is made, as it must be, that a white
man can not be punished or charged under the Cherokee laws»
it seems to me that the battle is won. This question is of the
highest and most vital importance. It will be of frequent re-
currence, and hence requires a most careful investigation.

The proper construction of the statute under which this
prosecution is pending is one, it seems to me, of very little
practical diflRculty. It is the first time that the question has
ever been pointedly before this court, and in reaching a conclu-
sion the court should, it seems to me, look to the policy of the
law and its spirit; for these are the cardinal points from which
the investigation should begin. ISTor should the court be un-
mindful of the opinion of the legal profession in Texas upon
this point, which is, as far as I know, unanimous in its indorse-
ment of the position contended for in this cause by appellant

W. L. Davidson, Assistant Attorney General, filed an able
brief and argument for the State.

Hurt, Judge, This is a conviction for the theft of a horse
in the Cherokee Nation, Indian Territory, and bringing the
same into Tarrant county, Texas, the prosecution being under
articles 798 and 799 of the Penal Code.

There was no error in receiving in evidence the laws of the
Cherokee Nation, unless the fact that appellant is a white man
defeats the prosecution. Hence the question is, under the
provisions of the above articles of our code, construed with
reference to the laws of the Cherokee Nation and the acts of

Digitized by VjOOQIC

Term, 1889.] Clark v. The State. 413

Opinion of the court.

Congress bearing upon this matter, can a white man be legally
prosecuted to conviction for stealing in said Nation, and bring-
ing the stolen property into this State? The counsel for appel-
lant, in a masterly argument, contends that a white man can
not commit the offense of theft against the laws of the Chero-
kee Nation; or, to present the question in another form, that
the act conmiitted by appellant would not be a theft under the
laws of the Cherokee Nation; that, as a white man can not be
punished for violating any law of the Nation, but is punishable
for his acts committed in the Nation by the federal courts, and
punished because such acts have been denounced as an offense
by an act of Congress, the articles of our code cited can not
apply to or embrace white men.
• This is a plausible, yea, a strong position, and was supported at
Tyler by a most cogent argument by Mr. Stuart. It is contended
that, though the acts committed by appellant are forbidden by
positive law (of the Nation) with punishment annexed on con-
viction, yet as appellant, because a white man, could not be
punished under the said law, therefore he could not commit the
offense in the Territory as required by article 798. This article
must be construed in connection with article 799, which reads
as follows: "To render a person guilty under the preceding
article it must appear that, by the law of the State or Territory
from which the property was taken and brought to this State,
the act committed would also have been robbery, theft or
receiving stolen goods." The act must appear to be theft by
the law of the Territory.

Did it so appear? This is not denied by appellant, but he
replies through counsel that he can not be punished under the
territorial laws, and where there is no punishment there can
be no offense. The law of the Nation is broad and compre-
hensive in its terms. It says: "Every person who shall wil-
fully take and steal a horse," etc. It is not confined to Indians,
nor does it except from its operation white men. An indict-
ment against an Indian, to be sufficient, would not have to
allege that the accused was an Indian, or negative that he was
a white man. Therefore, whether the act, theft, be committed
by an Indian or white man, it is forbidden by positive law, and
there is annexed, on conviction, a prescribed punishment. The
language of the act of the Territory is not such as makes the
fact that the person was an Indian an element of the offense.
If this had been the case, no person except an Indian could

Digitized by VjOOQIC

414 27 Texas Coukt of Appeals. [Galveston

Opinion of the court.

have been guilty, though he may have committed all the acts
denounced as theft. But the law is not thus written; it em-
braces every person, white, black, or Indian. The act com-
mitted by appellant therefore was, by the law of the Territory,
theft.

But, says counsel for appellant, it was not theft in appellant,
because for want of jurisdiction, the courts of the Territory
could not punish him. The act of the Territory defining theft
embraces every person, and there is punishment annexed to
its violation. This is not a case in which the law denounces
acts as a crime, but fails to annex a penalty to such crime. To
the contrary, all persons are embraced, and for a violation a
penalty is prescribed. How, then, does the fact that appellant
can not be punished under the Territorial law negative or re-
fute the conceded actual facts, viz: That he, in fact, did com-
mit an act in said Territory; that the act committed was theft,
and that it was theft by the law of said Territory, whether
committed by an Indian or white man? If the act committed
is theft by the law of the Territory, and is theft here, and the
stolen property is brought to this State, the party should have
been convicted whether he could have been punished under the
laws of the Territory or not. This is our deliberate conclusion
after mature reflection.

Second assignment. The court erred in not defining and
construing in its charge to the jury the law of the Nation, and
in leaving the question to be determined by the jury without
appropriate instructions. In this there was no error. The
laws of the Nation were introduced in evidence. The court
should have instructed the jury that certain acts, by said laws,
constitute theft, leaving it to the jury to determine whether
the defendant was guilty of such acts, and this was done by
the court. But suppose the matter was left to the jury and
they held that said acts did, by the laws of the Nation, consti-
tute theft. We have the acts of the defendant before us, and
we are of opinion that the jury's construction of said law was
correct; and there is no injury.

Third assignment. The court erred in not presenting affirm-
atively in the charge defendant's theory of the case, which was
that he had purchased the horse from hands working for B. C.
Evans, in Wise county. Bearing upon this matter, the court
charged the jury: '*When the possession of the property re-
cently stolen is relied upon as a criminative fact, if such pos-

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State. 415

Syllabus.

session is proven, and the person in whose possession such
property is found, when his possession is first questioned, makes
a reasonable explanation of his possession, the evidence must
show that such explanation is false before such possession
would, of itself, warrant a conviction.*' Appellant was found in
possession of the stolen property. He explained by stating that
he had purchased it from the hands of Evans, in Wise county.
The purchase was his reasonable explanation of his possession.
The jury were told that before his possession could be used
against him, if reasonably explained, the evidence must show
it false. Under the facts of this case,. this charge was correct.
We find no error in the record, and the judgment is affirmed.

Affirmed,
Opinion delivered March 23, 1889.

No. 2554.
Jim MoCoy v. The State.

, PBAonCB— CHAH0B OF YBinTB.— The trial Judge, of his own motioD,
changed the venue of this case from L. to B. county, the said B. ooanty
not being within the same Jadioial district The objection urged by
the defense was that the venae was changed to a county in another
Judicial district, aod not to F., the nearest county in the same district
Bnt among the reasons assigned by the Judge for changing the venue
to B. county instead of F. county, it appears that to his knowledge
the said F. county was subject to the same objection as L. county.
Held^ that the venue was properly changed to B. county.
Samb— EviDBNCB.— A State's witness was permitted to testify that,
aboat two or three weeks before the homicide, the defendant, in the
presence of the witness and others, said that if the deceased ever came
to Twohig he had better come shooting or he would not leave there
alive. The objection urged was that the evidence did not tend to show
the complicity of the defendant as a principal actor in the homicide,
nor to establish a conspiracy with C, who was the actual perpetrator,
to kill the deceased, ffeldj that the proof showing defendant to have
been present at the homicide, the evidence was properly admitted in
corroboration of attending circumstances evidencing not only a con-
spiracy to murder the deceased, but that the defendant and C. acted in
concert in the perpetration of the murder.
Bamb — Cross Examination.— It is a general rule that a witness can
not avoid answering a question that is material to the issue, upon the

27 415
SO 54

Digitized by VjOOQIC

416 27 Texas Court of Appeals. [Galvertfm

SyllabiiB.

ground that it impates disgrace to himself, unless such disgrace
amounts to crimination. Under this rule the trial court did not err in
refusing to permit the defense, upon cross examination, to ask a Stated
witness if he did not, upon the trial of one W., for rape, endeaTor to
get the defendant to procure false testimony against W., such pro-
posed evidence being material to no issue in tills ease.

4. Murder— CHARas of the Court.— Omission or refusal of the trial

court to submit in charge to the ju^y the law of murder in the second
degree, when the evidence establishes only the higher grade, is not
error.

5. Same— Practice in t^e Court of Appeals.— The appellate com%

in determiuiDg the question whether injury or probable injury re-
sulted to the accused from the giving of an erroneous, or the omission
of a necessary, instruction, must consider the charge in its entirety
and as applied to the evidence embodied in the statement of facts.

6. Same— Charge of the Court.— In this case the general charge of the
. court clearly and concisely hinged the guilt of the accused upon the

question whether he was present when C. killed the deceased, and,
knowing the unlawful iuteut of C , aided or encouraged C. in the kill-
ing of the deceased; or whether he advised or agreed to the killing of
the deceased by C, and was present when C. killed the deceased. The
defense requested an alternative charge based upon the theory that
C, unaided in any manner by the accused, shot and killed deceased,
and that the shooting of one E., at the same time and place by the ac-
cused, was a distinct and [separate transaction from the killing of the
deceased by C. The trial court gave ihe requested instruction with
the following qualification: * 'The foregoing charge is given in subor-
dination to the general charge regarding principals." This qualifica-
tion was not excepted to, but was urged as cause for new trial, and is
relied upon in this court for reversal, the defense maintaining that, if
the evidence does not clearly establish its theory, it leaves it in doabt,
and that its said theory should have been submitted to the jury af-
firmatively, subordinate to no other charge and untrammeled by any
qualification whatever. Held^ that abstractly the objection is sound,
and if based upon sufficient evidence or opposed by insufficient incul-
patory proof, would require a reversal of the conviction; but, the evi-
dence not only refuting the theory, but establishing beyond peradven-
ture the propositions propounded by the general charge, the qualifica-
tion appended to the special charge by the trial judge did not inure to
the injury of the defendant.

8. Murder— Fact Cask.— See the statement of the case for evidence held

sufficient to support a capital conviction lot murder.

On Motion for Rbhearinq.

9. Practice— Evidence— Postponement for Surprise.— The motion

for rehearing shows to the satisfaction of this court that, by reason of
a clerical error in a bill of exceptions, the original opinion states that
the witness E. testified that the threats of the deceased were to be exe-
cuted at Cotulla, whereas in fact the said witness testified that Twohig

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State. 417

Statement of the case.

was the place whereat, in the event of the deceased groing there, the
threats would be executed. But held that, notwithstanding this show-
ing, the motion for rehearing must be denied, because, in the light of
the evidence on the trial, the absent testimony, if adduced, could not
have affected the result of the trial.

Appeal from the District Court of Bexar, on change of
venue from the District Court of La Salle. Tried below before
the Hon. G. H. Noonan.

The indictment in this case was filed in the district court of
La Salle county, on the tenth day of May, 1887. It charged
the appellant with the murder of C. B. McKinney, in the said
La Salle county, on . the twenty-sixth day of December, 1886.
On the thirteenth day of May, 1887, the appellant was arraigned
in the district court of La Salle county, when the trial judge,
of his own motion, changed the venue of the case to Bexar
county. At the June term, 1888, of the district court of Bexar
county, the appellant was placed upon trial, was convicted of
murder of the first degree and awarded the death penalty.

S. V. Edwards was the first witness for the State. He testi-
fied, in substance, that in December, 1886, he occupied the oflS-
ces of deputy United States marshal, deputy sheriff of La Salle
county, and deputy hide and animal inspector of the same
county. Captain C. B. McKinney, the deceased, was then the
sheriff of La Salle county, and had occupied that oflBce two
terms. The witness had known the defendant since 1874 or
1875. The witness and deceased lived in Cotulla, La, Salle
county. On the twenty-sixth day of December, 1886, the de-
ceased sent for the witness to go with him to Mrs. White's
ranch, about six miles east from the town of Twohig, in La
Salle county, for the purpose of arresting one Dow White on a
charge of raping the daughter of a Mrs. Gallaway. The wit-
ness reported to the deceased and they left Cotulla on the two
o'clock p. m., train, for Twohig. Before leaving Cotulla the
witness and deceased were joined by Dr. Bain, wno was going
to Mrs. Gallaway^s house for the purpose of making a medical
examination of the alleged ravished girl. They arrived at
Twohig between four and five o'clock in the evening. The de-
fendant lived between three and four hundred yards east from
the railroad depot at Twohig station. Witness saw the defend-
ant in Twohig as soon as lie got there, and a few minutes later

Digitized by VjOOQIC

418 27 Texas Court op Appeals. [Galveston

Statement of the case.

the defendant was joined by Bud Crenshaw, in front of Bain's
store, where they held a short conversation. Defendant then
met witness, and, after a few words of friendly conversation,
asked what he and the deceased had come to Twohig for.
Witness replied in a joking manner: **Ask me no questions,
and I will tell you no lies." A few minutes later the defendant
and Crenshaw started off together towards the defendant's
house— both being on horseback. Ttiey passed deceased and
witness about the railroad crossing, and when they had gone
about twenty steps, Crenshaw turned and started back towards
deceased. He had retraced his steps about half way when de-
fendant said to him: "Come on, Bud.'' Crenshaw motioned
his hand behind him at defendant, and went up to deceased
and said to him: '*How are you, Charley?" Deceased replied:
'*How are you. Bud?" Deceased and Crenshaw then shook
hands, and deceased asked Crenshaw how he had passed Christ-
mas. Crenshaw replied that he had had "a fine time, got
drunk, but was sober now." They then told each other good
bye, and Crenshaw rode off and overtook defendant. Deceased
was in conversation with W. A. Stewart when accosted by
Crenshaw. Witness and deceased got horses at Twohig, and
employed Benito Santos to guide them to White's ranch.

Of the two routes which led from Twohig to White's ranch,
witness and the deceased took the more easterly one, which
passed by the defendant's house. When they reached a point
within fifty or sixty yards of the defendant's house, they saw
the defendant and Crenshaw on the west side of the house, near
the door. They had apparently just emerged from the house
at that door, and they almost immediately disappeared around
the south side of the house. The witness next saw them as he
and deceeased approached the east side of the house. They
were then sitting or squatting down, facing the path or trail
along which witness and deceased were riding. There was
a blanket spread under them, and a pillow on the blanket
Defendant was sitting flat on either the blanket or pillow, and
two six-shooter pistols lay on the blanket, one on each side of
him. Defendant and Crenshaw each had a Winchester rifle in
hand, with the muzzles pointing across the road in the direction
that witness and deceased were to travel. Upon reaching a
point near the said parties, deceased directed Dr. Bain and Santos
to ride on ahead, to be overtaken presently by him and witness.
Bain and Santos rode on and witness and deceased stopped, when

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State. 419

statement of the case.

deceased called to Crenshaw: "Bud, I want to see you a few
minutes," and rode off thirty or forty steps, leaving witness
with or very near the defendant. Crenshaw got up, cocked his
gun, and then let the hammer down and approached deceased
with the gun across his arm and in a position to shoot deceased.
Deceased was then sitting side ways on his horse, with his
Ti^ht leg thrown over the neck of his horse, his right elbow
resting on that leg, and his head on his right hand — his body
Ictining a little forward. In that position he talked a few min-
utes to Crenshaw, who was standing on the ground by the side
of McKinney's horse, holding his Winchester with both hands,
and the muzzle pointing towards McKinney. McKinney's pis-
tol was in the scabbard on his right hand side. He had noth-
ing in his hands, and both hands were gloved. During this
time witness and defendant were engaged in a conversation of
some trivial character. Finally defendant, in a low tone of
voice, asked witness for a chew of tobacco. Witness had his
tobacco under his gloves and handkerchief in the right-hand
pocket of his sack coat. While getting it out he heard Cren-
shaw ask McKinney: **What is the matter, Charley?" or per-
haps McKinney asked Crenshaw: **What is the matter. Bud?*'
he was not certain which. About that time, the witness hav-
ing at the moment succeeded in getting his tobacco from his
pocket, the defendant repeated, in a loud tone of voice: "Give
me a chew of tobacco, Pete!" Witness threw the tobacco to
him, and at that instant heard the report of a gun fired at the
point .where Crenshaw and McKinney were. Witness looked
that way instantly and saw McKinney falling from his horse,
and Crenshaw presenting his gun at him, with the muzzle almost
touching his chin. As McKinney fell, Crenshaw pushed the gun
against his breast and fired again. When the witness turned
to look at deceased and Crenshaw, exposing his left side to
defendant, the defendant shot witness, the ball entering the
lower part of the left shoulder blade, ranging upward and
passing out through the top of the left shoulder, shattering the
bone.

Upon receiving the shot described, the witness, who with
diflSculty maintained his seat on his horse, looked toward de^
fendant and saw him in the act of firing on him a second time.
The witness could not manage his horse, which ran off with
him when the first shot was fired by defendant. One or two
more shots were fired at witness as his horse fied, and a shot

Digitized by VjOOQIC

420 27 Texas Court of Appeals. [Galveston

Statement of the caFe.

was fired at him from inside the defendant's house. The last
mentioned shot could not have been fired by either defendant
or Crenshaw, because neither of them could have reached the
house by that time. Witness saw no person about the said house
other than defendant and Crenshaw, and could not imagine
who fired the shot from the inside of the house. Seven or eight
shots in all were fired, one of which passed through the left
shoulder of the witness's coat. On reaching the immediate
vicinity of the defendant's house, the witness saw two horses
standing at and tied to the northeast corner of the house.
Each of the horses had on a bridle and saddle, and there was
a wallet or bundle secured to one of the saddles. Before reach-
ing the defendant's house McKinney told witness that he was
going to stop there and get Crenshaw to go to White's ranch
with him and witness. Defendant and Crenshaw had their
Winchester guns when witness first saw them in Twohig.
Crenshaw was standing immediately by the side of McKinney 's
horse just before he fired the first shot. McKinney had a buck-
skin glove on each hand, and had no weapon of any kind in
either hand when shot. When the witness was shot, his horse
sprang toward Crenshaw, Crenshaw threw his gun down on
witness, and at that instant defendant fired the second shot
at witness. Witness saw the body of McKinney about an hour
after he was killed, and was told at that time that McKinney
was shot four times. Witness had not seen Crenshaw since
the killing of McKinney. About three weeks before the kill-
ing of McKinney, the witness stepped into Butler's saloon in
CotuUa, where he met defendant — defendant having sent for
him. Defendant appeared to be very angry on that occasion,
and denounced McKinney to the witness as a **damned son of
bitch." This remark about McKinney, who was a friend of the
witness, inflamed the witness, and he made some denunciatory
reply to defendant. One word brought on another, until defend-
ant drew a pistol. Witness instantly drew his, when defend-
ant subsided, and said something about fighting a duel, pro-
posing, as witness understood him, that he and Crenshaw
would fight a duel with witness and McKinney. He then said
that if McKinney ever came to Twohig he had better get off
the train shooting, or he would never leave there alive.

Cross examined, the witness said that sometime after the
conversation in Butler's saloon, as detailed above, he met the
defendant in the streets of CotuUa, when defendant undertook

Digitized by VjOOQIC

Tenn, 1889.] McCoy v. The State. 421

statement of the case.

to "smooth over*' the matter by telling witness that he would
not have said what he did in the saloon but that he was drunk.
He was drinking somewhat at the time of that conversation.
The witness knew as a matter of fact that defendant did not
like McKinney. He could not say that McKinney had any par-
ticular grudge against the defendant, but he had said to wit-
ness that the defendant was a fQol. McKinney had several
times arrested defendant for being drunk and disorderly. He
arrested him at Twohig once for being drunk and having a
pistol, over which matter he and defendant had some trouble.
Witness could not state how long the ill feeling between de-
fendant and McKinney had existed before the killing. Defend-
ant and McKinney sometimes spoke when they met, and
sometimes they did not. Crenshaw and defendant lived near
each other and spent much of their time together. Defendant
knew where McKinney lived. He did not speak to McKinney,
nor McKinney to him, on the day of the killing. When Mc-
Kinney, sitting on his horse in the position heretofore stated
by witness, called Crenshaw to him, he, Crenshaw, stepped
forward, cocked his Winchester, and, the witness thought, then
let the hammer down, and approached McKinney with the
Winchester in a position to shoot. McKinney could see all
that Crenshaw did, but neither he nor witness said anything.
Defendant was looking towards witness when he asked witness,
the second time, in the loud tone of voice for the chew of to-
bacco. Just before witness threw the tobacco to defendant, he
heard Crenshaw's voice — or he took it to be Crenshaw's — say:
"What is the matter, Charley?" and the shooting commenced.
Judging from the circumstances, and the manner in which de-
fendant last asked for the tobacco, it was the witness's solemn
belief that the defendant's said request to witness was the
signal to Crenshaw to shoot McKinney. Crenshaw fired the
first shot, killing McKinney, and almost simultaneously de-
fendant fired the shot that wounded witness. Witness did not
see either Crenshaw or defendant when the shot was fired
from the house. The said shot came from the south side of
the house. Witness could not see into the house. He had
never been in it, and knew nothing about its interior arrange-
ment. He could say nothing about an opening, whether door,
window or cracks, on the south side. The only opening he
saw was on the west side, facing Twohig.
Further cross examined, the witness said that he was unable

Digitized by VjOOQIC

422 27 Texas Court of Appeals. [Galveston

Statement of the case.

now to state whether the conversation in Butler's saloon with
defendant, as detailed on direct examination, occurred before .
or after the election. George Gerdner, John Butler, Foster
Cope, McMullen, George Salmon, Justice Howard and the bar
tender were present at the time of that conversation. Justice
Howard had since died. Defendant uttered no threats in the
conversation he had with witness in Twohig, a few minutes
before the killing. Benito Santos, who lived in the neighbor-
hood of White's ranch, and who was going home, was going to
pilot witness and McKinney to White's ranch. McKinney,
witness and Santos were all armed, the latter with a Winches-
ter. The wagon road from Twohig to White's ranch did not
lead by defendant's house. A trail only led from Twohig to
the said ranch, via defendant's house. The witness thought it
strange that Crenshaw should cock his gun on starting to Mc-
Kinney, but, as McKinney said nothing, he did not. He could
not say that McKinney observed Crenshaw cock the gun. The
witness could not say that he did or did not attempt to draw
his pistol when Crenshaw fired the first shot. He did try to
draw it immediately after he was shot by defendant. The wit-
ness testified on the examining trial of this defendant. He did
not testify on that trial to the threats uttered by defendant in
Butler's saloon because, having previously told the district at-
torney and Mr. Nott of those threats, they both advised him to
withhold that part of his testimony for the final trial in the dis-
trict court. Witness stated in his testimony on the examining
trial that he did not suppose that defendant and McKinney
loved each other. He also testified that he thought defend-
ant's last request to him for tobacco was the signal for Cren-
shaw to shoot McKinney. When he gave that testimony de-
fendant said to him, in the presence of the justice of the peace:
"You are telling things to suit yourself any way; why don't
you swear it?" Witness thereupon drew his pistol, called the
defendant a damned son of a bitch, and charged him with "put-
ting up tte job by which Charley McKinney was murdered.'*
The witness stated that the defendant was then in arrest, and
that, for that reason he, witness, would like to be permitted to
give a satisfactory explanation of his conduct on that occasion,
the fact being that he drew his pistol more on account of old
Jesse Laxon, the uncle of defendant, who, at the time, was sit-
ting by the defendant, armed. The witness communicated to
McKinney, before the fatal day, the threats uttered by defend-

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State. 423

Statement of the case.

ant in Butler s saloon. The killing of McKioney created a great
deal of excitement in La Salle county, and had the defendant
or Crenshaw fallen into the hands of some of tie citizens they
would undoubtedly have been lynched. They were, however,
perfectly safe from lynching in the hands of the officers of the
county. It was true that parties had been taken from jail in
Cotulla and hung without judge, jury or trial, but in every
such case they deserved hanging.

On re-examination, the witness was directed to detail, cir-
cumstantially, the episode in the examining trial, of which he
had spoken. He stated that while he was on the stand on that
trial and throughout the entire trial, Jesse Laxon, the reputed
uncle of defendant, sat by defendant's side. The witness knew
that Laxon was armed, because he saw his hand under his coat
and on the handle of his pistol. He had not disarmed Laxon,
because he knew Laxon to be a deputy sheriff of Dimmitt
county, and authorized to carry a pistol. When the witness
testified that he believed defendant gave the signal, as testified
here, for Crenshaw to shoot McKinney, defendant said: **Why
don't you swear it; you are telling things to suit yourself any-
way?" The witness then distinctly saw Laxon partially raise
up and attempt to draw his pistol. Witness did not propose to
sit there unarmed, under the circumstances, and accordingly
he drew his pistol on Laxon more than on defendant, and kept
his eye on Laxon while he replied that defendant was the
"damned son of a bitch who put up the job to murder Charley
McKinney; that he, defendant, was and had always been a
thief and an outlaw." Bill Johns and others caught witness,
and Laxon left.

Dr. Bain testified, for the State, that on the morning of De-
cember 20, 1886, Mrs. Gallaway, who lived near Twohig
Station in La Salle county, came for the witness ,to go to her
house to make a surgical examination of her daughter, who,
it was charged, had been recently ravished. The witness got
on the train for Twohig on that day, and when near Twohig
got in company with McKinney and Edwards, who told him
they jvere en route to Mrs. White's ranch to arrest Dow White
for the alleged rape of Miss Gallaway. When the train reached
Twohig the witness saw the defendant, whom he knew, stand-
ing on the platform. Edwards and defendant met on the plat-
form, spoke to each other and shook hands in a friendly man-
ner. Within a short while the witness saw Crenshaw in town.

Digitized by VjOOQIC

4:2nt 27 Texas Court of Appeals. [Galveston

StatemeDt of the case.

He and defendant got together, and shortly rode oflE together
toward the defendant's house, which was situated about a
quarter of a mile east of Twohig Station. As they crossed the
railroad they passed Captain McKinney, who was then in con-
versation with Mr. Stewart. After reaching a point about
twenty -five or thirty yards beyond McKinney, Crenshaw turned
and rode back. As he started back, defendant said to him :
" Come on, Bud." Crenshaw motioned his hand behind him at
defendant, approached McKinney and said to him: "How
are you, Charley?" McKinney replied: " How are you. Bud?"
shook hands with him and asked him : " How did you
spend Christmas?" Crenshaw replied: "I had a fine time;
got drunk, but am sober now." After a few more words
of conversation, Crenshaw turned and went back to defend-
ant, and the two rode oflf towards the defendant's house. Both
the defendant and Crenshaw had guns on their saddles.

Witness, McKinney and" Edwards, after remaining in Two-
hig about three quarters of an hour, secured horses and got a*
Mexican named Santos as a guide, and started to the White
ranch. Between the depot and defen(iant's house McKinney
said that he was afraid that defen'lant and Crenshaw would
warn White that he was being searched for, and that if he did
not find White at defendant's house, he was going to add
Crenshaw to his posse and take him along. McKinney and his
party, including the witness, instead of taking the regular
road to White's ranch from Twohig, took the path or trail that
led by defendant's house. When the party reached a point
within fifty or sixty yards of defendant's house, the witness
observed defendant and Crenshaw walk from the west side of
the house to the south side, whence they disappeared around the
east side. McKinney's party was traveling east. A very few
moments later the witness saw defendant and Crenshaw sit-
ting down near together on the east side of the house, with
their Winchester guns across their laps. McKinney said to
witness: *'You and Santos go on; I will overtake you pres-
ently." Witness and the Mexican rode on slowly. Edwards
stopped near defendant. McKinney said to Crenshaw : " Bud,
come here; I want to see you a minute," and rode to a point
about thirty yards distant from defendant and Edwards.
Witness, riding along slowly, observed Crenshaw and saw him
get up, start towards McKinney with his gun g^a^ped in both
hands, the muzzle pointing towards McKinney. He cocked

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State. 425

Statement of the case.

his goxL as he advanced, and took his position at the side of
McKinney, with his gun in a position to shoot McKinney,
which position he maintained until he did fire the fatal shot.
McKinney was leaning forward, with his right elbow resting
on his horse's neck, and his head resting on his right hand.
His pistol was in the scabbard, belted around his body. He
had gloves on his hands and had nothing in his hands. Ac-
cording to witness's recollection, both of McKinney's feet were
in the stirrups. When witness and Santos reached a point
about sixty yards distant from McKinney and Crenshaw, wit-
ness saw Crenshaw thrust the muzzle of his gun to McKin-
ney's face or chin and fire at McKinney, who was maintaining
the position described. Almost instantly another shot was
fired about the place where the defendant was when witness
last saw him, which place witness could not see at that mo-
ment, because of Edwards's horse. When this shot was fired,
Edwards's horse whirled around, and at least one more shot
was fired from the blanket on which defendant was sitting
when witness last saw him. It was the second shot fired from
the blanket, as indicated by the course of the wound and the
movement of Edwards's body in the saddle, that struck Ed-
wards. Witness saw a second shot fired into McKinney's body
by Crenshaw, and afterwards saw four wounds in McKinney's
dead body, either one of which was necessarily fatal. When
witness, who left the scene immediately upon the firing of the
shots described, reached Twohig, he found Edwards already
arrived, wounded in the manner described by him (Edwards).
The witness heard seven shots fired, four of which he saw.
He did not hear anything said by McKinney or Crenshaw after
McKinney called Crenshaw. He did not hear defendant ask
Edwards for tobacco. He did not see McKinney either draw
or attempt to draw a pistol. The witness saw two horses, sad-
dled and bridled, at the northeast corner of defendant's house.
They were the same horses ridden by defendant and Crenshaw
in Twohig. McKinney's face and wrist were blackened by
powder-bum.

On his cross examination the witness said that McKinney
was killed by the first shot fired by Crenshaw. It was under-
stood by the witness that if Dow White was not found at de-
fendant's house, the party was to go on to White's ranch, tak-
ing Crenshaw along as a part of the posse. Witness and the
Mexican rode forward when directed by McKinney to do so.

Digitized by VjOOQIC

426 27 Texas Court op Appeals. [Galveston

Statement of the case.

and had just checked their horses to wait when the first shot
was fired. The witness saw but one opening to the defendant's
house or **jacal," and that was on the west side, looking to-
wards Twohig.

Benito Santos testified, for the State, that in December, 1886.
he lived near the White ranch, in La Salle county, Texas. Ha
met Captain McKinney and Mr. Edwards in Twohig on the eve-
ning of December 26, 1886, and was employed by them to guide
them to the White ranch. Dr. Bains was with them. The wit-
ness saw the defendant and Bud Crenshaw, the latter of whom
he had never seen before, in Twohig on the same evening.
When McKinney's party, including witness, started from Two-
hig to White's ranch, they took the trail via defendant's house,
which was the nearest route to the said ranch. The defend-
ant's house stood about ten steps from that trail. When the
party got within about one hundred yards of defendant's
house, the witness saw the defendant going from the brush to-
wards his house. He was alone and on foot, — walking on his
crutch— and had no gun, and so far as the witness could tell,
no pistol with him. Crenshaw was then on the east side of the
house, where the defendant joined him. As the party came
in view of defendant and Crenshaw on the east side of the
house, the witness observed a carbine gun leaning against the
house near them. About that time Captain McKinney told Dr.
Bains and witness to ride on, and he and Edwards stopped.
When witness and Dr. Bains had gone a short distance, wit-
ness looked back and saw Captain McKinney and Crenshaw
talking to each other. Crenshaw was standing by the side of
McKinney's horse, and McKinney was sitting on his horse in
the position stated by the witness Edwards. He had a pair of
buck-skin gloves on his hands, and in one hand held a small
riding whip which the witness loaned him a few minutes be-
fore. He had nothing but the whip in his hands. The witness
and Dr. Bains rode forward slowly, and when they had reached
a point about seventy yards distant from the parties, witness
heard defendant in a loud voice ask Edwards for a chew of to-
bacco. In an instant and almost simultaneously two shots
were fired. Witness looked back and saw Captain McKinney
falling from his horse, Crenshaw preparing to shoot again, de-
fendant leaning against the house, and smoke ascending from
the place where he stood. Crenshaw shot McKinney the sec-
ond time as he fell off his horse, and twice after the body had

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State. 427

Statement of the case.

fallen. As the witness left the scene he saw Crenshaw and de-
fendant disappear behind the house. He saw but one horse at
the defendant's house, and that was the horse ridden by de-
fendant from Twohig.

Cross examined, the witness said that the trail by defend-
ant's house led into the White's ranch road through the brush.
He did not hear Captain McKinney, when the party left Two-
hig, say that he would have to go by defendant's house. In
approaching the said house over the said trail, the party rode
in single file, Edwards in advance, McKinney next, Doctor
Bains next, and witness in the rear. Witness thought that
McElinney and Edwards could have seen defendant approach-
ing the house from the brush as well or better than he could.
The witness was positive that Crenshaw and defendant were
not sitting on a blanket when he, witness, reached the house,
and that defendant was standing on his crutch against the
house, talking to Edwards, with no gun in his hands, when
witness and Doctor Bains rode forward, as directed by Mc-
Kinney.

W. Gallaway was the next witness for the State. He testi-
ged that he lived in LaSalle county, about seven miles distant
from Twohig station. He was not related to defendant, but
had known him about eleven years. He could not say how
long he had known Crenshaw when he, Crenshaw, was killed
resisting arrest. When killed. Captain McKinney had ju^t
been elected sheriff of LaSalle county for the third term. De-
fendant used to divide his residence between the houses of the
witness and John DeSpain. About the time of the general
election in November, 1886, the defendant asked the witness to
help him decoy and kill Captain McKinney. That proposition
was made to witness by the defendant at defendant's house, in
the presence and hearing of W. O. Tompkins and a Mexican
named Fumicina Garcia. He had twice before made the same
proposition to the witness, once during the term of the district
court in CotuUa in 1885, and again about two weeks after the
adjournment of that term of court. The witness at no time
agreed to help him decoy or kill Captain McKinney, but, on the
contrary, positively and absolutely refused. Witness saw the de-
fendant at night, about two weeks after the killing of McKinney.
He came to witness's house on that night to get some provis-
ions. He was on horseback, and, witness supposed, was armed.
Witness saw him again on the next day in the brush, about

Digitized by VjOOQIC

428 27 Texas Court op Appeals. [Galveston

statement of the case.

three miles distant from witness's house. He was then lying
in the brush, waiting to be supplied with provisions. On that
occasion defendant told witness that he, defendant, shot Pete
{Edwards), and that Crenshaw shot McKinney, who fell off
his horse like a turkey gobbler. He assigned no reason for
shooting Edwards, nor did he say why Crenshaw killed McKin-
ney. Witness sent word to Captain Schmidt, of the Texas
ranger force, that defendant was in his, witness's, neighbor-
hood, and that he could arrest defendant by watching his, wit-
ness's, house.

Cross examined, the witness said that, when he saw defend-
ant at his house and when he took provisions to defendant in
the brush, he knew that defendant was accused of the murder
of Captain McKinney. The officers in Cotulla asked witness
to obtain information for them as to the whereabouts of de-
fendant, and he sent them word that they could find defendant
by watching his, witness's, house. The witness did not get
mad when defendant proposed the assassination of McEinnej
to him. Witness and defendant had always been friends, un-
til the killing of McKinney, at which time the witness's feelings
towards defendant changed. He had always opposed Captain
McKinney in elections, but his feeling towards both McKinney
and defendant changed at the death of McKinney, from the
fact that McKinney lost his life in going to the defense of the
witness's family in the absence of the witness. White had
been charged with the rape of the witness's daughter, the wit-
ness being away from home at the time, and McKinney was
on his way to arrest White when he was killed. Witness was
about sixty miles away from home on the day that McKinney
was killed, and did not know of the killing nor of the rape of
his daughter until he got back home. The witness never told
McKinney of the propositions made to him by defendant to
kill him, McKinney. The reason why witness furnished food
and shelter to defendant after the killing of McKinney was
that he thought the defendant could furnish or suppress evi-
dence against Dow White for the rape of witness's daughter.
Witness attended the trial of Simpson DeSpain, in Frio county,
and remembered meeting Mr. Haltom (attorney for defendant)
at that trial, and remembered that he went to Haltom and in-
quired after '^mia compadre^* — meaning the defendant; and
that he told Haltom to tell defendant that he, witness, could
do nothing for him until after the trial of Dow White, when

Digitized by VjOOQIC

Term, 18S9.] McCoy v. The State. 42&

Statement of the case.

he, witness, would go to his, defendant's, assistance. The wit-
ness sent that word to defendant by Haltom, to keep defend-
ant's people from working against him in the Dow White
case;— notwithstanding which fact, his people did help White.
White was in jail when witness took the food to defendant in
the brush. On that occasion the defendant told witness that
he had been hiding in Hill's pasture. He did not say where
Crenshaw then was, nor did he then or at any other time tell
witness that he signalled Crenshaw to shoot McKinney, by
asking Edwards for some tobacco. Witness first divu'ged the
facts to which he has now testified after the acquittal of Dow
White.

Mr. Mclnest testified, for the State, that he lived in Twohig
at the time of the tragedy, and heard the firing of the fatal
shots. He and Mr. George Knaggs reached defendant's house
about fifteen or twenty minutes later. They found McKin-
ney's body, with arms extended, lying on the ground about
thirty steps from the house. McKinney had his buckskin
gloves on, and his pistol was in the scabbard belted around his
body.

Captain George H. Schmidt testified, for the State, that he
was captain of a company of State troops in December, 1886.
On the twenty-eighth day of December, 1886, he was ordered to
La Salle county. He reached CotuUa on the twenty-ninth day
of that month, when Captain R. P. Fly, who had been ap-
pointed sheriff to succeed Captain McKinney, delivered to him
warrants for the arrest of Crenshaw and defendant. Witness
and five men raided the county several times in search of the
defendant and Crenshaw. About the middle of January,
1887, the witness learned that Crenshaw wag in the Summers
pasture, and knew that defendant was not far away from
Crenshaw. He and his men accordingly waylaid a trail over
which witness presumed the parties would pass in quest of
water. After several days waiting, two men, who proved to
be Crenshaw and W. O. Tompkins, appeared on the trail in the
distance. Witness stationed his men in a manner to entrap
the parties. When they reached a certain point on the trail
witness stepped into the trail and ordered Crenshaw to surren-
der. Tompkins also called to him to surrender. Instead of
doing so, Crenshaw drew his pistol and fired, and was imme-
diately shot down by witness's men. Tompkins fled and Cren-
shaw soon died. The witness at that time knew where the

Digitized by VjOOQIC

430 27 Texas Coxjrt of Appeals. [Galveston

Statement of the case.

defendant was, but expected him at that particular hour to be
with Crenshaw. Defendant afterwards surrendered, being
brought in by his brother.

Cross examined, the witness said that after his surrender the
defendant expressed great fear of being mobbed, but witness did
not think he was as afraid of the people of CotuUa, as those
people were of him. Great excitement prevailed in Cotulla.
Mr. Hill was afterwards killed. Defendant's surrender was op-
portune as he could not have avoided capture. He knew the
thickets better than his pursuers, but was hemmed in and
worn out.

The State closed.

George Knaggs, postmaster at Twohig, was the first witness
for the defense. He testified as Mclnest did about going to de-
fendant's house after the shooting, and finding McKinney's
body, and further that, as was his daily custom, defendant
came to the post office on the fatal day just after the train
passed through and asked for letters which the witness knew
he had reason to expect by that mail. Defendant was at the
depot when. McKinney reached Twohig on that evening. It
had always been defendant's custom since witness had known
him, to carry a Winchester rifle or carbine. When he came to
Twohig he generally left his gun in witness's store until leav-
ing town. Witness did not remember seeing defendant with a
gun on the fatal day. Defendant's house had but one opening
— the door on the west side. The road to White's ranch did
not pass defendant's house. Witness saw McKinney alone in
Twohig several times after the election of 1886. Witness did
not remember seeing defendant and Crenshaw too-ether on the
fatal day.

Willie Hill testified, for the defense, that the road from Two-
hig to White's ranch did not pass by defendant's house. A
path led towards that road as far as defendant's house, but be
yond that one would have to go through the brush to get to the
said road.

Cross examined, the witness said that Bud Crenshaw was his
uncle, and at the time McKinney was killed, lived at his, wit-
ness's, father's house. He left that house to go to Twohig,
about three o'clock on the evening of the murder of McKinney.
He came back to the house late that evening after the killing,
defendant being with him. Defendant said that Crenshaw
killed McKinney, but at that time said nothing about Edwards.

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State. 431

Opinion of the court.

They remained at the house a very short while, and then left,
as they came, on horse back, taking Winchesters and pistols
with them. The witness afterwards, on one or two occasions,
saw Crenshaw in the brush, on which occasions he told wit-
ness that he killed McKinney. Witness never saw defendant
in the brush after the killing. Witness did not tell the ofiScers
that they could find Crenshaw in the brush. He did not con-
sider the arrest of Crenshaw any business of his, and so far as
he was concerned, he decided to let the ofiScers find Crenshaw
if they could.

A. J. Evans and Ed, Haltoniy for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This is a conviction for murder of the firgt
degree, with the death penalty.

At the May term, 1887, of the district court of La Salle coun-
ty* appellant was indicted for the murder of C. B. McKinney.
On the thirteenth day of May, 1887, the court of its own mo-
tion made an order, changing the venue of the case to the
district court of Bexar county. When this order was madCf
appellant objected to the case being sent to Bexar, that county
being out of that judicial district. The learned judge filed
reasons for sending the case out of his district; which reasons
are quite satisfactory. (See art. 576, Code Crim Proc.)

On the trial the State, over objection, proved by S. V. Ed-
wards that, about two or three weeks before McKinney was
killed, defendant McCoy told the witness, in the presence of
others, in Butler's saloon, in CotuUa, La Salle county, that if
C. B. McKinney ever came to Twohig he had better come shoot-
ing, as he intended to kill him, etc. Counsel for appellant ob-
jected because these threats did not tend to prove appellant a
principal actor in the murder of McKinney, or to show a con-
spiracy with Bud Crenshaw to kill him, the fact being that
Crenshaw was the actual perpetrator of the crime.

Appellant was present when Crenshaw killed deceased, and
these threats were introduced as cogent facts in corroboration
of the attending circumstances which established that there
was not only a conspiracy to murder deceased, but also that
Crenshaw and appellant acted in concert in the killing of Mc-
Kinney. These observations apply to the competency of the

Digitized by VjOOQIC

432 27 Texas Coubt of Appeals. [Gkdveston

Opinion of tbe court

testimony of the witness Qallaway. That Gallaway was an
accessory is no objection to the competency of this testimony.
Upon cross examination of the witness Gallaway, counsel
for appellant asked him: '* Were you not a witness in behalf
of Simpson De Spain, a nephew of the defendant, when De
Spain was tried for murdering a Mexican, and did you not vol-
untarily testify in behalf of De Spain; and, after you charged
Dow White with raping your daughter, did you not endeavor
to get this defendant, Jim McCoy, to procure false testimony
against said Dow White, which he refused to do?" Counsel
for the State objected because of irrelevancy. The objection
was sustained and appellant reserved a bill.

'^ A witness can not ward off answering a question material
to the issue on the ground that it imputes disgrace to himself,
if such disgrace does not amount to crimination." This is the
doctrine as stated by Wharton. (Crim. Ev., sec, 473.) "A
witness may, upon cross examination, be asked whether he
has been in jail, in the penitentiary, or State prison, or any
other that would tend to impah: his credibility." The facts
proposed to be proved by this witness not being material to
any issue in the case, the court acted properly in excluding
them.

When Edwards related the threats, etc., made by the appel-
lant, his counsel moved to postpone the trial because surprised
by this testimony. It appears that Edwards had testified be-
fore the examining court, but had not mentioned these threats.
He states that these threats were made in the presence of sev-
eral persons, naming them. The threats were that in the
presence of Foster Cope, Geo. Salmon and Tom Gerdner, at
Cotulla, defendant told the witness Edwards that if McKinney
ever came to Cotulla he had better get off the train shooting or
he would never get away alive. In this there is no threat in
terms to kill deceased.

Now appellant moved to postpone to procure the attendance
of Cope, Salmon and Gerdner to prove that they **were never
present at the time when he, defendant, threatened to kill de-
ceased, or said if he, deceased, ever came to Twohig he had
better get off the train shooting," Edwards swears that de-
fendant said if McKinney came to Cotulla, etc. Appellant
swears that he could prove by Cope, Salmon and Gerdner that
defendant never said that if McKinney came to Twohig, etc.
Edwards did not swear that defendant stated to him that if

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State. 433

' Opinion of the oonrt.

McKinney should come to Twohig he had better get off the
train shooting. Hence what appellant proposed to prove by
Cope, Salmon and Gerdner might be true and still Edwards
would not be contradicted or impeached in any manner. There
was no error in refusing to postpone.

The court did not err in refusing to charge the law of murder
of the second degree. Crenshaw killed McKinney, and if ap-
pellant is criminally responsible at all for the homicide, the
grade of the offense under the facts is not short of murder of
the first degree.

At the request of appellant the court gave this charge to the
jury;

"The defendant asks the court to charj^e the jury that be-
fore you are authorized to find defendant guilty, you must
believe from the evidence, and the evidence alone, and beyond
a reasonable doubt, that the defendant either shot and killed
the deceased, C. B. McKinney, or was present acting with some
one else in the killing of McKinney. Therefore, if you find
from the evidence that one Bud Crenshaw shot and killed C. B.
McKinney, and that such killing was with express malice as
defined in the general charge, and that immediately afterwards
the defendant shot at, and shot, S. V. Edwards, and that this
was the same time and place of the shooting of deceased, Mc-
Kinney, and that the defendant did not shoot at C. B. McKin-
ney, or offer any violence towards the deceased, then, before
you would be authorized to find this defendant guilty, you
must believe from the evidence, beyond a reasonable doubt,
either that this defendant and Bud Crenshaw had previously
entered into an agreement to kill the deceased, C. B. McKin-
ney, and the- deceased was killed in pursuance of such agree-
ment, while the defendant was there present, or that Bud Cren-
shaw shot and killed McKinney, and that the acts ( f the de-
fendant were enacted for the purpose of aiding or abetting the
said Crenshaw in the killing of said McKinney. And if you
should find from the evidence that one Bud Crenshaw shot and
killed the deceased, and that all that was then done by the de-
fendant was to shoot S. V. Edwards, then before you could find
this defendant guilty you must find from the evidence, beyond
a reasonable doubt, that the shooting of Edwards was done for
the purpose of aiding or abetting said Crenshaw in the killing

Digitized by VjOOQIC

434 27 Texas Court of Appeals. [Galveston

Opinion of the court

of 0. B. McKinney, before you would be authorized to find the

defendant guilty.

"j. m. eckfobd,
"Teel & Haltom.

"The foregoing charge is given in subordination to the gen-
eral charge r<^p:arding principals.

Geo. ^. NooNAN,
'•Judge."

There was no objection at the time to the qualification, viz:
" The foregoing charge is given in subordination to the gen-
eral charge regarding principals," — the objection being urged
first on the motion for a new trial. This being the case,
was the qualification calculated to prejudice the case of appel-
lant?

In passing upon the question of injury vel non, or probable
injury resulting from a positive error or omission in the charge,
the whole record must be looked to: 1. The charge as a whole;
2. The statement of facts. The learned judge, in the charge
already given, had clearly and concisely hinged appellant's
guilt upon the fact as to whether he was present and, knowing
the unlawful intent of Crenshaw, aided and encouraged him
in the killing, or whether the appellant had advised or agreed
to the offense and was present when the same was com-
mitted.

Appellant's requested charge, above, is predicated upon the
theory that Crenshaw shot and killed McKinney, unaided by
him in any manner. That the killing of McKinney was a dis-
tinct transaction from that between appellant and Edwards ;
that, if this theory of the case is not shown to be true, it is left
in doubt, and should have been submitted to the jury in a clear,
simple and affirmative charge, without qualification, or being
subordinate to any other charge. This is a strong position and
if sustained by the evidence, or the weakness of the State's
case, should be ground for a reversal of the judgment.

As Crenshaw killed McKinney, it devolved upon the prosecu-
tion to prove beyond a reasonable doubt: 1, that Crenshaw
and appellant acted together in the killing of McKinney; or, 2,
that appellant was present; that he knew of the purpose of
Crenshaw to kill deceased, and with this knowledge he aided

Digitized by VjOOQIC

Tenn, 1889.] McCoy v. The State. 436

Opinion of the court.

by acts or encouraged by words or gestures Crenshaw in the
conunission of the murder; or, 8, that Crenshaw and appellant
had agreed with each other to kill McKinney, and that ap-
pellant was present when Crenshaw shot and killed the de-
ceased. To convict, one of these propositions must be shown
beyond a reasonable doubt, and if from the weakness of the
testimony relied upon to establish these propositions there is a
shade of doubt as to the existence of the one most strongly
supported by the State's testimony, then there might have been
injury to the rights of appellant by the qualification appended
to the charge under discussion. We must therefore look to the
facts.

Looking to the facts bearing upon this question, the most
shadowy, gauzy veil of a doubt does not remain. Our judg-.
meat is perfectly clear and satisfied beyond any sort of doubt
or misgiving as to the truth of each of the propositions,
namely: that the appellant and Crenshaw acted together in
the murder of C. B. McKinney; that it was thoroughly agreed
between them before the decea^sed and Edwards reached ap-
pellant's house that McKinney should be killed. Each knew
minutely the part to be performed by him, and executed it with
precision and fatally to deceased.

. Under this state of case, if the learned judge had refused to
submit to the jury the requested instructions (those given with
qualification), in the absence of exceptions for the omission or
refusal, we would not be warranted in reversing the judgment.
Other objections were made to the charge in the motion for
new trial, but we are of opinion that none are well taken.

If correct in the above observations as to the facts of this
case, it is unnecessary for us to discuss the sufficiency of the
evidence to support the conviction.

Appellant has been awarded a just, cautious and fair trial.
His triers have convicted him of one of the most heinous
crimes known to our laws, inflicting upon him the most terri-
ble punishment. While this is true, a moment's reflection,
carrying him back to the scene of the deliberate, bloody assas-
sination of C. B. McKinney, will convince him that he is the
author of his present calamities and fearful doom.

Finding no error in the judgment, it is affirmed.

Affirmed.

Opinion delivered February 20, 1889.

Digitized by VjOOQIC

i86 27 Texas Coubt of Appeals. [Galvestoo

Opinion of the court.

On Motion for Rehearing.

Hurt, Judge. The only ground upon which this motion is
based and urged in the able oral argument of counsel for ap-
pellant is a supposed error into which we have fallen with re-
gard to appellant's motion at the trial for a postponement of
the same to enable him to procure the attendance of witnesses
to contradict the witness Edwards as to threats made by ap-
pellant against the deceased. We discussed the subject from
the statement in the bill of exceptions itself. The bill of ex-
ceptions states that the threat or supposed threat was to be
executed when McKinney, the deceased, should get off the
cars at Cotulla. It is urged that a clerical mistake has oc-
curred in preparing the bill, and that in fact Twohig, and not
Cotulla, was the place named by the witness Edwards, and we
are referred to other portions of the record in substantiation of
this assertion. We are satisfied upon a re-examination of the
record that the mistake in the names of the two places has oc-
curred as stated — that Twohig must have been the place stated
by the witness.

But, conceding this to be true, the sole object of the proposed
testimony was to contradict the witness as to threats made by
appellant against the deceased at the time and place mentioned.
Suppose that evidence had been adduced, or that it could be ad-
duced on another trial, is it at all likely or probable that it could
or should have any effect in changing the result? This is the
question, and the only pertinent question, as the matter is now
presented to us.

Viewed in the light of other testimony at the trial, we think
the proposed testimony could have had no possible weight in
changing the result. The witness Gall away testified most pos-
itively, locating time, place and parties present, not only to
threats made by appellant against McKinney, but to the fact that
appellant tried to get him, witness, to aid and assist him in the
killing. These threats, according to that witness, were made
more than once. This witness's testimony is not contradicted
or attempted to be contradicted by Tompkins or Garcia, the
parties stated by him to be present at the time these threats
were made. If it was necessary to prove previous threats on
the part of defendant, then this witness's testimony abund-
antly proves threats of a more hostile character than those
testified to by the witness Edwards. How, then, could the difi-

Digitized by VjOOQIC

Term, 1889.] McCoy v. The State.

Opinion of the court.

proving of Edwards^s statement affect tt
statement of Gallaway that defendant made
which he testifies? We are clearly of opiniqp
testimony could not affect the result of anothi
of this matter of threats.

We have found no reason, upon a mature
this record, why our former affirmance of th(
be set aside, and the motion for rehearing i
ruled.

Opinion on the motion delivered March 23,

Digitized by VjOOQIC

COURT OF APPEALS OF TEX

AUSTIN TERM, 1889.

No. 6215.

A. D. Moore v. The State.

Nbglsot of Official Duty— Diligence.— In order to warran
▼iotioD of an overseer of a public road for failure, neglect or
perform the duties of his office, it devolves upon the State to e
such failure, neglect or refusal on his part was wilful — thi
evil intent, with legal malice, without legal justification, am
reasonable ground to believe his action legal. Such overseer i
only with reasonable diligence and effort in the discharge of
and can not be held criminally responsible for failing to keej
in repair, when it is shown that to do so with the means av
him is an impossibility. If he exercised reasonable diligence 8
no wilful failure, neglect or refusal to discharge his duty can
ted to him.

Appeal from the County Court of Wilbarger. Trie
before the Hon. T. W. Robinson, County Judge.

The appellant in this case wa43 convicted for failing
overseer of road precinct number ten, of Wilbarger co
keep the public roads in repair, and his punishme
assessed at a fine of twelve and a half dollars.

The proof for the State and the defense concurs in s
that the appellant was placed in charge of from twelve
teen miles of public road, and that not more than from t^
fourteen hands were apportioned to him to keep the sa:
in repair; that the force thus apportioned to him was
inadequate to perform the labor allotted to him, and tha
the circumstances, it was utterly impossible for the aj
to keep the said roads in repair.

jBT. C. Thompson, for the appellant.

W. L. Davidson, Assistant Attorney General, for tb

Digitized by VjOOQIC

440 27 Texas Court of Appeals. [Austin

Opinion of the court.

WiLLSON, Judge. To render an overseer of a public road
guilty of an offense under article 409, of the Penal Code, his
failure, neglect or refusal to perform the duties imposed upon
him as such overseer must be wilful — that is, with an evil in-
tent, with legal malice, without reasonable ground for believ-
ing such failure, neglect or refusal to be lawful, and without
legal justification.

In this case the evidence, in our opinion, does not warrant
the conclusion that the defendant wilfully failed, neglected or
refused to perform his duties as overseer. While he did not
compel all the hands apportioned to him to work the full time
prescribed by law, he did work some of them the full time, and
others a portion of the time, and the evidence conclusively
shows that, if he had caused all of the hands to work the full
time, it would have been impossible, owing to the length and
bad condition of the road, and the small number of hands, to
have kept said road in good repair. The law does not require
impossibilities, and to hold, under the facts of this case, that the
defendant is guilty of an offense because he failed to keep said
road in repair would be holding him criminally responsible for
failing to perform an impossibility.

All that should be required, and all the law intends to re-
quire, is reasonable diligence and effort on the part of an over-
seer to perform the duties enjoined upon him, and what will
amount to such reasonable diligence and effort must be de-
termined by the facts of each particular case. If reasonable
diligence and effort be exercised, there can be no wilful fail-
ure, neglect or refusal to perform duty.

In our judgment the evidence in this case does not show a
wilful failure, neglect or refusal by defend^-nt to perform his
duties as overseer of the road, and we therefore set aside the
conviction and remand the cause for a new trial.

Reversed and remanded.

Opinion delivered April 5. 1889.

Digitized by VjOOQIC

Term, 1889.] Chance v. The Stats. 441

Opinfoii of the eonrt.

No. 6196.

J. 0. Chance v. The State.

IVDiOTinsFT OR Ifformatiqn FOR Thrft is fatally defective if it falls
to ehari?e directly that the taking of the property was fraudulent.
Such aJlegatioD is not supplied by the subeequent allegations that the
taking was with the fraudulent in eot to deprive the owner of the
valae of the property, and fraadulently to appropriate the same, etc.

Appeal from the County Court of Denton. Tried before the
Hon. S. M. Bradley, County Judge.

This conviction was for misdemeanor theft, and the punish-
ment awarded by the jury was a fine of twenty-five dollars
and confinement in the county jail for a period of one month.

The record brings up no statement of facts; nor does the
ruling on appeal require a statement of the case.

Jagoe <t Ponder, for appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WiLLsON, Judge. Theft is the ^^frauduUnt taking of corporeal
personal property," etc. (Penal Code, art. 724.) An indict-
ment or information for this oflfense which does not directly
charge that i\ie taking of the property was fraudulent is fatally
defective. A failure to so charge is not supplied by the allega-
tions that the property was taken with the fraudulent intent
to deprive the owner of the value of it, and with the fraudulent
intent to appropriate, etc. (Willson's Cr. Stat., sec. 1254.) In
this case the information does not allege that the property was
fraudulently taken, and the defendant's motion in arrest of
judgment based upon such defect should have been sustained;
wherefore the judgement is reversed and the prosecution is dis-
missed.

Reversed and dismissed.

Opinion delivered April 5, 1889.

Digitized by VjOOQIC

442 27 Texas Court of Appeals. [Austin

Opinion of the court.

No. 6219.

William Jamison v. The State.

Unlawfully Pulling Down a Fancb, Eiio.— The proof shows that the
defendant was the sole owner of a dividing fenoe between his farm and
the farm of one McN. ; that, without notice to McN. In writing, he palled
down the said dividing fence, exposing McNJs growing crops to the
depredations of stock; that McN., to protect his crops, again conneoted
his fence to the defendant's fence on the, defendant's land, when the
defendant again pulled it down. Held that, although the sole owner
of the dividing fence, the defendant had no right to remove it with-
out having given McN.» his agent or attorney, notice in writing of his
intention to do so for at least six months prior to so doing. McN., in
connecting his fence with that of the defendant, for the purpose of
preventing stock depredations on his growing crops, notwithstanding
the connecting point was on the defendant's land, was not a trespasser
and violated no law« (See Laws of 1887, page 80.)

Appeal from the County Court of Cooke. Tried below before
the Hon. J. E. Hay worth, County Judge.

The opinion suflSciently discloses the case. The penalty as-,
sessed against the appellant was a fine of twenty dollars.

J2. V. Bell, for the appellant.

W. L. Davidson^ Assistant Attorney General, for the State.

WiLLSON, Judge. Although the defendant was the sole owner
of the fence dividing his farm from the farm of McNeill, he
could not lawfully withdraw or separate said fence from the
adjoining fences of said McNeill, without first having given
said McNeill, his agent or attorney, notice in writing of his in-
tention to do so for at least six months prior to the time of so
doing. (Act March 17, 1887, p. 30, sec. 2.)

In this case the record fails to show that such written notice
was given, and therefore the defendant acted in violation of
.law and of the rights of McNeill in removing said division
fence. By such removal the growing crops of McNeill were
exposed to the depredations of stock, without notice to IditL
Finding his crops thus suddenly and unexpectedly exposed to

Digitized by VjOOQIC

Term, 1889.] Shelton v. The State. 443

Syllabus.

the danger of destruction, McNeill had the legal right to avert
the danger by again connecting his fence with the fence of the
d^endant, and in so doing, did not violate the law, and can
not be T^arded as a trespasser, although the connecting por-
tion of his fence was on defendant's land.

The intention of the law is to protect growing crops from
depredation, and such intention would be defeated in this in-
stance if we were to hold that the defendant, by his wrongful,
illegal act of removing the division fence, could deprive McNeill
of his right to again connect his fence to said division fence for
the purpose of protecting his crops. (Wilson's Cr. Stat., sec.
1179.) As we understand the purpose, spirit and intent of
article 684 of the Penal Code, the defendant violated said
article by pulling down the portion of fence erected by McNeill
for th'e purpose of closing the gap in his indosure, caused by
the removal of said division fence.

This being our view, other questions presented in the record
are immaterial, and are therefore not determined. The judg-
ment is afi&rmed.

Affirmed.

Opinion delivered April 6, 1889.

No. 6179.
William Shelton v. The State.

L Complaint— lNFOBMATiON-~VARiANCB.--The complaint alleges that
the offense was committed on the sixteenth day of Jannary, 1888; the
information that it was committed on the eleventh day of January,
1888. Held^ that the variance is immaterial.

% Same.— Verdict reads: " We, the josurys, find the defendant gilty,"
etc. Held^ that the words incorrectly spelled constitute no material
defect.

8. CARRTiNe A Pistol— Exemption as "A Person Traveling "—
Practice. — Whether the accused was " a person traveling" and there-
fore exempt from the operation of the statute denouncing the offense
of carrying a pistol, is a question of fact for the determination of the
jury.

i Bams.— A Fugitive from Justice, while fleeing the country, is not ** a
person traveling/^ within the exception of the statute forbidding the
carrying of a pistol.

S. Same— Venue.— Proof of the venue as alleged is essential to a legal
conviction for crime.

27 443
39 103

Digitized by VjOOQIC

444 27 Texas Court of Appeals* [Austin

Opinion of the court.

Appeal from the County Court of Montague. Tried below
before the Hon. Griffin Ford, County Judge.

The appellant was convicted for unlawfully carrying a pistol
on his person, and his punishment was assessed at a fine of
twenty-five dollars and confinement in the county jail for
twenty days.

The proof shows that while in attendance upon a dance at a
place known as Eagle Point, the defendant was informed that
an officer was en route to said dance to arrest him. He and
another person thereupon mounted a horse and went to No-
cona, where defendant boarded a train and went to Childress
county. Between Eagle Point and Nocona he drew and dis-
charged a pistol.

Stephens it Herbert, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. It was not error to overrule the motion in
arrest of judgment. There is no material variance between
the complaint and the information, and there is no material de-
fect in the verdict.

Whether or not the defendant, at the time he carried the pis-
tol, was "a person traveling" was a question of fact for the
determination of the jury, and this issue was fully and fairly
submitted to the j'ury by the charge of the court. We are of
the opinion that the evidence warranted the jury in finding
against the defendant upon said issue. It was shown that at
the time defendant carried the pistol he was fleeing from the
officers of the law to evade arrest. It is not the intention of
the law to license fugitives from justice to carry arms. They
are not "persons traveling," within the meaning of the excep-
tion in the statute.

There is no proof in the record of the venue of the offense,
and, therefore, the conviction must be set aside. This error is
confessed by the Assistant Attorney General. The judgment
is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered April 10, 1889.

Digitized by VjOOQIC

Term, 1889.] Stilly v. The State. 445

Syllabas.

No. 6233.

27 445I

J. S. Stilly v. The State. fas 304

1 34 102|

L Carrying a Pistol— "A Pkrson Traveling" is a person exemi^
from the operation of the statute defining the offense of unlawfully
carrying a pistol. It is shown in this case that the defendant, with hia
family in a wagon, left his home in the Indian Territory to gb to B , in
Cooke county, Texas, via Q-. in the same county; that he arrived at
0. after night and stopped at a wagon yard, where he left his wagon
and family, to go into town for the declared purpose of hiring a con-
veyance to continue his journey that night, but that he was arrested
in a gambling room on that night with a pistol on bis person. Held^
that while en route from the Indian Territory, and while in the wagon
yard in G., and while on the streets of G. to procure a conveyance, or
for any other lawful purpose connected with his journey, he was ''a
pi'rson travel ing^^ within the meaning of the statutory exception, but
such exception can not be held to protect him while frequenting the
gambling room.

2. Samk— Practice— Burden op Proof.— When the State has estab-

lished against the accused a prima facie ca^e of guilt, it devolves upon
the aecuued to establish the facts upon which he relies to excuse or
justify the forbidden act.

3. 8am«— Charge of the Court.— A defense witness testified that,

about a month before the alleged offense, the accusei had a difficulty
in the Indian Territory with one Phelps; that Phelps made an unsuc-
cessful attempt to obtain a weapon with which to kill the accused, and
afterwards told the witness that he, Phelps, was **going to Gainesville
and fix himself, and that he and Jim Stilly never could live in the same
country," which threat the witness communicated to the accused.
Upon this proof the defense requehte d the following charge: *'The law
authorizes an individual to carry on his person a pistol, who has a
reasonable ground for fearing an unlawful attack upon his person, and
the danger is so imminent and threatening as not to admit of the
arrest of the party about to make such attack, upon legal process. To
justify such apprehension, it is not necei-sary that the danger should
in fact eiist, or that the person threatening should be present, or in
view of the defendant at the time of carrying the pistM, but it is only
necessary that the facts and circumstances should be of such a nature
as to excite a reasonable apprehension of danger so imminent and
threatening as not to admit of the arrest of the party threatening an
attack.^ Held that the danger contemplated by the statute was not
proved, and the instruction was properly refused.

Appeal from the County Court of Cooke. Tried below be-
fore the Hon. J. E. Hayvvrorth, County Judge.

The opinion discloses the case.

Digitized by VjOOQIC

446 27 Texas Court of Appeals. [Austin

OpioioQ of the court

The penalty assessed against the appellant was .a fine of
twenty-five dollars and confinement in the county jail for
twenty days.

Mathis <& Lewis, for the appellant.

W. L. Davidson, Assistant Attorney Gteneral, for the State,

WiLi.S(^N, Judge. This conviction is for unlawfully carry-
ing a pistol upon the person. It is claimed by the defendant
that the conviction is wrong for two reasons: first, that at the
time he carried the pistol he was a "person traveling," and,
second, that he had reasonable ground for fearing an unlawful
attack upon his person, etc.

A **person traveling" may lawfully carry upon his person a
pistol or other weapon. (Penal Code, art. 319.) In this case
the evidence shows that the defendant, accompanied by his
wife and child, left his residence in the Indian Territory to go
to Bloomfield, in Cooke county, a distance of fifty miles, to the
liome of defendant's wife's parents. They traveled in a wagon.
Two other persons went with thenxin the wagon, who intended
to and did stop at Gainesville, which place was on the route to
Bloomfield. They reached Gainesville at night and stopped at
a wagon yard. Defendant left his wife, child and companions
at the wagon yard, saying that he would go into town and try
and hire a hack to take his wife and child on to Bloomfield that
night, as the team which had brought them to Gainesville was
fatigued and he did not wish to drive it further that night. He
was shortly afterwards arrested in a gambling house, while he
was sitting at a table with other persons, and a pistol was
found upon his person.

We are clearly of the opinion, while he was making the jour-
ney from his home to Gainesville, and while he was at the
wagon yard where he had stopped, he was a "person traveling"
within the meaning of the statute, and did not violate the law
in carrying a pistol upon his person during said time. We are
also of the opinion that he might lawfully have carried the
pistol upon his person in the town of Gainesville during a tem-
porary cessation of his journey, and for a legitimate purpose,
such as to procure a conveyance, or provisions, or to transact
other business connected with the prosecution of his journey.
But beyond this we do not think the law intends to protect him.

Digitized by VjOOQIC

Term, 1889.] Wright v. The State, 447

Syllabus.

It would be an unreasonable interpretation of the intent of
the law to hold that a person traveling might stop in a town or
city, and idly stroll through its streets and visit its gambling
dens and saloons and public places, armed with a pistol. The
practical result of such an interpretation of the statute would
cause our cities and towns to be infested with armed men,
while the citizens of such places would be prohibited from car-
rying arms to protect themselves from these privileged char-
acters. We are of the opinion, therefore, that the evidence
does not show that the defendant, at the time he was found in
the gambling house, with the the pistol upon him, was a "per-
son traveling" within the meaning of the statute. He was not
then traveling. He was not engaged in any business con-
nected with his journey. If he was so engaged it devolved up-
on him to show it, which he failed to do. His having the pistol
upon his person at the time, place, and under the circumstances
proved, made a prima facie case of guilt against him, and it
devolved upon him to establish the facts or circumstances on
which he relied to excuse or justify the prohibited act. (Penal
Code, art. 51.)

As to the other defense claimed by the defendant, th^ evi-
dence does not establish it. No such danger existed as is con-
templated by the statute, and the court did not err in refusing
the special instructions requested by the defendant.

We are of the opinion that there is no error in the conviction,
and it is affirmed.

Affirmed.

Opinion delivered April 10, 1889

No. 6283.

Chabley Wbight v. Thb Statb.

Pbactice— Speoiaii Plea— Charge of the Court.— If upon a crimi*
nal trial a special plea is submitted to the Jury, the verdict, to be valid,
must expressly find that it is true or untrue, and a charge of the court
which omits to so instruct the jury is erroneous. The defendant in
this case interposed a plea of former conviction, which was neither
charged upon by the court nor expressly determined by the verdict.
HelcL, that the conviction must be set aside.

Digitized by VjOOQIC

as 27 Texas Court of Appeals. [Austin

Syllabus.

Appeal from the County Court of Cooke. Tried below be-
fore the Hon. J. E. Hayworth, County Judge.

This conviction was for exhibiting a gaming table, and the
penalty assessed by the verdict was a fine of twenty -five dol-
lars and imprisonment in the county jail for ten days.

No brief on file for the appellant.

TF. L. Davidson, Assistant Attorney General, for the State,

WiLLSON, Judge. In the trial court the defendant pleaded
in due form a former conviction for the same offense. Evi-
dence was adduced by him in support of said plea, and the
court submitted the issue made by said plea and evidence to
the jury. The verdict of the jury does not find whether said
plea is true or untrue, but merely finds the defendant guilty as
charged, and assesses the punishment.

Where a special plea is submitted to the jury, the verdict
must expressly state whether said plea is true or untrue, and
an omission to so state is error for which the verdict must be
set aside. (Burks v. The State, 24 Texas Ct. App., 326; Smith
V. The State, 18 Texas Ct. App., 329.) The court in its charge
should have instructed the jury explicitly that they must find
and state in their verdict whether said plea was true or untrue.
Such instruction the court failed to give.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered April 10, 1889.

No. 6268.

John O'Brien v. The State.

Burglary to Commit Thbft.— Indictment for burglary charged thai
the house was entered with the iDtent to commit theft, but fails to
charge that the entry was made with the fraudulent intent to take the
property from the possession of the owner; and the allegation of theft
fails to charge that the property was taken from the possession of the
owner. Held iosafflcient to charge the offense.

Digitized by VjOOQIC

Term, 1889.] O'Brien v. Thb State, 449

Opinion of the court.

Appeal from the District Court of Dallas. Tried below be-
fore the Hon. R E. Burke.

The conviction was for burglary, and the penalty assessed
was a term of three years in the penitentiary.

The suflBciency of the indictment is the only question deter-
mined on the appeal.

No brief on file for the appellant.

W. L. Davidson, Assistant Attorney General, for the State*

Hurt, Judge. This is a conviction for burglary. The entry
into the house is alleged to have been made with intent to
commit theft.

The indictment fails to allege that the appellant entered the
house with the fraudulent intent to take the property from the
possession of the owner, etc., and that part of the indictment
charging the theft fails to allege that the property was taken
from the possession of the owner.

Theft, as are all other offenses in this State, is a crime by
statute, and the rules of pleading applicable to such offenses
must prevail. The language of the statute must be followed,
or language of equal or greater import must be used.

Now, there is no term used in the indictment which is suflS-
cient to convey the same meaning a& that used in the statute.
The property may have been taken from the owners, and yet
not taken from his possession.

We are of the opinion that the indictment is not sufficient.
The judgment is reversed and the prosecution dismissed.

Reversed and dismissed.
Opinion delivered April 10, 1889.

Digitized by VjOOQIC

450 27 Texas Court of Appeals. [Austin

Statement af the case.

No. 6239.

27a 450
27a 460

gy 4S(> J- W. Monk v. The State.

28 180

1. Practick— Qualifications of Jurors.— One of the disqualifications

of a jaror is that he has served as a juror in the district court for six
days daring the preceding six months. E^eld, that service as a joror
for hut five days is not a disqualification.

2. Murder— Indictment— Diligence— Evidence.— Allegation in an in-

dictment for murder that the deceased was killed hy a shot fired from
a gun will admit proof that the fatal shot was fired from any kind of
a fire arm. But in this case the indictment alleged that the deceafed
was f hot and killed by the defendant **with a weapon to the grand
jurors unknown." To prove the diligence of the grand jury to a8ce^
tain the character of the weapon used, the State asked the foreman of
the grand jury; "What effort, if any, did you make to learn the man-
ner and cause of the death of deceased, and what conclusion did yon
arrive at?" 3?he witness replied as follows. "We had a great many
witnesses before the ^rand jury, and we returned this indictment^
which we thought was right." Held that the question was erroneously
allowed, because upon the question ot diligence it was too broad and
comprehensive, and was calculated to and did elicit an answer at once
incompetent and prejudicial to the rights of the defendant.

8. Practice- Evidence. — The indictment having alleged that the de-
ceased came to his death by being shot, it devolved upon the State to
establish that fact by competent evidence. See the opinion for evi-
dence admitted on the iBsue.held incompetent because in part hearsay,
and in part the opinion of a witness based upon investigation to which
the defendant was not a party.

4. Murder— Fact Case.— See the statement of the case for evidence Tield
insufficient to support a conviction for murder in the second degree.

Appeal from the District Court of Dallas. Tried below be-
fore the Hon. R. E. Burke.

The conviction in this case was in the second degree for the
murder of C. Spears, in Dallas county, Texas, on the first day
of November, 1887. The penalty assessed against the appel-
lant was a term of five years in the penitentiary.

J. C. Crownover was the first witness for the State. He tes-
tified that he and Bruce Davis went hunting in the Hewlett
creek bottom on the twenty-fifth day of November, 1887, and
in the Bryant branch, which traversed that bottom, they found
the remains of a man. The body was under a log in a hole

Digitized by VjOOQIC

Term, 1889.] Monk v. The State. 451

Statement of the case.

that had been washed out by the action of the water. It was
partially covered by drift composed of trash and sticks. One
l^g was pointing straight and the other was doubled to. There
was a bullet hole through the skull. The witness saw that the
hoJy was that of Calvin Spears, a man whom he had seen but
once alive, on which occasion he wore pants and boots corre-
sponding? with those found on the body. Calvin Spears had
l)iack hair and moustache, and the hair that showed upon the
l)o<iy was black. Decomposition was so far advanced that wit-
ness could make no satisfactory estimate of the size of the
man in life, nor could he tell from the skeleton whether he was
a white or black man. On his cross examination the witness
siid that the one time he saw Calvin Spears in life was
about six weeks before he found the remains in the Bryant
branch. He saw the witness Anderson on the same day, but
could not say now how Anderson was dressed on that day, nor
could he remember how he was dressed himself on that day.
Calvin Spears was a tall and slender man, measuring six feet
or more in height.

Bruce Davis testified, for the State, substantially as did the
witness Crownover, except that he expressed no opinion as to
whose body it was that he and Crownover found, and he said
nothing about ever having seen Spears in life. The coat ex-
hibited in evidence was the coat found on the body. The
pants found on the body were of striped material, the stripes
running up and down, and not across or around.

J. H. Anderson testified, for the State, that he lived on Row-
lett creek in Dallas county, Texas. He was acquainted with
the defendant and W. C. Jump, and in October, 1887, knew
a man named Calvin Spears. Defendant and Jump went
to work for witness on his place on October 20, 1887, and
quit on October 28, 1887. Spears worked on the same place
for witness from October 22, 1887, until October 25, since
when the witness had not seen him. He was frequently ab-
sent for short periods of time during the said three days.
Defendant and Jump were brothers-in-law, but witness
was unable to say whether or not Spears was related to
either of them. The witness last saw Spears alive on Oc-
tober 25, 18S7, when, in company with defendant and Jump, he
left witness's place to go to Dallas. Spears and Jump each
rode a sorrel pony and defendant rode a gray pony. Jump
came back to the witness's place on the evening of that day.

Digitized by VjOOQIC

452 27 Texas Court of Appeals. [Austin

Statement of the case.

and the defendant on the evening of the next day. The wit-
ness saw the body found in Bryant's branch, and recognized
the clothing on it as the clothing of Calvin Spears. The coat
exhibited on this trial was the coat worn by Spears when, with
defendant and Jump, he left witness's house on the morning
of October 25. He recognized the pants on the body by means
of a patch on the knee, which said patch had a selvige strip
through it. Spears's hair and moustache were dark, but not
black, and the hair and moustache on the body corresponded
with Spears's. Witness paid defendant on October 29 some-
thing over two dollars, balance due him on work. He came
back on the following Thursday and left again on Saturday,
about an hour before sunset. Witness asked him as he left
which way he was going, and he replied: "The way my
wagon tongue points when I start." The witness lived on the
north side of the Rockwall road. H. C. Mills lived four and
a half miles north from witness's house. Rose Hill was about
a quarter of a jnile south from witness's house. The body was
found about half a mile above the bridge that spanned Row-
lett's creek. Spears had a thirty -eight calibre pistol at defend-
ant's camp on one occasion.

On cross examination, the witness said that he could not re-
member which of the three men, when they left his house on
October 25, told him they were going to Dallas. Spears was a
man of medium stature, heavy set, and would weigh about
one hundred and fifty pounds. He worked for witness on wit-
ness's place, but lived at defendant's camp, about two hundred
yards distant from witness's house. Defendant's mother, broth-
ers and sisters, one of the sisters being Jump's wife, with Jump,
defendant and Spears, lived in that camp. Spears and defend-
ant each owned a horse, and Mrs. Monk, defendant's mother,
owned four horses and two colts, all of them being kept at the
camp. Dallas was southwest from witness's house. Garland
was northwest. The body was found north of witness's house.
When defendant returned to witness's house, after leaving it
with Jump and Spears on October 25, he told witness that
Spears was in Dallas trading horses.

W. M. Porter testified, for the State, that defendant. Jump
and Spears worked for him a few days early in October, 1887.
From the witness's place Spears went to Adams's place to
work, and defendant and Jump went to Anderson's. The wit-
ness never saw Spears exhibit any money in the presence of

Digitized by VjOOQIC

Term, 1889.] Monk v. The State, 463

Statement of the case.

the defendant, but on one occasion, when defendant was not
present, he saw him with about one hundred dollars in cur-
rency. The coat exhibited, which the witness knew to be the
one taken from the body found in Bryant's branch, was the
identical coat worn by Spears when he worked for witness.
Witness knew it by the lining of the pockets being of differ-
ent colors. Witness often saw the said lining, as Spears car-
ried whisky in a bottle that fitted so close in the pockets that
always, when withdrawn, it would bring the lining out. Spears
was a man of short stature, not above five and a half feet in
height, was heavy set, and wore his hair cut short.

Thurston Anderson, the son of the witness J. H. Anderson,
testified, for the State, that, three or four days before defend-
ant, with Jump and Spears, left witness's father's house to go
to Dallas, witness saw Spears with a roll of currency money.
Defendant was present, but witness could not say whether he
did or did not see the money.

J. C. Anderson testified, for the State, that he saw the body
found in Bryant's branch, and by the clothes recognized it as
the body of Calvin Spears. Witness met defendant in the town
of Rose Hill some time in October, 1887, and tried to sell him
some goods. He declined to buy upon the ground that he had
bought Spears's pony and was ''busted." Witness had seen
Spears riding a small gray pony. Defendant did not say that
he had traded for Spears's pony, but that he had bought it.

L. A. Adams testified, for the State, that defendant. Jump
and a man named 'Tierce" picked cotton for him in October,
1887. Defendant and Jump left witness's place and went to
work for Anderson. About a week later Pierce quit working
for witness and went to work for Anderson. Defendant, Jump
and Pierce, on horseback, passed witness's house on the morn-
ing of October 25, 1887, when one of them told the witness
that they were going to Dallas. Witness never saw Pierce af-
terward. The coat exhibited in evidence, which was the coat
taken from the body found in Bryant's branch, was the coat
worn by Pierce when he worked for the witness.

The witness stated, on cross examination, that no man giv-
ing the name of Spears worked for him in 1887.

Andrew Spillars testified, for the State, that in the fall of
1887,— he could not fix the month, — he saw the defendant sitting
by the road side at the comer of his, witness's, fence. Defend-
ant told witness, as witness passed him, "that he would meet

Digitized by VjOOQIC

454 27 Texas Court of Appeals. [Austin

Statement of the case.

two parties riding sorrel ponies, and to tell them to "ride up.''
The witness met the two men described, riding towards Gar-
land. They were then three and a half or four miles distant
from Mills's house. On cross examination the witness said
that he did not know either of the two men he met on the
. sorrel ponies, but thought one of them was W. C. Jump. From
where the witness saw the parties to the place where the
body was found, the distance was two and a half or three miles.

R. T. Little testified, for the State, that he saw the body found
in Bryant's branch, and recognized it by the clothes as that
of Calvin Spears. He identified the pants and boots. The
witness last saw Spears alive on or about the morning of Oc-
tober 25, 1887, when he and W. 0. Jump came to witness's
house. Witness's said house was a little northwest from An-
derson's, and about three miles from Mills's place. Spears on
that occasion went with the witness into a stable where the wit-
ness kept a horse that was to run a race in November. Spears
told witness that he was going to bet on witness's horse at that
race.

H. C. Mills testified, for the State, that Jump and the defend-
ant and another man came to his place about October, 25, 1887,
and asked for directions to the place on which Grooms and
Cockrell lived. They said they were hunting land tcf rent.
Defendant was riding a gray, and the other two men sorrel
ponies. The men went south, on leaving, until they got off
witness's place, and then turned east toward the Grooms-
Cockrell place. The holy was found at a point south east from
witness's place. There was no road near where the body was
found. There was a plain public road leading from witness's
place to the Grooms-Cockrell place.

Silas Bryan testified, for the State, that, one morning, late in
October, 1887, he met the defendant, his younger brother, and
W. C. Jump, crossing a bridge which was about half a mile
above the place where the body was subsequently found. They
were going towards Anderson's, where they said they lived.
They asked witness if he knew of any land to rent.

Will Cockrell testified, for the State, that late in October,
1887, he overtook defendant, Jump and another man, on the
road going northeast from Anderson's, and east of Mills*s place.
They wanted to know if witness knew of anybody who had
land to rent or cotton to be picked. Witness told them that he

Digitized by VjOOQIC

Term, 1889.] Monk v. The State. 455

Statement of the case.

had some cotton to be picked, and they promised to visit wit-
ness's place to examine it, but never came.

D. W. Houseley, postmaster at Rose Hill, testified for the
State, that he frequently saw Calvin Spears during the two
weeks he lived near Rose Hill. He saw the dead body found
in Bryant's branch, and recognized the clothes on it as the
clothes worn by Calvin Spears during the time that he knew
said Spears.

The opinion sets out in full the testimony of justice of the
peace Alexander as delivered on his examination in chief. On
cross examination the witness said that the body was found in
Bryant's branch about thirty feet from where it empties into
Hewlett's creek. The said creek, when half full of water, over-
flowed the place where the body was found. Decomposition
was very far advanced when the body was found. The hsad
had rotted off, as had the arms and legs, which were held in
place by the clothing, and which fell apart when moved. The
bones of the head and face were bare, all of the skin and flesh
having disappeared. The ground where the body was found
was damp, and it was evident that water had run over the body
since it was placed there.

Henry Leifester testifled, for the State, that he was deputy
sheriff of Mason county in 1887 and 1888. In January, 1888, he
arrested the defendant while plowing in his uncle's field in
Mason county. He was plowing a small sorrel horse branded
8 on the left shoulder. Mason county was about four hundred
miles distant from Dallas. Defendant made no resistance, nor
did he attempt to escape or to avoid arrest. The testimony of
H. F. Ewing, the foreman of the grand jury which framed this
bill of indictment, is set out in the opinion of the court. The
State closed.

Dr. Wray, testifying for the defense as an expert, said that
if the ^'body of a man was placed in the bottom of a dry branch
and covered with sticks and trash in the fall of the year, the
season being an ordinary one, it would require four or five
months for the body to become sufficiently decomposed for the
head, legs and arms to drop off by the movement of the body.
If the body was subject to the action of water it would require
a somewhat longer time for decomposition to advance to the
stage described in this case. Dr. Thurston, for the defense,
testified as did Dr. Wray, except that the period named by him
as necessary for decomposition to have advanced to the stage

Digitized by VjOOQIC

456 27 Texas Ooubt of Appeals. [Austin

Statement of the case.

indicated by the evidence in this case was six months. The
last witness thought that the coat would have rotted away be-
fore the ligaments connecting the arms and the body would.
Crows and buzzards, if able to get to the neck, might have so
eaten it as to separate the head from the trunk.

Mrs. M, A. Work, the mother of the defendant, and mothe^
in-law of W. C. Jump, was the next witness for the defense.
According to her narrative she and her family, including the
defendant, left their home in Bosque county, in September,
1S87, in consequence of the total failure of crops, and went to
Ellis county, where Jump was at work. They were joined
near Waco by Spears, who asked to be taken along as far as
witness's party should go, agreeing to take care of the stock
for his food. He told witness that he was out of money, hav-
ing but twenty-five cents, and was making his way to the In-
dian Territory. He was riding a small gray pony, and was
very poorly dressed. Reaching a point near Waxahachie,
where Jump was at work, the entire party picked cotton for a
few days, and then went on to Dallas county. Jump and his
wife going with them. In Dallas county the party first picked
cotton for Porter, then for Adams, and then for Anderson.
Spears boarded with the witness during the entire time, except
when he worked for Adams, and he and defendant got to be
good friends.

A few days before the day on which Spears disappeired, he
came to witness's camp, and said that he had seen a sheriflf in
the next field, and that, as he had been charged elsewhere with
fence cutting and other crimes, and did not propose to be
* 'hemmed up," he would not sleep in camp again. Accordingly
that night he took his blankets, and went to the field some dis-
tance from the camp. He expressed great uneasiness and de-
clared his anxiety to get on to the Territory. Un the evening
before he left he told witness that he was going to Embree,
and that, if he found a letter he was expecting at Embree,.he
would not return. At the same time he instructed witness to
collect some money due him from Adams, and apply it to his
board and washing. He also traded horses with defendant,
getting thirty-five dollars to boot. Jump came back to camp
on the evening of the day the three men left camp (October
25, 1887), and defendant came on the evening of the following
day. On the following Saturday witness and her family and
Jump went to Terrell, where witness rented land. Defendant

Digitized by VjOOQIC

Term, 1889.] Monk v. Thb State. 457

Opinion of the court.

then went to Brown county to look after a farm owned by wit-
ness. Losing his horse in Brown county, he went to his uncle's
place in Mason county to work with him. The coat found on
the dead body was here exhibited to witness, and she declared
positively and emphatically that it was not Spears's coat, and
had never been worn by him, though in color and texture it
somewhat resembled his coat. Witness had often had Spears's
•coat in her hands, mending it, and she knew where all the
rents were. There was not a rent in this coat corresponding
with a single one in Spears's coat.

C. S. Hays testified, for the defense, that he was familiar
with the reputation of defendant as a law abiding, honest citi-
zen, in Bosque county, since his, defendant's, childhood, and
that it was good.

Filzhuqh <t Wozencraft^ Smith <b Obenchain, and Kenneth
Foree, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This conviction was for murder of the second
degree with the penalty fixed at five years in the penitentiary.

The State challenged the proposed juror Bailey for cause,
upon the ground that he had served one week on the jury in
the district court of Dallas county within the past six months.
Bailey had served five days during a week. The court sus-
tained the challenge, and counsel for appellant excepted and
reserved his bill. The learned judge appends to the bill this
explanation: ** Defendant never exhausted his peremptory
challenges."

The juror was not disqualified under article 3010, Revised
Statutes (Thompson v. The State, 19 Texas, Ct. App., 593.) But
^* appellant did not exhaust his challenges." If he had ex-
hausted every challenge allowed him by law, Bailey would
not have been restored to competency as a venireman. Bailey
being a competent juror, the State should have been compelled
to challenge him either for cause or peremptorily.

The indictment alleges that appellant shot and killed de-
ceased '* with a weapon to the grand jurors unknown." If the
pleader had alleged a gun as the weapon, under such alleg ition
proof that deceased was shot with any character of fire arms
would have been competent. But, having omitted to name the

Digitized by VjOOQIC

458 27 Texas Court of Appeals. [Austin

Opinion of the court.

weapon, the State introduced evidence to prove diligence on
the part of the grand jury to ascertain the character of the
weapon — that is, whether a gun or a pistol, we suppose; and
the county attorney propounded this question to the foreman
of the grand jury: "What effort, if any, did you make to
learn the manner and cause of the death of the deceased, and
what conclusion did you arrive at?" The witness answered:
** We had a great many witnesses before the grand jury, and
we returned this indictment, which we thought was right."
Counsel for appellant objected to the question and also to the
answer.

We are of opinion that the objection to the question was well
taken; because, if it was the purpose of the State to show that
the grand jury had used the necessary diligence to ascertain
the weapon (whether gun or pistol) with which the deceased
had been killed, then the question was too broad — too compre-
hensive—and was clearly calculated to elicit the answer given
by the witness, and which answer was most evidently incom-
petent and very prejudicial to the accused. If the State de-
sired to show diligence on the part of the grand jury to learn
whether deceased was shot with a gun or pistol, the witness
should have been asked what efforts, if any, did you make to
ascertain the fire-arm with which the deceased was killed?
Such a question could have been answered without danger to
the rights of the accused; the witness would be confined to the
diligence regarding the weapon.

The indictment alleging that the deceased came to his death
by being shot, the State was bound to prove this to be true,
and this fact must be proved by competent and not hearsay
evidence. Over objection of defendant the State proved by
the witness Alexander that he was justice of the peace in the
precinct in which the body which was supposed to be that of
Calvin Sp* ars was found, at the time that said body was found,
and that he held an inquest over said body, and that he and
and the jury of inquest examined a great many witnesses at
said inquest, and searched the ground near where the body was
found for weapons, and from the hole in the head and the ap-
pearance of the body, and the testimony of witnesses, it ap-
peared that deceased came to his death from being shot.

This testimony is obnoxious to two objections. 1. A part of
it is hearsay. 2. A part is the opinion of the witness, the re-

Digitized by VjOOQIC

Term, 1889.] Jump v. The State. 459

Statement of the case.

suit of an investigation to which the appellant was in no man-
ner a party.

Appellant's last assignment of error is that the verdict is not
supported by the evidence. In this we think counsel for appel-
lant is correct. We are not willing to sanction, and allow to
serve as a precedent, a verdict founded upon such vague and
inconclusive facts. (The Reporter will give the facts in full.)

For the reasons noted ^bove, the judgment is reversed and
the cause remanded for another trial.

Reversed and remanded.

Opinion delivered April 10, 1889.

No. 6238.
W, 0. Jump v. The State. i 27-459

1^9 299

1. Murder— EviDENCB.— The indictment charged the murder of one C.

Spears. The State proved that subsequent to the disappearance and
alleged murder of Spears the defendant collected from one A. a suui of
money due by A. to one Fierce, Held, that in view of proof showing
the said Pierce and the said Speara to be one and tiie same person, the
evidence was properly admitted.

2. Same.— The sherifif of Dallas county was permitted, over objection by

defendant, to testify that, subsequent to the alleged murder, he ar-
rested Monk, a party charged by separate indictment with the same
offense, in a distant county. Held, error, beoau^e even if the evidence
were sufHcient to establish a conspiracy between defendant and Monk,
the proof related to matters transpiring after the consummation of
the conspiracy.

Appeal from the District Court of Dallas. Tried below be-
fore the Hon. R. E. Burke.

This is the companion case to the preceding case of Monk v.
The State, the conviction being in the second degree for the
same murder — the penalty in this case being assessed at a term
of twenty-five years in the penitentiary. The evidence in this
case is identical with that in Monk's case, except that, in addi-
tion to the facts stated on Monk's trial, the State's witness
Adams testified on this trial that on the morning after the dis-

Digitized by VjOOQIC

460 27 Texas Court of Appeals. [Austin

Opinion of the court.

appearance of '*Pierce" (Spears) the defendant came to his
house and collected from him the sum of ten dollars which
Pierce (Spears) had left with him, and told him that said Pierce
(Spears) was near Dallas, pulling corn. The evidence shows
also that Spears, the alleged deceased and the person spoken
of by the witness Adams as Pierce, were one and the same
person.

Fitzhugh & Wozencraft, Smith <b Obenchain and Kenneth
Foree, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This is a companion case^to that of Monk v.
The State, just decided. Monk and Jump were separately in-
dicted for the murder of C. Spears. They were separately tried
and convicted— this appellant being given twenty-five years
in the penitentiary.

The State proved, over objection, that appellant, after the
death of Spears, collected ten dollars from the witness Adams,
which money Adams owed to Spears. This, under the facts of
this case, was competent evidence. Counsel for appellant con-
tends that, as the witness Adams states that he was indebted
to C. Pierce, not Spears, the fact that appellant collected the
money was immaterial. This would be correct but for the
proof that Spears and Pierce was the same person. Adams
knew him by the name of Pierce, while his true name was
Spears.

There was error in permitting the State to prove by J. BL
Taylor the matters complained of in bill of exceptions No. 4.
(See the opinion in Monk's case with reference to the testimony
of Alexander.) There was also error in permitting the State to
prove by Alexander the matters complained of in bill No. 5.
This matter is also discussed in Monk's case.

It was also error to permit the State to prove by Lewis, the
sheriff, that, after the homicide, he had arrested Monk in Ma-
son county, about four hundred miles from Dallas; because, if
a conspiracy between Monk and defendant Jump had been
shown, it had unquestionably ended. We will not discuss the
rule relating to the admission in evidence of the acts and de-
clarations of a co-conspirator; for, if what has already been
said in repeated decisions can not be understood, we feel our

Digitized by VjOOQIC

Term, 1889.] Stevens v. The State. 461

Statement of the case.

inability to express our views more explicitly, or with greater
clearness.

The remaining assignment of error is that the evidence is in-
sufficient to support the verdict. What has been said in the
opinion in the Monk case is applicable to this. We are not
satisfied to allow the verdict to stand and thus become a prece-
dent. The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered April 10, 1889,

No. 6290,
Steve Stevens v. The State.

1. Ad0BAVATBD Assault and Battery— Evidbnob.— See the opinion
for the sabstance of evidence held insaffloient to support a oonviotion
for afcgravated assault and battery because iDsnfflcient to support the
ground of aggravation alleged in either of the counts of the indictment.

8. Same— DiLiGBNOB— Nbw Trial.— The application for contmuance
shows that the defendant sued out as many as four sabpoenas and one
attachment for the absent witness, who was a resident of Dallas county,
and aUeged that by the absent witness he would prove that the alleged
injured party was the aggressor, and that he struck said party only in
defense. The testimony of the prosecuting witness was not only con-
tradicted as to materiai matter by the witnesses for the defense, but
they testified that the prosecuting witness cursed the defendant, and
Btmok him before defendant struck the prosecuting witness, and that,
when the defendant finally struck the two blows ioflicted upon the
prosecuting witness, he, defendant, was retreating. Held that the
diligence being sufficient, and the absent testimony being, in view of
the proof, both material and probably true, a new trial should have
been awarded.

Appeal from the County Court of Dallas. Tried below be-
fore the Hon. E. G. Bower.

This conviction was for an aggravated assault and battery on
one G. W. Blasdell, and the penalty assessed was a fine of fifty
dollars and sixty days in the county jail.

J. J. Eckfordy for the app'^llant.

W. L. Davidson^ Assistant Attorney General, for the State.

Digitized by VjOOQIC

462 27 Texas Court op Appeals. [Austin

Syllabus.

White, Presiding Judge. There were two counts in the in-
formation upon which this conviction was had, viz: One for an
aggravated assault committed with a deadly weapon, and one
for an aggravated assault, by which serious bodily injury
was inflicted. In our opinion neither of these counts has
been established by the evidence as disclosed in the record be-
fore us.

The only evidence as to the character of the weapon used is
that '*it was a good sized walking-stick, made of Boisd'Arc
and loaded." Defendant's witness testified that '*the walking-
stick was a fair sized walking-stick." There is no evidence
that it was a deadly weapon.

As to the injury inflicted, the injured party, Blasdell, testi-
fied that when he was struck again over the eyes, this last
blow partially stunned him and defendant ran off. The other
State's witness says the lick over the eye cut the skin. Another
witness saw Blasdell wipe blood from his forehead. This evi-
dence is insufficient to show serious bodily injury.

Under the circumstances developed by the evidence adduced
at the trial, we are further of opinion that a new trial should
have been awarded on defendant's application for a continu-
ance. We think the application showed sufficient diligence in
the first place, and the materiality and probable truth of the
proposed testimony in the light of the other testimony is, we
think, unquestionable. The judgment is reversed and the
cause remanded.

Reversed and remanded.

Opinion delivered April 10, 1889.

Nos, 6197 and 6198.
Adam Armstrong v. The State.

Fraudulent Disposition op Mortgaged Property— Indictment, to
be snfficient to charge the offense of f raudalently dispotdng of mort-
gaged property, with intent to defraud, etc., must allege the name of
the person to whom the mortgaged property was disposed or sold, or
that the name of such person was to the grand jury unknown.

Digitized by VjOOQIC

Tenn, 1889.] Taylor v. The State. 463

Syllabus.

Appeals from the District court of Dallas. Tried below be-
fore the Hon. Q. N. Aldredge.

These were convictions for fraudulently disposing of mort-
gaged property, the penalties assessed being a term of two
years in the first and of three years in the penitentiary in the
second case.

No brief in either case for the appellant.

W. L. Davidson, Assistant Attorney General, for the State,

White, Presiding Judge. Appellant in each of the above
cases has been convicted of a fraudulent disposition of mort-
gaged property. An indictment, to be sufficient to charge the
oflfense of selling or disposing of mortgaged property with in-
tent to defraud, must allege the name of the person to whom
the mortgaged property was disposed or sold, or that tfie name
of such person was unknown to the grand jury. (Smith v.
The State, 26 Texas Ct. App., 577; Presley v. The State, 24
Texas Ct. App., 494; Alexander v. The State, ante. 94.)

Because the indictments ia these cases are fatally defective
in this regard, the judgments are reversed and the pix)secu-
tions dismissed.

Beversed and dismissed.

Opinion delivered April 10, 1889.

No. 6229.
George Taylob v. The State.

t Theft— CiRCUB£8TAKTiAii EviDKWOK— Charge of the Court.— The
factum probandum of theft is the taking of the property. If that
fact is proved merely as a matter of inference from other facts in evi-
denoe, and not by an eye witness, the case rests wholly upon circum-
stantial evidence; and the failure of the trial court to charp^e the jury
upon the law of circumstantial evidence is material error.

8. Same— Possession of Recently Stolen Property is not positive
evidence of theft, but merely a circumstance tending to prove theft,
and is therefore in its character simply circumstantial evidence; and,

27 ~m

28 883
27 463
30 3:i2
30 076

Digitized by VjOOQIC

464 27 Texas Court of Appeals. [Austin

statement of the case.

when alone relied upon by the prosecution, demands of the trial oonrt
a charge upon the law of circumstantial evidence.

8. Same.— If the inculpatory facts in a theft case consist alone of recent
possession of stolen property, explained by the accused when first
challenged, it imposes upon the court the imperative duty of explaiiK
ing to the jury in its charge the law applicable to such recent posses*
sion and explanation.

4. Practice— Privilege of Counsel.— While on the stand the sheriiT
was asked by the prosecuting attorney if he did not arrest the defend-
ant several years ago for burglary. The defense objected, and the
prosecuting attorney remarked, in the hearing of the jury, that he
proposed to "prove by the sheriff that defendant was arrested two or
three years ago for a burglary committed in Dallas county, at the
same time and place as he is now charged with theft.'* Held, thatsach
proof was not competent, and the trial court should so have instroeted
the jury.

Appeal from the District Court of Dallas. Tried below be-
fore the Hon. R. E. Burke.

The conviction in this case was for theft of property over the
value of twenty dollars, and the penalty assessed against the
appellant was a term of two years in the penitentiary.

Dan Stewart testified, for the State, in substance that a coat,
vest and pair of shoes, worth in the aggregate more than
twenty dollars, were stolen from his room over the "Coney
Island" saloon in Dallas, Texas, about the time alleged in the
indictment. He did not know who stole the said articles.

Dick Nelson, an employe about the Coney Island saloon,
testified, for the State, that on the day named in the indict-
ment, he heard some person go into Stewart's room and leave
it again. He thereupon stepped out of the saloon and inter-
cepted defendant in the act of leaving the building with a
bundle under his arm. He asked the defendant what the
bundle contained. Defendant first denied that he had a bundle,
and then said that the bundle was handed to him to hold by a
man who went up stairs. Witness then called a policeman,
who arrested defendant. The bundle proved to be Dan Stew-
art's coat, vest and shoes. He did not see defendant take the
articles.

Witnesses for the defense testified that the articles, being
second hand, were worth less than twenty dollars. State wit-
nesses in rebuttal testified that they were worth in the market
more than twenty dollars.

Digitized by VjOOQIC

Term, 1889.] Taylor v. The State. 465

Opinion of the court

Isaac R. Oeland, for the appellant.

W. L. Davidson, Assistant Attorney General for the State.

White, Presiding Judge. No one saw the defendant take
the alleged stolen property. As made by the evidence^the case
was one of possession, explained by defendant, of property
recently stolen, the suflHciency of such explanation being a
question for the jury. **The factum pr*obandum of theft, as
that oflFense is defined by our statute, is the taking of the
property. If the faking, being the main fact in issue, is not
directly attested by an eye witness, but is proved as a matter
of inference from other facts in evidence, the case rests wholly
upon circumstantial evidence, and the failure of the trial court
to give in charge to the jury the law of circumstantial evidence
is material error." (Crowell v. The State, 24 Texas Ct. App.,
404.)

* 'Possession of recently stolen property is not positive evi-
dence of theft. At most, it is but a circumstance tending to es-
tablish theft. A case, therefore, depending alone upon the
possession of recently stolen property is a case resting alone
upon circumstantial evidence, and in such case the omission of
the trial court to charge the jury upon the law of circumstan-
tial evidence is material error." (Boyd v. The State, 24 Texas
Ct. App., 570.) **And the charge of the court in a theft case, if
the inculpatory facts consist alone of recent possession of
stolen property, explained by the accused, when his possession
was first challenged, is insufficient unless it explains to the
jury the law applicable to such recent possession and explana-
tion." (Fernandez v. The State, 25 Texas Ct. App., 538; Florez
V. The State, 26 Texas Ct. App., 477.)

In this case the charge of the court fails to instruct the jury
either upon circumstantial evidence or the law with regard to
property recently stolen, with explanation of his possession by
the defendant.

The remark of the prosecuting attorney in the presence of
the jury that he proposed to "prove by the sheriff that defend-
ant was arrested two or three years ago for a burglary commit-
ted in Dallas county at the same time and place as he is now
charged with theft," was clearly wrong and calculated to preju-
dice defendant with the jury. Such evidence was not admis-

Digitized by VjOOQIC

S?7a 473'

466 27 Texas Court of Appeals. [Austin

Syllabus.

sible, and afforded no reasonable presumption or inference per-
tinent to the issue in the case for which defendant was on trial,
and the court failed so to instruct the jury. (Cesure v. The
State, 1 Texas Ct. App., 19; Chumley v. The State, 20 Texas CL
App., 547, and authorities cited.)

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered April 10, 1889.

No. 6253.
John Williams v. The State.

1. Praotiob— Principal Offender and Accessory.— Under the pro-
yislons of article 90 of the Penal Code, the principal offender, if in
arresti must be tried before bis accessory can be tried; wherefore the
motion of the defendant (who was charged as a principal), that the
person charged as his accessory be first pat apon trial was correctly
overruled.

8. Same— Theft— Evidence.— Over the objection of the defendant the
State was permitted to introduce in evidence a bill of sale, conveyini?
the alleged stolen horses to the defendant, which bill of sale was found
in and taken from the possession of the defendant ofter his arrest
Held, that said bill of sale was properly admitted, in view of the proof
showing that it was fabricated by the defendant. It was no objection
to said evidence that it was taken from the defendant after his arrest
and without authority of law.

8. Same.— As a Standard of Comparison whereby to identify the hand-
writing in the bill of sale as that of the defendant, the State was per-
mitted to introduce in evidence the authenticated signatures of the de-
fendant to application for continuance, etc., in this case. Held correct.

4 Theft— Transportation op Stolen Property into this State-
Principal Offender— Charhe of the Court— See statement of
the case for a special instruction, given in charge to the jury, at the
instance of the State, held correct.

5. Same. — It is the province of the court, in cases involving the construc-
tion of the laws of another State or country, to oonstrae such laws,
and determine when such laws have been established in evidence.
In this case the charge left that question. — involving the laws of
New Mexico as to theft, — to the jury, whereas it should have ex-
plained to the jury the purport of that law, and instructed them thut
it had been proved. The error, however, is not reversible error, as it
was favorable to the defense.

Digitized by VjOOQIC

Term, 1889.] . Williams v. The State. 467

Statement of the case.

6. Thkft— Fact Cask.— See statement of the case for evidenoe held suiH-
cient to support a conviction for horse theft.

Appeal from the District Court of Wilbarger. Tried below
before the Hon. P. M. Stine.

The conviction in this case was had under an indictment
which charged the appellant with the theft of two horses, the
property of Henry Heineke, in Wilbarger, county, Texas, on
the thirtieth day of November, 1887. The penalty assessed by
the verdict was a term of ten years in the penitentiary.

Henry Heineke was the first witness for the State. He tes-
tified, in substance, that he lived on his ranch in San Miguel
county, in the Territory of New Mexico, about thirty-five
miles west from Las Vegas. Two horses, the property of the
witness, were stolen from the said ranch on the night of Sep-
tember 15, 1887. Both were dun colored animals, one having
dark colored mane and tail and the other light colored mane
and tail. They were branded alike on the left side of the
neck — the brand being three upright strokes crossed with a
horizontal bar through the middle, making a double H con-
nected. The said brands were exactly two by two inches in
size. The said horses were taken from the witness's home
pasture, which adjoined his house, without his knowledge or
consent. They were in good condition when taken. Witness
next saw the said horses in January, 1888, when Mauricio
Lucero, whom he sent to Texas, brought them back to the said
ranch, at which time they were in a very reduced condition.
The brands described had been changed into peculiar charac-
ters, different on each horse, and the same characters were
counter branded on the hip. In August or September, 1887,
the witness saw a young man on the streets of Las Vegas,
which young man he verily believes he identifies in the de-
fendant.

Mauricio Lucero testified, for the State, that at present and
in August and September, 1887, he lived with and was in the
employ of Henry Heineke, on the latter's ranch in San Miguel
county, New Mexico. He testified substantially as did Hein-
eke about the theft of the horses, and described them as
Heineke did. The witness found the said horses in the pos-
session of John L. Hammond in. Vernon, Wilbarger county,
Texas, about January 1, 1888, whence he took them to Hein-
eke's ranch in San Miguel county, New Mexico.

Digitized by VjOOQIC

468 27 Texas Court op Appeals. [Austb

Statement of the case.

George Conger testified, for the State, that he lived in Tom
Green county, Texas, and from August to November, 1887,
worked on the ranch of the Texas Capitol Syndicate. He was
at the "Sod House" in Lamb county in September, 1887. Dur-
ing the latter part of that month the defendant, giving his
name as Lon Saunders, in company with a short heavy set
man, came to the '*Sod House" and stayed all night. They
had in their possession two dun horses corresponding with the
horses described by the precedihg witnesses. On the next
morning the defendant and his companion, with the said horses^
left the Sod House, going in the direction of Jim Newman's
camp. A few days later the defendant, having the said horses
still in his possession, came back to the Sod House. On or
about the tenth day of the following November the witness
saw the defendant and John West together in the Yellowhouse
canyon. They had in their possession a bunch of eight or ten
horses, including the two dun animals above described. Defend-
ant and West remained in that vicinity two or three days, when
they left, defendant saying that they were going north. Tas-
cosa was north of Yellowhouse canyon, and Vernon was east.

Ed. Chapman testified, for the State, that in the fall and
winter of 1887 he was in the employ of Jim Newman aad lived
on the plains in Lamb, Bailey and Lubbock counties. In Sep-
tember, 1887, the defendant, answering to **Lon" as his given
name, and a short heavy set, dark complected man called How-
ard, came to Jim Newman's camp. They had in their posses-
sion two dun horses, one with dark and other with light mane
and tail, and both branded on the left side of the neck. Two
days later witness saw the same horses at the camp of one Mc-
Murray, at which time the brands on the neck of each of the
horses had been changed, and other brands put on the left hip
of each. About a month later the defendant and John West,
having the same two horses and eight or ten others, came to
Newman's camp, remained over night and left. When wit-
ness first saw defendant in possession of the said horses he
asked defendant what he gave for them, and defendant re-
plied: "One hundred dollars."

Gilbert Catrell testified, for the State, that he was in the Yel*
lowhouse canyon, in Lubbock county, in the month of October,
1887, and while there saw the defendant and John West in
possession of a small bunch of horses, including the two dun
animals described by previous witnesses.

Digitized by VjOOQIC

Term, 1889.] Williams v. The State. 460

Stateiu'-nt of the case.

W. M. Lay testified, for the State, as did the witness Catrell,
about seeing def<»ndant and West in the Yellowhouse canyon
with the two said horses. He stated also that late in Septem-
ber he saw the defendant and one Howard, in Lubbock county,
in possession of the two horses. He did not then notice the
brands. He afterwards (and before he saw defendant and
West in the Yellowhouse canyon) saw defendant with the
said horses at Howell's place, in Bailey county, at which time
the original brands had been changed.

Sid Boykin testified, for the State, that, on the tweut^'-sixth
day of September, 18S7, he saw the defendant at Salt Lake, in
New Mexico, in company with a short, heavy set maCn, and in
possession of the two dun horses described by the preceding
witnesses. About a month later witness saw defendant in
Texas with the same two horses.

John L. Hammond testified, for the State, that on or about
November 20. 1887, he and one John Pell arrested the defend-
ant and John West in Wilbarger county, Texas, and took from
their possession the two dun horses mentioned in the indict-
ment, and described by preceding witnesses. After putting
them in jail witness searched them, and on the person of one
or the other he found the bill of sale now introduced in evi-
dence by the State, which said bill of sale purports to have
been executed on the twelfth day of September, 1887, by one
Richard Howard, and to be attested by one Jules Hedrick as a
subscribing witness. It purports to convey to defendant,
among others, the horses mentioned in the indictment. Wit-
ness kept the said horses about two months, when he delivered
them to Mauricio Lucero, who claimed them as the property
of Henry Heineke.

Deputy district clerk John Brown, introduced by the State,
produced an application for continuance, and another for at-
tachments, and testified that the name **John Williams'' was
signed to each by the defendant in his, witness's, presence.

Jules Hedrick was the next witness introduced by the State.
He testified that he lived near Las Vegas in New Mexico, and
had known the defendant about two years. Examining the
bill of sale in evidence, the witness declared that he had never
seen it before, and that Jiis name appearing on the same as an
attesting witness was a forgery. He then qualified himself
as a handwriting expert, and compared the handwriting in the
bill of sale with the signature of the defendant to the applica-

Digitized by VjOOQIC

470 27 Texas Court of Appeals. [Austin

Statement of the case.

tion for continuance and attachments. As an expert he then
declared that the signatures "John Williams" to the said appli-
cation, and the signature "Richard Howard" and "Jules Hed-
rick " to the bill of sale were written by one and the same hand.

The State closed by introducing in evidence sections 68, 69
and 70 of Chapter 1, Title 77, of the Laws of New Mexico,
which, in defining the offense of theft of live stock, compre-
hends the elements of that offense as defined by the statutes of
this State.

Bennett Howell was the one witness for the defense. He
testified that he lived in Lamb county, Texas. Defendant
came to witness's ranch in the fall of 1887. A few days be-
fore that a man who gave his name as Howard, having in his
possession the two horses mentioned in the indictment, stopped
at witness's house, tried to sell to witness the horses, and then
went on, inquiring the way to Newman's ranch. Witness told
defendant about Howard's visit, and remarked that if defend-
ant would buy the horses, he, witness, would give him, de-
fendant, a good trade for them. Defendant left for the pur-
pose of finding Howard. A few days later he returned with
the horses, but he and witness did not agree on terms of a
trade.

The special charge of the court, referred to in the fourth
headnote of this report, reads as follows: "All persons are
principles who act together in the commission of an offensa
If, therefore, you believe from the evidence beyond a reason-
able doubt that the defendant, together with some other per-
son, fraudulently took the horses in controversy in the Terri-
tory of New Mexico, as alleged in the first count of the indict-
ment, from the possession of Henry Heineke, without said
Heineke's consent, with intent to deprive the owner of the
value of the same, and to appropriate it to their own use and
benefit, and that said proporty was the property of said Hein-
eke, and that said act constituted, by the laws of Mexico then
in force, the offense of theft, and that defendant afterwards
brought the same property into Wilbarger county, Tezas^ you
will find defendant guilty."

No brief on file for appellant.

TV. L. Davidson, Assistant Attorney General, for the State.

Digitized by VjOOQIC

Term, 1889.] Williams v. The State. 471

Opinion of the court.

WiLLSON, Judge. This conviction is for the theft of two
horses. The horses were stolen by defendant in New Mexico,
and brought by him into Wilbarger county, Texas. Numerous
errors are assigned by defendant, but we have not been aided
in considering them by a brief or argument in support of them.
We will determine them, however, in the light of such inves-
tigation and thought as we have been able to give them.

It was not error to refuse the defendant's motion to put John
West upon trial before trying the defendant. Said West was
indicted as an accessory to the theft charged against the de-
fendant, and it is expressly provided that where **the principal
is arrested he shall be first tried." (Penal Code, art. 90.) The
defendant being the principal, and under arrest, it was not
only proper but obligatory upon the court to try him first.
This requirement of the statute is special and controls the gen-
eral provision relating to the severance on trial of defendants.
(Code Crim. Proc, art. G69a.)

It was not error to admit in evidence, against the defendant,
thi^ bill of sale found in his possession, or in the possession of
the party with him. This bill of sale described the stolen horses,
and was manufactured, as the evidence shows, by the de-
fendant. That it was taken from the possession of the defend-
ant while he was under arrest, and without authority of law,
did not render it inadmissible evidence against him.

It was not error to permit the State to introduce in evidence
the signatures of the defendant to his application for a con-
tinuance and applications for attachments. These signatures
were proved to be genuine, and were introriuced for the pur-
pose of comparing them with the handwriting of the said bill
of sale, to show that the defendant wrote said bill of sale.
The applications were not read in evidence, and the introduc-
tion in evidence of the signatures thereto did not violate the
rule which excludes a confession of a defendant made while in
jail or other place of confinement.

Several objections are made to the charge of the court, and
to the refusal of the court to give instructions requested by the
defendant. We will not discuss these objections in detail. We
think the charge contains a full, fair and correct exposition of
the law applicable to the facts of the case, and embraces sub-
stantially, to the extent demanded by the evidence, the instruc-
tions requested by the defendant. The instruction given at the
instance of the State is, in our opinion, correct, as was inti-

Digitized by VjOOQIC

472 27 Texas Court op Appeals. [Austin

Syll&bus.

mated by this court in Fernandez v. The State, 25 Texas Ct.
App., 538, where the precise question was discussed but not
determined.

We have found but one error in the charge of the court It
submitted to the jury the question of the law of New Mexico
with respect to theft. This question was for the court and not
the jury to determine, and the charge should have instructed
the jury that the law of New Mexico, as to theft, had been
proved, and the purport of that law. This error, however, was
favorable to the defendants and he has not and could not com-
plain of it. We notice it only for the purpose of calling the
attention of trial judges to the rule that it is the province of
the court to determine when the laws of another State or coun-
try have been established in evidence, and to construe such
laws. These are matters of law and should not be submitted
to the jury.

As to the sufficiency of the evidence to support the conviction,
there is no doubt in our minds. It is circumstantial, but of the
most cogent character, and the jury could not reasonably, we
think, have found the defendant not guilty. The judgment is

affirmed.

Affirmed.
Opinion delivered April 13, 1889.

i?7a 4?2

27a 637

, 27 472

|3i ^ No. 6251.

27 472
36 C18|

John West v. The State.

1. Pbactiob— Indictment.— The State abandoned all but the last ooant
in the iDdictment. The defense maintains that the effeot of siuh
abandonment is to eliminate the caption of the indictment and leave
the last count insuflBcient to charge an offense because it does not
commence, "In the name and by the authority of the State of Texas,"
and does not charge that it was presented by a grand jury of Wilhtt>
ger county. JSeldy that the proposition is hypercritical, and that the
caption and commencement of an indictment apply to and constitute
apart of each and every count contained therein.

8. Same— Theft.— The bringing by the thief into a county of this State
of property stolen in another State constitutes, under our law, theft in
the county into which the stolen property Is brought; and one who
gives aid to the thiVf in such county, after the stolen property is
brought into it, is {:uiliy i^s an access jry to the theft.

Digitized by VjOOQIC

Term, 1889.] West v. The State. 473

Opinion of the court.

Z» Same — EnDSsrcB.— Inasmnoh as an acoessory, whose principal is in ar-
rest, oan not be tried and convicted ontil after the trial and conviction
of the arrested principal, it devolves upon the State, in the trial of
the accessory, to show the conviction of the principal. And to make
sach proof in this case, the court properly permitted the State to in
troduce in evidence the verdict and judgment of conviction rendered
against the principal.

4. ACCB680RT TO Thbft— Faot Casb.— See the statement of the case in
Williams v. The State, ante, 466, for evidence held snflQcient to support
the conviction of an accused charged as an accessory to theft.

Appeal from the District Court of Wilbarger. Tried below
before the Hon. P. M. Stine.

The same witnesses who testified on the trial of John Wil-
liams, and whose testimony is set out in full in the report of that
case (ante, p. 466) testified to the same facts on the trial of this
appellant, the witness Hammond, in addition to testimony on
the trial of Williams, testifying that when he arrested Wil-
liams and the defendant, the defendant said to him: -**If I
had known you was after me, you damned son of a bitch, I
would have made it hot for you."

No brief on file for appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WrLLSON, Judge. This convictiort is for being an accessory
to the theft of two horses, said theft having been committed
by John Williams in New Mexico, and the stolen horses having
been brought by him into Wilbarger county, where the defend-
ant gave the said Williams aid in order that he might evade
an arrest, etc., for said theft. (Penal Code, art. 86.) Some of
the questions presented in this case have been discussed and
determined in Williams's case, just decided, and will not be
further noticed. (Williams v. The State, ante, 466.)

As presented by the grand jury, the indictment contained
several counts. Prior to the trial the district attorney, with
the permission of the court, abandoned and dismissed all the
counts except the last one, charging the defendant as an acces-
sory to the theft. It is contended by defendant that as the first
count of the indictment had been dismissed, the last count was
insufficient because it did not commence **in the name and by
authority of the State of Texas," and did not allege that the same

Digitized by VjOOQIC

474 27 Texas Court of Appeals. [Austin

Opioion of the court.

was presented by a grand jury of Wilbarger county, etc.
These objections are not sound ones. The commencement and
caption are to be considered not only as a part of the first count,
but as a part of each and all the counts in the indictment, and
may be referred to and considered in aid of any count. They
constitute a part of the entire indictment. Counts are inde-
pendent of each other, and the first or any other may be
quashed or dismissed without affecting the remainder. (Will-
son's Crim. Stats., sec. 2003.)

Another ground of exception urged to the last count in the
indictment is that it charges no offense against the law, be-
cause it charges defendant with being accessory to a theft com-
mitted, not' in this State, but in New Mexico. This exception
is not a good one. When the principal, Williams, brought the
stolen horses into Wilbarger county, he was guilty of the theft
of said horses in that county (Penal Code, art. 798), and, such
being the law, defendant became an accessory to such theft if
he aided the defendant as charged in the indictment. We are of
the opinion that there was no error in overruling the exceptions
of the defendant to the indictment, nor in overruling his mo-
tion in arrest of judgment.

It was not error to permit the State to read in evidence the
verdict and judgment showing the conviction of Williams of
the theft to which defi^ndant was charged with being acces-
sory. It was essential that the State should prove the convic-
tion of the principal, because said principal, being in custody,
had to be tried and convicted before the accessory could be
tried and convicted. (Penal Code, art. 90.) And for this pur-
pose, if for no other, the verdict and judgment were admissible
in evidence.

Several bills of exception in the record complain of other er-
rors committed in the admission of evidence. We have care-
fully considered the questions presented by the bills, and with-
out referring to them separately, and without consuming time
in their discussion, we will merely state that our conclusion is
that in his rulings upon evidence the trial court committed no
material error.

We have also examined the charge of the court in the light
of the objections made to it by the defendant, and we think it
explained to the jury the law of the case sufficiently and cor-
rectly, and that the special instructions requested by defend-
ant were properly refused.

Digitized by VjOOQIC

Tenn, 1889.] Lee v. The State. 475

Statement of the case.

We have also carefully considered the evidence in the case,
and, in our judgment, it supports the conviction. The judgment
is affirmed.

Affirmed.

Opinion delivered April 13, 1889.

No. 6227.

Charles Lee v. The State.

Theft— Possession of Recently Stolen Property— Charor of the
Court.— The rule has beeu announced in repeated decisions of this
court that the possesfeion of recently stolen property is not of itself
proof posjtive of theft, but that the proof of such possession, ''however
recent, and whether explained or not, is merely a fact or circumstance
to be considered by the jury, in connection with all the other facts sub-
mitted to them, in determining the guilt of the possessor. ^' The same
rule requires that when the accused, upon being first challenged, offers
an explanation of hU possession, it devolves upon the court to instruct
the jury as to the effect of -such explanation;— that is, if the explana-
tion is reasonable, it will prevail as against the naked possession unless
rebutted by the State. The presumption of guilt which attends pos-
session of stolen property is a presumption of fact for the jury, and not
of law. In this case the charge of the court, otherwise correct, in-
structed the jury that the ''possession of recently stolen property is
presumptive evidence of guilt." Meld^ error. See the opinion in ex-
tenso on the subject.

Appeal from the District Court of Dallas. Tried below be-
fore the Hon. R. E. Burke.

The conviction was for the theft of personal property of the
value of twenty dollars and over. The penalty assessed was a
term of two years in the penitentiary.

The prosecuting witness, who was the proprietor of the
Crutchfield Hotel in the city of Dallas, testified, in substance,
that a number of articles, including a lady's skirt, a bedspread,
and a trunk which contained among other things a scarf and
a red handkerchief, aggregating a value in excess of twenty
dollars, were stolen from his said hotel between three and seven
o'clock on the morning of (or about) December 1, IbSS — that

27
29

47&

27
31

475
81

Digitized by VjOOQIC

476 27 Texas Court of Appeals. [Austin

Opinion of the court

morning being Friday. On Sunday morning witness met de-
fendant on the street, wearing the scarf around his neok. He
summoned an oflScer, and accosted defendant, asking him where
he got the scarf. Defendant replied that he found the scarf
and red handkerchief (which he produced from his pocket, and
which the witness identified as the one that was in the trunk
when it was taken,) in the Trinity river bottom. He was then
€u:rested, and the officer asked him where the other things were.
He replied that they were at a certain saloon, to which he
guided the witness and the officer. Arrived at the saloon, he
got a bundle and delivered it to witness, who on opening it
found it to contain the lady's skirt and bedspread.

The proprietor of the saloon testified, for the State, that the
defendant came into the saloon early on Friday morning, and
asked permission to leave his bundle. Witness granted the
permission. He did not know what the bundle contained until
it was delivered to and opened by the prosecuting witness on
Sunday morning.

No brief for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

Hurt, Judge. This conviction is for the theft of a trunk,
blankets, quilts, bed spreads and divers other articles, amount-
ing in value to over twenty dollars.

The State relied alone upon recent possession of a part of
the goods, without reasonable explanation of possession; that
is, that appellant's explanation was not reasonable. Upon this
matter the learned judge instructed the jury: * 'Possession of
property recently stolen is presumptive evidence of guilt, but,
to warrant this presumption from the circumstances of posses-
sion alone, such possession must be recent — must be personal
and exclusive, and must be unexplained; but if, the first time
the defendant's right to said property was called in question,
he gave a natural, reasonable, and satisfactory explanation of
his possession, it then devolves upon the State to prove such
explanation false, and if such explanation be not shown to be
false, further evidence of the defendant's guilt will be re-
quired."

That possession of property recently stolen is presumptive
evidence of guilt as contradistinguished from positive or direct

Digitized by VjOOQIC

Term, 1889.] Lee v. The State* 477

OpiDion of the court.

evidence is unquestionably true. Nor could there be in any
case danger to the accused for the court to simply instruct the
jury that such was the character of the evidence; that is, to
inform the jury that possession of property recently stolen i»
not positive but circumstantial or presumptive evidence.

But, to instruct that such possession is presumptive evidence
of guilt may not be proper, and may work serious injury to
the accused. If the jury should understand the court as merely
intending, by such instruction, to draw the distinction between
positive and presumptive evidence, then there would be no
harm; but if they should believe from such instruction, as a rule
of law by which they must be governed, they should presume
guilt, or that the law presumes guilt when recent possession is
shown and the accused fails to explain his possession, then, we
say, if such should be their opinion of the charge, a wrong
impression would bo made upon the minds of the jury, though
the possession be recent and unexplained. The instruction
quoted, being so framed as to be regarded in the light of the
last proposition, was erroneous; and, when viewed in connec-
tion with the other facts in this case, was such error as was
reasonably calculated to injure the rights of the accused.

The rule which has been repeatedly st ited by this court, fol
lowing Terry v. The State (41 Texas, 483), is that **proof of the
possession of property, however recent, and whether explained
or not, is merely a fact or circumstance to be' considered by
the jury in connection with all the other facts submitted to
them, in determining the guilt of the possessor." While this
is so, the court should not fail, when the accused explained or
accounted for his possession, to properly instruct the jury as
to the effect of such evidence. Upon this point the court
charged correctly.

We deem it necessary here to make some observations upon
this subject. Under our code the judge shall not discuss the
facts, nor charge upon the weight of the evidence; and this be-
ing a question of fact and not of law, any instruction given
as to the effect of, or presumption arising from, other facts
proved, is not permitted by the code. But while the court is
not permitted to draw conclusions or make presumptions from
other facts, it does not follow that the jury can not; on the
contrary, this is their duty as well as province.

Let us illustrate. **A" is on trial for theft. The State proves
that he was found in exclusive possession of the stolen prop-

Digitized by VjOOQIC

478 27 Texas Court of Appeals. [Austin

Statement of the case.

^ ^ _ — .^ — —

erty; that his possession was sufficiently recent to call upon
him to account for his possession; that an explanation was di-
rectly or constructively demanded of him, and that he failed
to explain. These are all the facts in the case bearing upon
the fact as to whether or not he was the taker of the property.
Now as a matter of fact, not of law, the presumption woidd
arise that he was the person who took the property, and the
jury would be authorized to make such presumption and con-
vict him. But while this is so., it does not follow that the court
can instruct the jury to make such conclusion and convict;
nor can the court tell the jury that the law engrafts upon such
a state of case such a presumption.

Appellant insists that the evidence is not sufficient to sustain
the verdict. ♦ We will not discuss the evidence, remarking,
however, that we have some doubts as to its sufficiency. For
the error in the charge noted above, the judgment is reversed
and the cause remanded.

Reversed and remanded.

Opinion delivered April 13, 1889.

No. 6287.

Fbbdbbiok Juniper v. The Statb.

Complaint— Information— Variance.— The complaint impleads Joh^
Juniper, and the information Frederick Juniper. Meld^ that the m-
riance is fatal to the information.

Appeal from the County Court of Dallas. Tried below be-
fore the Hon. E. G. Bower.

The appellant was convicted for maintaining a nuisance in
violation of the public health laws; his penalty was assessed
at a fine of one hundred dollars.

Evans & Oooch, for appellant.

W. L. Davidson, Assistant Attorney General, for the State.

Digitized by VjOOQIC

Term, 1889.] Cunningham v. The State. 479

^ Syllabus.

WiLLSON, Judge. There is no complaint in the record to
support the information. The information charges Frederick
Juniper. There is a complaint in the record charging John
Juniper, but none charging Frederick Juniper, with the offense
charged in the information. This variance between the com-
plaint and the information is fatal and requires the conviction
to be set aside. (McDevro v. The State, 23 Tex. Ct. App., 429.)
This defect is confessed by the Assistant Attorney General.

The judgment is reversed and the cause is remanded for such
further proceedings as the State may see proper to pursue.

Reversed aiui remanded.

Opinion delivered April 20, 1889.

No. 6308.
J. W. Cunningham v. The State.

Thrft— EVXDBNCB.— The indictmeDt oharffed the defendant with the
theft in Dallas county, Texas, of a "coupon railroad ticket, which
said ticket entitled the jiolder thereof to one first class passage from
Caldwell in Burleson county, Texas, to New York City by way of Pur-
cell, Kansas City, Quincy, Chicago and Buffalo,*^ the said ticket being
the property of the Gulf, Colorado & Santa Fe Railway, and of the
value of fifty-seven dollars. The Staters witness Cade testified that the
value of the ticket, as representing and good for the fare over the said
line from Caldwell to New York, was fifty-seven dollars, and that as
representing the fare from Dallas to New York, deducting the fare
from Caldwell to Dallas, it was fifty two (Jollars. The State's witness
Hirsch testified that the ticket, as representing the price of a first
class fare from Dallas to New York, was worth in Dallas the sum of
fifty five dollars; to all of which testimony the defense objected that
the market value of the said ticket in Dallas was the one question at
issue. But held that, in view of Hirsch's further testimony that he
l>aid the defeudont twenty-five dollars for the ticket, the admission of
the evidence, if erroneous, constituted immaterial and harmless error.

Same. — The defense offered in evidence a letter addressed by the gen-
eral passenger agent of the Gulf, Colorado & Santa Fe Railway to the
conductors on the lines of the said railway, notifying them of the
theft of the said ticket, and directing them to take up the same if of-
fered for fare, cancel the same and return it to the office of the writer.
Held^ that the letter being relevant to no issue in the case, was properly
excluded.

ywm

I 28 107

I 27 479|
30 155

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4S0 27 Texas Court op Appeals. [Austiii

Statement of the case.

8. S A MR— Charge op the Court.— There was no contest or dispute as
to the ownership of the said ticket, which fact was proved as alleged
in the indictment. In this state of the case, and in the absence of a
requested instruction to supply the omission, the failure of the trial
court to instruct the jury that the ownership must be proved as al-
leged was error without prejudice.

4 Same— Practice— Felonious and Misdemeanor Thbpt.— Excep-
tion to a charge of the court based upon an erroneous statement of a
principle of law will necessitate the reversal of a conviction without
inquiry as to the effect of such error on the jury. In this case the
charge misdirected the jury as to the value which determines the prrade
of theft. Moreover, all of the proof in the case shows that the theft,
if theft was committed, was a felonious theft, and the court therefore
erred in charging at all on misdemeanor theft — the rule being that the
court shall charge only upon issues presented by the evidence.

5. Same.— If the accused acquired lawful possession of the stolen prop-
erty, he can not be convicted of theft unless it is shown that he ob-
tained such possession by false pretext, or with intent, at the very
time he obtained such possession, to deprive the owner of its value, and
to appropriate it to his own use, and further, that he did so appropriate
it. A charge of the court which, authorized conviction upon proof
that the fraudulent intent was conceived after lawful possession waa
acquired was error.

Appeal from the District Court of Dallas. Tried below be-
fore the Hon. R. E. Burke.

This conviction was for the theft of a railway passenger
ticket, of a value exceeding twenty dollars. The penalty as-
sessed was a term of two years in the penitentiary.

The fact that the appellant stole the ticket from the office of
the railway company in Caldwell, Burleson county, and sold
it in Dallas, was not contested, but the defendant's confession
of the theft was proved. The sole contention on the trial
arose over the value of the ticket in Dallas, if it had value at
all. The witnesses concurred in stating that if it was good
for the fare to New York, as it purported to be, it was worth
from fifty-two to fifty-five dollars in Dallas, and employes of
the railway company testified that the said ticket entitled the
holder to one first-class fare to New York from Caldwell.

No brief on file for the appellant.

W. L, Davidson^ Assistant Attorney General, for the State.

Digitized by VjOOQIC

Term, 1889.] Cunningham v. The State. 481

Opinion of the court.

White, Presiding Judge. 1. The witness Hirsch swore posi-
tively that the railroad ticket was purchased by him in Dallas
for twenty-five dollars and that it was worth in Dallas fifty-five
dollars. This fact having been thus proven by said witness
renders immaterial appellant's first three bills of exceptions
reserved as to the admission of evidence of value over his ob-
jections, and if in any manner erroneous, the error is without
prejudice and harmless.

2. There was no error in excluding the letter of Cark, the
general passenger agent of the railroad, notifying conductors
that ticket had been stolen, and instructing them to take up,
cancel and return the same to his oflSce. The rejected evidence
could throw no possible light upon the transaction under in-
vestigation.

3. Several objections to the charge of the court to the jury
were saved by bills of exception which appear in the record:
1. The ownership of the ticket was averred in the indictment
to be in the Gulf, Colorado and Santa Fe Railroad Company,
and the court nowhere instructs the jury in terms that they
should find the ownership to be proven as charged, in order to
convict. But while the charge is perhaps critically obnoxious
to the objection, yet, when taken in connection with the fact
that there was no question as to the ownership and possession
raised by the evidence, and the further fact that the jury were
charged as to the necessity of finding all the other essential in-
gredients and the elements of a theft of property stolen from
the possession of said railroad company, we do not think the
omission complained of would be reversible error in the absense
of a refused special requested instruction supplying the defect
or omission. There was no contest or dispute as to the owner-
ship and possession; it was fully proven as alleged, and the jury
could not possibly have been misled nor the accused in any
manner prejudiced by the omission to charge in terms the
necessity of finding the fact as alleged and proven. Had there
been any question as to ownership, the objection would doubt-
lesshave been fatal. (Kay v. The State, 40 Texas, 29; Bray v.
The State, 41 Texas, 560; Williams v. The State, 4 Texas Ct.
App., 5; Robitison v. The State, 5 Texas Ct. App., 519; Smith
V. The State, 7 Texas Ct. App., 382.)

2. With regard to the value of the ticket, the jury were in-
structed that if they believed the theft had been committed in
Burleson county, and the property was brought by defendant

Digitized by VjOOQIC

/
482 27 Texas Court op Appeals. [Austin

Opinion of the court. ' #

into Dallas county, "but that the market value of the ticket at
Dallas, Texas, was not over twenty dollars, or, if you have in
your mind a reasonable doubt, from the evidence, as to whether
the ticket was over the value of twenty dollars, then you should
find him guilty of a misdemeanor," etc. The charge is erro-
neous in that the statute makes it a felony to steal property of
the value of twenty dollars, and does not require that the value
should be over that amount. (Penal Code, arts. 735, 736.) The
instruction was favorable to the defendant, but, being errone-
ous and excepted to at the time, the error is fatal. If error of
law occurs in the charge as given, no matter how immaterial
it may be, if it is promptly excepted to and presented by a
proper bill of exception on appeal, the statute (Code Grim.
Proc, art. 685) is mandatory that the conviction shall be set
aside without inquiry as to the effect of such error upon the
jury. (Willson's Crim. Stats., sec. 2363.)

3. Another portion of the charge which was excepted to was
as follows: "But if you are satisfied that, although the
ticket came into his (defendant's) possession by lawful means,
and you are further satisfied from the evidence beyond a
reasonable doubt that the defendant afterward took the
ticket with the intent to deprive the railway company of
the value thereof and appropriate the same to his own use and
benefit, and the same was so appropriated, the ofifense of theft

. is complete." This instruction was erroneous. The correct
rule is that "when the taking of the property was originally
lawful, that is, when the property came into the possession of
the accused not wrongfully^ but lawfully, a conviction for theft
can not be sustained unless it be shown that the accused ob-
tained the property by some false pretext, or with the intent,
at the very time of obtaining the property, of depriving the
owner of the value thereof and appropriating the property to
the use and benefit of the person taking; and it must further
appear that the property was so appropriated." "The fraudu-
lent intent must exist at the very time of acquiring the posses-
sion of the property. Xo subsequent fraudulent intent or appro-
priation of the property will suffice to constitute the original
lawful taking theft." (AVillson's Crim. Stats., sec. 1269; Taylor
V. The State, 25 Texas Ct. App., 96; Guest v. The State, 24
Texas Ct. App., 235; Penal Code, art. 727.)

4. The charge was also specially excepted to because it
submitted the issue of petty or misdemeanor theft, that is,

Digitized by VjOOQIC

Term, 1889.] Bbrby v. The State. itft.^

Statement of the case.

theft of property under the value of twenty dollars
no evidence calling for such a charge, and all th
going to show that the ticket, if worth anything
worth more than twenty dollars. This exception
taken. A charge which submits issues not raisec
dence is erroneous, and, when excepted to as in th
error is reversible.

For errors in the charge of the court above poit
discussed, the judgment is reversed and the cause i

Reversed and
Opinion delivered April 20, 1889.

No. 6346.
G. H. Bbbry v. The State.

Slawdbr — Evidence— Practice.— An information for
pnting to a female a want of chastity should allege, at lea
the language actually used by the accused, and to tba
proof i-hould be confined. If the meaning of the langu
be obscure, then the Information should allege its meac
proof of its meaning \fi not admissible. The meaning o
charged by the information in this case is clear and una
the language proved is not only variant from that all(
soure in meaning. The trial court permitted a State's w
that he understood the language used by the accused ti
meaning with that charged in the information. Held,
opiuion for the substance of evidence held insufficien
conviction for slander because it does not support the
the information.

Appeal from the County Court of Knox. Tri(
fore the Hon. J. J. Truscott, County Judge.

The opinion discloses the case. The penalty asse
the appellant was a fine of two hundred and fifty
confinement in the county jail for thirty days.

JE. J. HamneVi for the appellant.

W. L. Davidson, Assistant Attorney General, f(

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484 27 Texas Coubt op Appeals* . [Austin

• Opinion of the court.

WiLLSON, Judge. It is charged in the complaint and in-
formation that the defendant slandered Isabella Helm, an un-
married female, by saying that she "was in the family way,
meaning thereby that she was with child, and that he believed
her brother, F. B. Helm, was the father of the child." There
is no evidence proving that he used the precise language above
stated. He said on quo occasion that "he had seen Isabella
Helm at home, and if there was not something wrong with
her his eyes had fooled him; that he saw enough to convince
him that there was something wrong with her; that if his eyes
had not deceived him worse than they ever had before, she
was in that condition." On another occasion he was asked by
a neighbor and brother in the church if he had heard any bad
reports about Isabella Helm, and, if so, what the reports were.
He answered that it was reported that she was in the family
way, and that it was reported that her brother Frank was the
other party concerned.

The trial judge, over the defendant's objections, permitted
the witness who testified about the language used by defend-
ant on the first occasion above referred to, to testify that they
understood him to mean by the words "that condition" that
Isabella Helm was in the "family way." We think this was
error. The language used by him on said occasion does not of
itself correspond, even substantially, with that charged in the
complaint and information. He did not say that Isabella Helm
was in the family way, or with child, and that he believed her
brother Frank was the father of the child. The language used
by him may have been intended to, and no doubt did, convey
the meaning that she was pregnant, but, not being so alleged
in the complaint or information, it was not permissible to
prove that such language had any other meaning than that
plainly expressed by the words. The complaint and informa-
tion should have alleged the language actually used by the de-
fendant, at least in substance, and its meaning, not being clear,
should have been alleged, and it would have been permissible
to prove its meaning in the manner permitted by the court.

With respect to the language used by the defendant on the
other occasion referred to, it does not correspond with that
charged in the complaint and information either literally or
substantially. He did not say that Isabella Helm was in the
family way, and that he believed her brother Frank was the
father of the child. He said it was so reported.

Digitized by VjOOQIC

Term, 1889.] Ex parte Duncan. 485

Statement of tbe case.

We are of the opinion that the evidence legitimately ad-
mitted does not prove the slander as it is alleged in the com-
plaint and information. The slander proved, if any, is not the
slander alleged. (Stichtd v. The State, 25 Texas Ct. App.,
420; Frisby v. The State, 36 Texas Ct. App., 180.)

Numerous errors are assigned to which we have given con-
sideration. We have been unable, however, to perceive any
error in the rulings or charge of the court, except the one we
have discussed, and because of that error, and because the
evidence does not sustain the allegations, the judgment is re-
versed and the cause remanded.

Reversed and remanded.

Opinion delivered April 24, 1889.

No. 6353.

Ex Parte Dick Duncan.

Habbas Corpus for BAiii— Fact Case.— See the statement of the oaac
fcNT evidence held insufficient to support a judg:ment refusing bail,—
murder being the offense charged against the relator.

Habeas Corpus on appeal from the District Court of Bur-
net. Tried below before the Hon. W. A. Blackburn.

The judgment of the lower court refusing bail to the relator
is reversed, and bail is awarded him in the sum of six thousand
dollars.

The first witness called to the stand was George B. Dunn.
He testified that he lived in Eagle Pass, and was the justice of
the peace in and for precinct number one of Maverick county.
He held an inquest upon four dead human bodies found in the
Rio Grande, and upon a complaint filed before him, he issued
the warrant upon which the relator and Tap Duncan were ar-
rested for the murder of the said parties. The first of said
bodies was found on February 26, 1889; two others were found
on February 28, 1889, and the fourth on March 2, 1889. They
were all found on the American shore within six hundred yards
of each other. Three were the bodies of females; two women

Digitized by

Google

486 27 Texas Coubt of Afpbal& [Austin

Statement of the case.

and a girl, and the other of a youth nineteen or twenty years
of age. The skull of each was crushed in, evidently by blows
from a blunt instrument. Large stones, weighing from thirty
to fifty pounds, were attached to each of the bodies. The
oldest of the four was a woman between forty-five and fifty
years of age; the next a young woman twenty-eight or thirty
years of age; the third in age was the boy, and the youngest was
the body of a girl sixteen or seventeen years of age. Decomposi-
tion had so far advanced that it was impossible to tell anything
about the features or complexion of the deceased parties. The
hair of each was dark. From the pocket of the boy the wit-
ness took the pocket knife produced in court, marked M. F. & S.
on both sides. After the bodies had been buried seven or eight
days, that of the young woman — the second in age — was dis-
intered, and from her mouth was taken the gold plate now in
evidence, which had originally contained two teeth, one of
which had been long missing. The bodies were barely moving
with the current when discovered.

Joe S. Clark testified,. for the State, that he lived in the town
of San Saba, San Saba county, Texas, where he was engaged
in selling wagons, agricultural implements, etc. On the twenty-
second day of January, 1889, the witness sold to the relator a
new "two and three-fourths inch Mitchell wagon, a set of
wagon harness and a wagon sheet and bows." On the said
wagon was printed the witness's business advertisement, as fol-
lows: "Sold by Joe S. Clark, San Saba." The relator did not
take the wagon away on the day that he bought it, nor did the
witness see him when he took it away.

Ed Hawkins testified, for the State, that he lived in San
Saba county, Texas, and was acquainted with the William-
son family. The Williamsons lived within four hundred yards
of the witness. The family consisted of "old" Mrs. Wil-
liamson, a widow lady, aged about fifty years; her widowed
daughter, Lavonia Holmes, commonly called "Boney" Holmes,
aged about thirty years; her son Ben Williamson, aged about
twenty years, and her daughter Beulah Williamson, aged
about sixteen years. A few days before the Williamson family
left or disappeared from San Saba county, the relator told the
witness that he had bought the Williamson place, and that he
was going to let Mrs. Williamson have a new wagon and har-
ness that he had recently bought, and two horses, in part pay-
ment for the place. The Williamson family disappeared from

Digitized by VjOOQIC

Term, 1889.] Ex parte Duncan. 487

Statement of the case.

their place in San Saba county about January 25, 1889. On
the night they disappeared, witness heard a wagon pass his
house and stop at the Williamson place. Soon afterwards a
horse passed going in the same direction. Later in the night
the wagon left the Williamson place. Witness had never seen
any of the Williamsons since that night. Witness did not
know who was driving the wagon that passed his house, nor
who, if anybody, was riding the horse. On his cross examina-
tion he said that he did not know as a matter of fact that the
relator traded for the Williamson place, nor what, if anything,
he paid for it. Relator lived between three and four miles
from the witness. He was in witness's neighborhood three or
four days after the Williamsons disappeared.

Tom Hawkins testified, for the State, that he lived within
four hundred yards of the Williamson family in San Saba
county. One night late in January, 1889, a wagon, traveling
from the "general" direction in which the relator lived, passed
the witness's house, and stopped at the Williamson place.
Soon afterwards a horse passed, going in the same direction.
The wagon remained at the Williamson place about two hours,
during which time the witness heard a noise which sounded
like the loading of a wagon. The Williamson family were
gone on the next morning. During the forenoon of the said
morning the relator, with Jim McDonnell and Hugh Harkley,
in a wagon containing a bedstead and sofa, passed witness's
shop, traveling from the Williamson place. Relator asked
witness: "What have you done with your neighbors?" Wit-
ness replied: "They have gone, but I suppose will come back
again;" to which the relator replied: "I'll be damned if they
ever come back."

Frank Ward testified, for the State, that he lived in San Saba
county, and knew the Williamson family, the individuals of
which he described as did the witness Hawkins. Mrs. Boney
Holmes wore a gold plate in her mouth which originally held
two false front teeth. It contained but one at the time of her
disappearance. The witness had often seen that gold plate,
and had held it in his hands. The gold plate exhibited to wit-
ness was the same plate, or its exact counterpart, that Boney
Holmes wore in her mouth.

John R. Hughes testified, for the State, that he was a State
ranger. On the sixth day of February, 1889, the relator came
to Camp Woods, in Edwards county, where the rangers were,

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488 27 Texas Court of Appeals. [Austin

statement of the case.

ate dinner with them, and remained about four hours. He said
that he had come from San Angelo, and was going to Eagle
Pass; that he was traveling with a family named Jones who
were going to or near Brackett. On the same day, but after
the relator left, a man who said his name was Jones came to
the camp hunting horses. On the following morning, at a point
about three quarters of a mile from the camp, the witness and
his party met the relator and the man Jones, one riding a bay
and the other a sorrel horse. They were about three hundred
yards in advance of a two-horse wagon, which the relator said
was his * 'outfit." When the wagon came up, witness saw that
it was a new vehicle, and showed by words printed on it that
it came from San Saba. It was driven by a young man eighteen
or twenty years old, and contained three females who cor-
responded with the Williamson women as described by the wit-
ness Hawkins. The party was traveling south, and the relator
said that he was going after horses. The man called Jones
was not Tap Duncan, the brother of the relator. On or about
March 1, 1889, the witness saw the relator, and old man Dun-
can and Tap Duncan on the east prong of the Nueces river in
Edwards county. They were going north towards Junction
City, in Kimble county. The point on the east prong of the
Nueces river, where witness saw the Duncans, was about one
hundred and fifty miles from Eagle Pass, in Maverick county.
The said parties then had Winchesters and pistols, and were
arrested for carrying the latter. Sergeant Aten told the relator
that whatever statement he might make in regard to a matter
he intended to inquire about could be used in evidence against
him, and then asked him who the parties were that he moved
down the country some time before. Relator replied: **One
was Cravey's wife, my sister; the other was my sister, the wife
of Thompson. Thompson is the man who drove the wagon.
He is on the dodge about a little cow case; you don't blame me
for that, do you?" On the following morning relator said that
the old woman of the party he took down was his mother, and
that the correct name of the man Jones who went down with
him was H. W. Landers. Sergeant C. G. Aten testified, for the
State, substantially as did the witness Hughes.

Tom Selman testified, for the State, that between February
9 and 12, 1889, he saw three men and three women in camp,
about nine miles east of Brackett, in Kinney county, Texas
They had a new wagon, which the witness did not particularly

Digitized by VjOOQIC

Term, 1889:] Ex parte Duncan. 489

Statement of the case.

notice. The women, in age, suited the description of the Wil-
liamson women as given by preceding witnesses. Witness
talked with one of the men, who looked to be twenty eight or
thirty years old. In the course of that conversation, that man
said his name was Williamson. Witness had never seen that
man nor the women since. About February 19, the witness
saw the other two men in Brackett. To the best of his belief
the relator was one of those two men.

James Nolan testified, for the State, that he was the sheriff
of Kinney county. He saw the relator and another young
man in Brackett, Kinney county, on the tenth day of Febru-
ary, 1889, and saw relator again on the next morning, when
he was introduced to the relator as Dick Duncan. Witness re-
marked to him: **I saw you yesterday with another young
man." He replied: "Yes— with Landers." On the said tenth
day of February relator was riding a bay and Landers a sor-
rel horse. Witness remarked to relator: "I knew your father
when he lived in Kinney county." Relator replied: "He now
lives below Eagle Pass, and I am now on my way to visit him.
I have a wagon camped out of town."

George Hobbs testified, for the State, that he kept a store in
Spofford, Kinney county, Texas. On February 11, 1889, the
relator and another man came to his store and inquired the
way to Eagle Pass. About the twentieth day of the same
month the relator came to witness's store, and left his horse
and Winchester rifle and went to Eagle Pass on the train, re-
turning three or four days later with his father and his brother
Tap. When he left, the relator said that he was going back to
Eagle Pass to sell his horse. When he brought his gun to wit-
ness's store on February 20, witness noticed that it was bent
about the magazine. Relator said that he bent it by striking a
jack over the head with it.

W. W. Collins testified, for the State, that on February 9 or
10, 1889, he saw a two horse wagon, containing a young man
and three women, near Spofiford, going towards Eagle Pass.
A sorrel horse was tied behind the wagon. On the next day
the relator rode into Spofford on a bay horse from the direction
of Brackett. He had his Winchester gun with him. Witness
got a good view of the gun and was positive that it was in per-
fect repair then. Three or four days later the relator returned
to Spofiford from the direction of Eagle Pass, riding the sorrel
horse that passed through Spofford when tied behind the

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490 27 Texas Court of Appeals. [Austin

statement of the case.

wagon. His Winchester gun was then badly bent about the
magazine. Eagle Pass was about thirty-five miles distant
from SpoflFord. J. C. Yates testified, for the State, as did Col-
lins, except that he said nothing about the Winchester gun.

Fred Berndt testified, for the State, that he lived .in Piedras
Negras, in Mexico, opposite the town of Eagle Pass, in Texas.
The relator came alone to the witness's ranch on the twelfth
or thirteenth day of February, 1889. His brother, Tap Dun-
can, was then at the witness's ranch, and had been for ten or
twelve days. Relator told witness that he had come from San
Saba to Eagle Pass to visit his sister, Mrs. Cravey, who had
been in Eagle Pass since February 1. He also said that he left
his two partners near Brackett. He said that one of his part-
ners was named Landers. The witness had forgotten the name
of his other partner as given by relator. He remained one
day and left, returned on the sixteenth, remained over night,
and left. He came back on the twenty-first and took his sis-
ter's things from the ranch to Eagle Pass. Witness was with
Tap Duncan every day from February 1 to February 22,

W. J. Brown testified, for the State, that he lived in Kinney
county on the West Nueces. On or about February 23, 1889,
the relator came to the witness's house inquiring for a man
and wagon camped in the vicinity. He passed the night with
witness; his actions aroused the witness's suspicions. He ap-
peared restless and uneasy. He said that he came from San
Angelo and was going to Junction City. Witness told him he
was on the wrong road, and he then said he was going to Mc-
Kavett, and witness told him he was on the right road. He
then said that he had been to Mexico after stolen horses; that
he was followed, arrested, jailed, fined forty-five dollars, and
deprived of his pistol; and that on the advice of the American
consul he crossed the river. He then said that he wanted to
go to Camp San Saba. Several days afterwards, old man Dun-
can and Tap Duncan, the father and brother of the relator,
traveling in an old wagon, came to witness's house.

Tom Perry, testified, for the State, that he was at W. J.
Brown's house on February £3, 1889, when the relator came
there as testified by Brown. His narrative corresponded with
Brown's except that relator told him that he had spent the win-
ter on Devil's river, hunting.

Albert Sch wander testified, for the State, that he lived a few
miles distant from the witness Brown. On or about February 18^

Digitized by VjOOQIC

Term, 1889.] Ex parte Duncan. 491

Statement' of the case.

1889, a man with a new wagon camped near the witness's place.
On or about February 24, 1889, that man was joined by the ap-
pellant. They told witness that they were waiting for another
wagon and two men, and they put four horses in the witness's
pasture. Relator soon afterwards went off down the river, and
in a day or two returned ahead of two other parties traveling in
an old wagon. The man who camped near witness's place with
the relator claimed his name to be Landers.

Louis Charles testified, for the State, that he lived near the
witness Sch wander's house in Kinney county. One day late in
February, 1889, a man came to the witness's house and offered
to sell witness a mattress. The witness went with him to the
house of a Mexican to see the mattress, and when he got there
he found the relator. Tlience witness, relator and the other
man went to a camp ne&r Schwander's field, where the mat-
tress was shown to witness. Witness did not buy it; but bought
a quilt from the relator. There were six or seven quilts in the
wagon, all somewhat worn but clean.

A. W. Haley testified, for the State, that he lived near Barks-
dale, in Edwards county. The relator came to witness's place
on February 27, 1889, and asked the way to Junction City, and
if there was a way to that town that did not lead through
Barksdale. He then asked witness to tell his father and
brother, who would soon pass in a wagon, to go through Barks-
dale,^ which the witness did. Relator's gun was then bent at
the magazine. He said he had struck a jack over the head
with it.

Sam Thurman testified that on March 10 or 11, 1889, he met
a party of three men and a boy near Fredonia, in Mason
county, going toward San Saba. He took the relator to be one
of those parties. He had a Winchester that was bent about
the magazine. There were two wagons in the party. Witness
took no special notice of the wagons.

W.N. Cook, sheriff of Maverick county, testified that he saw
the relator in Mexico, across the Rio Grande from Eagle Pass,
on February 20 or 21, 1889, and on the next day saw him in
Eagle Pass. He saw the bodies found in the river, which he
described substantially as did the preceding witnesses.

The State closed.

Hugh Harkley testified, for the relator, that he was with the
relator and Jim McDonnell on the morning after the William-
son family left San Saba county, and heard the conversation

Digitized by VjOOQIC

27 492

I 75T 010
I 27 492|
37 382

492 27 Texas Coubt of Appeals.

Syllabus.

between the relator and the State's witness Hawkins. Haw-
kins remarked that the Williamsons would be back within a
month. The relator replied that he did not think they would
come back, as he had bought their place and they had no place
in the neighborhood to occupy. Relator did not say "I'll be
damned if they ever come back."

On cross examination, this witness denied that he ever told
S. B. Howard that relator, in reply to Hawkins, said: * ril be
damned if they ever come back;" or that he told said Howard
that, when taking down the bed in the Williamson house on the
morning after the family left, the relator remarked that he had
several times had sexual intercourse with the little girl on that
bed.

S. B. Howard, when called by the State in rebuttal, contra-
dicted the witness Harkley in his denial of the two stnt^-nonts
imputed to him.

No brief on file for the relator.

W. L, Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. As presented to us in the record, the proof
is not evident that the applicant committed the horrible mur-
ders with which he stands charged. We, therefore, reverse
the judgment denying him bail, and grant him bail in the sum
of six thousand dollars, upon giving which, in accordance with
the law in such case provided, he will be released from cus-
tody.

Ordered accordingly.

Opinion delivered April 24, 1889.

No. 6354.

Ex Parte Joe Murphy.

L Practice— Construction op Statutes. — In construinir statutory en-
actments the courts must so ioterpret the legislative intent as to bar*
monize the provisions of the act with the Constitution, if it cap be
reasonably done.

Digitized by VjOOQIC

Term, 1889.] Ex parte Murphy. 493

Opinion of the court

2. Sabik— Tbrms op the District Court op Karnbs County— Cow-
8TITUTIONALITT OP A STATUTE.— The relator was convicted of a felony
at a term of the district court of Karnes county which, under the law
of 1885, began on the eighth day of April, 1889. Seeking by habeas
corpus to avoid the execution of the sentence then pronounced against
him, he shows that, by the act of April 2, 1889, to which an emergency
clause was appended, the time of the holding of the terms of the said
district court was changed to the fourth Monday in March: — hfs con-
tention being that, by reason of the said enactment of April 2, 1889, he^
was tried and convicted at a time when a legal term of the said district
court could not be held. Held that, notwithstandiog the emergency
clause appended to the act of April 2, 1889, the said act did not operate
to invalidate the term of the court which began on April 8. The sa'd
act is constitutional, but, the emergency clause to the contrary not with-
standing, it did not take effect until such time as would not deprive
any county in the Judicial district of its constitutional right to two
terms per annum of the district court.

Habeas Corpus on appeal from a judgment in chambers by
the Hon. H. C. Pleasants, Judge of the Twenty-fourth Judicial
District, remanding the relator to the custody of the sheriff of
Kames county.

The opinion discloses the case.

F, R, Graves, for the relator.

W, L, Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. On the fifth Monday after the first Mon-
day in March, 1889, being the eighth day of April, a term of
the district court for Karnes county was begun and held in
said county, and at said term the applicant Joe Murphy TJ^as
convicted and sentenced for the felony of incest. He applied
to the Hon, H. C. Pleasants, judge of said court, for the writ
of habeas corpus, which was granted, and upon a hearing of
said writ he was remanded to the custody of the sheriff of said
county, that said sentence might be executed. He has ap-
pealed to this court, insisting that said conviction is illegal and
void, because obtained and rendered at a time whipn a legal
term of the district court of Karnes county could not be held.

The facts are that the said term of court was held at the
time fixed by the act of 1885 (Laws, 1885, p. 8); that is, com-
mencing on the fifth after the first Monday in March. On
April 2, 1889, six days prior to the convening of said term on

Digitized by VjOOQIC

494 27 Texas Court of Appeals. [Austia

Opinion of the conrt.

April 8, an act was passed by the legislature changing the
time of holding said court in said county to the fourth Monday
in March. This act contains an emergency clause, and de-
clares that it shall take effect from its passage. Applicant
contends that after the passage of said act of April 2, 1889, a
legal term of the district court for Karnes county could not be
held except at the times prescribed by said act.

We are of the opinion that the term of said court at which
the conviction was had was a legal term. If it were held
otherwise, the effect would be to deprive Karnes county of one
term of said court for the present year, when the Constitution
declares that two terms of the district court shall be held each
year in each county. (Const., art. 5, sec. 7.) In construing
an act of the legislature, it is the duty of a court to so interpret
the legislative intent as to harmonize the provisions of the
act with the Constitution, if this can be done reasonably. It
must be presumed that the Legislature did not intend to dis-
regard the above cited provision of the Constitution by de-
priving Karnes, or any other county in the district, of the con-
stitutional right to have two terms of the district court each
year. If such was the intent, the act would be void, and the
courts in that district would have to continue to be held at the
times fixed by the old law.

Notwithstanding the emergency clause in said act of April
2, we feel justified in holding that it was not the legislative
intent that said act should immediately take effect, but that
it should become operative only at a time when it would not
deprive any county in the district of its two terms of court.
In this view we are sustained by Womack v. Womack, 17
Texas, 1, and by Graves v. The State, 6 Texas Court of Appeals,
228, which decisions are in point, and, we think, are*conclusive-
of the question in this case. We therefore conclude that the act
of April 2, 1889, is constitutional, but that it does not take ef-
fect so as to interfere with the holding of the district courts
in said district, until said courts can be held at the dates there
in fixed, without depriving any county in said district of two
terms of said court during the present year.

The judgment remanding appellant to the custody of the
sheriff is affirmed.

Affirtned.
Opinion delivered April 24. 1889.

Digitized by VjOOQIC

Tenn, 1889.] Black v. The Statb. 495

Opinion of the coort.

No. 6204.

George Black v. The State.

Peactick— New Trial.— If, after conviction, it appears that the absent
testimony (to secure which the application for continuance discloses
due dfligence) was both material, aod, in the light of the proof on the
trial, probably true, a new trial should be awarded.

Appeal from the District Court of Wilson. Tried below
before the Hon. George McCormick.

The conviction in this case was for unlawfully carrying a
pistol, and the penalty assessed by the verdict was a fine of
twenty-five dollars, and twenty days in the county jail.

A single witness testified, for the State, that he saw defend-
ant carrying a pistol on his person on the day alleged in the in-
dictment.

The defense introduced no evidence but disclosed its defense
in the application for continuance, which was that he purchased
the pistol and was taking it home at the time he was seen car-
rying it on his person. He proposed to prove that fact by hia
brother, and by the person who sold him the pistol. For dili-
gence he showed that, on the day that he was arrested, he sued
out a subpoena for the person who sold him the pistol, the said
person being a resident of Wilson county; and that on the
same day he sued out an attachment to Gonzales county for his
brother, who, he showed, was unable to attend because of a
recently fractured arm.

B. F. Ballard, for the appellant.

W. L. Davidsouy Assistant Attorney General, for the State.

WiLLSON, Judge. We think the court erred in refusing the
defendant a new trial. His application for a continuance was
a first one, and was in compliance with the statute both in form
and substance. It showed legal diligence to obtain the absent
testimony, and the materiality of such testimony. Viewed in
connection with the evidence adduced on the tried, the absent

?7 496
28 413

Digitized by VjOOQIC

496 27 Texas Court of Appeals. [Austin

Opinion of the court.

testimony would be material to the defendant, as it would
tend strongly to establish for him a valid defense, and there
being nothing in the testimony adduced on the trial to contra-
dict or render it improbable, we must hold that the facts set
forth in the application for a continuance are probably true.
(Code Crim. Proc, art. 660, sub div. 6; Willson's Crim. Stat^
sec. 2186.)

The judgment is reversed and the cause is remanded.

Reversed and remanded.
Opinion delivered April 27, 1889.

No. 6242.
H. A. Tracy v. The State.

1. CARRYiya A Pistol— Charge op the Court.— The information
charged the appellant with carrying a pistol only, and the evidence
on the trial related to the carrying of a pistol only; notwitbstandiDg
which the trial coart charged the jury with reference to the carrying
of a dagger, dirk, slang shot, sword cane, spear, knuckles, etc Held
error.

d. Same. — A charge of the court is erroneous which instructs the jury
upon a phase of case not raised by the evidence on the trial.

Appeal from the County Court of Wichita. Tried below be-
fore the Hon. E. W. Foster, County Judge.

The conviction was for carrying a pistol, and the penalty as-
sessed against the appellant was a fine of twenty-five dollars
and twenty days in the county jail

F. C. Martin and A/H. Carrigan, for the appellant.

W. L, Davidson, Assistant Attorney General, for the State.

WiLLsoN, Judge. The information charges that defendant
unlawfully carried upon his person a pistol. He was put upon
trial upon this charge alone, and all the evidence introduced
related to the carrying of no other weapon than a pistol. In

Digitized by VjOOQIC

Term, 1889.] Miller v. The State. 497

statement of the case.

his charge to the jury the court not only instructed with refer-
ence to a pistol, but also as to a dagger, dirk, slung shot, sword
cane, spear, knuckles, etc. In fact, he gave in charge to the
jury article 318 of the Penal Code, literally and entirely. De-
fendant promptly excepted to the charge and reserved a proper
bill of exceptions.

Said charge is manifestly erroneous because, in part, it is un-
warranted by the pleadings and evidence, and is not the law
applicable to the case. The charge should have been confined
to the specific facts — the specific weapon charged in the infor-
mation, and to which the evidence related. The error having
been excepted to, the judgment must be reversed.

The charge also embraces, literally and in its entirety, arti-
cle 319 of the Penal Code, which is law not applicable to the
evidence in the case, and which should not have been given.

The special instructions requested by the defendant are not
the law applicable to the facts in evidence, and were properly
refused.

Because of the error in the charge excepted to, as above
stated, the judgment is reversed and the cause is remanded.

Reversed and remanded.
Opinion delivered April 27, 1889.

No. 6375.

WiLLLOf Miller v. The State.

PmuruBT. — Charge of the Court in a perjury case Is fundamentally
erroneous unless, conforming to article 746 of the Code of Criminal Pro-
cedure, it instructs the jury that a conviction for perjury can not be
had except upon the testimony of at least two credible witnesses or of
one credible witness strongly corroborated by other evidence as to the
falsity of the defend^euit's statements under oath, or upon defendant's
confession in open court.

Appeal from the District Court of Caldwell. Tried below
before the Hon. H. Teichmueller.

This conviction was for perjury, and the penalty assessed by
the verdict was a term of five years in the penitentiary.

27a 4^[
27a 703

27 497

20 \m

27 4971
31 520'

Digitized by VjOOQIC

498 27 Texas Court of Appeals. [Austin

Syllabus.

No brief for the appellant.

W. L. Davidsouy Assistant Attorney General, for the State.

WiLLSON, Judge. This is a conviction for perjury. The in-
dictment is a good one, and the exceptions thereto were properly
overruled; as was also the motion in arrest of judgment. There
is no statement of facts in the record, and, were it not for a
fundamental defect in the charge of the court, the judgment
would be aflSrmed.

The insufBciency in the charge consists in the omission to
give in charge to the jury article 746 of the Code of Criminal
Procedure, which is an essential part of the law in every per-
jury case, and must be given in charge whether requested by
defendant or not. An omission to give it in charge is funda-
mental error. (Washington v. The State, 22 Texas Ct App.,
26; Gartman v. The State, 16 Texas Ct. App., 215.)

The judgment is reversed and the cause is remanded*

Reversed and remanded.

Opinion delivered April 27, 1889.

No. 6262.
James Langan bt als. v. The Statb.

1 . RBOoaNlZANCB taken after indictment must desoribe the very offense

of which the principal is charged.

2. Same— Practice—Indictment.— Another equally well settled rule is

that neither the principal nor the sureties in a bail bond or recogni-
zance can question the sufficiency of the indictment in a scire facias
proceeding to forfeit the same.
8. Same — Case Stated.— The recognizance in this case binds the principal
to appear on an indictment for assault with intent to rape. The said
indictment is insufficient to charge that offense, but is sufficient to
charge an aggravated assault and battery. The defendants^ motion to
quash the recognizance is based upon the ground that it does not obli-
gate the principal to appear and answer the offense charged in the
indictment. But held, that, as the intent of the indictment to charge
assault to rape is manifest, the laj^t rule announced obtains, and the
trial court properly overruled the motion.

Digitized by VjOOQIC

Tenn, 1889.] Langan v. The State. 499

Opinion of the court

Appeal from the District Court of Wilbarger. Tried below
before the Hon. P. M. Stine.

The opinion discloses the case.

BriU S EMton and Huff dh Webb, for the appelUnts.

W. L. Davidson, Assistant Attorney Gteneral, for the State.

Hurt, Judge. On the thirtieth of May, 1887, James Langan
asprincipaly with Beard and Hasket as sureties, entered into
a recognizance in the sum of one thousand dollars, by which
Langan was bound to appear at the proper term of the district
court of Wilbarger county to answer the charge, by indictment,
of an assault with an intent to commit rape. On May 31,
1887, the cause was called for trial, and Langan failibg to
appear, a forfeiturie was taken. At the November term, 1888,
the case came on and the judgment nisi was made final against
Langan, Beard and Hasket, and they appeal.

First error assigned: Appellants moved to quash the recog-
nizance because the principal therein was not bound to appear
and answer the offense charged in the indictment.

Langan was required to appear and answer the charge of an
assault with intent to rape. The indictment alleges that
"James Langan * * in the county of Wilbarger * * then and
there, in and upon Jennie Barnett, a woman, did make an as-
sault with the intent, her, the said Jennie Barnett, by force to
carnally know."

This indictment would be good for assault with intent to rape if
it had alleged that appellant intended to have carnal knowledge
without or against the consent of the prosecutrix. This omis-
sion renders the indictment insuflScient for that offense, but
leaves it suflScient, under the decisions of this court, for an
aggravated assault.

Now, it is contended by counsel that as the principal is not
required by his recognizance to answer for this offense (aggra-
vated assault), no forfeiture could be legally taken because he
failed to so answer.

It is well settled by the decisions both of the Supreme Court
and of this court, that the bond or recognizance must describe
that offense of which the principal stands charged. (McAdams
V. The State, 10 Texas Ct. App., 317; Keppler v. The State, Id.,

Digitized by VjOOQIC

500 27 Texas Court of Appeals. [Austin

Syllabns.

173; McLaren v. The State, 3 Texas Ct. App., 680, and cases
cited.)

But on the other hand, it is also settled that neither the sure-
ties nor the principal will be permitted to question the suffi-
ciency of the indictment. Evidently the indictment in this
case seeks to charge an assault with intent to commit rape;
this was certainl}'- ihe aim of the pleader. Hence we hold that
the case comes under the last rule. If, however, it appeared
from the indictment that it was the purpose" of the pleader to
charge aggravated assault, then we would hold that the first
rule should apply. Evidently this is not the case; because ag-
gravated assault is charged, not by the pleader intentionally,
but because of the omission to allege that the carnal knowledge
was intended without or against consent of the woman.

The law is too well settled against the second proposition Uy
require discussion.

Affirmed.

Opinion delivered May 1, 1889.

No. 6326.

Fred Lidtkb v. The State.

FaiiSB Packino and Sblung Falsely Packed Mbrohandisb.^
Article 470 of the Penal Code denounces as guilty of a criminal offense
any person who Avith intent to defraud shall put into any vessel or
package containing merchandise or other commodity asually sold by
weight, any article whatever of less value than the merchandise with
which said vessel or package is apparently filled, or any person who»
with intent to defraud, shall sell or barter, or give in payment, or ex-
pose to sale, or ship for exportation, any such vessel or package of
merchandise or other commodity with any such article of inferior
value concealed therein. Article 471 of the Penal Code denounces as
guilty of a criminal offense any person who shall, with intent to de-
ceive and defraud, cooceal within any vessel or package containing
merchandise or other commodity, any merchandise or commodity of a
quality inferior to that with which such vessel or package is apparently
filled, or any substance of less value, etc. The distinction between the two
offenses, construed in connection with each other, is that, whereas the
latter offense may be committed by concealing in the vessel or package

Digitized by VjOOQIC

Term, 1889.] Lidtkb v. The State. 501

Opinion of the court.

either like merobandise of inferior quality or any substance of le^s value,
the former offense can be committed only by puttiug into the vessel or
package a substance different in character and of less value than that
with wblch the vessel or package is apparently filled; 4tnd whereas, it
is an offense uoder article 470 to fraudulently offer for sale the falsely
packed vessel or package, the offering for sale under the latter article
is not an offense. The iudiotment in this case is formulated under ar-
ticle 470, and charges the sale of four bales of cotton falsely packed
with cotton of inferior quality to that with which they were appar
ently filled. Beld, that the indictment charges no offense against the
law.
H, Samr — EviDENCB.— If the words **any article whatever," as used in
article 470, could, when said article is construed in connection with
article 471, be held to include an inferior quality of merchandise of the
same kind as that with wh'*ch the vessel or package is apparently
filled, then, before a conviction could be had, it would devolve upon
the State to prove that the accused, with respect to t-aid vessel or
package, acted with a guilty knowledge. See the opinion for a state-
ment of the proof in this case held insufficient for this purpose.

Appeal from the County Court of Williamson. Tried be-
low before T. B. Cochran, Esq., Special Judge.

The opinion discloses the nature of the case. The penalty
assessed against the appellant was a fine of twenty-five dollars.

J. W. Parker, for the appellant.

W. L, Davidson, Assistant Attorney General, for the State.

Hurt, Judge. Appellant is charged by the indictment with
unlawfully, with intent to defraud, exposing to sale, and that
he did sell, barter and give in payment to J. W. Womack, J.
P. Sturgis and F. L. Welch, comprising the firm of Womack,
Sturgis & Co., four bales of cotton, containing merchandise,
and a commodity usually sold by weight, to wit: cotton, into
which said bales had been put and concealed therein an article
and grade of cotton of less value than the merchandise and
commodity with which said bales were then and there appar-
ently filled, to wit: with a quality of cheap inferior cotton, the
same being so packed as to conceal the said inferior and lower
grade cotton, the said Lidtke then and there knowing that the
said cotton of inferior value had been put and concealed in
said bales.

The cause was tried by the judge without a jury. The learned

Digitized by VjOOQIC

602 27 Texas Court op Appeals. [Austin

Opinion of the oonrt

judge found that the accused was guilty of "falsely packing;
merchandise as charged in the indictment," and adjudged ap-
pellant guilty of said offense, assessing the punishment at a fine
of twenty -five dollars.

Appellant is not charged with falsely packing merchandise.
He is charged with selling four bales of cotton which he knew
were falsely packed with inferior cotton to that with which the
bales were apparently filled.

But let us concede that the court intended to find him guilty
of selling the four bales so falsely packed — that we should
make this inference from that part of the finding which adds
*'as charged in the indictment." The question then arises as
to the sufficiency of the evidence to establish the guilty knowl-
edge of appellant. Do the facts show with reasonable cer-
tainty that appellant knew that the bales were so packed?

Conceding that there was cotton packed in the bales of infe-
rior grade to that with which they were apparently filled, still
the evidence in the case clearly shows that this might have
occurred purely from accident and without the knowledge of
appellant or any other person.

Again, admitting that the bales were so packed, there is no
testimony showing with reasonable certainty that appellant
was aware of the fact. It is true that when asked by Womack
if the cotton averaged the same throughout, he said it did with
the exception of two bales, which contained some five or six
hundred pounds which was gathered after the rain and was a
little dirty. Now, the proof does not show that there was a
greater number of pounds of inferior cotton placed in the bales
than six hundred. Guilty knowledge is inferred from the fact
that appellant stated*that the inferior cotton was placed in but
two bales. In this appellant was mistaken, and, under the
evidence in this record bearing upon the method of ginning
and packing cotton, this mistake was quite natural. We are
of the opinion that guilty knowledge is not shown.

Again, appellant is charged with selling, bartering and giv-
ing in payment four bales of cotton falsely packed with in/**
rior cotton to that with which the bales were apparently filled.
The indictment is evidently drawn under article 470, Penal
Code. This article prohibits the placing or the putting into
any hogshead, cask, bale, etc., "containing merchandise or
other commodity usually sold by weight, any article whatever
of less value than the merchandise with which such bale, etc.,

Digitized by VjOOQIC

Term, 1889.] Knowles v. The State. 503

Syllabus.

is apparently filled." It also prohibits the sale with intent to
defraud of any such bale, etc.

Standing alone, we might construe this article so as to em.
brace merchandise or commodities of inferior grade or quality
to that with which the bale was apparently filled. But, when
construed in connection with article 471, merchandise or com-
modities of inferior grade or quality are clearly not embraced
within the provisions of article 470. **Inferior quality" evi-
dently means that the merchanise or commodity is the same as
that with which the bale is apparently filled, but inferior in
quality. This is rendered certain by the fact that the punish-
ment is different.

To illustrate. A conceals damaged cotton in a bale which is
apparently filled with good cotton. This is prohibited by ar-
ticle 471, but not by article 470, This being so, there is no law
punishing the sale of a bale of cotton so packed, though the
seller knew the condition of the bale when he sold, and in-
tended to defraud.

If one, with intent to defraud, conceals an inferior quality of
cotton, that is, cotton inferior in quality to that with which the
bale is apparently filled, he should be indicted under article
471.

Because there is no law punishing the sale of a bale of cot-
ton packed with an inferior quality of cotton, the judgment is
reversed and the prosecution dismissed.

Reversed and dismissed.
Opinion delivered May 8, 1889.

No. 3709.
M. G. Knowles v. The State.

Theft— Prinoipaii Offender— Pact Case.- The indictment in thli
ease charg^ed the appellant as a principal in the theft of a mare, but the
eyidence wholly fails to connect him in any manner with the original
taking of the said mare. Held, that such proof is insufficient to sup-
port a conviction for theft.

Sams— Charob of the Court— The charge of the court defining prin-
cipals was abstractly correct, but it failed to apply the law to the facts

Digitized by VjOOQIC

€04 27 Tbxas Court of Appeals. [Austin

^— ■

statement of the case.

deTeloped on the trial. To snpply this omlssicm t^e defendant le-
qnested the court to instruct the jury that, " in order to eonyict the
defendant, they must find from the evidence that the defendant was
as a principal, as hereinbefore defined, concerned in the orifcinal tak-
ing of the mare; and if they find from the evidence that one Jeff Grif-
fin first took possession of the mare alleged to be stolen, and delivered
the same or sold the same, for himself or for one J. J. Elkios, to de-
fendant, then they should acqnit the defendant although they sboold
believe that the original taking of said animal by Griffin was fraudu-
lent and that defendant knew it was fraudulent." Held, that the
refusal to give such instruction, under the proof in this case, was error.
8. Samb — In Its motion for rehearing, the State contends that the com-
plicity of the defendant in the offense charged is shown by the testi-
mony of the witness W., to the effect that defeodant told him that
**a11 the connection Griffin had with the mare was this: that he, de*
fendant, sent said Griffin to get the mare for him and to brinjr her to
him'' — the effect of which would be to constitute G., an innocent agent
acting by command of the defendant, and the defendant by reason
thereof (all other elements of theft existing) the sole principal of-
fender. Held, that if said testimony of W. imports such a case, then
the charge of the court was fatally erroneous in not submitting thit
phase to the Jury; wherefore rehearing is refused.

Appeal from the District Court of Gonzales. Tried below
before the Hon. George McCormick.

The conviction in this case was for the theft of a mare, the
property of some person to the grand jurors unknown, in Gon-
zales county, Texas, on the twenty-third day of April, 1887. A
term of five years in the penitentiary was the penalty as-
sessed against the appellant.

M. C. West was the first witness for the State. He testified
that he was a member of the grand jury that found this indict-
ment. Witness went to his home during the time court was in
session, and while there the theft of the '^RU^ mare was under
investigation- Defendant came to witness's house and told him
that he bought the said mare from one John Smalley, and that
*'all the connection Jeff Griffin had with the mare was this,
that he, Knowles, sent said Jeff Griffin to get the mare for him,
Knowles, and to bring the mare to him, Knowles." The grand
jury inquired of a large number of witnesses about the owner-
ship of the mare, but no one of them knew.

Zack Davis testified, for the State, that he knew the alleged
stolen mare. That animal ran with witness's father's horses
on the range in Gonzales county, near the Wilson county line,

Digitized by VjOOQIC

Term, 1889.] Knowles v. The State, 505

Statement of the case.

for six or seven years. Witness last saw that mare late in
April, 1887, in Gonzales county. She was then in the posses-
sion of Jeff GriflSn, being one of the drove of witness's father's
horses which GriflSn was then driving towards the Wilson
county line. Witness saw the said drove of horses soon after-
wards, but the said mare was not then among them. The wit-
ness never knew an owner for said mare, and so testified before
the grand jury. He never saw her nearer the Wilson county
line than a quarter of a mile.

Deputy hide and cattle inspector Dickey, of Wilson county,
testified that late in April or early in May, 1887, he inspected a
bunch of horses for the defendant, who exhibited bills of sale
for all of them except two mares, one being the animal involved
in the prosecution. With reference to his possession of the two
animals without bill of sale, the defendant explained that he
came by the house of Joe Blain, from whom he purchased one,
—and the witness understood him to indicate the one described
in the indictment — to get the bills of sale, but that Blain was
not at home. He claimed to have bought the other horse from
J. J. Elkins. On that explanation witness passed the two said
mares.

Sheriff W. E. Jones, of Gonzales county, testified, for the
State, that, subsequent to his indictment at the July term, 1887,
the defendant came to him several times and appealed to him
to see the district attorney in his behalf about this case, and get
the said district attorney to accept him as State's evidence. He
proposed that, if he would be accepted as State's evidence, he
would testify fully about this theft, and against Barber and Blain,
against whom other indictments were pending. In the same con-
versations defendant claimed that he bought the RD mare
from Jeff Griffin, who was also under indictment.

Dick Glover, deputy sheriff of Gonzales county, testified, for
the State, that, in the summer of 1887, the defendant told him
that he bought the RD mare from John Snialley, and showed
him a bill of sale, conveying the said mare, signed '*Joha
Smalley." Witness knew the mare well, but never knew to
whom she belonged. She always ranged in Gonzales county.

The State next introduced in evidence the recognizance en-
tered into by the defendant to appear at the July term, 1887, of
the district court, and answer to this indictment, the judgment
nisi entered thereon, and the judgment final on the forfeiture
of the recognizance.

Digitized by VjOOQIC

506 27 Texas Court of Appeals. [Austin

Statement of the case.

Deputy Sheriflf Chenault testified that defendant made de-
fault at the July term, 1887, and was arrested in September,
1887.

The State closed.

Martin Mahula was the first witness for the defense. He
testified that he lived in Bexar county, near St. Hedwig. While
traveling the road, in Bexar county, in the summer of 1886, the
witness met a man who gave his name as James Elkins. El-
kins told witness that there was an RD mare in Gonzales
county for which he wanted to trade with witness, the said
brand of stock belonging to witness. He then proposed to
trade witness a mare in the ''heart" brand, which ran on the
range near the witness's place in Bexar. The trade was made
but no bills of sale were passed at that time. In September,
18S7, witness received a letter from Elkins asking for a bill of
sale to the RD mare. Witness sent him the bill of sale, de-
manding one in return for the *'heart" mare, which Elkins sent
him. Witness bought the RD brand of stock from one Finley
in 1885. That brand originally belonged to W. R. Davenport

On his cross examination, this witness said that he had never
seen James Elkins prior to meeting him on the public road ia
1886. He did not know of the RD mare running in Gtonzales
county until he traded with Elkins, and only claimed her then
by the brand.

J. J. Elkins testified, for the defense, substantially as did
Mahula about the trade between him and Mahula. He stated
further that, in April, 1887, he sold the RD mare to the defend-
ant. Afterwards, when the defendant was taking the- said
mare and other horses to the San Antonio market, witness met
him at the Sour Springs, in Wilson county, and had a talk with
him about the said mare.

On his cross examination, the witness said that he was before
the grand jury about this case, but had no recollection of being
interrogated about the ownership of the RD mare. He did not
execute a bill of sale to Mahula until September, 1887, after the
indictment was found, and the defendant had forfeited his re-
cognizance. It was after that time that he told Paul Murray
that he, witness, had traded one of his, Murray's, mares to
Mahula. Mahula and witness exchanged bills of sale by letter
in September, 1887. Witness several times saw Paul Murray
between the time of the trade with Mahula and the indictment
of the defendant, but never mentioned the trade to him. In

Digitized by VjOOQIC

Term, 1889.] Knowles v. The State. 507

Opinion of the eoart.

the spring of 1887 JeflF Griffin came to where witness and John
Markham were at work, and told witness that he was getting
up stock for the defendant, and witness told him to take up any
of his stock he could find "on the outside."

James York testified that he knew the RD mare on the range,
and understood that she belonged to W. R. Davenport. He
never heard any person claim her, but heard that Davenport
owned the RD brand. Witness was before the grand jury in
this case and was interrogated about the ownership of the said
mare.

Paul Murray testified, for the defense, that he had known
the alleged stolen mare seven or eight years, during which
time it was his understanding that she belonged to W. R.
Davenport. On cross examination the witness said that after
the defendant had forfeited his recognizance in this case, J. J.
Elkins came to him, witness, and offered to pay him twenty-
five dollars for a mare belonging to him, witness, which he,
the said Elkins, told witness he had traded off. Witness de-
clined to accept the twenty-five dollars, as it was his under-
standing that the said mare had a yearling colt when traded
off by Elkins. Mr. Elkins finally paid witness forty dollars
for the mare and colt. The defense closed.

Two or three members of the grand Jury testified that Elk-
ins was interrogated before the grand jury about the owner-
ship of the alleged stolen animal, and he swore that he did not
know who owned her.

W. S. Fly and W. W. Glass, for the appellant

W. L, DavidsoUy Assistant Attorney General, for the State.

HuBT, Judge. This conviction was for the theft of a mare.
Though we have carefully considered all the assignments of
error, we will discuss only such as we think are of importance.

The charge of the court with regard to the venufe was correct.
The mare was taken in Gonzales county. This was clearly
shown, and if appellant was a principal in the taking, the
venue would be in Gonzales county whether appellant was the
actual taker or not. The contest, therefore, is back of this.
It is whether the proof shows that appellant was a principal.
Did he actually taie the mare, or was she taken by some other
I)er8on under such a state of facts as constituted him a prin-

Digitized by VjOOQIC

608 27 Texas Coubt of Appeals. j;Au8tm

* ■

Opinion of the court.

cipal? If not, he should not be prosecuted in any county for
the theft of the mare, because not guilty of theft.

It is very clearly shown by the statement of facts that Jeff
Griffin took the mare, and that appellant was not present when
she was taken. Griffin is also indicted for the same theft. El-
kins not only swears positively that he sold the mare to appel-
ant, but that '*Jeflf Griffin told him that he was getting up
stock for defendant, and he (Elkins) gave him authority to get
any of his stock that he found on the outside." These are the
facts bearing on the issue of principal vel non.

There is no proof that appellant and Griffin or any other per-
son had conspired, to steal the mare. It is not shown that ap-
pellant advised or commanded Griffin to steal the mare, and,
if there was such proof, then there is no proof that the appel-
lant, at the time the mare was taken, though not present, was
doing any act whatever in furtherance of the common pur-
pose. It is not even shown that appellant knew that GriflSn
was going to get up the mare and bring her to him. The proof
fails to show that he knew that Griffin had taken the mare
until she was delivered to him by Griffin in pursuance to in-
structions given him by Elkins. With such a dearth of testi-
mony bearing upon this issue, principal vel non, we can not
sanction this conviction.

While the charge of the court announced the correct princi-
ples relating to principals and accomplices, there was no direct
application of these principles to the case in hand. Counsel
for appellant in their charge number one sought to make the
application, but the court refused the charge. Under the cir-
cumstances of this case, we think this was error.

The judgment is reversed and cause remanded.

Reversed and remanded.

Opinion delivered at Galveston March 23, 1889.

[Subsequent to the rendition of this opinion, the Assistant
Attorney General filed a motion for rehearing, which was taken
under advisement and transferred to the Austin branch of this
court, where, on the fourth day of May, 1889, the said motion
was disposed of by tbe opinion which follows. The case is now
reported as of the Austin term, but, as the record belongs to
the Galveston branch, under the Galveston file number.]

Hurt, Judge. At Galveston we reversed the judgment in
this case with a written opinion by the present writer. In that

Digitized by VjOOQIC

Term, 1889.] Knowlks v. The State. 50^

Opinion of the court

opinion it was stated that there was no proof that this appel-
lant advised or commanded GriflSn to steal the mare, or that
this appellant knew that Griffin was going to get up the mare
and bring her to him, etc.

It is contended by the State that there is such proof, and we
are referred to the testimony of M. C. West, who testified that
appellant stated to him ''that all the connection Griffin had
with the mare was this,— that he, Kno wles, had ^ent said Griffin
to get the mare for him, and bring her to him."

The writer understood that this statement was introduced in
evidence to prove that he, appellant, was endeavoring to shield
Griffin, who was under indictment for the theft of the mare,
and not as a confession of facts from which Griffin's innocence
might be inferred. \But conceding that this view was not
correct, then another phase of the case is presented; that is
that the mare was taken by an innocent agent instigated thereto
by appellant.

The charge of the court — that part relating to the que^tio 0
of principals — is evidently based upon the theory that all the
parties to the transaction were guilty participants. The theory
that Griffin wds the innocent taker at the instance of the ap-
pellant, thus making appellant a principal, is not hinted at in
any part of the charge; and it is upon this theory that the As-
sistant Attorney General in this motion contends that appellant
is shown to be a principal. The facts failiug to show appellant
a principal upon the hypothesis that Griffin was a guilty taker,
yet, all the elements of theft attending, if Griffin took the mare
innocently and was requested to take her by appellant, he, ap-
pellant would be the principal and this conviction as principal
would be correct. But this view of the case was not presented
to the jury in any part of the charge. The jury were not called
upon to determine whether or not Griffin was innocent in tak-
ing the mare. They reached the conclusion that appellant was
a principal from the charge of the court based upon the theory
that Griffin was a guilty participant, and not upon the ground
that he was an innocent agent. As the appellant stands con-
victed of theft as a principal, to sustain the conviction
the proof must show hira to be a principal, and the jury
must be correctly instructed what in law constitutes a prin-
cipal, in all cases in which it is left in doubt as to whether he
is a principal or an accomplice. The court properly instructed
the jury as to what constitutes a principal upon the hypothesis

Digitized by VjOOQIC

^10 27 Texas Court of Appeals. [Austin

Syllabus.

that Griffin was guilty in the taking of the mare, but failed to
instruct upon the theory that he was an innocent agent This
omission in the charge was error of such serious character as
to require a reversal of the judgment, and hence the motion
for rehearing is overruled.

Motion overruled.
Opinion delivered May 4, 1889.

No. 6357.
Cabl Henkel v. The State.

L Pbactiob— Former Acquittajd or Conviction.— The Code of Proced-
are, article 558, provides that a former acquittal or conviction in a ooort
of competent jurisdiction bars a farther prosecution for the same of-
fense, "bat shall not bar a prosecation for any higher grade of offense,
over which the said court had not jurisdiction, unless such trial and
judgment were had upon indictment or information, in which case the
prosecution shall be barred for all grades of the offense.^* This was a
prosecution by information in the county court for aggravated assault.
The appellant pleaded in bar his former conviction in the justiee^s
court, which appears to have been a prosecation and conviction under
a complaiut, and not by information, for simple CMsault. Held, that
the plea was properly stricken out.

2. Aggravated Assault— Evidence.— The aggravation alleged in the
information was that the accused is an adult male and the injured
party a female, and such allegation imposed upon the State the oous
of proving that the accused was an aduU male— a male person who
had attained the full age of twenty-one years. But in a case of this
character the proof need not show in ipsUsimis verbis that the de*
fendant was an adult. Sufflcient that he is proved to have been a
^^maji" and a "railroad hand,*' and that it was not controverted that
he was an adult.

8. Same.— Charge op the Court instructed the jury as follows: **The in-
tended injury may be bodily pain, constraint, a sense of shame or
other disagreeable emotion of the mind. The handling of a woman
without her consent, in order to have undue familiarities with her
may produce such emotions without inflicting bodily pain or injury."
Held, correct.

Appeal from the County Court of CaldweU. Tried below
before the Hon. Leo Rogan, County Judge.

. Digitized by VjOOQIC

Term, 1889.] Hbnkbsl v. The State. 511

Opinion of the coart.

The conviction in this case was for an aggravated assault
upon one Johanna Earnst, a married woman. The penalty
assessed against the appellant was a fine of five hundred dol-
lars and confinement in the county jail for one year.

The proof shows that at the time of the assault, the defend-
ant was the guest of J. H. Earnst. On the night of the as-
sault the defendant and Earnst, occupying separate pallets,
slept on the gallery and Mrs. Earnst in the house. About mid-
night, while Ernest was asleep, defendant went into Mrs.
Earnst's room, where she was sleeping on the bed, placed his
hand on her shoulder, his cheek to her face, and called her
"Mama," the endearing name by which she was familiarly ad-
dressed by her husband. Mrs. Earnst straightened up in bed
and exclaimed, "What do you want?" when defendant rapidly
retired. When charged, on the same night, with having in-
vaded the privacy of Mrs. Earnst's room, the defendant did
not deny it.

J. F. Cahill, for the appellant.

W. i. Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. Appellant was tried on a com-
plaint in a justice's court charging him with an assault upon
the same party and on the same occasion as is charged in the
information in this case. On that trial he pleaded guilty to an
assault and was fined by the justice in the sum of five dollars.
He pleaded this former conviction in bar to the prosecution in
this case. His plea was stricken out on motion of the prose-
cuting attorney, and this action of the court is one of the errors
complained of. Evidently the defendant was tried and con-
victed in the justice's court and punished for a simple assault.
His trial was not for an aggravated assault, and moreoyer, it
was had upon a complaint and not upon an information or in-
dictment. His prosecution herein was by information and for
an aggravated assault, the charge in the information being an
assault by an adult male upon a female. Such being the charac-
ter of the two prosecutions, the former conviction was not a
bar to the latter prosecution, which was for a higher grade of
oflfense, and because the former conviction was not the result of
a prosecution by indictment or information. (Code Crim. Proc,
art. 553; Allen v. The State, 7 Texas Ct. App., 298; Achterberg v.

Digitized by VjOOQIC

612 27 Texas Court of Appeals. [Austm

Opinion of the court.

The State, 8 Texas Ct. App., 463; Grisham v. The State, 19»
Texas Ct. App., 504; White v. The State, 9 Texas Ct. App.,
390.) There was no error in striking out said plea.

As stated above, the information in this case charged an ag-
gravated assault by an adult male upon a female, and in order
to warrant a conviction the prosecution was bound to prove
the allegation as laid, — that is, that the defendant was an adult
male. **Adult" means a person who has attained the full age
of twenty-one years." (George v. The State, 11 Texas Ct. App.,
95; Schenault.v. The State, 10 Texas Ct. App., 410.) There is no
direct positive proof in the statement of facts to the effect that
defendant was and is an adult male, but we find that he is spoken
of as a "man" and "a railroad hand," and there was no ques-
tion made at the trial below as to this fact. On the contrary,
the defendant appears to have been recognized by all the par-
ties at the trial, and by the court, as an adult. The rule seems
to be now well settled upon this subject that, where there is no
question or controversy as to this matter raised or availed of
in the court below nor suggested by the facts in evidence, the
case will not be reversed for want of specific proof of the fact.
(Tracy v. The State, 44 Texas, 9; Veal v. The State, 8 Texas
Ct. App., 477; Gaston v. The State, 11 Texas Ct. App., 143;
Andrews v. The State, 13 Texas Ct. App., 343; Hall v. The
State, 16 Texas Ct. App., 6.)

That paragraph of the charge of the court to which defend-
ant specially excepted is fully sustained by repeated decisions
of the courts of this State. (Pfeff erling v. The State, 40 Texas,
486; Thompson v. State, 43 Texas, 583; Curry v. The State, 4
Texas Ct. App., 574; Ridout v. The State, 6 Texas Ct. App.,
249; Atkins v. The State, 11 Texas Ct. App., 8; George v. The
State, Id., 95; Sanford v. The State, 12 Texas Ct. App , 196;
Willson's Crim. Stats , sec. 841.)

We have found no material error in the record as submitted
to us in this case, and the judgment is therefore aflSrmed.

Affirmed.

Opinion delivered May 4, 1889.

Digitized by VjOOQIC

Temu 1889.] Beackbnridgb v. Thb State. 513

Syllabus.

No. 6299.
J. M. Brackenridgb t;. Thb State.

L Extortion— Term Dbfinbd—Indictm bnt.— In legal parlance, and as
used in article 240 of the Penal Code, defiDing extortion, the word ''de-
mand^' means '*a requisition or request to do a partioular thing speci-
fied under a claim of right on the part of the person requesting/^ One
of the duties of a couoty judge is to present to the county commis-
sioners his certified account for the fees allowed him by law in criminal
cases, and the presentation of such an account by a county judge to
the oouDty commissioners, with the request that they approve the said
account as a claim atrainst the county, constitutes a ''demand^' within
the meaning of the law. Among the fees which the county judge is
entitled to demand and receive from the county is the sum of three
dollars for each criminal action ""tried and finally disposed of ^^ before
him. A criminal action dismissed is not a crimiual action ^'tried and
finally disposed of," and if the certified account presented by a county
Judge to the county commissioners includes a fee for a criminal action
merely dismissed, the presentation of such an account amounts to a
''demand" for fees not allowed by law. See the opinion in extenso for
indictmeiit held sufficieut to charge the offense of extortion as defined
by article 240 of the Penal Code.

% Same. — EvrDKNCE.—Over the objections of the defendant, the State
was permitted to introduce in evidence a prior indictment against the
defendant for demanding, as county judge, fees not allowed by law.
Held^ that the evidence was properly admitted as tending to show a
knowledge on the part of the defendant that the fees demanded by him
were not lawful, — to which purpose the said evidence was expressly
limited by the charge.

lb 8 AMB.— Removal from Office fob Official Misconduct.— Article
8888 of the Revised Statutes provides that "all convictions by a petit
jury of any county officers for any felony, or for any misdemeanor in
volving official misconduct, Bhall worlt an immediate removal from
office of the officer so convicted, and such judgment of conviction shall
in every instance embody within it an order removing such officer."
Demanding fees not allowed by law is 'Official misconduct" within
the purview of the statutes of the State

4 Same. — Article 3415 of the Revised Statutes provides that ''no officer
shall be prosecuted or removed from office for any act he may have
committed prior to his election to office." The proof shows that the
defendant was elected and qualified as coiinty judge of Travis county
in 1886. That he was re-elected on the sixth day of November, 1888;
that the oiTeuse was committed on the fifteenth day of November, 1888,
and that he did not qualify under his re-election until the twenty-first

I 97 513,

20 71

Digitized by VjOOQIC

514 27 Texas Court of Appeals. [Austin

Statement of the case.

day of November, 1888. It is contended that, under this proof, the de-
fendant is protected from removal by the said section 8415, because be
had not qualijied as his own successor as county judge at the time of
the alleged ofifense. But held that the position is not maintaiDable:
the defendant, at the time of the offense, was county judge de fado
and dejure^ and by virtue of his election and qualification in 1886 was
exercising the functions of his office, and had the legal right to exercise
them until his successor should qualify; wherefore his official acts on
the fifteenth day of November. 1888, came within the purview of article
8888 of the Revised Statutes, and not of article 8415. See the opinion
in extenso on the question.
0. Practice.— Disqualification of a Juror.— New Trial.— The de-
fendant's motion for new trial sets up that, though on his voir dire the
juror Doss declared his competency to sit as a juror, he was, in fact, as
ascertained by the defendant after the trial, an incompetent jxu'or,
being neither a resident of Travis county, a house holder in said county,
nor a freeholder in the State, and that before the trial he declared bis
prejudice against the defendant. The district attorney filed a written
denial of the allegations made in the motion for new trial, bat intro-
duced no evidence in support of said denial. In this state of the casei
the juror Doss must be held to have been incompetent, and his service
npon the jury entitled the defendant to a new trial.

Appeal from the District Court of Travis. Tried below be-
low before the Hon. W. M. Key.

The conviction in this case was had under an indictment
which charged the appellant, as county judge, with oflScial
extortion in demanding fees not allowed by law. The jury
assessed as penalty against the defendant a fine of twenty-
five dollars, and, upon the verdict, the trial judge adjudged
his removal from office, and declared the office of county judge
vacant.

The State introduced in evidence the account upon which
the indictment was based as follows:

"Statement of total cases deposed of by Hon. J. M. Brack-
enridge from last statement, October 6, 1888, to date, Novem-
ber 15, 1888:

Criminal cases:

3463 3051 3325 3334 3336 5

3342 3354 3356 3359 3360 5

3361 3362 3372 3377 S38S 5

3524 SoOO S9J^9 3o07 3506 6

3525;i 3605 3606 3000 3610 5

Digitized by VjOOQIC

Term, 1889.] Brackbneidgb v. The State. 615

Statement of the case.

3611 8612 3613 350S 8521 5

3617 8729 3526 3529 3530 5

8581 8582 8533 3544 3545 5

8547 8548 3549 3551 3564 5

8565 8566 8567 3568 3569 5

8570 8571 3572 3591 3595 5

8603 8619 8496 3504 3543 5

8618 1

Lunacy cases:

1366 1367 1868 1369 1370 ....5

1371 1373 187Ji, 3

69
Less 7case8.... 62 cases 7

I hereby certify that the above account is just and due for
cases tried and disposed of in the Co. court of Travis Co., Sate
of Texas. To J. M, Brackenridge, Co. Judge, at 3.^*^ P®r
case. 189.00

207.00
"J. M. Brackenridge,
**Co. Judge."

Endorsed '*Reg. No. 19,695, Dec. 10, 1888.

Approved— TFVZZtar/i Wellmer, Co. Com'r.

Free.

No. 1.

A. G. Kemp,

" a

S. C. Granberry " ''

" 3

J. W. Cloud,

" 4

J. W. Cloud, C. C. P. No. 4.

William Wellmer, C. C. 1."

The said account is endorsed across the face:

"J.

M. Brack.

enridge."

Ed Anderson testified, for the Btate, that he was the county
treasurer of Travis county, and as such was the custodian of
the account exhibited in evidence, which was placed in his hands
by A. R. Morris, tax collector of Travis county.

[ NoTB.— The words aod figares in italics denote words and figures which
were oroeB-liaecl oat in the accoant as approved and pat in evidence.—
Rsp.]

Digitized by VjOOQIC

516 27 Tkxab Couet op Appbals. [Austia

Statement of the c&se.

On his cross examination, this witness stated that he held the
account, which bore the approval of the county commission-
ers, as a liquidated claim against the county, and presumed
that the same was paid by CoUoctor Morris. The witness could
not designate the law under which he became Ihe custodian of
the account. He did not pay the said account on a warrant
issued by the county clerk. He thought the endorsement of
the commissioners court was authority sufficient for the pay-
ment of the claim, and did not know that he had no authority
to pay it except upon warrant drawn by the county clerk.

J. W. Cloud testified, for the State, that he was county com-
missioner of precinct number four of Travis county, and held
that office in November, 1888. He identified the account in
evidence as the account which the defendant presented to the
commissioners court for approval at its regular meeting in
November, 1888. Defendant was then county judge of Travis
county. Defendant wrote the certificate to the said account in
the presence of the said court, remarking that he ** would write
the certificate to this account, and give the court a good one;
that Jeflf Brown wrote the certificate on the previous accounts,
but he would write this one." The said account at that time
contained no erasures. The commissioners court at that time
had a stamp with the names of the commissioners on it which
was used in approving claims against the county. That stamp
of approval was placed upon this account without the knowl-
edge or consent of the witness. Witness did not know who
impressed it upon the said account. The witness soon ascer-
tained that the said account was stamped "approved," and
that it included fees for several cases that had not been tried.
Witness and Commissioner Wellmer then procured the account
from Captain A. J. Jernigan, then county treasurer, and with-
drew or erased their names or stamped signatures therefrom.
Defendant became indignant and angry with witness and
Wellmer for doing so, and said that he would "make it warm
for somebody." He became angry with witness and Wellmer
because they would not approve his claim; charged that wit-
ness and Wellmer had "gone back" on him, and would not al-
low him his fees, although he needed money. The witness told
defendant that if he would present his account, omitting the
dismissed cases, it would be approved. Jeff Brown afterward
presented the account, in its present shape, with the dismissed
cases erased, and it was approved. The witness, on the day

Digitized by VjOOQIC

Term, 1889.] Bbackknridge v. The State. 517

statement of the ease.

prior to this trial, heard the defendant tell James H. Robert^
son that he instructed Jeff Brown to make out his account and
to include the dismissed cases.

On his cross examination, the witness said that he did not
critically examine the account nor compare it with the docket,
when it was first presented by the defendant. The defendant
at all times of which witness had any knowledge openly as-
serted his right to fees in cases dismissed, and contended, when
complaining of witness and Wellmer, that he was as much en-
titled to fees in those as in any other State cases. The witness
did not know when nor by whom the erasures in the body of
the account, nor the interlineations, in the certificate, were
made. They were in the account when finally approved.

Frank Brown testified, for the State, that he was the clerk
of the county court of Travis county. The defendant was
county judge of Travis county in November, 1888. He was
first elected and qualified in 188C. He was re-elected at the
general election on November 6, 1888, and qualified under his
re election on November 21, 1888. The minutes of the county
court being produced, the witness's^ attention was directed to
crimmal cases Nos. :]383, The State v. Roy, gaming; 3499, The
State V. Smith, aggravated assault; 3500, The State v. Brown,
aggravated assault; 3503, The State v. Silver, misdemeanor
theft; 3507, ex parte Williams, application for writ of habeas
corpus, and 3521, The State v. Kitchens, aggravated assault,
all of which cases, he testified, were shown by the minutes to
have been "dismissed" without trial. Witness was not per-
sonally present when the said cases were dismissed, and could
not say upon what ground they were severally dismissed. The
minutes disclose no more than that they were dismissed.

The State next introduced in evidence the file papers in each
of said cases, comprising the indictments, capiases with re-
turns showing arrests, appearance bonds, subpa3nas, etc. It
next introduced in evidence an indictment against the de-
^ndant filed previous to the filing of the indictment in this
case, charging him with a similar offense.

District Clerk James P. Hart testified, for the State, that the
file number of the indictment introduced in evidence was
8484. Defendant entered into recogrjizance on that cause on
October 19, 1888. Witness did not think that the defendant
erer read the indictment in that cause. Major Walton and
Mr. Wheless, who were t mployed by defendant as counsel.

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618 27 Texas Court op Appeals. [Austin

Statement of the case.

saw and read the said indictment, and Mr. Wheless made^
copy of the account embraced in it.

The State closed its case by introducing? in evidence the de-
fendant's application for a postponement in cause No. 8484,
when it was called for trial on October 30, 1888. Stated in
brief, that application shows that the defendant expected to
prove by the absent witness, H. B. Barnhart, then county at-
torney of Travis county, that ''defendant advised with him as
the county attorney and legal adviser of the county of Travis,
in reference to his right to demand and receive a fee of three
dollars in each and every criminal action dismissed by the de-
fendant from the criminal docket of the county court of Travis
county, and requested said Barnhart to investigate the matter
thoroughly and advise him as to his right to collect the same;
that Barnhart did examine the said question, and did advise
defendant that he should, and lawfully could, demand and re-
ceive three dollars in each and every criminal action dismissed
by him from the criminal docket;" that defendant '^appliedto
the Hon. J. S. Hogg, Attorney General of the State of Texas,
now temporarily absent from Travis county, for his opinion as
to whether the county judge was entitled to charge fees in dis-
missed cases that were finally nolle prosequied; that the said
Attorney General did not give his opinion, but said that he
thought there was some data in his office upon that identical
question, in the shape of a letter or written opinion; that
search failed to discover the said letter or opinion in the said
Attorney General's office, and the said Attorney General de-
clined to give a decisive opinion on the question.

H. B. Barnhart testified, for the defense, that he was county
attorney of Travis county in October, 1888. Prior to that
month the defendant came to witness and asked him if he was
entitled to charge fees for cases dismissed by him from the
criminal docket. The witness replied that he was unable to
say at that time, and promised to examine into the question
and advise him. Defendant asked him about the matter two
or three times afterward, and witness each time told him that
he had not investigated the matter. On the last occasion de-
fendant remarked that the statute allowed him three dollars
for each case finally disposed of, and asked witness if a case
^'dismissed" was a case **finally disposed of," and witness ro-
plied: **Yes, in my judgment it is, and in such case you are
entitled to charge your statutory fee."

Digitized by VjOOQIC

Term, 1889.] Brackenridge v. The State. 519

Argument for the appellant.

^Ex-County Treasurer A. J. Jernigan, ex-County Attorney E.
T. Moore, ex-County Attorney H. B. Barnhart, District Clerk
Hart, County Clerk Brown, County Tax Collector Morris,
County Treasurer AiTderson, County Commissioner Cloud and
Deputy Sheriff Johnson, each testified, for the defense, that
they had known the defendant for several years, and that his
reputation for honesty in the community of his residence was
good.

F. G. Morris, attorney at law, testified, for- the defense, that
he had known the defendant a number of years, and that, leav-
ing out of consideration this and other similar indictments re-
cently preferred against him, the reputation of the defendant
for honesty and integrity was good.

A. M. Jackson, Jr., attorney at law, testified, for the defense,
that, except as to the matters involved in this and another
indictment for a similar offense, he had never heard the de-
fendant's character for honesty and integrity discussed.

The defense closed.

Attorney Gteneral Hogg testified, for the State, that he had
met the defendant a few times and knew him, but had no rec-
ollection of the defendant ever applying to him for advice as
to his right to collect fees for criminal cases dismissed by him
as county judge, but the defendant may have done so. Wit-
ness never gave opinions except in writing, when he could
avoid it.

On cross examination, the Attorney General testified that the
subject matter of judges charging fees for dismissed cases had
been discussed in his office, but he had no recollection of ever
having given an opinion on the matter.

Walton, Hill <b Walton^ T. H. Wheless and A. T. Patrick, for
the appellant. Defendant excepted to the indictment for in-
sufficiency.

1. It charges no criminal offense against the laws of Texas.

2. The facts alleged do not show a demand for fees not al-
lowed by law.

3. It only charges an application by defendant as a man for
the approval of the account indicted.

4. It fails to charge that the act indicted was done by defend-
ant in his oflScial capacity.

5. It charges in whole and in part acts outside the perform-
nee of official duty.

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520 27 Texas Court of Appeals. [Austin

Argument for the appellant.

Was there a demand for fees in the facts stated in the indict-
ment? The act was a demand for the approval of an account
which contained items of fees. Was that an unlawful demand
for fees not allowed by law? The Statute provides (art. 1075,
Code Crim. Proc.) that the county judge shall be allowed a fee
of three dollars for every criminal case finally tried and dis-
posed of by him. Article 1076, Id., provides that the judge
shall make out his account for fees, certify to its correctness
and file it with the clerk of the court. Then the commissoners
court shall approve such account for such amount as they may
find correct, when they shall order a draft to be issued upon the
county treasurer in favor of the judge for the amount of the
account so approved.

The action of the appellant was, under the statute, nothing
more than to invoke the judicial power of the commissioners
court to investigate the fact as to whether the account certified
by him was correct, and to make a judicial finding as to the
amount that was correct. The certificate of the judsje as to
the correctness of the account could, under no circumstances,
authenticate it for payment; it only prepared the account for
the investigation the court was to make— until certified, the
court could not investigate. It was as necessary for him to cer.
tify the account, to move the court to investigate its correct-
ne>s, as it was that an indictment should have been returned
before the trial of this case or that a pleading should be drawn
and filed before any relief could be granted in a court of record.
It was a necessary preliminary to the making of a demand for
fees. He could never obtain the money on said account, no
matter whether approved or not. No custodian of public money
would or could legally pay the account. The account had to
be approved by the court, and a draft for the money ordered
and the draft drawn, before payment could be made or legally
demanded. How, then, could a demand lor fees be made by
the presentation of an account for approval that is not recog-
iiized by law as a paper that can be paid? He was a suitor be-
fore the court for relief, viz. : to have this account corrected— for
its approval as corrected — to be made the basis of a draft,
which he might present to the treasurer, and on it demand his
fees. Until these proceedings were had he could make no de
mand for fees, if fees mean money. Article 998. Revised Stat
utes, provides that the county treasurer shall not pay any money
out of the county treasury except in pursuance of a certificate *

Digitized by VjOOQIC

Term, 1889.] Brackenridgb v. The State. 521

Argument for the appellant.

or warrant from some officer authorized by law to issue the
same. The certificate mentioned in the law does not include
certificate of the county jud^e touching his fees, for the simple
and sufficient reason that the law makes special and particular
provision in regard to that matter.

Demand means "the asking or seeking for what is due, or
claimed as due; a thing or amount claimed to be due." (Web-
ster's Un. Diet, sub. 5 of last title of * 'Demand.") The same
meaning is given substantially in the law dictionaries. We
find no adjudicated case to cite on this point, but we hardly
deem it necessary, the principle governing the question vindi-
cating itself. Suppose on the non-payment of fees, when de-
manded, the account therefor would bear interest, could it be
baid that the presentation of an account for adjustment or ad-
judication as to correctness— would a refusal of the court to
approve it put the interest clause in motion? And so, if de-
mand for fees were necessary before suit against the county
could be legally brought, would the refusal to approve by the
court authorize suit? We certainly do not think so. In such
cases there would be two chapters in the transaction. First,
the court would by mandamus be compelled to approve the
account, order warrant, warrant issue; and second, then de-
maud be made for payment of the fees by the treasurer. If he
refused to pay, then in the one case interest would run, and in
the other suit could be brought; but no interest would run and
no suit could be maintained on the mere refusal of the court
to approve the account; and so we confidently claim that no
such demand as contemplated by the statute was made in this
case as will uphold the indictment or conviction.

The indictment charges extortion merely — does not charge
oflScial misconduct, except inferentially — and fails to charge
the act was done officially. It says he was an officer, and did
so and so, but not that he did so and so as an officer. He might
have been a murderer and an officer, or any other character of
an offender and an officer at the same time; but to be guilty of
oflBcial misconduct the oflfense roust be done officially, and the
indictment must so charge. (Smith v. Ling, 9 Pacific Rep., 171.)

2. If* however, the court should consider the indictment
suflBcient, then, can the conviction stand for official miscon-
duct, and consequent removal from office.

The statute is that any conviction involving official miscon-
duct shall work an immediate removal from office of the officer

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522 27 Texas Court of Appeals. [Austin

Argument for the appellant.

BO convicted. (Rev. Stats., art. 3388.) Article 3393, Id., de-
fines oflScial misconduct thus: *'Any unlawful behavior in re-
lation to the duties of his office, wilful in its character, of any
officer intrusted in any manner with the administration of
justice or the execution of the laws; * * » any wilful or
corrupt failure, refusal or neglect of an officer to perform any
duty enjoined on him by law." Other than as above there is
no official misconduct known to the laws of Texas. Does the
act charged come within the definition? The act must be un-
lawful behavior in relation to the duties of his office, or fail-
ure, neglect or refusal to perform some duty enjoined on him
by law. The act must be official in character and performed
as an officer in the exercise of the duties of his office. Noth-
ing short of that will bring him under the denunciation of the
law. This act must be extortion in office. The office— the
powers of the office must have been put in motion — mast have
been demanded under the color of his office, as was expressly
said in Collier v. The State, 55 Alabama, 125; Cleveland v. The
State, 34 Id., 259; 18 Massachusetts, Dunlap v. Curtis, 210.

The motive and intent must be corrupt. No claim of right
must exist. Vide American Criminal Law (Desty), section 84a.
with authorities cite J ; also Cutter v. The State, 36 New Jersey,
125. It was shown by the testimony that appellant openly
claimed the right to charge and collect these fees. He re-
peatedly asked the county attorney to investigate the matter.
He went to the Attorney General with the question, but did
not see him. (Vide the affidavit of appellant for a postpone-
ment of the case, put in evidence by the State.)

In this case there was a claim of right. Wilfulness is ab-
sent. Corrupt motive and intent wanting. The act was not
done in the exercise of the duties of his office. The power of
the office was not brought to bear.

It may, and probably will, be said that the making of the
certificate was an official act. Admit it, but the indictment is
not for that; it is for demanding fees not allowed by law. The
making of the certificate was not a demand for fees; whatever
else may be called a demand, that is not.

The law does not contemplate that the judge shall present the
account for approval, officially or otherwise. (Vide art. 1076,
Crim. Proc.) It provides he shall certify it and file it with the
clerk. After that, the court shall act. If to present the ac-
count for approval is the exercise of the duties of his office, or

Digitized by VjOOQIC

Term, 1889.] Brackenridge v. The State. 523

Argument for the appellant.

a duty enjoined on him by law, then to fail to discharge that
duty or to exercise it, would be malfeasance, and he would be
subject to indictment and removal from oflSice. To state such
a proposition is to refute it. To reason over this case, so bare
is it of merit, that it is like trying to explain why two and two
make four.

Nevertheless, the conviction was construed by the court to
include oflBcial misconduct; in fact, that the act charged was
oflBcial misconduct, and the judgment was so entered, and that
the judge be removed from office.

3. If wrong in the foregoing, then is the verdict sufficient
to authorize the judgment? Article 73 of the Penal Code pro-
vides that "whenever an oflfense is committed by an officer,
and the same appears to the jury to be a willful violation of
duty, they shall so find, and such officer shall be removed from
office."

It is not enough that the jury shall find a verdict simply of
guilty, but it shall be an express and direct finding that the ac t
charged was a willful violation of duty. It would not only be
proper, but we think necessary, that the court should instruct
the jury to so find under given facts. The jury should know
and realize the full force and effect of the verdict they return.
While the indictment charges that the act was wilful and the
jury finds "guilty," yet that is far short of a finding in express
words that the act was a wilful violation of duty. The court
can hardly fail to see the vitality and importance of the dis-
tinction made. The defendant should be heard on every phase
of the case, and the jury be advised by him on every form of
verdict they can return. The act here charged was extortion,
pure and simple, and no charge of violation of official duty.
It can not be said that the finding on the charges is tanta-
mount to a finding in the language of the article cited.

4. The fourth question is an interesting one, and is this:
Can an officer, who is his own successor, be removed from

his new term for acts done between the date of his re election
and his qualification for the new term?

In this case appellant was re-elected, on the sixth of Novem-
ber, his own successor. The indictment charges the act to have
been done on the eighth of November. The facts show that it
was done on the fifteenth of November, and the evidence is
that he qualified for his new term on the twenty-first of No-
vember. On the fifteenth of November was he the old judge

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1^24 27 Tbxas Court of Appeals. [Austin

Argament for the appellant.

or the new? He was tried after his qualification for the succes-
flion and removed from office — that is, he was removed from
the new office.

Article 3415, Revised Statutes, provides that no officer shall
be removed from office for acts done prior to his election to
office. In Gordon v. The State, 43 Texas, 330, it was decided
that, to authorize the removal of sin officer, the charge must
specify some act or omission since his election showing his un-
fitness for the office. In Trigg v. The State, 49 Texas, 645, the
oourt say: **The petition embraces a period between the elec-
tion and his induction in office, which doubtless the court would
have had corrected if attention had been called to it by special
exception;'^ which, interpreted by the Reporter, means: "Acts
of drunkenness, between the election and qiialification of an
officer, should not have been allowed in the pleading or in evi-
dence." We doubt not that the interpretation is correct, or
else the language of the court is meaningless nonsense. In
Ling V. The State, before cited, it is said that after a person
ceases to be a public officer he-can not be prosecuted for official
misconduct. And to the same effect is Stubbs v. The State, 53
Mississippi, 437. In Flatan v. The State, 56 Texas, 101, Mr.
Justice Stayton said, referring to section 24, article 5, Constitu-
tion, on the subject of removals from office by the district
judges: **The whole context of the section of the Constitution
bears unmistakeable evidence that the words *may be removed,*
as herein used, refer only to persons who are officers in the full
sense of the word — to persons who, having been elected or ap-
pointed to an office, have qualified as provided by law, and
have been inducted into office — whose removal is sought for
some cause arising after such person has been so inducted.
Only to such cases do we understand the section of the Consti-
tution to refer." (See also note 140 to Sayles' Constitution of
1876, page 549.) The statute law under which the removal
from office in this case was made, is original in the Revised
Statutes, and was enacted under the section of the Constitution
cited above, and discussed by Justice Stayton — though the Re-
porter erroneously calls it article 6; and Mr. Sayles also falls
into error, calling it section 8 of article 5. (See article 3388 of
his Statutes.) Both principle and authority seem to be clear
that the removal of an officer can be made only for offenses
committed by him after his qualification for the term from
which ho is removed.

Digitized by VjOOQIC

Term, 1889.] Brackenkidgb v. The State. 525

Ar^rumeDt for the appellant.

5. The wrongful admission of hurtful evidence, when ex-
cepted to at the time, will work a reversal of a conviction, al-
though the injury may not be perceptible. On the trial of this
case the State offered in evidence an indictment found at a
prior day of the term for a like offense, to the introduction of
which defendant objected on the grounds: Irrelevant, incom-
petent and inadmissible, calculated to prejudice him before the
jury, because he has never been tried on said indictment, and
is presumed to be innocent of the charges therein contained;
and, further, because the fact of indictment found and pend-
ing is no evidence of defendant's knowledge of the illegality
of the denokand for fees; and they being overruled, the paper
was let in, to which ruling a bill was saved.

The court, in its charge, limited the use for which the jury
could consider it, viz: on the question of knowledge, etc.

The question at once presents itself whether the evidence
was admissible for any purpose, and in answer to that question
we say:

1. This is not a case in which collateral acts can be intro-
duced for consideration.

2. In no case can an indictment be offered and considered
as a collateral act, from which scienter msLj he inferred against
a defendant.

3. There was no evidence to show that defendant was guilty
of the acts charged against him in said indictment.

4. Before the collateral fact can be put in against a defend-
ant the offense must be proven, and that defendant is the guilty
party.

5. Every man is presumed to be innocent until proven to be
guilty.

6. The presentation of an indictment affords not even a pre-
sumption of guilt.

7. The account made part of the indictment contains three
classes of cases, two of which are those indicted: —

1. Cases which were finally tried and disposed of.

2. Cases dismissed by the county attorney, and which were
not tried but finally disposed of.

3. Cases that were retired, neither tried nor finally dis-
posed of.

The case on trial was for demanding fees not allowed by law,
and were charged to be the second class above.
The indictment being admitted without restriction as to the

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526 27 Texas Court op Appeals. [Austin

OpiDion of the court.

class of cases to consider, left the jury at liberty to draw scienter
from the third as well as second class above, a class wholly
distinct and foreign from the class of cases for which defend-
ant had been indicted and was on trial.

In any view that we can take of the point under discussion,
we find nought but hurtful and pernicious error.

W. L. Davidson, Assistant Attorney General, filed an able
and interesting argument and brief for the State.

WiLLSON. Judge. This conviction is under article 240 of the
Penal Code, which reads: "If any officer authorized by law to .
demand or receive fees of oflSce, or any person employed by
such officer, shall wilfully demand or receive higher fees than
are allowed by law, or shall wilfully demand or receive fees
not allowed by law, he shall be punished by fine not less than
twenty-five nor more than one hundred dollars for each offense. "

The charging part of the indictment is as follows; **That J.
JVI. Brackenridge, in said county and State, on or about the
eighth day of November in the year of our Lord, eighteen hun-
dred and eighty-eight, was then and there the duly qualified
and acting county judge of said Travis county, Texas, and as
such officer was authorized by law to danxand and receive fees
of said office, and he did then and there as such officer unlaw-
fully, extorsively and wilfully demand from said Travis county
fees not allowed by law; that is, he did then and there as such
officer unlawfully and wilfully make out an account in writing
against said Travis county, and certify that the same was cor-
rect, and present the same to the commissioners court, of said
Travis county, at a term of said commissioners court, and
did then and there wilfully and unlawfully demand that said
commissioners court approve said account against said Travis
county for the full amount thereof, and order a draft to be
issued upon the county treasurer of said Travis county in his,
said Bracken ridge's, favor for the full amount of said account,
when there was embraced in and a part of said account the
sum of eighteen dollars which was made up out of a fee of
three dollars charged in said account in each of six criminal
cases charged for in said account as criminal cases tried and
finally disposed of before him, said Brackenridge,as county judge
as aforesaid, in the county court of Travis county, Texas, and
the said fee of three dollars in each of said six cases, aggre-

Digitized by VjOOQIC

Term, 1889.] Beackenridgb v. The State. 627

Opinion of the court

gating eighteen dollars, was not allowed by law, because said
cases were not in fact tried and finally disposed of before said
Brackenridge as county judge as aforesaid, but were criminal
cases which were dismissed in said county court without any
trial whatever; that the said cases which said fees were
charged for and demanded were the following named, num-
bered and styled cases in the county court of said Travis
county, to wit: No. 3383, The State of Texas v. Abe Roy; No.
3499, The State of Texas v. Jim Smith; No. 3500, The State of
Texas v. Joe Brown; No. 3502, The State of Texas v. B. D.
Silver; No. 3507, The State of Texas v. Thomas Williams; No.
3521, The State of Texas v. W. A. Kitchens; against the peace
and dignity of the State."

Exceptions to the indictment were presented and urged by
the defendant, and were overruled by the court; and this ruling
of the court is insisted upon as error. The exceptions are as
follows: "1. The indictment charges no criminal offense
against the laws of the State of Texas. 2. The facts alleged
in the indictment do not show a demand for fees not allowed
by law. 3. The indictment only charges an application by
defendant as a man for the approval of the account indicated.

4. The indictment fails to charge that the act indicted was
done and performed in his (defendant's) ofScial capacity.

5. The indictment in whole and in part charges acts outside
the performance of oflScial duty."

We will consider the three last exceptions first and together.
As we read and understand the indictment, it plainly charges^
that the defendant, as county judge of Travis county, in his
official capacity, and not merely as an individual, demanded
fees not allowed by law. Nor does it charge an act outside the
performance of official duty, for the law makes it the duty of
a county judge to present his certified account to the commis-
sioners court for the fees allowed him by law in criminal cases.
(Code Criminal Procedure, article 1076.) In presenting the
account in question he was performing an official act, an act
which the law required him to perform in the discharge of his
official duty as county judge. We hold, therefore, that the
third, fourth and fifth exceptions to the indictment are not
maintainable.

The second exception presents the question, was the presen-
tation of the account by the defendant, to the commissioners
court, a demand for the fees therein charged, within the mean-

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528 27 Texas Couet of Appbaxs. [Austin

Opinion of the court

ing of the word "demand" as used in article 240 of the Penal
Code? We must answer this question in the affirmative. The
legal signification of the word " demand," as used in practice,
is, "a requisition or request to do a particular thing specified
under a claim of right on the part of the person requesting.''
(Bouvier's Law Dictionary, "Demand.") In this instance, the
defendant requested the commissioners court to approve his
account or claim against the county, claiming all the items
therein charged as correct and legal, and in so doing he de-
Tuaiidedy in the manner prescribed by law in such cases, the
fees which he claimed to be due him by the county. There was
no other mode in which he could legally demand said fees.
(Code Criminal Procedure, article 1076.) Said exception also
presents the further question, were the items of fees specified
in the indictment, fees not allowed by law? We must answer
this question in the affirmative. A county judge is entitled to
demand and receive from the county the sum of three dollars
for each criminal action tried and finally disposed of b^'fore
him. (Code Criminal Procedure, article 1075.) He is not en-
titled to said fee in a case which is merely dismissed. A dis-
missal of a case is not a trial of it, within the meaning of the
law. A dismissal of a case is to send it out of court without a
trial upon any of the issues involved in it. It is a final dispo-
sition of that particular case, but not a trial of it. A final
disposition of a case does not of itself entitle the county judge
to the fee allowed by article 1075, supra. To entitle him to the
fee the case must have been trted and finally disposed of before
him. He must both try and finally dispose of it. Such is the
plain language of the statute. A trial is an examination before
a competent tribunal, according to the laws of the land, of the
facts put in issue in a cause, for the purpose of determining
such issue. (Bouvier's Law Dictionary, •' Trial.")

We are of the opinion that the indictment charges an ofifense
against the laws of the State; that it charges fully and suffi-
ciently the offense of demanding fees not allowed by law, de-
nounced by article 240 of the Penal Code; and that the excep-
tions to the indictment were rightly overruled.

For the purpose of tending to show a knowledge on the part
of defendant that the fees demanded by him were not lawful,
the indictment put in evidence by the State over defendant's
objection was, we think, admissible testimony. It was offered
for no other purpose, and the court fully instructed the jury in

Digitized by VjOOQIC

Term, 1839.] Bbackenridgb v. The State. 629

Opinion of the court.

its charge that it must not be considered for any other purpose.
There is a bill of exception in the record calling in question
the correctness of the ruling of the court in admitting in evi-
dence the account for fees which was presented to the commis-
sioners court. There is also in the record a bill of exceptions
to the charge of the court. Counsel for defendant have not in
their brief presented the questions raised by said bills, but we
have nevertheless considered the same, and find no error in the
ruling or charge. We think the charge of the court present^
the law of the case succinctly, clearly and correctly.

By the verdict of the jury the defendant was found guilty as
charged in the indictment, and his punishment assessed at a
fine of twenty-five dollars. Judgment was accordingly entered
upon said verdict in the usual form, and upon the written sug-
gestion of the district attorney the court rendered and embodied
in the judgment entry an order as follows: "And it appearing
to the court that the defendant, J. M. Brackenridge, was duly
elected county judge of Travis county, Texas, at the general
election in November, 1886, and thereafter within the time pre-
scribed by law he duly qualified as such county judge, and con-
tinued in the exercise of said office until his re-election thereto
at the general election on the first Tuesday, being the sixth day
of November, 1888; that while in the discharge of his official
duties as county judge aforesaid, on or about the fifteenth
day of November, 1888, being after the date of his re-elec-
tion, and before he qualified for the present term of office,
the defendant, J. M. Brackenridge, as county judge afore-
said, did wilfully demand fees of said office not allowed by
law, as appears from the verdict of the jury and the judg-
ment of the court aforesaid, and that on or about the twenty-
first day of November, A. D., 1888, the said J. M. Bracken-
ridge again duly and legally qualified as county judge of said
Travis county, and is now the qualified and acting county judge
of said Travis county: — Therefore, it appearing to the court
that the defendant, J. M. Brackenridge, as county judge as
aforesaid, has been convicted by a petit jury for a misdemeanor
involving official misconduct, and that said conviction works
an immediate removal of said defendant from said office of
county judge, it is considered, ordered and adjudged by the
the court that the defendant, J. M. Brackenridge, be and he is
hereby removed from the office of county judge of Travis
comity, Texas, and the said office is declared to be vacant.*'

Digitized by VjOOQIC

5o0 27 Texas Court of Appkals. [Austin

Opinion of the court.

It is insisted by counsel for the defendant that the judgment
removing from office is unauthorized, because the acts of which
defendant was convicted were committed before he had quali-
fied as county judge, as his own successor in that office. It is
provided by statute that '*A11 convictions by a petit jury of
any county officers for any felony, or for any misdemeanor
involving official misconduct, shall work an immediate removal
from office of the officer so convicted, and such judgment of
conviction shall, in every instance, embody within it an order
removing such officer." (Rev. Stat, art. 3388.) It is further
expressly declared, however, that ''No officer shall be prosecuted
or removed from office for any act he may have committed
prior to his election to office." (Rev. Stat., art. 3415.) There
can be no question, in view of the last quoted provision of the
statute and of the law as settled by the decisions of the courts,
that if the acts of which the defendant was convicted had been
committed prior to his election to the office, such acts would
afford no legal ground for removing him from the office. (Gor
don V. The State, 43 Texas, 330; Trigg v. The State, 49 Texas,
645; Flatan v. The State, 56 Texas, 93.) His election would be
a condonation of any crime or misconduct committed prior
thereto; at a time when he was not holding the office to which
he was elected.

But in this case, at the time the defendant committed the act
of which he has been convicted, he was the duly elected and
qualified county judge of Travis county. He was such officer
de facto and de jure. By virtue of his election and qualification
in 1886 he was inducted into the office, and had the legal right
to exercise, and was exercising its functions, until his succee-
sor should qualify. (Rev. Stat , art 1133.) By the election of
1888 he became his own successor in the office, which election
occurred prior to the commission of the acts of which he has
been convicted. It can not be said, therefore, that said acts
were condoned by that election. That he had not, at the time
of the commission of said acts, been re-inducted into the office
by virtue of his re-election does not, we think, aflfect the ques-
tion of his removal, because he was in fact and by right the
duly qualified county judge of Travis county at the time he
committed the acts, and although said acts were committed by
him as such officer under and by virtue of his election and
qualification in 1880, they were not condoned by his re-election
in 1888, occurring prior to the commission of said acts.

Digitized by VjOOQIC

Term, 1889.] Brackenridge u. The State. 531

Opinion of the court.

None of the decisions cited by counsel for the defendant in
support of their position upon this question appear to us to be
applicable. None of them present the case of an officer who
succeeded himself and was already in possession of and exer-
cising the functions of the office at the time he committed the
acts' for which he was removed. They are cases where the
\)ii rties, though elected to an office, had never been inducted
into it — had not qualified, or entered upon the discharge of its
functions; and they do not conflict with the view which we en-
tertain of the question as presented in this case, which is that
the acts committed by defendant, having been committed sub-
sequent to his re-election, were not condoned, and constituted
j^round for his removal from the office, although at the time of
tiieir commission he had not qualified under his re-election.

But it is contended by counsel for defendant that the acts for
which the defendant has been convicted do not involve official
misconduct, and do not, therefore, constitute ground for re-
moval from office. By official misconduct is meant any un-
la^wful behavior in relation to the duties of his office, wilful in
its character, of any officer intrusted in any manner with the
administration of justice, or the execution of the laws, etc.
(Rev. Stat., art. 3393.) We do not hesitate to say that an officer
who wilfully demands fees not allowed by law is guilty of of-
ficial misconduct wilful in its character, and that a conviction
of that offense is a conviction involving official misconduct
within the meaning of the statute (Rev. Stat., arts. 3388, 3393),
and not only warrants but demands his removal from the oIBce.

It is made to appear, in a motion for a new trial supported
by affidavits, that one Doss, who served on the jury in the trial
of the cause, was not a qualified juror in Travis county; that
he was not a householder in said county, nor a freeholder in
the State, and that he was not a resident of said Travis county;
that said juror, before being impaneled, had been interrogated
touching his qualifications, and had answered under oath, to
the court, that he resided in said Travis county and was a qual-
ified voter in said county; that said Doss was a stranger to de-
fendant, and that neither the defendant nor his counsel knew,
or had reason to believe, that said Doss was not a qualified
juror, and regarded his statement under oath that he was
quaHfied as true. It is further made to appear that said Doss,
before being impaneled upon said jury, made statements which
indicated that he was prejudiced against the defendant, of

Digitized by VjOOQIC

532 27 Texas Court of Appeals. [Austin

OpinioD of the court

which statements the defendant and his counsel were ignorant
when he was accepted as a juror. The district attorney filed
a written denial of the truth of the above recited facts, but in-
troduced no evidence in behalf of the State upon the is^ue
thus formed; at least there is no evidence in the record before
us controverting the defendant's testimonj^ in support of Bald
ground of his motion for a new trial. We must therefore hold
that the facts set forth in said motion in relation to said ground,
and which we have substantially recited, were established by
the affidavits accompanying said motion.

Said facts being true, the defendant has been tried and con-
victed by a person not qualified to serve as a juror in the case,
and whom the evidence tends strongly to show was prejudiced
against him, and this without any negligence or fault on the
part of either the defendant or his counsel. We are of the
opinion that because of this ground the defendant was entitled
to a new trial, and that the court erred iji not granting his mo-
tion. Boren v. The State, 23 Texas Ct. App., 28; Armendares
V. The State, 10 Texas Ct. App., 44; Hanks v. The State, 21
Texas Ct. App., 526; Henrie v. The State, 41 Texas, 573; Code
Crim Proc, art. 631.) We are not prepared to say that by rea-
son of the disqualified juror the defendant sufferea no injury
to his rights, even were we at liberty to consider that question.

There are other questions made in the record which we do
not discuss or determine, because they are unimportant in view
of the fact that they are of a character which may not arise
on another trial.

Because the court erred in reiusing the defendant a new
trial because of the disqualification of the juror Doss, and upon
such ground alone, the judgment is reversed and the cause is
remanded.

Reversed and remanded.

Opinion delivered May 8, 1889,

Judge Hurt is not prepared to assent to or dissent from the
conclusion of a majority of the court as to the demand, but
concurs in the other views expressed in the opinion.

Digitized by VjOOQIC

Term, 1889.] Alexander v. The State. 538

Statement of the case.

No. 6336.
]1. L. Alexanbbb v. The State.

U PiSAbiira^lNDiCTMBNT OR INFORMATION Is not bad for dtiplioity be-
eanse it contains several connts charging different misdemeanors.

% Sam b.— It is not required that each and every count in an indictment
shall conclude with the words ''against the peace and dignity of the
State," it being sufficient if the instrument as a whole so concludes.

Z. GARRYiNe Pistol Into a Public Assembly, etc.— Article 820 of the
Penal Code defines the offense of goin^ into a church, school room or
^ other place where people are assembled for amusement, etc., having a
pistol about the person. The persons excepted from the operation of
this article by article 821 are peace officers only, and do not include even
the owner of the premises in which the people are assembled. A school
teacher does not come within the exceptions provided by the said arti-
cle 821, and is not authorized to carry a pistol about his person in his
school room, among his pupils, nor on the occasion of a public assem-
bly in his school room.

4 Same.— That the accused had reasonable ground for fearing an unlaw-
ful attack upon his person is not an available defense to a prosecution
for a violation of article 820 of the Penal Code. But see the statement
of the case for evidence held insufficient to support such defense even
if available.

Appeal from the District Court of Williamson. Tried below
before the Hon. D. S. Chessher, County Judge.

Appellant, by information based upon aflSdavit, was prose-
cuted in the county court of Williamson county for three of-
fenses. The charging part of the information is' as follows:
"That M. L. Alexander on or about the eighth day of Febru-
ary, A. D. 1889, in the county of Williamson and State of
Texas, and anterior to the presentment of this information did
unlawfully carry on or about his person a pistol, and did then
and there unlawfully go into a place, to wit: the building
known as the Corn Hill college, where persons were assembled
for amusement, and did then and there have and carry about his
person a pistol, and did then and there go into a public place
known as the Corn Hill college there situate, at which people
were assembled for purpose of amusement, and did then and
there rudely display a pistol in a manner calculated to disturb
the inhabitants of said public place; against the peace and dig-
nity of the State.''

Appellant filed a motion to quash the affidavit and informa-

Digitized by VjOOQIC

27 633
81 295

534 27 Texas Court op Appeals. [Austin

statement of the case.

tion, upon the ground that said papers were bad for duplicity
in charging three distinct offenses in one count. This motion
was overruled and he excepted. He pleaded not guilty and sub-
mitted the case to the court upon the evidence. The court ad-
judged him guilty of the second oflfense set out in the informa-
tion, and assessed his fine at fifty dollars. He excepted to the
judgment, filed a motion for new trial, which was overruled,
and he appeals to this court.

W. W. Morris testified, for the State, in substance, that on
the night of February 8, 1889, the defendant, in connection with
the pupils of his school, gave an entertainment in the school
house in Williamson county known as the Corn Hill college.
The said entertainment, as advertised, was to comprise vocal
and instrumental music and declamation and dialogue. Wit-
ness went to the said school house, and while standing at the
door on the outside with Frank Cook, Dick Shaver, Albert Hill
and Henry Hill, he saw a lady and her child refused admittance
and turned away by one of the door keepers because she either
could not or would not pay the admission fee of ten cents.
Witness then determined to go into the school house without
paying, and did so in company with Cook, Shaver and the two
Hills. Immediately after the witness and his party took their
seats, and while an instrumental piece was being rendered by
some young ladies, the defendant left the platform or stage,
and went down stairs. He soon returned, stood in and looked
carefully over the room. Several persons in the audience re-
marked audibly: "He's looking for Burnham." Defendant
then mounted the platform and went to the piano where the
young ladies were still playing. They stopped playing about
the time defendant reached the piano, and the curtain was
lowered. Within a few moments defendant appeared on the
stage in front of the curtain and remarked: **Some parties have
entered, and are now in the room, who have not paid the ad-
mission fee. If they are gentlemen they will retire." He then
read aloud, from a paper, the names of the witness and the four
young men who were with him, viz: Cook, Shaver and the two
Hills. Witness stood up and asked if he could speak a word.
Defendant replied that he could, and witness said: **I have
come up here without paying; I don't intend to pay, and I am
not going down." Witness then resumed his seat, his words
creating general confusion, but principally among the women
and children, many of whom manifested a purpose to leave.

Digitized by VjOOQIC

Term, 1889.] Alexander v. The State. 535

Statement of tbo case.

In replying to what the witness had stated, the defendant said,
aniong other things: **You have no more right to come in here
without paying than I have to go into a store and take goods
without paying." This insinuation, thac the witness was a
thief, angered him, and, after a few more words, the witness,
followed by Cook and Shaver, advanced towards the platform
on which the defendant was standing. When witness roached
a point within about six feet of defendant, defendant drew a
pistol, covered witness with it, and ordered him to stand back.
The witness stepped back and called Df. McCarty's attention
to the pistol in the possession of defendant. By this time about
half the audience had left or were leaving ihe room. Defend-
ant called to them not to leave, that no one would be hurt, as
he was going to have an officer there to keep order. He then
attempted to get somebody to go after Burnham, the constable,
but no person would go until witness requested a boy to do so
When Burnham arrived the witness and his crowd left the
school house. Witness had no pistol, and he saw no pistol on
that night except the one defendant had. Witness made no
demonstration nor threat when he started toward defendant.

On his cross examination the witness stated that he knew
the entertainment was a pay concern before he went to the
school house. The lady referred to by witness was turned off
by the door keeper for refusing to pay the admission fee Wit-
ness did not know whether the lady refused to pay the fee be
cause she did not have the ten cents, or merely because she
would not pay it. There was no understanding between the
witness and Cook, JShaver and the Hills to go to the school
house and attend the entertainment without paying. As the
witness and his party started up stairs into the entertainment
hall, the witness blew out the light and pushed out of his way
a door keeper who demanded ten cents of him and tried to bar
his way. About that time Cook remarked to Shaver: "Let's
pay our dimes." They turned to a doorkeeper as if to do so,
when witness called to him: "Don't do that, boys; come with
me" — which they did without paying their way.

Frank Cook and Albert Hill testified, for the State, substan-
tially as Morris did, denying that, any previous understanding
to go into the school room without paying existed between the
parties named. ^ Hill denied that, previous to the entertain-
ment, he told John Sybett that ho was going to attend the en-
tertainment and was not going to pay to get in.

Digitized by VjOOQIC

536 27 Texas Court op Appeals. [Austin

Opinion of the ooart.

The school trustees for the Corn Hill free school community
testified that the defendant was regularly employed by them
on behalf of the school community to teach the public school,
and that he taught that school in the building in which the en-
tainment was given on the night alleged in the information.
Defendant had the keys to and was in full possession of said
school building, by consent of the said trustees. The public
entertainments on this and previous occasions were given by
the defendant and his pupils with the knowledge and consent,
and under the active encouragement of the trustees. An ad-
mission fee, to be applied to the payment of a stove for the
school room, blackboards, charts, library, etc., was charged at
each occasion with the full knowledge and consent of the
trustees.

A witness for the defense who testified to the transaction in
the school house during the entertainment narrated it substan-
tially as did the witness Morris.

Several witnesses testified, for the defense, that at different
times recently before the entertainment they heard various
parties living in Com Hill, who were opposed to the practice
of pay entertainments in the public school house, declare that
they intended to force their way into the next entertainment
without pay. One of those witnesses fixed the time of such
threats as late as the day of the night on which the offense is
alleged to have been committed. Several of said witnesses de-
clared that they reported the said threats to the defendant
None of the witnesses named the defendant as a party who
uttered such threats. This is the testimony upon which the
defense of an anticipated * 'unlawful attack" was based.

T. B. Cochran, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. It is not a valid objection to an indictment
or information that it contains several counts charging different
misdemeanors. (Waddell v. The State, 1 Texas Ct. App., 720;
Gage V. The State, 9 Texas Ct. App., 259.) In this case the in-
formation charges three different misdemeanors in three sepa-
rate counts, and is not bad for duplicity. The counts are in-
formal, but it is nevertheless plain that they were intended for,
and are substantially separate counts, and should not be con-
strued as constituting but a single count. It is not required

Digitized by VjOOQIC

Term, 1889.] Alexandre v. The State. 537

Opinion of the court.

that each count should conclude ''against the peace and dignity
of the State," but only that the indictment or information as a
whole should so conclude. (West v. The State, sinte.) The ex-
ceptions to the information were properly overruled.

This conviction is upon the second count in the information,
which charges the offense defined in article 320 of the Penal
Code. It was proved and not controverted that the defendant
went into a place where persons were assembled for amusement,
carrying about his person a pistol. His defenses were that the
place where he carried the pistol was his own premises, and that
he had reasonable ground for fearing an unlawful attack upon
his person, etc.

With respect to the first defense this court has held that no
person, unless he be a peace oflScer, can go into an assembly of
people such as is named in article 320 of the Penal Code, and
carry about his person a prohibited weapon, without violating
the law, and not even the owner of the premises where the as-
sembly is, is excepted. (Owens v. The State, 3 Texas Ct. App.,
404; Brooks v. The State, 15 Texas Ct. App., 88.) Such, we be-
lieve, is the meaning and intent of the law, though we confess
that to our minds the provisions of article 321 of the Penal
Code are somewhat obscure. We can not believe that it was
the purpose and intent of the Legislature to permit school
teachers to carry prohibited weapons upon their persons in
their school rooms among their pupils, or on the occasion of
public assemblies in such school rooms. The law does not in
terms accord to them such a privilege, and, without a clearly
expressed exception in such case, this court will not sanction
a defense, the effect of which would be to authorize every
school teacher in the State to carry prohibited weapons upon
his person in our school rooms. . Such an effect could not be
other than pernicious, and should not be tolerated.

As to the second defense, we do not think it was available in
a prosecution lipon the second count, but, even if it was, we
do not think that it was sustained by the evidence, it not being
6hown that any such danger existed as the statute contem-
plates, or that the defendant had reasonable grounds for fear-
ing an unlawful attack upon his person.

Believing that there is no error in the conviction, the judg-
ment is afiSrmed.

Affirmed.

Opinion delivered May 8, 1889.

Digitized by VjOOQIC

538 27 Texas Court of Appeals. [Austin

Opinion of the oonrt.

No. 6217.

LuM Wood v. The State.

iNFORMATlOir is iDsufficient to charge an ofTenee unless it conclades with
the words: '^Against the peace and dignity of the State. ^' The com
plaint, however, being a good one and safficient to sostain an informa-
tion, the cause is not dismissed, but is remanded in order that a valid
information may be filed upon the complaint

Appeal from the County Court of Callahan. Tried below
before the Hon. J. Mcllhaney, County Judge.

The conviction was for carrying a pistol, and the penalty
assessed by the verdict was a fine of twenty-five dollars and
twenty days in the county jail. The opinion discloses the case.

No brief for the appellant.

W. L. Davidson, Assistant Attorney Gteneral, for the State.

WiLLsON, Judge. The information upon which the convic-
tion in this case is based is fatally defective, because it does
not conclude * 'against the peace and dignity of the State."
(CodeCrim. Proc, art. 430; Thompson v. The State, 16 Texas Ct.
App., 39.) Wherefore the conviction must be and is, set aside;
but, the complaint being in all respects a sufficient one, a valid
information may be presented upon it, and the prosecution will
not therefore be dismissed, but the cause is remanded that an-
other information may be presented should the county attorney
see proper to so do.

Reversed and remanded.

Opinion delivered May 8, 1889,

Digitized by VjOOQIC

Term, 1889. J Zwicker v. The State. 639

Statement of the case.

No. 6270.

August Zwicker v. The State.

L Mttrdbr — Verdict. — The statute expressly requires that in oonviotions
for murder the verdict shall specify the degree of murder of which the
defendant is found guilty. The failure of the verdict to so specify the
degree is cause for reversal.

8. Reasonable Doubt— Charge op the Court.— The trial court in-
structed the jury as follows: **The defendant is presumed by thef law
to be innocent until his guilt is establistied by competent evidence to
the satisfaction of the jury, beyond a reasonable doubt; and* if you
have on your minds arising from the evidence a reasonable doubt as to
the guilt of the defendant, you will find him not guilty.' Held, suflficient
on the doctrine of reasonable doubt, and not obnoxious to the objec-
tion that it **requires either the State or the defendant to introduce
affirmative evidence of the defendant's innocence;" nor to the further
objection that it contravenes the rule that a reasonable doubt may as
well arise from a want of evidence as from evidence intri duoed before
a jury.

8. Drunkenness— Confessions— Evidence.— The d^fenpe requested the
court to charge the jury in eflfect that if they behoved the defendant
was so drunk that he did not realize what be was saying, when he
made his confession, such confession should not be considered as evi-
dence against him. Held, that the requested instruction was properly
refused because it not only rested upon no evidence of druukeDiiess,
but that pretense was refuted by the proof.

Appeal from the District Court of Denton. Tried below be-
fore the Hon. D. E. Barrett.

The indictment charged the appellant with the murder of J.
8. Ferguson, in Denton county, Texas, on the first day of Jan-
uary, 1888. The jury found the defendant "guilty as charged
in the indictment," and assessed the penalty at a life term in
the penitentiary.

8. Ferguson, the father of the deceased, was the first witness
introduced by the State. He testified that the deceased was
killed at his house, in Denton county, Texas. He was shot
about half past seven o'clock on the night of January 1, 1888,
and died early on the next morning. The deceased's house
fronted east, the parlor being the east room. The bay window
occupied the center of the east end of the parlor. A public

'27 539
aO S25
80 A21

Digitized by VjOOQIC

^40 27 Texas Court of Appeals, [Austin

statement of the ca^e.

road running north and south passed the front of the house at
a short distance. The fatal shot was fired through the bay
window, the half of one of the blinds of which was open.
When he received his death wound the deceased was lying on
a sofa or lounge in his said parlor. Powder stained the window
sash, and the shot broke out about two-thirds of the window
glass. The glass was broken out about four feet from the
ground. The shot took effect in the left side of the head, one
shot striking the arm. Witness picked up four or five common
sized buckshot in the parlor. The couch, the wall at a point
beyond where deceased's head lay, and an organ stool, showed
shot marks. The front fence at deceased's house was about six
rods distant from the front dogr. A plank walk led from the
front gate to the front door. The road east of the house was
sandy and tolerably dry. The yard east and south of the house
was overgrown with Bermuda grass.

On his cross examination the witness said that he was at his
home, about a mile and a half distant from deceased's house,
when the shot was fired. He reached the deceased about an
hour after the shooting. Deceased was then alive, but died
about two o'clock on the next morning. The witness knew Rufe
Street and Bill Maury. He did not see the said Street on the
morning after the murder. He saw Bill Maury at deceased's
house early next morning. The said Maury then told the wit-
ness that he thought he had a clue to the assassin, and showed
the witness what he said was the measure of a man's track.
Witness told Maury if he had a clue to follow it up. He did
not hire Maury to trace the murderer, but told him that if he
did find him, he, witness, would pay him for his trouble. This
conversation between witness and Maury occurred at deceased's
house a little after sunrise on the morning after tlie assassina-
tion. The witness employed E. C. Smith to assist in the prose-
cution of this case, but had nothing to do with the employment
of Owsley & Walker as special prosecuting counsel. A large
number of the residents of the neighborhood congregated at
the house of the deceased after the shooting, on the fatal night

W. B. Lee testified, for the State, on January 1, 18&8, he hved
near Elizabethtown in Denton county, Texas. Defendant then
lived with xVndy Peterson, west of Elizabethtown, and about a
mile and a half distant from witness's house. Andy Peterson
and the defendant's brother, Otto Zwicker, driving a bunch of
yearlings, passed the witness's house on the evening of Sun-

Digitized by VjOOQIC

Term, 1889.] Zw/cker v. The State. 541

Statement of the case.

day, January 1, 1888. Another man, whom witness would not
attempt to identify, passed his house that evening, about two
o'clock. He was walking, and traveled from west to east on
the Roanoke road. That person could have either gone to
Roanoke on that road, or have turned off on another road and
gone across Denton creek. Witness took no particular notice
of that man, who was about a quarter of a mile distant from
him. He did not know where Homer Smoot lived at that time.
Witness never told Bill Green or Ike Davis, soon after the ar-
rest of defendant, that the State would have no trouble in trac-
ing the defendant as far as his, witness's, house, as he, witness,
could testify to seeing him pass his house on the evening of the
fatal day, going in the direction of deceased's house.

Ed Smoot testified, for the State, that, on January 1, 1888, he
lived about five or six miles east of Elizabethtown. On the
evening of that day, about two hours before sundown, the wit-
ness, his brother being with him, saw a man on foot in his
pasture. He was traveling the road that led through the pasture,
entering said pasture at the gate on the southwest corner, and
going out at the northeast corner. At the outside of the pas-
ture at the said northeast corner, the road forked, one of the
forks leading to Denton, and the other off east towards Rufe
Street's house. The man seen by witness traveling through the
pasture on the said evening had a bundle on his back, about
three feet long, done up in a **slicker." Under the impression
that the man was a tramp, witness hallooed to him, but he made
no reply. Witness did not see the man's face, and did not
recognize him as anybody he knew. He, however, observed
somewhat carefully the man's appearance as to form and build,
^nd, a few days after the arrest of the defendant, pointed him
out of a number of prisoners in jail as the one man in jail who
resembled the man he saw in his pasture on the said Sunday
evening. Witness was not then acquainted with defendant.
Deceased lived about ten miles east from witness's pasture.
Will Smoot, the brother of Ed Smoot, testified to substantially
the same facts,, and declared that there was no appreciable dif-
ference in the general appearance of the defendant and of the
man they saw in the pasture on the said Sunday evening. Will
and Ed Smoot were sons of Homer Smoot.

Lem Card testified, for the State, that on January 1, 1888, he
Ijved about three miles east of the place of Homer Smoot.
About an hour before sunset on that evening a man on foot

Digitized by VjOOQIC

542 27 Texas Court of Appeals. [Austin

Statement of the case.

passed the witness's place at a distance of between three and
four hundred yards going east. He had a long bundle on his
shoulder or back. That man, whom the witness could not re-
cognize at the distance, walked rapidly, and traveled towards
the houses of Rufus Street and A. J. Stykes. Deceased lived
southeast of the witness.

On cross examination the witness said that his house was
two or three miles distant from Rufe Street's house. Smoot's
pasture was west from witness's house. The road to Roanoke
via the witness's house did not pass Smoot's pasture. The man
seen by the witness on the evening of the fatal Sunday was
not traveling in the road, but was going easterly through the
brush towards Street's house. From the point where witness
was when he saw the man, it was southwest to the northwest
(northeast?) corner of Smoot's pasture. On his re-examination
the witness said the man, when he saw him, was east of Smoot's
pasture, about three-quarter's of a mile distant, and west of
Stykes's house, going towards said house.

A. J. Stykes testified, for the State, that he was at home on
the evening of the fatal Sunday. He did not see any person
pass by or through his premises on that evening, but before
night he discovered an uncommonly large foot track in the
orchard south of his house. The said tracks, only two of which
the witness noticed, pointed towards the house of Rufe Street
which was about one mile southeast from witness's place.
Witness's wife was at home on that evening.

Mrs. A. J. Stykes testified, for the State, that late on the
evening of the fatal Sunday she saw a man climb the fence
from the orchard into the field south of her house, and go oflE
through the field towards Rufe Street's house. That man had
a bundle on his back which in shape resembled a fiddle. The
sun was then about a quarter of an hour high.

Rufus Street testified, for the State, that now and on the first
day of January, 1888, he lived in Denton county, Texas, about
thirteen miles south of the town of Denton. Deceased lived
four or five miles southeast from witness's house. The witness
knew the defendant and saw him on the fatal Sunday evening.
On that evening a man came to witness's house inquiring the
way to the house of Pat Street, the brother of the witness.
Witness went with that man to Pat Street's house, to show him
the way; left that man at Pat's house and returned to his home.
En route home, and at a point in the road near liis house, the

Digitized by VjOOQIC

Term, 1889.] Zwicker v. The State. 543

StatemeDt of the ca^-e.

witness met the defendant, who was on foot traveling the
Roanoke and Lewisville road. Witness stopped the defendant
with the remark: **Hallo! You are the man who had the law
suit with Ferguson." Defendant replied that he was the man.
Witness then asked him where he was going, and he replied
that he was going across Denton creek to work for a man.
Witness then asked him if he was still living at Peterson's.
He replied that he was not. Witness then remarked to him:
**Tou will be late getting to where you are going." Defendant
replied: '*YeSj but I want to get an early start at work to-
morrow morning." He then asked witness the way to Maury's
house. Witness directed him and he left, when witness climbed
the fence and went home.

The point where witness met the defendant was at the south-
e^t corner of witness's place, in the road which, at that point,
ran north and south, and the hour was a few minutes — less
than fifteen — before sunset. While conversing, the witness
and defendant stood on opposite sides of the road, about three
feet apart. Defendant then had on his shoulder a long pack-
age that was broader at one end than the other. The package
was tied with a rope and swung from a stick which defendant
carried over his shoulder. Witness had previously met the de-
fendant at a late term of the county court in which a suit was
pending between the Zwickers and the Fergusons. Witness
was in attendance upon that term of the court as a regular
juryman. On Monday, January /J, 1888, being the day after
witness ftiet the defendant in the road, and the day following the
assassination of deceased, witness went to Denton to attend the
public estray sale, and heard of the assassination of deceased
on the previous night. That information was imparted to him
by Bill Maury in Kinkaid's wagon yard. Witness then told
Mauiy that he saw the defendant in the road near his, wit-
ness's, house, late the previous evening. On the morning of
the next day, Tuesday, witness went with Bill and Riley Maury
to Peterson's house for the purpose of pointing out the defend-
ant as the man he met in the road on the evening of the fatal
Sunday.

When witness and the Maurys reached Peterson's house they
found Andy Peterson in his orchard; after talking with him
a short while, they went to a shop near the house. Outside of
and near the said shop they found the defendant, who appeared
to be mixing paint in a bucket. He had a shoe on one foot and

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644 27 Texas Court of Appeals. [Austin

statement of the case.

a wooden bottom slipper on the other, and was wearing the
same coat and hat that he had on the previous Sunday even-
ing. Witness identified the defendant at once and told Bill
Maury that he was the man he met on the previous Sundav
evening. They then took the defendant; to the field where his
brother Otto Zwicker was plowing, and witness again pointed
out defendant to Bill Maury as the man he saw on the previ-
ous Sunday evening. The witness examined the defendants
foot on which he wore the wood bottomed slipper, but could
discover no bruise on it. The foot may have been a little swollen,
but if so witness did not observe it. The foot was wrapped with
a rag on which there was a quantity of salve, but if the skin
was broken or bruised the witness failed, after careful search
for bruises or breaks, to discover it. Defendant had very large
feet. From the field the witness and the Maury s took defend-
ant to the house, where they got his other shoe and another hat,
and thence they took him to Roanoke.

On his cross examination the witness said that when he met
the defendant in the road on the evening of the fatal Sunday
he observed the bundle he carried on his back, but only clo^e
enough to observe its shape, and that it was wrapped in what
appeared to be a slicker. The interview between the witness
and the defendant on the said Sunday lasted not more than
two minutes, during which time the witness observed that de-
fendant wore a black flopped hat and patched pants. It was
on a public road that witness met the defendant, — a road
flanked on either side by a fence, but was not what the wit-
ness would call a lane. Defendant was turning the corner of
the fenced road or lane when witness first saw him. The wit-
ness was in the grave yard, digging a child's grave, when Bill
Maury came for him on Tuesday to go to Peterson's. Witness
at first told Maury that he felt unwell and did not want to go
to Peterson's, but did not ask Maury if there was any money
in going to Peterson's with him. Maury replied to the effect
that old man Ferguson had agreed to pay well for working up
the case. Witness did not tell Maury on that Tuesday morn-
ing that *'the Dutchman told him (witness) on Sunday evening
that he had left Peterson's.'' Riley Maury applied a stick meas-
ure to the man's track that was found near the witness's tank.
The ground was wet at that point, and it looked like the man's
foot had slipped. The stick measure did not appear to fit the
track. Witness then asked the Maury s to go to the road near

Digitized by VjOOQIC

Term, 1889.] Zwickbe v. The Statb. 645

Statement of the case.

his house where he met the defendant on the previous Sunday,
and there measure the defendant's tracks, but thej^ did not f^o.

En route to Peterson's, the witness and the Maurys went by
Roanoke, crossing Denton creek near Walnut Grove school
house. At a point just beyond Denton creek they found a man's
track of very large size. That track was in the public road
and showed that it was made by a man traveling toward Roan-
oke. Bill Maury got off his horse and measured that track.
Witness and the Maurys ate dinner at Roanoke, bought a pint
of whisky, and went thence to Peterson's house. They had
no other whisky on that day. From Peterson's house they
took defendant to Roanoke, and thence by rail to Denton. Wit-
ness saw John Bacon on the train between Roanoke and Den-
ton, and told Bacon that the Maury boys had the defendant in
an adjoining car, under arrest for killing deceased. At the
same time he told Bacon that the Maurys wanted him. Bacon,
to go into that car, talk to defendant, and see if he could not
get him to confess. Bacon replied that it was not worth while,
as the train would soon reach Denton. Witness was not drunk
while on the train between Roanoke and Denton. Witness de-
nied that be ever told Jonas Forrester that he had spent two
hundred dollars on this case, and did not know how much it
would eventually cost him. On Tuesday, witness asked Dick
Maury if he did not, on the previous Sunday, meet a man with
a budget on his back, and Dick replied that he did. Peterson's
house was between fifteen and sixteen miles distant from de-
ceased's house. Witness did not attend the funeral of deceased
nor did he visit the deceased's house after the killing. • Witness
told Constable Sullivan, on Monday morning, about seeing de-
fendant on the road on Sunday evening. Witness had not
uttered an oath in five or six years.

The point on the road where witness met the defendant on the
evening of the fatal Sunday, was between the Adams and Taylor
places, and within a quarter of a mile of witness's house. He was
coming from the direction of witness's house towards witness,
who was returning to his home from the house of his brother
Pat. He was turning the corner of witness's fence when wit-
ness first saw him. The witness spent Sunday night at the
residence of the widow Heath, and got home between nine and
ten o'clock on Sunday morning. He was at his home on the
fatal Sunday night. Hannibal Street, witness's brother, who
lived with the witness, was also at home that night. When

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546 27 Texas Court of Appeals. [Austin

Statement of the case.

witness left home next morning to go to the estray sale in Den-
ton, he left his brother Hannibal at home. It was late in the
evening when he left Denton, and between eight and nine o'clock
at night when he reached home. While talking to Bill Maur?
in Kincaid's wagon yard in Denton on the said Monday morn-
ing, the witness asked him if "that Dutchman" did not come
to his house on the previous evening. Pat Street had a double
barrelled shot gun at his house on January 1, 1888, but witness
had no gun of any kind at that time, either at his house or else-
where. Witness and deceased had a difficulty in Denton some
time prior to the assassination, but at the time of the killing
witness had no particular hard feelings towards deceased. Wit-
ness and Bill Fry had a talk with him on the day that the diffi-
culty occurred between witness and deceased, and witness then
told Fry that deceased was trying to raise a fuss with him.
Deceased followed the witness abo\ittown on that day, but wit-
ness did not follow him. The witness denied that, on that day,
he applied to R. C. Scripture for the loan of a pistol. He had a
talk with said Scripture and asked him if he, Scripture, had
heard of what deceased had said about witness. The witness
knew Dr. Bush and had heard of Mr. Seagroves. Witness and
the Maurys, when en route to Roanoke with the defendant on
Tui 8 lay after the killing, met Dr. Bush and another man near
a house between Petert^on's house and Roanoke. Dr. Bush asked
witness what the party was doing with defendant. Witness
replied that he, defendant, was under arrest by the Maurys for
the murder of deceased. The witness and the man with Dr
Bush had a conversation in the presence of Bush and the two
Maurys. In that conversation witness asked that man if he
saw the defendant on the previous Sunday evening, but did not
say to that man: **Ferguson was a d — d rascal, and if defend-
ant hadn't killed him I would have killed him." He made no
such statement to Dr. Bush. En route home from Pat Streefs
on the fatal Sunday evening, witness passed Wakefield's place
and saw John Wakefield.

John Wakefield testified, for the State, that he lived about
two miles west from the deceased's house. About an hour be-
fore sunset on the evening of the fatal Sunday, the witness
Rufe Street passed the witness's house, going towards his home.
Between thirty and sixty minutes later a man, whom witness
did not recognize, traveling on foot, passed witness's house
going towards Yokeley's store, over the road which passed by

Digitized by VjOOQIC

Term, 1889.] Z wicker v. The State. 547

Statement of the case.

the house of the deceased. That man had a bundle on his back
which looked like, and which witness took to be a gun case.

Dick Maury was the next witness for the State. As shown
by a diagram in evidence this witness lived at or near the
crossing of two roads. The road leading east from his house
passed by the house of Mr. Bond, a quarter of a mile distant.
The witness stated in substance that, about dusk on the fatal
Sunday, he and his two sisters left home in a buggy to visit at
Mr. Bond's house. En route they met a man on foot traveling
north towards the point of intersection of the two said roads.
That man had a budget of some kind on his back.

William Sparks, sheriff of Denton county, testified, in sub-
stance, that on the night of Tuesday, Januarys, 1888, about
twelve o'clock, jailer Boyd came to witness's boarding house,
waked witness and told him that the man who killed deceased
was in jail, and, in effect, that the said man had confessed to
the murder of deceased. Witness- went with Boyd to the jail,
where he found Boyd's brother and young Mr. Ritter. He had
no recollection of seeing either of the Maurys, or Fry or Rufe
Street at the jail, though jailer Boyd told him that the latter
was put under arrest and confined. On arriving at the jail
Boyd, or somebody else, threw off the brakes and defendant
came into the corridor from the cells. Witness said either
**you are" or **are you the man who killed Ferguson?" De-
fendant replied: '*I am." Witness said to him: **I want to in-
form you that if you make any statement in regard to the kill-
ing of Ferguson, it may be used in evidence against you, and
if you make any statement to me about it I want you to state
the facts just as they exist." Defendant then said that on
**trial" day Rufe Street told him that he. Street, would give him,
defendant, fifty dollars to kill Ferguson; that he, defendant,
left home on the fatal Sunday and went by Rufe Street's house;
not finding Street at home, he went on and met Street a short
distance beyond the house, when Street directed him how to go
on to Ferguson's house; that he, defendant, then went on to
Ferguson's house, and fired through a window and shot Fer-
guson. He said that he fired bu* one shot, and that from a
shot gun, and that he then left, going through the yard into
the big road.

Cro^s examined the witness said that he understood from
the defendant's statement that Street paid him fifty dollars.
The place where the conversation between witness and def end-

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648 27 Texas Couet op Appeals. [Austin

Statement of the case.

ant took place was in the southeast corner of the corridor of
the jail, about eight feet from the cells. The conversation was
carried on in an ordinary tone of voice, the witness and de-
fendant being separated by the iron grating. Witness visited
deceased's house before the confession of the defendant, and
saw the lounge on which deceased was said to have been lying
when shot. There were shot marks on the said lounge. Wit-
ness understood that one of the window blinds was open at the
time the shot was fired. Defendant appeared to witness to be
perfectly sober when he made his confession. The witness had
not been drinking, and he detected no odor of liquor on the
breath or person of defendant. Defendant spoke in broken
English, but was readily understood by witness, and witness
presumed from his manner that he, defendant, understood wit-
ness's warning:, that whatever statement. he should make about
the killing of deceased, would be used in evidence against him.
Defendant was apparently a man of average intelligence.
Witness 'knew nothing about what transpired between Rufe
Street, the Maury boys and defendant during the time that the
latter was in the custody of the former. If the Maurys or
Street threatened, or made promises to the defendant in con-
nection with the murder of Ferguson, witness did not know it
W. S. Fry testified, for the State, that he was town marshal
of Denton in January, 1888. Between eleven and twelve
o'clock on the night that defendant was put in jail Rufe Street
came to witness's gate, called witness and told him that the
man who killed Ferguson was up town. Street, who appeared
to be very much excited, did not then say that the man was in
custody. Witness told Street to go back to town and that he
would follow in a few minutes. A few minutes later witness
went up town and found Street and the two Maurys with the
defendant at Paschal's saloon. The Maurys and defendant
came out of the saloon as the witness got to the door. Street
remained in the saloon. One of the Maurys had a handcuff
on the defendant. Witness opened a conversation with defend-
ant, during which Maury said nothing that witness could remem-
ber. Street soon came out of t^e saloon, and he, the Maurys and
witness went to the jail with defendant. Witness remembered
no conversation that occurred at the jail. When he met the
Maurys and defendant at the saloon, witness asked one of the
Maurys: '*Is this (referring to defendant) the man?" Maury
replied: **Yes; he says he killed Ferguson." Witness put de-

Digitized by VjOOQIC

Term, 1889.] Zwicker v. Thb State. 649

Statement of the ease.

fendant in jail at once, but did not remember that he did or not
tell Boyd at the jail that defendant confessed to the killing of
deceased.

J. G. Boyd testified that he was jailer of Denton county in
January, 1888, when the defendant was put in jail for the mur-
der of Ferguson. Bill Fry, Bill Maury, Rufe Street, and, the
witness thought, Riley Maury, brought defendant to the jail a
few nights after the assassination of Ferguson. Fry said to
witness, referring to defendant, who was handcuffed: **This
is the man who killed Ferguson." Riley Maury then, or a few
minutes later, told witness that defendant had confessed to
killing Ferguson. "Witness was unable to say whether or not
all of the parties with defendant then went into the jail, but
it was his impression that they did. After putting defendant
in a cell, the witness went to Sheriff Sparks's boarding house
and notified him that the man who killed Ferguson was in jail.
The first words spoken by Sparks to defendant were: "Are
you the man who killed Ferguson?" Defendant replied: "Yes,
sir," Sparks then said: "If you have anything to say about
the killing I would like to hear it, but I must warn you that
whatever statement you make about it can be used in evidence
against you." Witness did not hear what, if any, direct reply
defendant made to that warning, but he told Sparks that he
entered Ferguson's yard at the north side, and went out at the
east side; that he fired through a window with a shotgun and
killed Ferguson; that a light was burning in the parlor at the
time; that he fired but one shot and immediately climbed the
east yard fence and got into the big road; that in going to Fer-
guson's house he went by Rufe Street's house, but did not find
said Street at home; that he went on and met Rufe Street in
the road near Rufe's house, when Rufe Street paid him fifty
dollars to kill Ferguson. When placed in jail the defendant
had on a pair of shoes of unusual size, being eleven or twelve
in size, and quite two sizes larger than the shoes worn on this
trial by defendant. Defendant took off his coat when he en-
tered his cell, and witness hung it up on the south wall out-
side of the cages in the corridor. No person handled that coat
that night so far as witness knew. No person other than Sheriff
Sparks entered the jail that night after witness and the Maurys
and Fry left. On the next morning witness and Mr. Mars
searched the defendant's coat and in the pocket found a paVt
of the hull of a recently exploded cartridge.

Digitized by VjOOQIC

550 27 Texas Court of Appeals. [Austin

Statement of the ease.

On cross examination, the witness said that while he was
searching the person of the defendant in the jail, Fry took
Eufe Street's pistol and notified Street that he would also be put
in jail. If Street was in the far end of the cell at the time that
defendant made the statement to Sparks, he would have been
about twenty-five feet distant from Sparks and defendant.
Sparks and defendant talked in a somewhat suppressed tone
of voice. They might have been heard, but most probably not
understood, by a person in the far end of the cell. The witness
declared that, in his opinion, it was impossible that the piece
of cartridge hull was placed in the defendant's pocket after the
coat was hung up in the corridor of the jail. It might have
been placed in that pocket by some third person before the de-
fendant was put in jail. The witness considered the defend-
ant to be thoroughly sober when placed in jail, but he thought
Bill Maury was drinking a little. Defendant was a man of
more than average intelligence. He spoke broken but intelli-
gible English.

John Bacon testified, for the State, that he was in the sleep-
ing car of the train on which the Maury boys and Rufe Street
took the defendant from Roanoke to Denton, on the night of
January 3, 1888. When the train reached a water tank about
twQ and a half miles from Roanoke, and while it was waiting
there for the removal from the track, at a point ahead, of a
recent wreck, Rufe Street came into the sleeper and told wit-
ness of the assassination of John Ferguson on New Year's
night. He also told the witness, the conductor of the sleeping
car, and two other gentlemen, that the Dutchman who com-
mitted the murder was on the train under arrest. Witness
asked him how he knew the man he had was the man who
killed Ferguson. He replied that the man was seen going in
the direction of Ferguson's house on the fatal evening, with a
gun wrapped in a slicker or bundle. Witness asked him who
saw the man going toward's Ferguson's house. He replied
that a man named Maury and one named Heath saw him. He
then detailed what he termed evidence pointing to the guilt
of the man he had in charge, and said that he wanted to bring
that man into the smoking apartment of the sleeper to be in-
terviewed by the witness and the other gentlemen. In that
connection he requested that, when he should bring the man
into the said smoking apartment, the witness and the gentle-
men with him should tell the man that they were detectives,

Digitized by VjOOQIC

Term, 1889.] Zwicker /;. The State. 551

Statement of the case.

and knew all about the killing of Ferguson, and advise him to
confess and make a detailed statement about the assassination.
The witness declined to have anything to do with the pro-
posed scheme. The train remained some time at the tank,
and Street left the sh eper, after remaining in it at least thirty
minutes before the traia left the tank. Street, who the witness
thought was pretty drunk, said that the Dutchman had con-
fessed to the killing of Ferguson.

Dan Griffith testified that he was at the depot in Roanoke
when the defendant left on the train for Denton, in the custody
of Rufe Street and the two Maurys. During the hour and a
half preceding the departure of the train for Denton the wit-
ness saw the defendant take two moderate drinks from a bot-
tle furnished by Newt Graham. He could not say that defen-
ant was not sober. Neither he nor Will Maury walked like
drunk men. Some men could walk strai^^ht when drunk.

J. W. Nichols testified, in substance, that he was at the depot
in Roanoke on the night that defendant was taken to Denton by
Street and the Maury boys. Bill Maury, whom witness had never
seen before, saw witness talking to defendant before the arrival
of the train. Induced perhaps by the apparently confidential
relations existing between witness and defendant, Bill Maury
requested witness to take defendant into a corner of the depot
and advise him to confess as a means of securing lighter pun-
ishment; to tell him that his punishment would be less severe
if he would inculpate his accomplice or accomplices, if he had
any, and, if necessary, to frighten him into a confession by
telling him that by confessing he would avoid the danger of
being mobbed on reaching Denton. Witness took defendant
into a corner of the room and had a suppressed private conver-
sation with him, in the course of which he advised defendant
as requested by Bill Maury.

W. T. Maury testified, for the State, that, two or three days
after the killing of Ferguson, he and his brother Riley Maury
and Rufe Street went to the house of Andy Peterson, about a
mile and a half northwest from Elizabethtown, and arrested
the defendant. From Peterson's they took defendant to Roan-
oke, reaching Roanoke about dusk. Leaving the defendant in
a grocery store in the custody of Rufe Street and Riley Maury,
the witness went out to hunt for Med. Snead, the constable.
When he and Snead reached the grocery store they found it
closed, and ascertained that Riley Maury and Rufe Street had

Digitized by VjOOQIC

552 27 Texas Court of Appeals. [Austin

Statement of the case.

taken defendant to the depot. They then went to the depot,
where they found Riley and Street with the defendant. The
witness then proposed to deliver the defendant to Constable
Snead, but Street objected. Witness then left defendant in
charge of Riley Maury, Rufe Street and Snead at the depot,
and went off to put up the horses ridden by him and his party
to Peterson's house. He then returned to the depot and re-
mained there, with the others, until thirty minutes after nine
o'clock, when the train arrived. He and his party, with de-
fendant, boarded the train and went to Denton that night.
While at the depot the witness saw the witness John Nichols.
The conversation between witness and Nichols, detailed by
Nichols in his testimony, was a purely imaginary one on the
part of Mr. Nichols. Witness did not request Nichols to talk
to defendant about the killing of Ferguson or about any other
subject. He did not ask Nichols to advise defendant to confess
to the killing of deceased, nor to frighten him by suggesting
mob violence on reaching Denton.

On his cross examination the witness said that, while on the
train, he remarked to the defendant that it might be better for
liim to make a statement, but he did not take the defendant
into a water closet on the train, close the water closet door, and
tell him that if he, defendant, would make a confession he, wit-
ness, would let him go back to Roanoke. Witness took the de-
fendant to the water closet once between Roanoke and Denton,
but did not himself go into the water closet, but stood at the
door outside. Witness did not ask Rufe Street, while en route
from Roanoke to Denton, to go through the train and try to find
somebody to personate a detective and extort a confession from
defendant. None of the parties, so far as the witness knew,
wei>e drunk on the day defendant was arrested. Witness and
his party got at Roanoke the only whisky they had until they
reached Denton that night. Witness drank no whisky be-
tween Roanoke and Peterson's house, and he did not see either
Street or Riley take a drink. They took their first drink near
old Elizabethtown on their return from Peterson's, and the
second before they reached Roanoke. The defendant took a
moderate drink on each of these occasions. The witness was
ut deceased's house on the Tuesday morning after the killing,
and met old man Ferguson, who told him that he would pay
him, witness, well to work up this case. From deceased's house
witi ess went to the grave yard near Shiloh church, where Rufe

Digitized by VjOOQIC

Term, 1889.] Z wicker v. The State. 553

Statement of the case.

Street was at work, and asked Street if he would go with him
to investigate as to defendant's connection with the killing.
Rufe asked in reply if there was "any money in it," but wit-
ness did not tell him of old man Ferguson's proposition to pay
well for the work.

On re-examination this witness said that when he got to de -
ceased's house he asked old man Ferguson if he had yet dis-
<50vered any clues to the assassin. Mr. Ferguson replied that
he had not, when witness told him that he had understood that
Rufe Street met one of the Zwickers on the fatal evening, and
that his, witness's, brother and two sisters on the same evening
saw a tramp with a budget on his back, traveling towards the
road that led from Bond's house to deceased's house, and that
John Wakefield was said to have seen a similar tramp on the
public road on the fatal evening. Witness also showed Mr. Fer-
guson a stick measure of some tracks he had seen in the road,
and then insisted that Mr. Ferguson should send to Lewisville for
Constable Gus Hall to trail the tramp. Mr. Ferguson replied
that he was satisfied Hall was then in Denton, and asked wit-
ness to do the best he could in following up the supposed clues.
Witness then said if he could he would get Rufe Street to go
with him to identify the man he met on Sunday evening, and
would then put Constable Snead of Roanoke on the case. Mr.
Ferguson replied: **Do so, and I will pay you well for it." De
fendant talked intelligible English, and the witness understood
him without diflBculty.

The testimony of the preceding witnesses Sparks, Fry, Boyd,
Bacon, Griffith, Nichols and W. T. Maury, was delivered to the
-court in the retirement of the jury, as the predicate (contested
by the defense) upon which the confession of the defendant
was to be admitted or rejected — the defendant objecting to the
confession that it was improperly induced while the defendant
was drunk. The court held the predicate sufficient and, upon
the return of the jury to the box, the witnesses Sparks and
Boyd testified before them substantially as they did before the
<50urt.

Mrs. Ella Ferguson testified, for the State, that she was the
widow of the deceased. Deceased died about two o'clock on
the morning of January 2, 1888, from the effect of a gun shot
wound he received about half-past seven o'clock on the night
before. The witness was present when deceased received his
death wound. He was lying on a couch in the northwest

Digitized by VjOOQIC

554 27 Texas Court of Appeals. [Austin

Statement of the case.

comer of the parlor of his house, his face looking east. The
witness and her two daughters, Mr. Sarver, who had since
married one of witness's said daughters, and old Mr. Zwicker,
an uncle of the defendant, were in the parloi* when the fatal
shot was fired. That shot was fired through the bay window
in the east end of the parlor, the half of one of the blinds to
that window being open. The report of the gun confused the
witness at first. When she recovered she saw the other parties
kneeling over deceased, and the blood flowing freely from de-
ceased's face. A doctor was sent for immediately. An organ
stool stood in the room between the bay window and the couch
on which deceased was lying. A buck shot struck that stooL
One buck shot struck the hand of the deceased, and another
entered his head at the ear. The last mentioned shot caused
Mr. Ferguson's death about two o'clock on the next morning.
Witness's oldest daughter, now Mrs. Sarver, was sitting near
the deceased when the fatal shot was fired. Witness was
sitting in the center of the room. Her youngest daughter was
sitting near the organ. Mr. Sarver was sitting near the couch,
and Mr. Zwicker, the uncle of defendant, was sitting near the
bay window. Old man Zwicker had lived at the witness's house
for several years. Otto Zwicker, defendant's brother, had
once lived with deceased, but witness had never seen the de-
fendant until she saw him in custody for killing the deceased.

Mrs. Ella Sarver, the daughter of the deceased and the pre-
ceding witness, testified, for the State, substantially as did her
mother, adding that, besides the bullet holes mentioned by her
mother, she saw others in the end of the couch and in the wall
behind it. The shot broke the window and scattered glass over
the room and set the window curtain on fire. Old Mr. Zwicker
extinguished the burning curtains. The shooting occurred
about half past seven o'clock on Sunday evening, January 1,
1888, when the family, as was its custom on Sundays, had as-
sembled in the parlor. Witness's mother, at the time of the
shooting, was reading aloud, and the others present were lis-
tening.

W. T. Maury, recalled by the State, testified that he heard of
the killing on the day after it occurred. On the next morning,
Tuesday, he went to Bond's house to learn from Bond, if he
could, the exact hour when his, witness's, brother and sisters
reached Bond's house on the preceding Sunday evening, and to
ask Bond if a tramp applied at his house for food or lodging on

Digitized by VjQOQlC

Term, 1889.] Zwicker v. The State. 555

Statement of the caae.

that night. He found and measured a large foot track on the
road leading north from Bond's house to the road running east
bv deceased's house. Witness went from Bond's house to the
house of deceased, and thence to Rufe Street's house. He
found a large track near Street's house, to which he applied the
measure taken of the track near Bond's house, and found them
to correspond exactly. He later, when en route to Peterson's
house, found the same track on the road to Roanoke, at a
point about three and a half miles distant from Rufe Street's
house. Witness and his brother and Street arrested defendant
at Peterson's house, near Elizabethtown. They first found
him at the shop with a bucket of paint, wearing a shoe and a
slipper. They took him to the field where his brother Otto
was, and Street the second time identified the defendant as the
man he met and talked with on the previous Sunday evening.
Witness then had defendant remove the slipper, and closely
examined that foot, but found no bruise on it. It did not show
to be hurt at all. He then applied to the foot of Otto Zwicker
the measure he had taken of the tracks before mentioned, and
found it not to correspond. He then applied it to the feet of
defendant, and found it to correspond perfectly. On getting
back to Peterson's house the defendant went into said house
and got his other shoe and changed hats. At Roanoke defend-
ant removed his slipper and put on his shoe. When witness
last saw defendant's coat and shoes they were in the jail at
Denton. The shoes were of extraordinary size, being twelve
or thirteen inches long. The track nearest Ferguson's house,
measured by witness, was about a mile and a half distant.

On his cross examination, the witness denied the testimony
of Rufe Street to the effect that he. Street, on Monday, in Kin-
caid's wagon yard in Denton, told him, witness, that he. Street,
saw the defendant on Sunday evening near his. Street's, house.
The first whisky drunk by witness, his brother Riley or Rufe
Street on Tuesday was on their return from Peterson's to Roan-
oke. Witness and defendant took two small drinks between
Peterson's and Roanoke. Defendant took another small
drink in Roanoke, but if he took any more before being
placed in jail, witness did not know it. He did not know how
many drinks in all were taken by Street and Riley Maury.
Witness denied that while at the depot at Roanoake he got de-
fendant's shoe, took it out, and came back with a stick meas-
ure and remarked that the measure of the tracks he had taken

Digitized by VjOOQIC

W6 27 Texas Court of Appeals. [Austin

Statement of the case.

corresponded with the shoe. He denied that, at the same time,
he said that he had counted the nails in the shoe and found
them to correspond with nail impressions in the tracks he had
measured. Neither the witness nor defendant drank any
whisky or other liquor after reaching Denton. Witness and
deceased had a * 'little fuss" once in Louisville, but were on
friendly terms when deceased was killed. Witness knew 0.
J. Massey, who lived south of deceased's place. Massey never
oflFered witness his farm to kill Ferguson.

J. R. Maury, for the State, testified substantially as did his
brother as to what transpired from the time they started to
Peterson's house to arrest defendant, until defendant was
placed in the Denton jail on the same night. He testified also
that he made a separate measurement of the large shoe tracks
in the road near Bond's house, near Street's house, and at a point
about a mile and a half from deceased's house, being all of the
tracks testified about by W, T. Maury except the one on the
Roanoke road, which witness did not measure. The tracks
measured by witness corresponded and looked to have been
made by the same boot or shoe. Witness remembered seeing
John Nichols at the depot in Roanoke. He said nothing to
Nichols that night about having counted the tack impressions
in the tracks measured by him in the morning. He did not
leave the depot building with one of defendant's shoes and re-
turn with it and a stick measure, and tell Nichols or any body
olse that the shoe corresponded with the measure of the tracks
and that the tacks in the heel and toe corresponded in number
with the tack impressions in the tracks. Nichols did not, in the
presence of witness, remove some mud from the heel of de-
fendant's shoe, count the tacks, and say to witness: *Tour
tale won't do. Here are sevea more tacks in the heel than you
say were in the track." Witness knew O. J. Massey, who for
a time was in partnership with deceased in the patent right
business. Witness worked for them awhile in 1887, and dur-
ing that year traveled in a buggy with Massey through Bowie
county, Texas. While in Bowie county, Massey told witness
that he would give witness all he owned to put deceased out
of existence. Notwithstanding the proposition, witness con-
tinued to work for Massey until thej'^ got back to Denton, when
he told deceased of Massey's proposition, quit work, and made
aflBdavit of Massey's proposition before lawyer Copley.

T. E. Ball testified, for the State, that to his knowledge, de-

Digitized by VjOOQIC

Term, 1889. J Zwicker v. The Stat^J. 557

Statement of the case.

fendant, on September 27, 1887, owned a number ten breach
loading double barreled shot gun. T. A. Lee testified that on
December 23, 1887, he delivered to the defendant a quantity of
number ten cartridge caps which he, defendant, had previously
ordered of him — witness being a merchant in Elizabethtown,
Denton county.

J. G. Mars testified that, on the morning after the fatal
night, he and one of the deputy sheriffs searched the coat of the
defendant, and in one of the pockets found the part of a num-
ber ten shot gun cartridge hull now exhibited in evidence.
Powder burn showed that it had been recently exploded. The
said hull, when intact, could be loaded with any kind of shot.

Pat Street testified, for the State, that his brother Rufe came
to his house early in the afternoon of the fatal Sunday, to bring
a man whom the witness had hired to work on his place. Wit-
ness's shot gun was at his, witness's, house, all of the fatal
night. The road from witness's house to Rufe Street's house
parsed by the house of John Wakefield.

Deputy County Clerk Zumwalt testified, for the State, that at
the time deceased was assassinated a suit between the Z wickers
and Peterson and the Fergusons was pendiug in the county
court. Defendant was a party to that suit.

J. B. Walker testified, lor the State, that his law firm was
assisting in the prosecution of this case under employment of
Mrs. Ferguson, the widow of deceased. O. J. Massey was in
Denton a few days before this trial, but was now traveling in
the patent right business. The State closed.

John Bacon was the defendant's first witness. He testified
substantially as he did before the court during the retirement
of the jury, adding that he did not see the defendant on the
train; did not attempt to get defendant to confess, and saw
nobody else make such an attempt. In his opinion Rufe Street
was drunk on that night.

Gus Hall, constable of precinct No. 3 of Denton county, tes-
tified, for the defense, that he went to the house of the deceased
on the night of the shooting, and soon after it occurred, re-
mained an hour or two and then went to Roanoke. The moon
rose on that night between eight and nine o'clock. At a point
on the road between deceased's house and Roanoke, and about
three miles from deceased's house, the witness, by the light of
the moon, saw the tracks of a horse or horses which indicated
that they were made by a horse or horses running, or at least

Digitized by VjOOQIC

558 27 Texas Court of Appeals. [Austin

Statement of the case.

traveling fast. From Roanoke witness went to Peterson's
house, his purpose being to find the Zwickers — Otto in particu-
lar— with the view of discovering a clue to the assassin. He
reached Peterson's about eight o'clock on the next morning.
He found Peterson about the place, defendant at or near the
paint shop, and Otto in the field about a mile off. He reported
to them the assassination of Ferguson. Witness observed that
one of the defendant's feet was very purple and apparently
was severely bruised. He said that a wagon wheel fell on it
on the previous Saturday. Witness could not say how defend-
ant's foot looked on the next (Tuesda}'') morning. He did not
get oflf his horse to examine the horse tracks he saw on the
road. He last saw those tracks about a mile from Walnut
Grove school house.

Ruf us Street testified, for the defense, that he met and talked
with defendant, as he testified for the State, on the evening of
the fatal Sunday, but he did not then nor at any other time
pay or promise to pay defendant fifty dollars, or any other sum,
to kill Ferguson.

John Nichols was re-introduced by the defense and reiterated
his testimony to the eflFect that, at the request of Bill Maury,
he took the defendant into the corner of the depot at Roanoke
od Tuesday night, and advised him to confess to the killing of
Ferguson, as a means of securing lighter punishment, and
avoiding attack by a mob, etc. One of the Maury boys took
one of the defendant's shoes out of the depot, and on returning
applied a measure to it. One of them also remarked that the
number of tacks in the shoe corresponded with a specified num-
ber of tack impressions in the tracks he had measured. There-
upon witness removed some mud from the heel of one of de-
fendant's shoes, counted the tacks and found them to outnum-
ber by seven the number of impressions in the tracks as stated
by Maury. Newt Graham was at the depot, drunk, and Rufe
Street was there with a pint bottle of whisky, with which, he
said, he arrested the defendant. Witness gave defendant a
drink of whisky at the said depot on that night, and saw
Graham give him another.

Cross examined, the witness said that he had often testified
as a witness in criminal cases, and had himself been charged
with criminal offenses. He was charged once with fighting,
once with carrying a pistol, and twice with theft. Andy
Peterson came to witness's house a short while before this

Digitized by VjOOQIC

Term, 1889.] Zwicker v. The State. 650

Opinion of the court.

trial, and talked some time with witness, but paid him no
money. Witness testified on the previous trial of this case, but
said nothing about Bill Maury getting him to attempt to extort
a confession from defendant. He was not interrogated about
that matter. The theft cases against witness, mentioned above,
were dismissed and never tried.

Fred Peterson testified, for the defense, that he went to Eliza-
bethtown on the evening of the fatal Sunday, and in going to
that town passed by the place where defendant lived, — at Andy
Petereon^s. It was about three quarters of an hour before sun-
down when witness passed Andy Peterson's house. From a dis-
tance of about one hundred or one hundred and twenty yards,
the witness saw the defendant standing near the paint shop
with his foot resting on something. Within a moment or two
the defendant limped into the shop. The evidence shows that
Andy Peterson's house was several miles beyond both Roanake
and Elizabethtown from deceased's house, and that Eoanoke
is sixteen miles distant from Elizabethtown. The defense closed.

To contradict the last witness, the State introduced Parker
Terrell, who testified that he was at Andy Peterson's houser
about four o'clock on the evening of the fatal Sunday when
Andy Peterson and Otto Zwicker reached that house with a
small bunch of yearlings. No person came out of that house
to open the gate for the yearlings, and witness while there saw
no person other than Andy Peterson and Otto Zwicker.

No brief for the appellant.

W. L, Davidson, Assistant Attorney General, for the State.

Hurt, Judge. Appellant was placed upon trial under an in-
dictment for murder in the usual form. The jury returned
into court this verdict: *'We, the jury, find the defendant
guilty as charged in the indictment, and fix his punishment at
confinement in the penitentiary for the period of his natural
life." This verdict was received by the court, and the jury
discharged.

Our Assistant Attorney General confesses error, because ar-
ticle 607 of the Penal Code provides that when a party is con-
victed of murder the jury shall specify in their verdict the de-
gree of that offense of which they convict the defendant. This
the verdict fails to do. That this is essential to a valid verdict

Digitized by VjOOQIC

660 27 Texas Court of Appeals, [Austin

Opinion of the court

in convictions for murder is too well settled to require citation
of authorities. For this defect in the verdict the judgment
naust be reversed and the cause remanded for another trial.

But the Assistant Attorney General suggests the propriety
of the court passing upon two questions presented by the rec-
ord. First. The court charged the jury that "the defendant
is presumed by the law to be innocent until his guilt is estab-
lished by competent evidence to the satisfaction of the jury
beyond a reasonable doubt, and if you have on your minds,^
arising from the evidence, a reasonable doubt as to the guilt of
the defendant, you will find him not guilty."

Counsel for the defense objected to this charge upon two
grounds: First. Because it requires either the State or the
defendant to introduce affirmative evidence of defendant's in-
nocence. Second. Because a reasonable doubt may arise from
a want of evidence as well as from evidence introduced before
the jury.

We have carefully examined the opinions of this court bear-
ing upon this question, but find no judgments of reversal be-
cause of such a charge. The cases of Smith v. The State, 9
Texas Ct. App., 150; Blocker v. The State, Id., 279, and Wal-
lace V. The State, Id., 299, were reversed because the charge
required the jury to believe the accused innocent.

The case of Massey v. The State, 1 Texas Ct. App., 5G:3, may
be relied upon in support of the objections of appellant. In
that case the court instructed the jury: **If you have a reason-
able doubt as to the defendant's guilt, he is entitled to an ac-
quittal; but it musi be a reasonable doubt arising from and
growing out of the evidence before you, and not an unreason-
able doubt not growing out of the evidence.^' Upon this charge
Presiding Judge Ector remarked: **A reasonable doubt, such
as would entitle the defendant to an acquittal, need not neces-
sarily arise out of the testimony; it may be the result of a
want of testimony sufficient to satisfy the mind." The judge
advises all trial judges, in their charges upon this subject, to
follow the exact language of the statute and not to attempt
any explanation. The judgment in that case was not reversed
because of the charge commented upon. It will be seen that
the charge given in the Massey case and the one under discus-
sion are not alike in form or substance.

Back now to the first objection. This charge does not require
the introduction of exculpitory evidence, nor is it calculated

Digitized by VjOOQIC

Term, 1889.] Zwickeb v. The State. 561

OpinlojQ of the court.

to impress the jury that the guilt of the accused is established
beyond a reasonable doubt because there is no exculpatory
evidence introduced before them. Nor does it, as was done
in the cases referred to in 9 Texas Court of Appeals, place iu
the scales the guilt and innocence of the accused.

Second. It is true that a reasonable doubt may arise from a
want of suflScient criminative facts to establish guilt, and it is
contended that the jury may have construed the charge as re-
quiring them to reach the conclusion that the accused was
guilty beyond a reasonable doubt, because there was no evi-
dence of innocence, when, in fact, the criminative facts were
not suflScient — did not have such probative force. We do not
think the charge calculated to have such eflFect.

A is placed on trial for murder; there is no evidence against
him. The court instructs the jury that the defendant is pre-
sumed by the law to be innocent until his guilt is established
by competent evidence to their satisfaction beyond a reasona-
ble doubt. In this the jury are very clearly told that as defend-
ant is presumed innocent, his guilt must be established — proved
by competent evidence — evidence which establishes his gfuilt —
criminative evidence. To what certainty? To their satisf ac-
tion beyond a reasonable doubt. Taking this charge as a
whole, no one of ordinary sense could infer from it that he
could reach the conclusion that defendant was guilty beyond
a reasonable doubt, because there was no evidence of his inno-
cence. We hold that the judgment should not be reversed be-
cause of the charge upon reasonable doubt, but would here
again implore the trial judges to follow the words of the stat-
ute. (Code Crim. Pro%., art. 727.)

The State introduced in evidence the confessions of appel-
lant. There wa« proof that he had taken four or five drinks
of whisky within six or eight hours before making the confes-
sions. Counsel for appellant requested the court to instruct
the jury **that if you find and believe from the evidence that
defendant was so intoxicated at the time he made the confes-
sion as not to be able to understand what he was doing or say-
ing, then you will not regard such confession as evidence
against defendant." This was refused and exceptions were re-
served. There is no proof that appellant was drunk at the
time the confession was made, except inference drawn from
the fact of his taking the four or five drinks above referred to.
On the other hand, the testimony of the sheriff places this

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562 27 Texas Court of Appeals, [Austin

' — - —

Syllabus.

matter beyond debate — showing clearly that he was not drunk.
There was no error in refusing the charge.

But let us suppose that the evidence presented a case in
which there was doubt as to whether the accused was mentally
capable of understanding what he was doing or saying, be-
cause of drunkenness, and that such a charge should be re-
quested and refused, would this be error? We have not had
the question before us, but the writer is of the opinion that it
would be. But this question is not here decided.

Because the verdict does not specify the degree of murder
found, as required by the statute, the judgment is reversed and
the cause remanded for another trial.

Reversed and remanded.
Opinion delivered May 8, 1889.

No. 6399.
Chance Kelly v. The State.

!• Murder— Mutual Combat— Gharob of the Court.— The eWdenoe
in this case shows coDclusively that the conflict was provoked iand
brought on by either the defendant or (he deceased, and that the
other, in resisting the attack, acted upon real or apparent necessity.
Held that such proof exclude? the idea of mutual combat, and in eab-
mittiug that issue to the jury the charge of the trial court was erroDe-
ous.

2. Same— Self Defense— Case Approved.— Article 572 of the Penal
Code provides that * 'homicide is jnstifiable in the protection of the
person or property against any other unlawful and violent attack be-
sides those mentioned in the preceding: article (murder, maiming, dis-
figuring or castration), and in such cases all other means must be re-
sorted to for the prevention of the injury, and the killing must take
place while the person killed is in the very act of making such anlaw-
fnl and violent attack. ^^ In submittiog this law to the jury, under the
facts of this case, the trial court erred. See the opinion for a special
charge on justifiable homicide, requested by the defense in lieu of the
above charge, the refusal of which, in view of the proof, was error;
and note the approval on this subject of Ormond's case, 24 Texas Ot
App., 496.

Appeal from the District Court of Freestone. Tried below
before T. J. Gibson, Esq., SpecialJudge.

Digitized by VjOOQIC

Term, 1889.] Kelly v. The State. 563

Statement of the case.

The indictment charged the appellant with the murder of
Xeil Washington, in Freestone county, Texas, on the twenty-
fifth of December, 1887. The trial resulted in a conviction for
manslaughter, a term of two years in the penitentiary being
the penalty assessed.

Mack Washington, the brother of the deceased, testified, for
the StatOj that the defendant, deceased and himself were among
a large number of negroes who, on Christmas day, 1887, as-
sembled at the house of Aaron Haines, in Freestone county, to
partake of egg-nog. During the festivities the parties present
^ot into a good natured scuffle, and a crowd led by the defend-
ant attempted to expel from the house the crowd to which the
witness and deceased belonged. The play was rough, but good
humor apparently prevailed. After the scuffle defendant
stepped out of the house and exclaimed two or three times that
he would bet five dollars on his ability to throw down any of
the parties present. He finally threw two dollars and a half on
the gallery and repeated his challenge. Witness placed three
dollars on the gallery and took up the half dollar placed there
by defendant, and said: "My brother William can throw you
down." Defendant took up his money and said: **I don't want
to wrestle with William; Neil is the damned son-of-a-bitch I am
after." Replying to this challenge, deceased said that he would
not wrestle for five dollars, but would bet twenty five dollars
that he could throw the defendant. Defendant replied that he
did not have that much money, but that he would borrow two
dollars and a half from one of the boys, to make five dollars,
which, together with his horse, he would bet to throw deceased.
He then stepped off and led up his horse which he said he
would entrust to William Washington, the brother of the de-
ceased, to abide the result of the struggle. Before deceased
could prepare himself for the wrestle, defendant ran up, seized
him by the waist and exclaimed: **I can throw your damned
ass to the p^round every throw." About that time Boozie Kelly,
defendant's brother, interfered, pushed the parties aside, and
said: **Boys, don't fuss." Defendant then walked to the rear of
deceased and without warning suddenly drew his knife, rushed
upon deceased, exclaimed: **God damn your soul to hell!"
reached over Boozy Kelly and stabbed deceased in the head.
Deceased exclaimed: **Get out of the way; Chance is cutting
me," and started to run, when defendant cut him again, in the
arm. Deceased ran off, pursued by defendant a short distance.

Digitized by VjOOQIC

564: 27 Texas Court of Appbals. [Austin

statement of the case.

Defendant soon returned to the crowd, but deceased did not
come back. Defendant pulled his knife, opened it and put it in
his pocket open, when he started after his horse. The deceased
had no knife in his hand at any time during the scuffle or diffi-
culty, so far as the witness saw or knew, nor did he, so far as
the witness knew, cut the defendant. Deceased was cut in three
places — twice in the arm and once in the head.

James Grant and Austin Gaines were the other witnesses for
the Stata Their account of the transaction differed, immateri-
ally however, as to details of the wager, from that of the first
witness, but they concurred in the statement that about the
time the parties were apparently about ready to wrestle, the
defendant, without warning, rushed upon deceased with an
open knife and cut him twice. They also concurred in the
statement that defendant opened his knife, and put it into his
pocket open at or before the moment he delivered the horse to
William Washington.

Tom Haines was the first witness for the defense. He de-
scribed the friendly scuffle in the house about as the witnesses
for the State had done, and then testified that, after the scuffle,
and when the parties had gone outside of the house, Ed Haines
offered to bet two dollars and a half that defendant could throw
any man in the crowd. Deceased said, speaking to defendant:
"By God, you can't throw me down for fifty dollars." Defend-
ant said: *'Bud, we were not talking to you, but I can throw
you down for thirty dollars. I will put up my horse for twen-
ty-five dollars; I have two dollars and a half, and will borrow
two and a half from Ed., and that will make thirty dollars,
that I will bet I can throw you down." Defendant then brought
his horse from a fence near by, and put the reins in William
Washington's hands. The two men then approached each
other, when deceased said to defendant: "God d — n you, you
won't do anything you say you can do." Defendant replied:
**Well, I can throw you down." Deceased said: "You are a
God d— n liar; you will do nothing you say you will do.''
About that time Boozie Kelly got between the disputants and
said: "Boys, wrestle if you are going to, but don't get mad."
Defendant replied to Boozie: "I am not mad, but I can throw
him down." Deceased reiterated: "You are a God d — n liar,"
etc., thrust his hand into his pocket, drew and opened his knife,
advanced and slashed at the defendant over Boozie's shoulder,
and cut defendant in the neck. At that time Boozie was push-
Digitized by VjOOQIC

Term, 1889.] Kelly v. The State. 565

Opinion of the court.

ing defendant back, when defendant said to him: **Turn me
loose, Booz. ; don't you see that God d— n nigger cutting me
with his knife?'* Defendant jerked loose from Boozie, thrust
his hand in his pocket and drew his knife. Just as he got it
open witness slapped it out of his hand. He stooped and picked
it up, and as he was straightening up the deceased rushed at
him with his knife in a striking position, aud defendant struck
with his knife as deceased came on him, cutting deceased in
the temple, and on the arm. Defendant at no time advanced
upon deceased, nor did he at any time curse deceased or call
him a damned son of a bitch, or say that he, deceased, was the
damned son of a bitch he was after. He did not draw his
knife until after deceased cut him on the neck.

Boozie Kelly, Primus Grant and Chaney Hillery, witnesses
for the defense, testified substantially as did the witness Tom
Haines. Two or more witnesses testified to threats against
the defendant uttered by deceased at various times prior to the
diflficulty.

No brief for the appellant.

W. L. Davidson^ Assistant Attorney General, for the State.

White, Presiding Judge. It was excepted to the charge
of the court to the jury that the instructions contained therein
with regard to mutual combat were uncalled for by any evi-
dence in the case, and were calculated to confuse and mislead
the jury. "From the facts we think it clear that one or the
other of the parties provoked or brought on the conflict, and
that the one or the other not chargeable with this acted upon
real or apparent necessity; and this excludes the idea of a mu-
tual combat." (Roseborough v. The State, 21 Texas Ct. App.,
672.) There was no proposition to nor understanding between
the parties that they were to fight. On the contrary, the prop-
osition and understanding was that they were to wrestle for a
sum of money, or upon a bet as to which could throw the other
down. In preparing for this contest one or the other got mad,
drew his knife and assaulted the^ other with it. The evidence
is conflicting as to which party commenced the fight. During
the fight both parties were cut with a knife. Under the facts
of the case it was error to charge the law of mutual combat.

As to defendant's right of self defense, the court instructed

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666 27 Texas Court op Appeals. [Austin

OpinioD of the court.

the jury in the language of article 572, of the Penal Code,
which requires a resort to all other means to prevent the threat-
ened injury, before there is a resort to homicide, in order to
render it justifiable. This instruction was excepted to, and de
fondant's counsel requested a special instruction in lieu thereof,
as follows: **If you believe from the testimony in the case that
there was an unlawful attack made upon defendant by de-
ceased, and that the attack was of such a nature that the de-
fendant had reasonable grounds to believe that he was in im-
mediate and impending danger of being murdered or of receiv-
ing serious bodily injury by his assailant, he is justifiable in
killing his assailant when (if?) at the time of the killing some
act has been done by the deceased showing evidently an inten-
tion to commit one of such offenses; and the defendant in such
case may act promptly, without resorting to other means
before killing his assailant, because in such case the law pre-
sumes the party's safety depends upon his prompt action in
killing his assailant; and if you so believe from the evidence
you will find the defendant not guilty;'' which instruction the
court refused to give. The Instruction was correct as a propo-
sition of law, was in our opinion applicable to the facts in evi-
dence, and should have been given as part of the law of the
case. (Penal Code, art. 570; Willson's Crim. Stats., sec. 970.)

According to the testimony of defendant's witnesses, he was
first assaulted by deceased and was cut upon the neck with a
knife before he drew and used his knife, and that deceased was
still assaulting him when he, defendant, inflicted the cuts upon
deceased with his knife. Under the facts it was error to
charge the rule of law announced in article 572 of the Penal
Code. (Ormand v. The State, 24 Texas Ct. App., 496.)

For errors in the charge of the court, the judgment is re-
versed and the cause remanded.

Reversed afid remanded.

Opinion delivered May 8, 1889.

Digitized by VjOOQIC

Term, 1889.] King v. The State. 567

Opinion of the court.

No. 6428

William Kino v. The State.

PbBaERY.— Indictment.— If the written instrument declared upon as a
forgery is so incomplete in form as not to import a legal liability,
then, to sufficiently charge forgery upon it, the indictment must allege
such facts as will invest it with legal force and show that, if genu-
ine; it would create a legal liability. See the opinion for an indictment
Tield insufficient to charge forgery because, in the absence of innuendo
ayerments, the indictment declared upon is incomplete in form and
substance, and does not import a legal liability.

Appeal from the District Court of Hill. Tried below before
the Hon. J, M. Hall.

The opinion discloses the case. The penalty assessed by the
jury was a term of two years in the penitentiary.

S. C. Upshaw, for the appellant,

W. L. Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. As set forth in the indictment
the offense was charged in the following language, viz: "That
William King did, in the county of Hill, and State of Texas,
on or about the first day of December, A. D. 1888, then and
there wilfully, knowiugly and fraudulently attempt to pass as
true, to H. R. Smith, a forged instrument in writing to the
tenor following:

^Weighed on Fairbanks Standard Scale, Dec. 1st, 1888.

Load of one load of corn.

From Sam Simpson

To Patty & Brockington.

On gross 2513 lbs.

Off tare 1011 lbs.

Fees net, 1602 lbs.

Net bus. Weigher* (space for figuring on back side);

567|

465|

567

108

203

204

112

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568 27 Texas Court of Appeals. [Austin

Opinion of the court.

which said instrument purported to be the certificate for said
Sam Simpson of one load of corn weighed on said scales for the
account and benefit of Patty & Brockington, and which said
instrument, if true, would have created a pecuniary obligation
on said Patty & Brockington to pay to the legal owner and
holder thereof for 1502 pounds of com; whidi said instrument
in writing the said William Eling then and there knew to be
forged, and did then and there attempt to pass the same as
true with intent to injure and defraud; contrary to law and
against the peace and dignity of the State."

A motion was made to quash the indictment, which was
overruled by the court. The Assistant Attorney General con-
fesses error and admits that "upon the face of the indictment
the instrument (declared on) does not create any liability upon
the part of any one to be responsible for anything. 2. There
are no innuendo averments' showing the facts or reasons why
the said instrument created such liability, nor are there requi-
site explanations set out that make the alleged forged instru-
ment a forged instrument in law."

**If a writing is so incomplete in form as to leave an apparent
uncertainty in law whether it is valid or not, a simple charge
of forging it fraudulently, etc., does not show an offense, but
the indictment must net out such extrinsic facts as will enable
the court to see that, if it were genuine, it would be valid."
(2 Bish. Crim. L., 7 ed., sec. 545.) And **when an instrument
is incomplete on its face, so that, as it stands, it can not be the
basis of any legal liability, then, to make it the technical sub-
ject of forgery, the indictment must aver such facts as will
invest the instrument with legal force." (1 Whart. Crim. Law,
8 ed., sec. ,740; and see the subject fully discussed in Hen-
dricks V. The State, 26 Texas Ct. App., 179; see also Anderson
V. The State, 20 Texas Ct. App., 505; Rollins v. The State, n
Texas Ct. App., 548; State v. Wheeler, 19 Minn., 98; same
case, 1 Green's Cr. L. Repts., 541.)

We are of opinion the motion to quash the indictment should
have been sustained, and that the court erred in overruling it.
The judgment of the court below is reversed, and because the
indictment is fatally defective in setting ouj; the offense at-
tempted to be charged, the prosecution thereunder is dismissed.

Reversed and dismissed.

Opinion delivered May 8, 1889.

Digitized by VjOOQIC

Term, 1889.] Dailey v. The State. 569

Opinion of the coturt

No. 6181.

John Dailby v. Thb State.

1. PiiAYive Cards, Etc.— Informa.tion.— A **gin" is not one of the places
or houses designated by the statute as a '*publio place. ^' To charge
the offense of playing cards in a public place, *to wit, a gin,'' the in-
formation should have charged the facts which constituted the gin a
public place.

% Same— Fact Cask.— The information charged that the accused played
the cards in Starkey's gin. The proof was that he played cards in a
fence comer, in a pasture and in a room near Starkey's gin, but not
at the gin. ffeld, insaffioient to support a conviction.

Appeal from the District Court of San Saba. Tried below
before the Hon. A. W. Moursund

The opinion discloses the nature of the case.

The penalty assessed against the appellant was a fine of ten
dollars.

No brief for the appellant.

W. L. Davidson^ Assistant Attorney General, for the State.

WiLLSON, Judge. This conviction is not supported by the
-evidence in the record. Defendant is charged in the indict-
ment with playing cards at a public place, to witj at Starkey's
gin. It was not proved that he played cards at said gin.

Furthermore, the indictment is bad. A gin is not one of the
places or houses designated by the statute as puft/ic; where-
fore it was necessary to allege in the indictment the facts
which made it a public place. (Tummins v. The State, 18 Texas
Ct App., 12.)

The judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.
Opinion delivered May 11, 1889.

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«70 27 Texas Court op Appeals. [A^ustin

Statement of the case.

No. 6483.

William Green v. The State.

Thkpt — Pact Case.— See the statement of the case foi; evidence field in-
sufficient to support a conviction for theft because it not only fails to
establish a fraudulent taking of the alleged stolen property, but shows
that it was taken under a mistake of fact and claim of right.

Appeal from the County Court of Brown. Tried below be-
fore the Hon. R. P. Conner, County Judge.

The conviction in this case was for the theft of a pair of
blankets, the alleged property of S. R. Switzer, in Brown county,
Texas, on the first day of December, 1888. The penalty as-
sessed against the appellant was a fine of ten dollars, /md con-
finement in the county jail for twenty-four hours,

S. R. Switzer was the first witness for the State. He testi"
fied that he lived in Comanche county, Texas. Witness went
to Brown wood, in Brown county, about the last day of Novem-
ber, 1888, traveling in a wagon in which he carried certain bed
clothes, including the blankets mentioned in the indictment.
They were gray blankets with a black border, worth about three
dollars. On reaching Brownwood the witness ''put up" at J-
T. Triplett's wagon yard. Early that night he informed Mr.
Triplett that he was going' to spend the night with some friends
in town, and asked if he hacj a place about the wagon yard
where he could safely store his bedding for the ni^ht. Mr. Trip-
lett indicated" a certain house in the wagon yard as a safe place.
Witness put his hedding, including the said blankets, in that
house, and told Mr. Triplett that if any of his, Triplett's, cus-
tomers should need more cover than they had, they could use
his. Witness then went off. .When he returned to the waj?on
yard between nine and ten o'clock on the next morning, he
missed his said blankets from the house in which he had put
them. He then asked Triplett if they were used the night be-
fore by any of his, Triplett's, friends or customers. Triplett re-
plied that they were not, and, when witness^told him that the
blankets were gone, he said that some parties from McCulloch
county had just left the yard, and that perhaps they had taken

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Term, 18S9.] Green v. The State. 571

Statement of the case.

the blankets through mistake. Witness and Triplett then went
up town and found the parties from McCulloch county, but
they did not have the blankets. Soon afterwards Triplett met
a man on the street whom witness did not know, and asked him
if he knew anything about the blankets. The man replied that
he did not, but that Bill Green, the defendant, on the night be-
fore got a pair of blankets from the harness house in the wagon
yard of Triplett, and asked him to take them home for him,
and that the said blankets would be found on his wagon rolled
up with his bedding. Witness and Triplett then went to that
man's wagon and found the blankets. The said blankets were
taken without the consent of the witness. Witness did not
know a Mr. Wainscot, and could not say that the man from
whose wagon the blankets were recovered was named Wainscot.

J. T. Triplett, on his examination in chief by the State, tes-
tified substantially as did the witness Switzer. On his. cross
examination hd said that he had known the defendant for
eight or ten years. Defendant very frequently "put up" at
witness's wagon yard, and often remained there for several
days at a time. He went into and out of the houses on the
premises at will, and came and went off frequently without
saying anything to witness. The harness house in the yard
was kept open for the accommodation of customers, to store
and take out their property when and as they wished. Frank
Allison often kept horses in the wagon yard, as long as ten
days at a time, and came and left at will, sometimes with-
out saying* anything to witness. Witness and defendant
never had a conversation about Switzer's blankets until about
two weeks before this trial, when defendant said that he
thought he was taking some blankets that belonged to Allison,
and which Allison told him he could have if he would get
them.

On re-examination, the witness said that if Allison ever left
any blankets in the said wagon yard he never knew it. He
thought he would have seen such blankets had they been left
there by Allison. Defendant never asked witness about blan-
kets left in the yard or harness house by AJlison, nor did he
ever say anything to witness about the A^llison blankets until,
as stated, about two weeks before this trial. Frank Allison,
during the fair in October, 1888, claimed that he lost a pair of
blankets.

J. E. Wainscot testified, for the State, that he and Mr. Ross

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572 27 Texas Court of Appeals. [Austin

statement of the case.

went to Brownwood in a wagon and "put up" at Triplett's
wagon yard. They met defendant and Bob Pamock in town
after supper, and remained with them until bed time, when
defendant went with witness to the wagon yard and proposed
to sleep with him. Witness said something about being ''short
of cover," when the defendant said he had a pair of blankets
on the counter in the harness house. Witness told him to get
them. He went to the harness house and returned with a pair
of blankets, which were spread on witness's bed, and he and
defendant went to sleep. Witness got up early next morning
and said something about a drink. Defendant said he would
furnish the quarter of a dollar if witness would go after a half
pint of whisky. Witness went to town and, after waiting
some time for a saloon to open, bought the whisky and went
back to the wagon yard. Defendant was not yet up. Witness
finally told him that he wanted to put up his bedding, and to
get up and take a drink. After defendant got up witness
asked him what to do with his blankets. He replied: '*Roll
them up with yours and take them home forme." Witness
rolled them up with his bed clothes, and went up town. Be-
tween nine and ten o'clock he met Triplett, who told him that
a Mr. Switzer had lost a pair of blankets from the yard, and
asked if witness knew anything about them. Witness replied
that he did not, and told him about the blankets in his wagon
which were claimed by the defendant, and that he could look
at and take those blankets if they were the ones he was hunt-
ing. A few evenings after this John Hulse came to witness's
house and said that defendant had sent him for the blankets.
Witness told him to tell defendant that Triplett took the blankets
from the wagon as the property of another person. Witness
and defendant often met after the blanket transaction and be-
fore this indictment was found, but they never spoke about
the blankets. It was dark when witness and defendant went
to bed on the night of the alleged theft, and it was before day
when witness put up his bedding. He could not, therefore,
describe the blankets except that they were of a gray color.

John Hulse testified, for the State, that, early in December,
1888, he was at the defendant's house. He left that house
with the intention of returning, and when he started the de-
fendant asked him to come by Wainscot's house and get a pair
of blankets for him. On his return to defendant's house, wit-
ness told him that Wainscot said that the blankets were taken

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Term, 1889.] Green v. The State. 57.i

Opinion of the court

from him by Joe Triplett as the property of another man. De-
fendant said: ^'Joe Triplett ought not to have taken those
blankets, for they are blankets that Frank Allison gave me."
Witness asked him: "Can't you be mistaken in the blankets?"
Defendant replied: **Well, there may be something in that."

John Triplett, one of the proprietors of the Triplett 'vsiggon
yard in Brownwood, testified, for the State, in substance, that
he was at the yard when the defendant and Switzer "put up''
at the wagon yard. Switzer put his bedding in the northwest
corner of the harness house, and not on the counter in that
house. Defendant, after his indictment for the theft of Swit-
zer's blankets, told witness that he got the blankets ofif the
counter. Allison never said anything to witness about leaving
such blankets in the harness house until after the defendant
was indicted. The witness saw no blankets other than Swit-
zer's in the harness house on that night.

The State closed.

Frank Allison testified, for the defense, that, late in Novem-
ber, 1888, he went to Brownwood and put up at Triplett's wagon
yard. He took a pair of gray blankets, with a dark border, to
that yard, tied behind his saddle. When he left he forgot his
blankets, leaving them at the wagon yard. A few days later
witness started to Arizona, expecting to remain there. He
told defendant that if he would get the blankets from the
wagon yard he could have them. After his return from Ari-
zona witness got the blankets an<l a saddle from defendant.

On his cross examination, this witness said that he never
called on either of the Tripletts for the blankets he left at the
wagon yard. Witness knew nothing whatever about tlie tak-
ing of Switzer's blankets.

Charles Boyd testified, for the defense, that he went to
Brownwood with defendant on or about December 1, 1688. At
Triplett's wagon yard, on that day, defendant showed the wit-
ness a pair of gray, dark bordered blankets that he said were
left at said yard by Frank Allison, and given to him by the
said Allison. Witness did not see the defendant when he got
those blankets.

John E. Bell, for the appellant.

W, L. Davidson^ Assistant Attorney General, for the State.

WiLLSON, Judge. It is shown by the evidence t^at defend-
ant explained his possession of the blankets by the statement

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574 27 Texas Court of Appeals. [Austin

Syllabus.

that one Allison had given them to him, and had author-
ized him to get them from the place from which he took them.
He proved that Allison had such a pair of blankets at the place,
and that Allison told him if he would get them he might have
them. Allison's blankets were similar in all respects to those
taken by the defendant. These facts are not disproved or con-
troverted by the State's evidence. Defendant took the blan-
kets openly, without any concealment or effort to conceal the
taking. He took them under a claim of ownership.

We think the evidence shows that the taking was not fraud-
ulent, but was under a mistake of fact, and does not, therefore,
sustain the conviction. The judgment is reversed and the cause
is remanded.

Reversed and remanded.

Opinion delivered May 11, H89.

No. 6282.
Thomas Aston v. The State.

Failing to Makb Report Required by Law^ConstitutionaiiItt
OF A Statute.— Article 756 of the Penal Code provides that any par-
son is guilty of an ofTeD^e who. being eogaged in the slaagbter and
sale of animals for market, shall fail to report to the commissioDen
court of the county in which he transacts his business, at each regalar
term thereof, the number, color, age, sex, marks and brands of all ani*
mals slaughtered by him, together with a bill of sale, or written con-
veyance to him for every animal slaughtered by him. save such as were
raised by himself, etc. Article 754 of the Penal Code provides that
any person is guilty of an offense who, being engaged in the slaughter
of animals, shall kill or cause to be killed any unmarked or unbranded
animal for market, or shall purchase and kill or cause to be killed, any
animal without having taken a bill of sale or written transfer of the
same from the person sellins: the same. To a prosecution under article
756, the defendant pleaded the unconstitutionality of the said article
upon the ground that to require him to make such report would be to
require him to give evidence that could be used Against him in a pros-
ecution under article 754; wherefore the said article 756 is in contraven-
tioD of section 10 of the Bill of Rights. Held^ that the defense is on-
tenable, and that the said article 756 is constitutionaL

Digitized by VjOOQIC

Term, 1889.] Aston v. The State. 675

Opinion of the court

Appeal from the County Court of Cooke. Tried below be-
fore the Hon. J. E. Hay worth, County Judge.

This conviction was for violation of article 756 of the Penal
Code, the appellant being prosecuted for failing to report to the
commissioners court the animals slaughtered by him for market.
The penalty assessed by the verdict was a fine of fifty dollars.

H. L. Stuart and Stuart dk Baily, for the appellant.

W, L, DavidsoUy Assistant Attorney General, for the State,

WiLLSON, Judge. This conviction is for the oflfense denoimced
by article 756 of the Penal Code, that is, for failing to make a
report to the commissioners court of animals slaughtered, etc.
Counsel for defendant insists that said article compels a person
engaged in slaughtering cattle to give evidence against him-
self, and is therefore in violation of section 10 of the Bill of
Rights.

We are unable to perceive the application of said section to
said article. Said section relates to the rights of accused per-
sons, being prosecuted and on trial for crime. **In all criminal
prosecutions, the accused shall not be compelled to give evi-
dence against himself." Article 756 did not compel defendant
in this prosecution to giro evidence against himself. It required
of him to make a certain written report, which he failed to
make. His defense for not making said report is that, if he
made it, he would be making evidence which might be used
against him in a prosecution under article 754 of the Penal Code,
and to compel him to make such report would be to compel him
to give evidence against himself in such prosecution.

This is not a prosecution under article 754. He was not ac-
cused of violating article 754 at the titne he should have made
the report required by article 756. He was not an accused per-
son at the time he failed to make said report, and if he had then
made the report he would not have given evidence against
himself in a prosecution then pending against him. If article
756 is invalid upon the ground urged, then the statutes which
require public officers to make certain reports are for the same
reason void, because such reports might be used in evidence
against them in prosecutions for various offenses. It seems to
us that to sanction the proposition of counsel for defendant

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57G 27 Texas Court op Appeals. [Austin

Opinion of the court.

would be stretching section 10 of the Bill of Rights beyond
reason;and giving to it an interpretation and effect not intended
or even imagined by the f ramers of that instrument. We are
settled in our conviction that it has no such meaning, and that
article 756 is constitutional and valid. The motion for rehear-
ing is overruled.

Affirmed and motion overruled.
Opinion delivered May 11, 1889.

No. 6277.

John Stone v. The State.

Theft.— EviDBNCB.— See the opinion for the sabstance of evid^ice IMi
Jn«uiBcient to support a conviction for theft of hogrs, because it proves
neither the venue of the offense nor the alleged ownership of tbe
property.

Appeal from the District Court of Llano. Tried below be-
fore the Hon. A. W. Moursund.

This conviction was for theft of hogs of value less than
twenty dollars. The penalty assessed by the verdict was a fine
of sixty-nine dollars and sixteen cents, and confinement in the
county jail for nine days.

The opinion sufficiently discloses the case.

No brief for the appellant.

W, L. Davidson, Assistant Attorney General, for the State.

WiLLsoN, Judge. This conviction is for the theft of three
hogs alleged to be the property of one Barber. As presented
to us in the statement of facts, the evidence does not sustain
the conviction. There is no s.iflScient proof of the venue of
the offense. Barber testified that he lived in Llano county,
and owned a stock of hogs; that he missed some of his hogs
from their range; but he did not state where that range was,
whether in Llano or some other county. No witnesses testified

Digitized by VjOOQIC

Term, 1889.] Wilson v. The State. 577

Statement of the case.

that the hogs were taken in Llano county, nor was it proved
circumstantially that they were taken in that county.

Three hogs were found in defendant's possession, which one
witness testified bore the ear mark of Barber, and had flesh
marks similar to hogs which Barber had missed from his hog
range. There is no other evidence that Barber owned the hogs
found in defendant's possession. In rebuttal, defendant proved
that the three hogs found in his possession were in his own
mark, and were his hogs; that his mark was almost identical
with Barber's, and that other persons in the county used the
same mark that Barber used.

We are of the opinion that the allegation of ownership is
not sustained by the evidence. The judgment is reversed and
the cause is remanded.

Reversed and remanded.
Opinion delivered May 11, 1889.

No. 6279.
S. R Wilson v. The State.

Thbft—Faot Case— Charob of the Court.— See the statement of the
ease for evidence held insafflcient to support a conviction for theft, be«
cause insufficient to establish a fraudulent taking of the property; and
note the same for a requested instruction to the jury, the refusal of
irhich, under the evidence adduced, was error.

Appeal from the District Court of Llano. Tried below be-
fore the Hon. A. W. Moursund,

The indictment charged the appellant with the theft of rails
of the value of five dollars, and lumber of the value of eigh-
teen dollars. The conviction was for theft of the rails, and
the penalty assessed against the appellant was a fine of twenty
dollars and confinement in the county jail for twenty-four
hours.

William McMichael was the first witness for the State. He
testified that, during the year 1887, he lived on the premises
known as_the Conner place, in Llano county, which he rented

Digitized by

Google

578 27 Texas Court of Appeals. [Austin

Statement of the case.

from John C. Oatman. Defendant occupied that place during:
the year 1886. Some time in November, 1887, the witness missed
a number of fence rails from the cow pen at the said Conner
place. The large majority of those rails were old and rotten,
but among them were about seventy sound rails, worth about
seventy cents. Witness did not see the rails taken, and did
not know who took them. He did not miss the rails until, suf-
fering loss from the depredations of hogs on his potato crop,
he hunted for the place in the fence through which the hogs
got into the field. The rails removed from the cow pen formed
that part of the pen that connected with the field. The said
cow pen had been at that place a long time prior to 1886. The
witness knew nothing about defendant repairing the said cow
pen in 1886.

M. T. Dixon testified, for the State, that, in September, 1S87,
he saw Simon Elliott and a boy hauling away from the Conner
place some rails, a door and about two hundred and fifty feet
of lumber, which lumber, he thought, was worth about ten
dollars.

Dan Johnson testified, for the State, that he and Simon Elli-
ott, some time in December, 1887, took a load of lumber from
an old house on the Conner place to the defendant's place, and
piled it near a haystack with other old lumber. Defendant was
not at home at that time, and said nothing then, nor at any
other time, to witness about hauling said lumber to his place.
Witness was then in the employ of the defendant, but did any
work required of him by Simon Elliott. About a month before
hauling the said lumber, the witness and said Elliott hauled
about one hundred and twenty rails from the cow pen on the
Conner place to defendant's place. Defendant was present
when the rails were taken, and helped load the same on the
wagon. At this point the State announced that it would limit
the prosecution to the charge of stealing the rails only.

Powell Reeves testified, for the State, that in November, 1887,
he assisted Simon Elliott and Dan Johnson to haul some old
rails from an old cow pen on the Conner place to the place of
the defendant. Not more than sixty of the rails were sound.
The others were rotten, and were taken to be used as firewood-
Defendant was present and put a few of the rails on the wagon,
and told witness, Elliott and Johnson, when they had loaded
enough. In the year 1880, the witness helped other parties haul
about two hundred and fiftv rails from the defendant's home

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Term, 1889.] Wilson v. The Statbl 679

Statement of the case.

place to the Conner place, then occupied by defendant, which
said rails were used by defendant in repairing the said old cow
pen on the Conner place.

John Warden testified, for the State, that, in the fall of 1887,
he saw some parties hauling some old rails away from the old
cow pen on the Conner place. Defendant was present, and the
parties loading the rails on the wagon were in the employ of
the defendant. The State closed.

Tom Williamson was the first witness introduced by the de-
fense. He testified that he was a tenant of the defendant on
the Conner place in 1886. The cow pen attached to that part of
the Conner place occupied by defendant was in a dilapidated
condition, and he, Simon Elliott and Powell Reeves, hauled
about two hundred and fifty rails from the defendant's home
place, which said rails belonged to defendant. Those rails were
used to repair the said cow pen.

Simon Elliott testified, for the defense, that he lived now and
for several years had lived with the defendant. Defendant
had the Conner place leased in 1886, on which place Tom Wil-
lianason, then in defendant's employ, lived. The old cow pen on
the place was in a very dilapidated condition, and to repair the
same for use the witness. Reeves and Williamson hauled about
two hundred and fifty rails from defendant's home place to the
said pen. About one hundred and fifty of those rails were
used to repair the cow pen. When moving the defendant's
pasture fence to join to the Conner field fence in the fall of
1887, the witness and others hauled about one hundred and
twenty-five or thirty rails from the said cow pen. They did
not get as many as were put on the cow pen. While the said
rails were being hauled on the wagon, defendant rode up and
said that enough rails had been taken.

John C. Oatman testified that, as agent, he rented the Con-
ner place to defendant in 1886. Defendant's lease expired De-
cember 31, 1886, when McMichael rented the place and went
into, and still was in possession of it. Witness did not author-
ize defendant to remove any rails from the old cow pen on the
said place.

The requested charge, refused by the court and referred to
in the headnote and opinion, reads as follows: *'The defendant
requests the court to charge the jury that rails placed on land
and in a fence, if put there for a temporary purpose, remain
the property of the person placing them there, and he can take

Digitized by VjOOQIC

580 27 Texas Couet op Appeals. [Austin

SyllaboB.

them away at his pleasure. In this case, if you believe from
the evidence that the rails were originally Wilson's and that
defendant, S. R Wilson, or his workmen, placed the rails al-
leged in the indictment to have been stolen, on the place from
which they were removed, for a temporary purpose, the said
rails remained the property of Wilson, and it would not be
theft for him to take them away; and if you so believe you
will acquit defendant.''

No brief for appellant.

W. L, Davidson, Assistant Attorney General, for the State.

WiLLsoN, Judge. There is not sufficient evidence in the
record that the defendant took the rails with fraudulent intent.
He took them openly, in the day time, in the presence of wit-
nesses, and made no efifort to conceal the taking. There is evi-
dence tending to show that the rails taken belonged to him, or
that he believed they belonged to him, and a special charge pre'
senting this phase of the case was requested by the defendant
and refused by the court, and the defendant excepted and re-
served his bill. We think the charge should have been given, be-
cause it is apart of the law of the case, and was not embraced in
the charge given to the jury.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered May 11. 1889.

No. 6378.
Lem Mann v. The State.

Burglary— EviDBNCB.— Two of the articles taken from the burglarized
house are described in the Indictment as a ''Canadian quarter of a
dollar coin and a Mexican quarter of a dollar ooin.^ Two sach coins
were produced in evidence by the State, and the court admitted the
testimony of an officer that they looked like coins he got from unknown
parties after the arrest of defendant; that he did not know from whom
he got them, and that he did not get them, nor coins like them, from
defendant. Held that this evidence in no way traced the said coins to
the possession of defendant, and was erroneously admitted.

Digitized by VjOOQIC

Term, 1889.] Mann v. The State. 581

statement of the case.

Appeal from the District Court of Brown. Tried below
before the Hon. J. W. Timmins.

The conviction was for burglary, and the penalty assessed
by the verdict was a term of two years in the penitentiary.

S. J. Dowty was the first witness for the State. He testified,
in substance, that he lived in the town of Brownwood, Brown
county, Texas, in which town he followed the business of a re-
tail liquor dealer, his drinking establishment being known as
the Little Elephant saloon. He had known the defendant two
or three years, during which period the defendant, at different
times, had been in his employment. The witness's bar tender
was sick on the night of July 20, 1888, in consequence of which
the witness was on watch that night. The defendant came
into the witness's saloon about ten o'clock on that night, and
called for a small glass of beer, to cost five cents, tendering a
dollar in payment. Witness said to him: *'Damn it, give me
some small change." He replied that the dollar was all the
money he had, and that he was going that night to either Cole-
man or Ballinger — the witness could not now say which. Wit-
ness closed his saloon between eleven and twelve o'clock that
night, and went home, seeing no more of defendant. He
opened his saloon quite early on the next morning, observing
nothing unusual until he discovered that the catch of the cash
drawer was not in place. His first impression was that he had
left the cash drawer open when he left on the night before.
Closer inspection, however, showed that the drawer had been
pried open and the lock broken. Witness then examined the
contents of the drawer, and from a glass kept in that drawer
as a separate place of deposit for odd coins, he missed seven
peculiar coins, consisting of two Mexican quarter dollars, two
Canadian quarter dollars, two Mexican half dollars — one being
of the new and one of the old issue — and one old worn Ameri-
can half dollar of the coinage of 1834. This latter had a hole
in it. One each of the Mexican and Canadian quarters was
much worn — the Mexican quarter particularly on one side.
One each of the Mexican and Canadian quarters was compara-
tively new, though the letters *'n" and **t" in the word **cents"
on the new Canadian quarter were very dim. The Mexican
half dollar and the Mexican quarter and Canadian quarter now
in evidence, if not the same, were exact counterparts of similar
coins taken from the witness's money drawer, but witness

Digitized by VjOOQIC

582 27 Texas Coubt of Appeals. [Austin

Statement of the case.

could not positively identify them as the same. Such coins as
those taken from witness's drawer were very scarce. The wit-
ness also missed from his saloon one of the only two pint pic-
nic whisky flasks that he had in his saloon. A demijohn which
contained '^Anderson county" whisky, and which was kept at
a particular place under the counter, and which was at that
particular place when witness closed his saloon on the previous
night, was moved to another place near by. After examining
the front part of the saloon, the witness went to the rear end
and found the back window raised and the perpendicular iron
bars pried far enough apart to admit the passage of a man's
body. The stick with which the bars were pried apart, and
which bore the marks of the bars, was found on the ground,
outside of the house, and immediately under the window. The
said saloon was entered in the night time, without the knowl-
edge or consent of the witness, in Brown county, Texas, on
July 20, 1888.

On his cross examination, the witness said that he did not
know who entered his said saloon on the said night and took
the said coins and whisky flask. The last time he saw the de-
fendant on that night was when he came into the saloon as
stated and called for a glass of beer. He then said that he
was going to Coleman or Ballinger on the passenger train that
night. Witness understood him to say that the dollar he ten-
dered in payment of the glass of beer was the only money he
had, but he may possibly have said that it was the smallest
change he had. Picnic flasks similar to that taken frpm wit-
ness's saloon were in common use, and were generally kept in
stoek by retail liquor dealers.

Ollie Phillips testified, for the State, that he was bar tender
at the Little Elephant saloon, in Brownwood, at the time of the
burglary in July, 1888. The witness had often seeq and han-
dled the coins said to have been taken from the cash drawer of
that saloon at the time of the burglary. He described them as
did the witness Dowty. The witness closely observed the Cana-
dian coins, because for a time he designed having them made
into cuflf buttons, and did not because, one being worn and the
other intact, they did not match well. The coins now exhib-
ited to witness were coins exactly similar to those taken from
the Little Elephant saloon at the time of the burglary, the let-
ters *'n" and **t" in the word "cents" on the Canadian quarter
showing dimly, as they did on the Canadian quarter that was

Digitized by VjOOQIC

Term, 1889.] Mann v. The State 583

Statement of the case.

taken. No person had the consent of the witness to enter that
saloon on that night The witness was sick and was not at
the saloon on the night of the burglary, and could not say at
what time the saloon was closed. Witness could not positively
identify the coins in evidence as those taken, but they were
identical in appearance.

R. H. Jeffries te:?tified, for the State, that, about eleven
o'clock on the night of the burglary, defendant came into his
saloon in Brownwood and took a drink and went out. Witness
did not see him again on that night. It was nothing unusual
to see the defendant on the streets of Brownwood at eleven
o'clock at night.

Bud Smith testified, for the State, that between eleven and
twelve o'clock on the night of the burglary he saw the defendant
sitting in front of The Office saloon, in BroWnwood. After sit-
ting there a while, defendant passed around the corner of said
saloon and went toward the rear of the Little Elephant saloon.
Witness saw him no more that night.

On cross examination, this witness said that it was not un-
usual for defendant to be on the streets of Brownwood at eleven
o'clock at night. A public street passed the rear end of the
Little Elephant saloon, and defendant was traveling that road
when witness last saw him that night.

D. G. Lindsey testified, for the State, that he lived in Brown-
wood and had known defendant for several years. He went to
the rear of the Little Elephant saloon on the morning after the
burglary, and examined the window through which the burglar
entered the house. The perpendicular bars were pried far
enough apart to admit the passage of a man's body, and on the
ground under the said window lay a stick, which, from marks
on it, showed to be the instrument used in pressing the bars
apart. Witness also saw foot tracks under and about the win-
dow, and on the outside and the inside of the fence at a point
near the road where the burglar evidently crossed the said
fence. He recognized those tracks as the tracks of the defend-
ant. He recognized them from the fact that, having suffered
frequent loss by theft, and suspecting the defendant as the thief,
he had often examined tracks made by him, and by that means
became familiar with them. At that time the defendant was
wearing a shoe, the sole of which showed to be worn on one
side, and the tracks about the window and fence of the Little
Elephant saloon showed to have been made by such a shoe. A

Digitized by VjOOQIC

584 27 Texas Court op Appeals. [Austin

Statement of the case.

small quantity of dirt was found on the window sill, and on the
fence, which dirt was evidently left there by the burglar in his
passage into or out of the yard and house. On his cross exami-
nation the witness said that he would not absolutely swear that
the said tracks were made by defendant, but, speaking upon
belief and knowledge of his track he was satisfied that they
were.

Nat Royall testified, for the State, that he slept at the depot
of the Gulf, Colorado and Santa Fe Railway on the night of
the burglary. Some time after the passenger train passed,
bound for Coleman, the defendant awakened witness and asked
him to take a drink. He then handed witness a pint picnic
flask, from which the witness took a drink of whisky which
tasted to him like the **Anderson County" whisky sold over the
bar at the Little Elephant saloon. Defendant then left and
witness saw him no more on that night. On his cross exami-
nation the witness said that he would not undertake to say that
the drink of whisky given him by the defendant on the said
night was a part of the whisky kept in stock at the Little Ele-
phant saloon. It tasted like it. Witness did not know whether
or not other saloons sold the same kind of whisky.

W. Harrison testified, for the State, that he was in business
in the town of Coleman, in July, 1888. About eight o'clock on
the morning of July 21, 1888,— the morning after the alleged
burglary, — the defendant came into witness's store and made
a small purchase, handing him in payment an old worn Ameri-
can half dollar with a hole in it. Witness declined to receive
the coin for more than thirty-five cents, and. defendant refusing
to pass it at that valuation, took it back. Witness never after,
wards saw that particular half dollar.

J. C. Jones testified, for the State, that he lived in Coleman,
and was deputy sheriff of Coleman county at the time of the
burglary of the Little Elephant saloon in Brownwood. Wit-
ness received a telephone early on the morning after the burg-
lary, from Brownwood, directing him to arrest defendant. He
found the defendant going out of the back door of a saloon
with a pitcher of beer in his hands, and arrested him. Defend-
ant asked to be permitted to take the pitcher of beer to a cabin
and deliver it to a party who had sent him for it. Witness ac-
companied him to the cabin, and defendant delivered the beer
to a negro woman. The woman asked him, * where is the
change." Defendant offered her a Canadian quarter, which

Digitized by VjOOQIC

Term, 1889.] Mann v. The State. 585

Statement of the case.

the woman at first declined to take, but finally accepted.
Witness then jailed defendant. Witness soon received an-
other telephone to look for certain peculiar coins, such as one
described in the indictment. The Mexican half dollar, the
Mexican quarter and the Canadian quarter now exhibited to
witness are similar in every respect to coins obtained by wit-
ness and delivered by him to Sheriff Perry of Brown county.
He got the Mexican half dollar from C. N. McFarland, but he
could not say from whom he got either the Mexican or Canadian
quarter. He did not, however, get either of the coins in evi-
dence from defendant, nor did he get from defendant any coins
like those in evidence.

C. N. McFarland testified, for the State, that he lived in the
town of Coleman, where he kept a general store. Defendant
came into his store early on the morning after the burglary in
Brownwood, and bought a can of something for his breakfast,
and in payment of the said purchase handed the witness a
silver coin, witness giving him change. Witness was quite
busy on that morning and paid no further attention to the said
coin than to note its denomination. Later in the day deputy
sheriff Jones came to witness's store and asked witness if he
received any money from defendant on that morning. Wit-
n(»ss replied in the affirmative and took from his pocket the
money he had taken in on that morning. Among the ten or a
(lozeu coins taken in, the witness found a Mexican half which
he did not observe when paid to him. He gave that coin to
Mr. Jones in exchange for an American half. Had he noticed
said coin was Mexican money when he received it, the witness
would not have taken it at the value of fifty cents. Witness
could not undertake to say that the said half dollar was paid
him by the defendant, nor could he now say that the coin paid
him by defendant was a half dollar piece.

The State closed.

The defense moved the court at this time ,to strike out the
testimony of J. C. Jones as to the Mexican and Canadian quar-
ters, and that of McFarland as to the half dollar, upon the
groimd that the State had failed to connect the defendant with
the said coins. The court overruled the motion, and the de-
fense introduced an agreement with the State, as follows: **It
is agreed that N". B. Fisk, if here, would swear that on the
•evening of the burglary- he paid the defendant some money
and that among other coins there was a Mexican quarter and a

Digitized by VjOOQIC

586 27 Texas Court of Appeals. [Austin

Syllabus.

Mexican half dollar, and he believes that on an evening or two
before he paid defendant a Canadian quarter.'*

No brief for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. That portion of the testimony of the wit-
ness J. C. Jones relating to the Canadian quarter of a dollar
coih, and a Mexican quarter of a dollar coin, which he obtained
from unknown parties, was irrelevant, said coins in no man-
ner being traced to the defendant, and the court erred in refus.
ing •io exclude said testimony upon the motion of the defend-
ant. Under the facts of this case, this illegal evidence may
have influenced the verdict of the jury to the prejndice of the
defendant; and because it was improperly permitted to go to
the jury, the judgment is reversed and the cause is remanded.
Other testimony objected to by the defendant was relevant and
properly admitted.

Reversed and remanded.

Opinion delivered May 15, 1889.

No. 6347.
Fran^ Woods v. The State.

1. Practice— Vknub.— The record in this case failing to show that the

venue of the offense was proved as alleged, the ooDviction most be set
aside.

2. Same— Circumstantial Evidence— Charge op the Court.— See

the opinion for a charge of the court upon the law of circumstaotial
evidence held erroneous, and in view of the defendant's exception^
cause for reversal. In lieu of the said erroneous charge, the accused
asked a special charge on the subject, in the usual form, which the
trial court refused. Held, error.

3. Same— Wanton and Malicious Killing of a Horse.— See the state-

ment of the case for a special charge of the court requested by the de-
fense which, in view of the proof, was erroneously refused.

Appeal from the County Court of Clay. Tried below be-
fore the Hon. B. F. Turner, County Judge.

Digitized by VjOOQIC

Term, 1889. J Woods ?;. The State. 687

Statement of the case.

This conviction was for wantonly killing a horse, and the
penalty assessed was a fine of forty dollars.

J. B. Young testified, for the State, in substance, that he
owned the horse mentioned in the information. He bought
that animal from John Burson in August, 1887, at which time
the horse was nearly two years old. Witness thought the ani-
mal was a gelding, but did n6t throw him down to verify that
opinion. After keeping the animal in a pasture for about two
months, the witness turned him on the range on Buffalo creek,
near Red Lake. Witness missed him from the range about a
week before he was killed. About an hour before sun down,
on Thursday evening, April 26, 1888, witness went to defend-
ant's house, hunting his said animal. Defendant said that, on
that day. he saw the animal at a certain point about three-quar-
ters of a mile east of his house, and that if witness would go
to that place he would find him. Witness replied that if the
animal was at the point indicated by defendant it was all right.
He then rode oflf in a north direction, and at a point about a
quarter of a mile distant from defendant's house he found his
said horse lying under a cottonwood tree. He had been re-
cently castrated, had bled profusely, and was not quite dead.
Witness followed a trail of blood from the point where the
horse was lying to a point within fifty yards of where he had
seen defendant standing a few minutes before, and within
twenty or thirty steps of the lot near which the defendant
then had a horse staked on the prairie. Witness then told de
fendant about the condition in which he found his horse, when
the defendant proposed to help witness get the animal in his
shed and doctor him. On the next day witness went back to
defendant's house and told defendant that he wanted pay for
his horse. Defendant denied that he had anything to do with
the cutting of the animal, or that he knew anything about it,
and refused to pay witness, or to admit any claim against him.
The horse was not dead when witness demanded pay of the
defendant, but died during the night.

Mr. Ferguson testified, for the State, that Young's horse died
from the effects of imperfect castration on Friday night. Wit-
ness saw that animal with his mares on the preceding Sunday
and on Tuesday morning. Witness next saw Young's horse,
dead, about a quarter of a mile from defendant's house. After-
ward defendant told witness that Colonel Young had passed
him, refusing to speak to him, and that if he and Colonel

Digitized by

Google

588 27 Texas Ck)URT of Appeals. [Austin

Statement of the case.

Young could get together they could settle the horse matter.
The witness thereupon went to see Colonel Young, and he and
Young went to defendant's house to see defendant. Young
stopped about fifty yards from the house, and witness went to
the house, but found that defendant was not at home. He told
defendant's wife that Colonel Young was outside, and had
come to see what defendant would do about the horse matter.
Mrs. Woods replied that defendant had left word for Colonel
Young to leave his proposition in writing. Witness reported
to Colonel Young, who, with an oath, said he had no proposi-
tion to write, but wanted pay for his horse. Witness had never
observed that Colonel Young's said horse was a stallion.

Mr. Elkins testified, for the State, that defendant came to his
house on the morning of Thursday, April 26, 1888, inquiring
for the owner of a stray stallion, which, he said, was bothering
his mares. He said that he was breeding his said mares to a
stallion of his own, and wanted to get rid of the said stray
horse, whose colts he did not want. Witness told him that
Colonel Young owned a horse corresponding with the descrip-
tion given by him, and that Mr. Shipman owned one a little
darker in color. Defendant left, saying that he was going to
ride until he found the owner of that horse.

Mr. Carpenter testified, for the State, that the defendant came
to his house on the morning of Monday, April 26, 1888, hunting
the owner of a stray stallion which, he said, was bothering his
mares. He said also that he was breeding his said mares to his
own stallion, and wanted the stray animal taken up. Witness
told him that he, too, had mares that were being interfered
with by a stray stallion, and that he would like to be rid of him.
Defendant replied: ''Don't the moon shine? The moon, for
some purposes, gives a better light than the sun."

James Burson testified, for the State, that he sold the horse
mentioned in the indictment to Colonel Young in August, 1887,
at which time the said animal was two years old, less one
month. The witness then thought the animal was a gelding.
He was the foal of a mare that belonged to witness's sister.
He strayed off when about a year old. He was not castrated
when he went off, but when recovered, shortly before witness
sold him to Young, he had scars about his testicles which led
witness to believe he had been castrated. Witness did not
critically examine him and could not say positively that be
was castrated when bought by Colonel Young.

Digitized by VjOOQIC

Term, 1889.] Woods v. The State. 589

Opinion of the oonrt.

The State closed.

Mrs. Woods, the defendant's wife, testified, in behalf of the
defendant, that defendant owned a stallion to which he waa
breeding his mares. One morning in April, 1888, the defend-
ant said that a stray stallion was bothering his mares, and that
he was going to hunt for the owner to have him taken up.
After the defendant came back and went to plowing Colonel
Young rode up to the fence, talked with defendant and rode oflf.
He soon came back and went to where the defendant was
staking his horse, talked to defendant a few minutes and then
left. Next morning Colonel Young came back to the house
and demanded that defendant should pay him for the horse,
which the defendant refused to do, declaring that he had no
hand or part in injuring the horse. No such horse was cas-
trated on the defendant's lot — of that fact the witness, who
helped defendant with his stock, was certain. On the day be-
fore defendant went to look for the owner of the stray stallion,
and on which Colonel Young first came to defendant's house
about the horse, the witness saw two men driving three horses
past her house towards the Cottonwood tree in the hollow, un-
der which Colonel Young was said to have subsequently found
his injured horse. Witness did not know either of those men,
nor did she, to her knowledge, ever see Colonel Young's said
horse.

The special charge of the court referred to in the last head
note reads as follows: *'If you (the jury) believe from the evi-
dence that the defendant did injure the horse, and if you fur-
ther believe that it reasonably appeared to defendant that his
stock was in danger of serious injury from said horse, and that
he inflicted the wound upon the horse to prevent such injury,
you will find him not guilty."

J. A. TempletoUf for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. In this case the Assistant Attorney Gen-
eral confesses error, there being no proof of venue in the rec-
ord.

In view of another trial, it is proper that we should say that
the court's charge upon circumstantial evidence went too far
in instructing the jury that "if the facts and circumstances in

Digitized by VjOOQIC

590 27 Texas Court of Appeals. [Austin

Statement of the case.

evidence could not be accounted for upon any reasonable
grounds consistently with the innocence of defendant, and
were such as to establish the guilt of the defendant with a de-
gree of certainty to satisfy the mind of a man of ordinary un-
derstanding, and so to convince him that he would act upon
that conviction," etc., they would convict the defendant. De-
fendant excepted to this instruction and requested a correct
charge upon circumstantial evidence, which was refused, and
he excepted; and his exception is, we think, well taken.

Charge number two requested by defendant and refused by
the court was a part of the law of the case not embraced in
the court's charge, and it was error to refuse it.

Because of the errors named, the judgment is reversed and
the cause is remanded.

Reversed and remanded.

Opinion delivered March 15, 1889,

No. 6379.

J. P. Lynn v. The State.

Practice— Playing Cards, ETa— Evidencb.— The iDformation ohargoB
that the accused, on March 5, 1S88, did play a game of cards in a cer-
tain out house, '^said out house being then and there a place where
people did then and there resort." To authorize a conviction under
this information it was neceFsary for the State to show by the evidence
that the oCfense was committed prior to the presentation of the infor-
mation, and that at the very time it was cxHumltted the said out hoose
was a place where people resorted. See the opinion for the substance
of evidence held insufficient to support a conviction for playing cards
in a place of public resort.

Appeal from the County Court of Coleman. Tried below
before the Hon. J. T. Evans, County Judge.

The opinion discloses the nature of the case.

The penalty assessed against the appellant was a fine of ten
dollars.

Woodward & Viningy for the appellant.

W. L. Davidson, Assistant Attorney General for the State.

Digitized by VjOOQIC

Term, 1889.] Hanson v. The State. 591

Syllabus.

WrLLSON, Judge. This conviction is not supported by the
evidence. It was not proved that the defendant committed
the offense at a date prior to the presentment of the indictment.
(Temple v. The State, 15 Texas Ct. App., 304.) It was not
sufficiently proved that at the time the defendant played cards
in the out house it was a place where people resorted. A wit-
ness testified that he had seen persons play cards in said out
house one time prior to the time that the defendant played
there, but did not state the time. It may have been so long
prior as to have no bearing whatever in fixing the character of
the place at the time defendant played there.

It was necessary that the State should prove that at the time
defendant played in the out house it was then a place of resort;
that is, a place where people were in the habit of going for
gaming or other purposes. (The State v. Norton, 19 Texas, 103;
Wheelock v. The State, 15 Texas, 260.)

The judgment is reversed and the cause is remanded.

Rercrsed and remanded.
Opinion delivered May 15. 19R9

Xo. 0502.

Ex Paste George and John Hanson.

Habeas Corpus.— Fact Case.— The relators were charged jointly by in-
dictment with the murder of J. D. Munn, in Navarro county, Texas,
on the sixth day of November, 1888. They sued out jointly a writ of
habeas corpus for allowance of bail. Upon the hearing of the writ
bail was awarded the relator John Hanson in the sum of three thousand
dollars, and was denied to the relator George Hanson. Tbis appeal is
jointly prosecuted by the relator John Hanson to secure reduction of
the bail allowed below, and George Hanson for an allowance of bail.
Upon the evidence adduced on the hearing (for the substance of which,
8ee the statement of the case), the judgment is affirmed as to John
Hanson, and reversed as to George Hanson with an award of bail in
the sum of five thousand dollars

Habeas Corpus on appeal from the District Court of Navarro.
Tried below before the Hon. Rufus Hardy.

Digitized by VjOOQIC

592 27 Texas Coxjbt of Appeals. [Austin

Statement of ^he case.

The syllabus states the nature of the case.

C. J. Hanson was the first witness for the relators. He testi-
fied that he was the father of the relators, who were brothers.
The relators lived with the witness ou his place in Navarro
county, between the towns of Corsicana and Purdon. Wit-
ness's residence was situtated about one hundred yards from
the Corsicana and Waco wagon road, known as the **cow-head*'
road. Munn lived in a hoiise situated on the opposite side of
the said road, about one hundred and fifty yards from it, and
about three quarters of a mile distant from witness's house,
toward Corsicana. In going from witness's house one would
pass Munn's house, and in going from Munn's house to Par-
don, traveling the said road, one would pass witness's house.
When going to Purdon in a vehicle Munn always traveled the
road via witness's house, but when he traveled to Purdon on
horse back he generally went the shorter route through Slaugh-
ter's field. Witness's cotton patch was in the back part of his
field, between eight hundred and a thousand yards distant from
the house.

Munn was killed on the evening of November 6, 1888,— the day
of the presidential election. Munn and the witness were enemies
at that time, and had been for a year, but there had never been
a personal difficulty between Munn and either of the relators.
Witness and Munn had a personal collision in Corsicana, about
three weeks before, in the course of which Munn knocked the
witness down with an ax handle, slipping up behind witness to
do so. The witness was picking cotton in his cotton patch on
the morning of the fatal day, and saw Munn when he passed
the field on that morning in company with his friends, Thweatt
and Simpson, going towards Purdon. One of those men left
some election tickets at witness's house. About an hour later
the witness hitched his horse to his buggy and went to Purdon
to attend the election and vote. He went by the house of old
man Barnes, and got Barnes to go with him as a sort of guard.
He found the relators at Purdon attending the election. After
remaining in Purdon an hour or two, the witness and the rela-
tors went home to dinner. After dinner witness proposed to
go to picking cotton. George excused himself upon the ground
that he did not feel well, and the witness and his daughters,
Hattie and Cora, went to the patch and picked cotton until near
sundown. Just before quitting work the witness heard the rela-
tor George, coming to the field with his dog, which was barking.

Digitized by VjOOQIC

Term, 1889.] Hanson v. The State. 598

Statement of the case.

When George passed, the witness and his daughters stopped
picking, weighed their cotton and started for the house, the
girls about one hundred yards in advance of witness. Witness
had gone but a short distance when he heard loud talking. He
turned to look in the direction whence it proceeded, and that in-
stant heard the report and saw the flash of a shot fired from a
pistol in the hands of Munn. This shot was followed by two
others so close together that the witness could barely tell they
were separate shots. John, who had been answering a call
of nature, got up, and started to walk, but fell, his pants dang-
ling about his legs, and witness thought that Munn had killed
both of his boys.

At the time the shooting occurred the witness was standing
'on a small hill about two hundred and fifty yards from the
house, and about two hundred and fifty yards from the point
where Munn fired the shot. Munn had then passed, and had
gone about four hundred yards from witness's house. The
place where the shooting occurred was on lower ground than
that on whicrh witness stood. Corn stalks and weeds inter-
vened between the two points; and witness did not see either
of bis boys when the shots were fired. He did not see Munn
until he turned at the sound of the voices, and Munn fired the
first shot from his pistol just as the witness caught sight of
him. Munn was traveling east, and the witness was going
west, just before the shooting. Witness distinctly saw Munn,
who was on a mule. Witness did not see George at all, nor
John until he got up from where he was squatted as before
stated. When John fell down, the witness thought he had
been shot. He, witness, then ran to his house to get his gun,
but finding it empty left it, telling his daughters to go to Major
Hanson's house, and ask him to come to his, witness's, house.
Witness then started back to the field where the shooting oc-
curred, and met the relators. To his question, **what is the
matter?" George answered: "Munn and I have exchanged
shots, and I made a narrow escape. Here (indicating his coat)
is where he plugged me." Witness replied: **Go at once and
surrender to an officer." He, George, went at once to the house,
mounted his horse and rode rapidly to Major Hanson's house,
reaching there about the time the girls did. Major Hanson re-
turned with George, and the latter proceeded at once to pre-
pare his things to go to Corsicana to surrender. John employed
himself fixing his pistol while George was gone to Major Han-

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594 27 Texas Court of Appeals. [Austin

Statement of the case.

Fon's. A crowd gathered about the time that George got back
from Major Hanson's. George took his gun with him to the
field on the fatal evening, for the purpose of shooting some
cows that were in the habit of breaking in upon the crops. He
had previously shot them with bird shot, but had told witness
that, as the bird shot had not kept them out, he had determined
to try them with larger shot. He took his dog with him.
When he saw George coming to the field, with his gun and
dog, witness said to his son Frank, who was with him: "Bun
and see if the cows are in the field, and if they are drive them
out or George will shoot them."

Gteorge and John must have gone due north on leaving the
house, and thence through the cotton patch, then around the
pasture, and thence up the pasture fence to the Corsicana and
Waco road. They took that rout« to avoid the difficult walk
through the stubble in the field. Munn could have saved a full
quarter of a mile by going through Slaughter's field. George had
on his coat when he got on his horse to go to Major Hanson's,
and that coat then had a bullet hole in it. John fixed his pis-
tol during George's absence, discharged one shot, and re-
marked that he would risk it firing. Neither of the relators
went to Munn's body with the crowd. After making some
preparations and eating supper George got a crowd together
and went with them, or rather got them to go with him, to
Corsicana to surrender. Witness went to the place where
Munn's body was, but did not see the body, as it was dark. A
small fire and a lantern were burning at the said place. Ad-
ams, Aderholt, Slaughter and others were there. The weeds
flanking the Corsicana and Waco road on either side were
called blood weeds, and in places were over ten feet high.
They stood dense in some places and sparse in others. G^eo^ge
was living with witness at the time. John, who was a mar-
ried man, had sent a part of his household effects to Ellis
county, whither he was moving, and at that time the balance
of his effects were loaded in a wagon, which was standing in
witness's yard to be sent forward on the morrow.

Cross examined, the witness said that the point in his field
from which he saw the first shot fired by Munn was about two
hundred and fifty yards from his house, and perhaps not more
than two hundred yards from the Corsicana road. He had
come five or six hundred yards from the cotton patch towards
his house at that time. The shooting occurred about an hour

Digitized by VjOOQIC

Term, 1889.] Hanson v. The State. 595

Statement of the

before sundown. Four shots in all were distinguished by the
witness, and they sounded very much alike. The gun used by
George was a small breech loader. It belonged to the witness,
who also owned another just like it, and a third one which was
a muzzle loader. The ravine did not cross the road at the point
where the shooting occurred, nor was there "much of a valley*'
at that point. John had no gun, but had a rope or bridle in
his hand. He did not see Munn fall. The mule he was riding
was capering about from the time the first shot was fired, as
long as witness could see it. Witness could hear Munn talk-
ing much better than he could see him. Witness saw the flash
of George's gun, but did not see George himself at the time of
the shooting.

On his re-examination the witness said that he considered the
place at which the killiug occurred unfavorable as an ambush.
There was a ravine accessible to the road, about fifty yards
from where the killing occurred, into which either or both the
relators could have gone, and have been completely hidden
from the view of a person on the road. The place in the road
from which George fired, and the place in the field where John
was at that time, were open and clear. From the place in the
road where George fired he could see up and down the road at
least one hundred and fifty yards each way. The witness's
field fence along that road was a straight fence, partly rail and
partly wire.

The relator John Hanson testified that for some time before,
and until a day or two preceding the evening of the killing, he
lived on the Howard place, about a mile distant from the house
of his father, the preceding witness. Witness had dispatched
some of his household goods to Ellis county, whither he intended
moving on November 7, 1888, and had the balance of his effects
packed in a wagon ready to go forward. He saw Munn,
Thweatt and Simpson on their way to Purdon on the fatal day.
Purdon was about three miles distant from witness's father's
house. Witness and his brother went to Purdon soon after-
wards, arriving there about 9 o'clock. They remained about
the polls at Purdon for perhaps three hours, when they went
back to their father's to dinner. About an hour before sunset
the witness and his brother left their father's house and went
to the field to see if the cows were again depredating on the
crops. They went through the cot'ton patch to the pasture, and
thence up the pasture fence to the road. Leaving the house

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596 27 Texas Court of Appeals. [kuaiin

statement of the case.

they went north by the road through the field, which took
them directly away, from the main Corsicana road. They pur-
sued that route five or six hundred yards, out of sight of the
said Corsicana road, and then went east down a small branch,
over which they could not see the road. They then went up
the pasture fence to get a bridle that witness had left hane^ing
on the fence at a point near the gap. That gap was about two
hundred yards from the main Corsicana road. Witness got
the bridle, and when he and his brother reached the fence near
the road, the witness had a call of nature, to relieve which he
squatted down in the field, and George crossed the fence to the
road. While relieving himself the witness heard Munn curs-
ing George. Among other things he said; "Oh yes, I've got
you now where I want you. I tried to do up your father with
an axe handle, and I will try you with something else.'^
George was then sitting on the bank of a small ditch on the
road side, and could see up and down the road a distance of
one hundred and fifty or two hundred yards. Munn then fired
two shots at George, and George seized his gun, which was
lying on the ground near him, and shot at Munn. The sun was
about thirty minutes high when the shooting occurred. Munn
could have passed along that road without being seen by parties
in the said field. Witness had no pistol or other weapon at the
time of the shooting. Neither he nor his brother had ever had
any trouble with Munn. Their father had a difficulty with
him some time before the killing. George took the gun with
him on the fatal evening for the purpose of shooting cows
which he expected to find depredating on his crops.

On his cross examination, the witness said that the first inti-
mation he had of Munn's proximity at the time of the shooting
was the cursing of George by Munn. The witness was then
inside the field, twenty or thirty feet distant from Munn and
George, who were on the outside. He did not see either Munn
or George until he stood up, which was a moment or two be-
fore Munn fired. Four shots were fired. The first two were
fired by Munn immediately after he began cursing. George
seized his gun and took it up from the ground between the
two shots fired by Munn. There were no trees, bushes nor
weeds at the place of the shooting. George crossed the fence
into the field immediately after the shooting, and he and wit-
ness went home, meeting their father about two hundred yards
from the house. Munn fell off his mule; that animal, which

Digitized by VjOOQIC

Term, 1889.] Hanson v. The State. 597

Statement of the case.

had been fretting, went off toward home. Witness, with J, J.
Adams and Rowton, accompanied George to Corsicana on that
night.

The relators closed.

S. M. Rowton was the first witness for the State. He testi-
fied that, at the time of the killing of Munn, he was at Ader-
holt's house, about a quarter of a mile from the point where the
killing occurred. He heard the shots fired at the time of the
killing. The first two were loud reports. After a brief inter-
val two more shots were fired, making fainter reports than the
first two, and after a somewhat longer interval the fifth arid
last shot was fired. The first four shots sounded like guns, and
the last like a pistol. The witness had just reached Aderholt's
house from Purdon. He and Munn traveled from Purdon to-
gether to the head of a lane, near which the killing took place.
They parted at the head of the said lane, witness going to
Aderholt's via Slaughter's place. The killing occurred a very
short time after their separation. Some time after the shooting
Henry Hanson, a cousin of the relators, came to Aderholt's
after witness, and witness, with Aderholt, J. J. Adams and
Freeman, returned with him to Munn's body,— Henry Hanson
and said Adams having previously been there. Munn's body
was lying slightly quartering across the road in or near a slight
depression in the road. A pistol lay on the ground, pointing
straight irom Munn's head. Witness saw another pistol on
Munn's person. While the several parties named by the wit-
ness were at the body, C. J. Hanson, the father of the relators,
appeared and said: "There seems to be a little excitement
here." He, C. J. Hanson, then pointed to the pistol lying on
the ground, and asked if any person present knew that pistol.
Witness saw the relators in Purdon on that day, and at their
father's hou^^e after the shooting, and went to Corsicana with
George on that night. Witness and his crowd were the first to
reach Munn's body that night.

E. A. Slaughter testified, for the State, that he was at home
sick at the time of the killing of Munn. Between sun down
and dark on that evening the witness heard five shots. There
was a slight interval between the second and third shots, and
a somewhat longer interval between the fourth and fifth. The
first two shots were the loudest. The second two shots were
fired from a breech loading gun. About an hour after he
heard the shots the witness was informed by his son of Munn's

Digitized by

Google

598 27 Texas Court op Appeals. [Austin

Statement of the c£use.

death, his said son telling him that he had passed Munn's dead
body on the road. Witness was not familiar with Munn's rep-
utation as a, law abiding or law breaking man. He had known
Munn since 1880; during which time he was on neighborly but
not intimate terms with him, and recognized him as a good
neighbor and a good citizen. There was a ravine in the wit-
ness's field which ran up to the fence near the place where the
killing was said to have occurred. There was another small
ravine in Hanson's field opposite, that ran out of the field un-
der the fence, and then turned suddenly back into Hanson's
pasture, making an elbow immediately under the fence. There
was a third ravine between witness's house and the place
where Munn was killed.

On his cross examination, the witness stated that he was un-
able to swear to Munn's reputation as a fighting man. He had
heard of Munn having trouble with Wright, with Berry and
and with the Hansons, but he never heard Munn threaten the
Hansons. He also heard that Munn was arrested once for aid-
ing others in a fight with one Ward. He also heard of a party
once cursing Munn on a race course, and that Munn went
home, got his gun and went back to the track. The witness
was familiar with the use of fire arms, and from a distance
could tell the difference between the report of a breech loading
and that of a muzzle loading gun.

Describing the wounds found on the body of Munn, Doctor
W. A. Bates testified as follows: **I found altogether fourteen
wounds on Munn's body. Probably some of the missiles made
each two holes. There were wounds in the right temple, run-
ning down and backwards, two scalp wounds, one wound on
the back of the neck, one on the left thumb, one on the right
side under the arm, one in the right arm that ranged through,
two on the back that ranged up to and under the shoulder blade,
and one on the right hip. The said wounds were mostly on the
right side. I don't think the wounds in the temple and scalp
could have been made by the same discharge. They must have
been from separate shots. I judged from the appearance of
the wounds that the wounds on the scalp were made with a pistol
ball. The shots in the body all ranged upward, and the temple
wounds went straight through. Thirteen shot struck. I counted
fourteen wounds from thirteen shots, — two glancing. I took
no shot out of the body. Dr. Gillian had been to see him be-
fore and probed the wounds. I looked at the ground where

Digitized by VjOOQIC

Term, 1889.] Hanson v. The State. 699

Statement of the case.

Munn was killed from my horse, and did not get down. Dick
Thweatt and Lon Cox were there with me. There were tracks
in a ditch close by, but inside of a field. There were weeds on
the roadside, but I did not notice whether they were sufficiently
dense to shield a man. The wounds in the temple produced
instant death. The wound in the loin would have resulted in
death, but not instantly."

On cross examination the witness said : '*Going west the tracks
in the ditch would have been to the right. The shots in the
body ranged up. There is doubt about the direction shot will
take after entering the body. We often read of one strik-
ing the skull and going around the head. The range of the
probe in the temple wounds would have been from the right ear
to the rear of the left. I did not probe them. The scalp wounds
made abrasions of the skin only. They struck the head in front
and were at right angles to the wounds in the temple. It does
not take a professional to determine the place at which a ball
entered a body. It always leaves a larger and a ragged hole at
the point of exit."

Cloud Slaughter testified, for the State, that he was at the
pasture gate between the houses of his father and Freeman
when the killing of Munn took place. He heard five shots, the
balls or shot of which went to the right of witness, — witness
being about 580 yards distant from the place where Munn was
killed. The first two shots were very loud ones; the other three
not so loud. Ten or fifteen minutes after the first shots were
fired the witness heard a pistol shot fired at or near Hanson's
house. He then heard women crying. About an hour after-
wards he heard of Munn's death. Including the pistol shot,
witness heard six reports.

C. C. Aderholt testified, for the State, that while he was at
his supper table on the evening of November 6, 1888, he heard
five shots, with slight intervals between the second and third
and the fourth and fifth. The first two were louder than the sec-
ond and third, which in turn were louder than the fifth. To
the witness the shots sounded like gun and not like pistol shots.
Some of the boys came into the house just.after the shots were
fired and remarked: "We are having fun soon after the elec-
tion." Within the next thirty- minutes the witness heard of
the killing of Munn. Henry Hanson called witness to his gate
and said to him: "We want you; George Hanson has killed
Jim Munn." Witness replied: "Certainly notl" Henry re-

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600 27 Tbxas Court of Appeals. [Austin

statement of the case.

plied: "Oh yes, he has; and I want you to go and see about it."
By this time the witness's family had congregated at the gate.
Witness asked Henry Hanson: "How do you know Munn is
dead?" He replied: *'J. J. Adams and I have been there, and
he is dead." Witness then went with a party of gentlemen,
including Henry Hanson, to Munn's body. He found the body
lying in the road at the point where the shooting occurred. A
small five shooting pistol, with two barrels discharged, was
lying on the ground, about two and a half feet from the head,
the muzzle pointing towards the head. Dr. Gillian was then
sent for and soon arrived. He opened two jackets that were
on the body, and inside the jacket next to the skin he found a
full loaded large pistol. While the parties were examining
the body C. J. Hanson, the father of the relators, appeared on
the scene, and remarked, as he stopped some distance from
the body: "Hie! You have some excitement here. There is
a pistol; who does it belong to? Do any of you know that
pistol?" He then added: * 'George wants to give up, and wants
some of you to go to town with him." Before witness went to
Munn's body Henry Hanson said to him: **The girls came to
my house and said that Munn was dead. George said: *I
killed Munn. Now don't ask me any questions.' " There was
a ravine near the place of the killing and thick weeds not far
from it. Munn's mule was shot through the nose and neck on
the left side, with what witness took to be large squirrel shot.

Eugene Slaughter testified, for the State, that he was at his
father's house at the time of the killing. Before good dark the
witness, being in the lot, heard five shots; short intervals
elapsed between the second and third, and the fourth and fifth
shots. Witness could tell, at a distance, the difference between
shots fired from a' gun and those fired from a pistol. He
thought the said five shots were fired from guns. The Slaugh-
ter pasture gate was nearer the place of the killing than was
the lot in which the witness was standing when he heard the
shots.

Doctor Gillian testified, for the State, that he examined the
wounds on Munn's body, probing those in the right temple and
the back. The range of the balls which inflicted those wounds
was back and upwards. The body when witness first saw it
was lying in the road, the back towards Hanson's house. A
five shooting pistol was lying on the ground near the body, but
witness did not examine it. The wounds in the temple were

Digitized by VjOOQIC

Term, 1889.] Hanson v. The State. 601

Statement of the case.

fatal; they entered and ranged at right angles to the scalp
wounds. The wounds in the back appeared to have been in-
flicted with squirrel shot. The shot or balls that entered the
temple penetrated the base of the brain.

S. M. Patterson testified, for the State, that he heard of the
killing of Munn on the morning after it occurred, and went to the
place where it occurred to examine the ground. He found foot
tracks in a "little sink" just inside Hanson's field. High weeds
were growing along the line of Hanson's field fence, but not
immediately in front Of the point where he saw the said tracks.
A person traveling the road just outside the field could not see
a party sitting down at the point where the witness saw the
tracks. From that point the tracks led through the fence into
the road near the point where Munn fell. Witness found no
tracks on the side of the road opposite Hanson's field, nor in
the opposite field. Witness saw two pistols at Munn's house,
one of which was said to have been taken from Munn's body,
and the other to have been found on the ground. Witness
also saw Munn's mule on that morning. It was shot through
the nose and neck on the left side. Witness was familiar with
the nature of a mule, and knew that a mule, when stricken on
the side of the head, would turn around.

Cross examined, the witness said that Howard, Bell and
others were with him when he examined the ground at the
place of the tragedy. A plain impression on the ground at the
"bink" or ravine showed where a man had sat, there being also
foot prints in the bottom of the ravine. The said ravine was
a ** washed out place." The ground was bare at that point, and
there was nothing between it and the fence. There were two
impressions of a man's feet in the ditch or ravine, but witness
found no foot prints leading to them. There was but a single
track between those impressions and the fence, and there were
two or three in the road outside of the fence. Witness had
been told that various parties visited that place on the night of
and after the killing.

D. W. Hill testified, for the State, that he examined the
ground in the vicinity of the killing on the morning after it
occurred. In the small ravine described by the witness Patter-
son the witness saw the impression of a knee and a foot. He
observed tall weeds growing along the line of the fence. C. J.
Hanson's house was in sight of the place of the killing. Wit-
ness observed the v/ounds in the neck and nose of Munn's

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602 27 Texas Court of Appeals. [Austin

Statement of the ease.

mule, and thought they were inflicted with number three buck
shot. Howard and others were with the witness. Howard
testified, for the State, substantially as this witness did.

Joe Hodges testified, for the State, substantially as Howard
and Hill did, and stated in addition that the foot tracks in the
ravine showed that the person standing there faced the road.
Witness was in his field, about three quarters of a mile dis-
tant, when the fatal shots were fired. He heard five shots,
which he took to be reports from shot guns, the two first being
the loudest. After the lapse of some time he heard the fainter
report of a weapon fired at or near Hanson's house.

R. J. Anderson testified, for the State, that he was at Mrs.
Curry's house, about a mile and a half distant from the place
of the killing, on the evening of November 6, 1888. He heard
five shots, all of which in his opinion were from shot guns—
the first two, which were the loudest, being fired from a muzzle
loader, and the remaining three from a breech loader.

William Farmer testified, for the State, that he was on his
way to Bob Farmer^s house at the time of the killing. Before
he reached the said house he met Latch Dew and Mr. Withrow,
who told him of the killing of Munn, and asked witness to go
with them to the body. The witness went as requested. He
found Munn's body lying in the road, with one leg somewhat
doubled under the body. Witness turned the body over and
straightened it, and in doing so he saw a pistol in the coat or
vest pocket. He examined that pistol and found it to be loaded
all around. He saw another pistol on the ground near the
body. He examined that pistol also, and found it to be a five
shooter with two or three of the chambers empty. The hammer
was resting on an empty shell. The empty chambers were all
cankered, indicating that the pistol had not been recently dis-
charged. Witness placed the two said pistols back in the same
places where he found them. Aderholt took the two said pis-
tols to Munn's house, where they were placed in a trunk. Wit-
ness left Munn's body about ten o'clock that night. It was
then * 'misting," and quite a shower of rain fell afterward.

Latch Dew testified, for the State, that he was at his home,
about a mile and a half from the place of the killing, at the
time it occurred. He heard the shooting, but paid only enough
attention to it to note that the first two were the loudest of the
shots. He afterward went to the body, and near it found a
forty-four calibre five sbooting pistol. He examined that pis-

Digitized by VjOOQIC

Term, 1889.] . Hjnson v. The State. 603

Statemeilt of the case.

tol, and believed it to be the same pistol which one Lancaster
showed him about five months before. He would not, how-
ever, swear that it was the same. He did not examine the
pistol for marks, though Lancaster, when he showed his pis-
tol to witness, said that he had put marks on it. Witness
never saw either of the relators in possession of the Lancaster
pistol. According to the recollection of the witness, the pistol
he found on the ground near the body had three empty cham-
bers.

James Belt testified, for the State, that he saw the relators at
the election in Purdon on the day of the killing. He did not
see them engage in a private chat, but during the day he saw
Greorge call John, and saw the two go off together. He did
not know where they went. On the next morning the witness
made a partial examination of the ground about the place of
the killing. The weeds to the right of the place in the ravine
where a person had made foot tracks were higher than a man's
head. The tracks leading from the gully to the place where
Munn fell showed that the party stumbled in getting out of the
gully.

Rolley Dew testified, for the State, that he saw both of the
relators on the day of the election in November, 1888, and saw
the relator John Hanson on the day of the inquest. We did
not observe the shoes worn by either of the relators on either
of those days. He had never heard either of the relators utter
any positive threats against Munn, but, about the time the Han •
sons were charged with stealing some wine, Georore said to wit-
ness: "You have heard about this wine trouble? Well, Munn
got me into it, and if he swears on the witness stand that I got
the wine, he and I can no longer live in the same neighborhood
and do well." The witness knew as a matter of fact that George
Hanson frequently, if not habitually, carried his double barreled
shot gun before the killing and before the wine trouble. He
carried it stock hunting and * 'sparking the girls. " Witness saw
George, John and Henry Hanson in conversation in Purdon on
the day of the killing. Witness and Munn passed them,— wit-
ness speaking to them. Munn did not speak, or if he did, wit-
ness did not hear or see him do it. The witness, on the morning
after the killing, saw the pistol said to have been found on the
ground near Munn's body. It was a nearly new bull-dog five
shooter. Two or three chambers were empty and somewhat
cankered. Witness thought that an empty chamber of a pistol

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^04 27 Tbxas Court op Appeals. [Austin

statement of the case.

would canker in one night if left on the ground. It might, how-
ever depend upon the weather as to whether or not it would
canker in that time. Witness and Pink and Dan Lancaster
examined that pistol closely for marks, but found none. It was
insisted by somebody in the crowd that the said pistol was the
same pistol that George Hanson publicly claimed some time
before.

Justice of the Peace Walton testified, for the State, that he
held the inquest on the body of Munn. He directed Dr. Bates
to make a post mortem examination of the body. Witness saw
fourteen wounds in the body, four of which were mortal
wounds. He observed particularly the wounds in the temple,
right side, hip and chest. He did not think all of the said
wounds could have been made by the same discharge. They
indicated that they were inflicted by different shots tired from
different directions. One pistol was found on Munn's person, and
i^ nother on the ground. The one found on the ground was taken
apart on witness's order and examined for marks. No distinct
marks were found on it, although some dim scratches were dis-
covered, which might have been the stamp of the maker. Some
time before a similar pistol, but with marks somewhere on it,
was found at or near one of the neighbor's chicken roosts, and
was afterwards claimed by George Hanson, and it was to dis-
cover the marks to identify the pistol found near the body as
that claimed by George Hanson, that it was taken apart.

The State closed.

Several witnesses were called by the relators to testify about
the tracks discovered in the vicinity of the killing. Their tes-
timony did not vary materially from that of the witnesses for
the State.

Bud Curry testified, for the relators, that he was the only
Curry who lived in the neighborhood of the killing. R J.
Anderson, who testified on this proceeding as a witness for the
State, was not at the witness's house on the night of the killing.
If he was there on that evening the witness did not know it,
and was satisfied that he would have known it had he come
there. Witness heard some shots fired late that evening, but
thought they were fired in a direction nearly opposite from
where the killing occurred.

Henry Aderholt testified, for the relators, that it was after
dark, and the night was very dark, when he and others got to
Munn's body. They were at that place for some time before

Digitized by VjOOQIC

Term, 1889.] Hanson v. The State. 605

Statement of the case.

they got a light. The several parties present helped gather up
the pieces of fence rails with which the fire was made. They
scrambled around in the dark to get them, and it was quite a
possible matter for some one of them to have fallen or stepped
into the gully.

J. J. McClelland testified, for the relators, that, coming out
of the sheriff's oflBce, in Corsicana, on the day before the kill-
ing, he met Munn. Munn seized him in a friendly manner, as
was his custom, and witness threw his arms about Munn's
waist, in doing which he felt a pistol. Munn said: * 'Catching
me under the circimistances, you wont have me pulled for it,
will you?*^ Witness replied that he would not. Munn then
said that he was going to apply to the sheriff for a deputyship
in order to be entitled to carry a pistol, and asked witness if he
thoui^ht the sheriff would appoint him. Witness replied that,
in view of his, Munn's, recent trouble with the Hansons, he
did not think the sheriff would appoint him. Alluding to his
pistol, Munn replied: ''This is for the Hansons. You recollect
the trial at Dresden?" The trial referred to was the trial of the
Hansons for the theft of wine, in which Munn assisted witness
in collecting evidence for the prosecution. Munn's activity in
that case appeared to embitter the feeling between the Hansons
and himself, and he remarked to witness that if he, witness,
had not been at that trial, he, Munn, would have ''got" the
Hansons then. Munn and old man Hanson had a difficulty in
Corsicana a few weeks before the killing. Munn knocked old
man Hanson, and was fined for it. He complained that he
was "taxed" too much in that case. The witness remonstrated
with Munn on the day before the killing, for carrying the pis-
tol. He excused himself by saying: '^Old man Hanson goes
armed, and they are carrying a gun for me." He did not say
which of the Hansons was carrying the gun. Munn's reputa-
tion was that he was an absolutely fearless man and a fighter.
Witness did not know that he would seek and take advantage
in a fight. On cross examination the witness said that the
trouble between the Hansons and Munn antedated the wine
theft prosecution. The Hansons, prior to the wine case, prose-
cuted one Jackson for libel, and on the trial undertook to prove
that Munn wrote the libelous matter circulated by Jackson.
Witness, at that time, was county attorney of Navarro county.

Simkins db Nehlett, for the relators.

Digitized by VjOOQIC

606 27 Texas Court op Appeals. [Austin

Statement of the case.

W, L. Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. Upon the evidence as presented to us in
the record, we are of the opinion that the applicant Gteorge
Hanson is entitled to bail. The judgment refusing him bail is
reversed, and he is granted bail in the sum of five thousand
dollars, upon giving which in the manner prescribed by law
he will be released from custody.

There is no evidence in the record showing the ability of the
applicants to give bail, and we are not prepared to say that the
amount of bail required of the applicant John Hanson is ex-
cessive; wherefore the judgment as to said applicant is af-
firmed.

Ordered accordingly.

Opinion delivered May 15.. 1889.

No. 6467.
Sam Riley t;. The Statb.

1. Thbft— INDICTMBNT.— The purpose of the indiotment in this ease was

to charge the theft of a horse from the possession of one Henry Wright,
but in drafting the indictment the pleader omitted the word ''of* after
the word possession. Held, that the omission is fatal to the conviction,
inasmuch as the omitted word is essential to the accusation.

2. Same— Accomplice Testimowt.— See the opinion in extenso for eri-

dence of a Staters witness held insufficient to inculpate the said witness
as an accomplice to theft.

Appeal from the District Court of Callahan. Tried below
before the Hon. T. H. Conner.

The opinion discloses the case.

The penalty assessed by the verdict was a term of five years
in the penitentiary.

No brief for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.'

Digitized by VjOOQIC

Term, 1889.] Riley v. The State. 607

Opinion of the court

Hurt, Judge. This conviction was for the theft of a horse.
The indictment omi{s to allege that the horse was taken from
the possession of Henry Wright, the preposition "of" being
omitted. This, we think, is fatal to the suflSciency of the in-
dictment.

An indictment for playing at a game with cards, at a certain
public place, etc., in which the word "at" is omitted before the
words "a certain public place," is bad, because the word "at" in
that connection forms an integral part of the description of
the oflfense, and hence can not be supplied by intendment.
(The State v. Huston, 12 Texas, 245.) We can perceive no dif-
ference in principle between the omission of "at" in the con-
nection it should have been used and the word "of" in its
proper place in this indictment. If "at" was necessary to a
complete description of the oflfense sought to be charged, "of "
is equally so to a complete description of the oflfense of theft.

Appellant was convicted upon the testimony of one Mark
Munday, who was the only witness who swore to facts crimi-
nating the appellant. There were some circumstances slightly
tending to show Munday an accomplice. The learned judge
charged the jury very fully upon the necessity of corroborating
this witness, and the character of the corroboration required
by the statute, leaving it to the jury to determine whether
Munday was an accomplice or not. This was correct, but it
is contended by counsel for appellant that Munday was an ac-
complice, and that, as he is not corroborated, this conviction is
wrong, and that the judgment for this reason should be re-
versed. This is a correct proposition if it be true that the wit-
ness was an accomplice in fact. What are the facts upon
which it is sought to establish his complicity?

He states that Riley and Frank Munday rode up to the fence,
and Frank called him (witness) out; that he went out to the
fence and saw the appellant with the colt; that Frank said this
is the colt that defendant traded me, — defendant being present
holding the colt, but said nothing; that Frank asked me if he
could put the colt in my pasture. I told him he could, where-
upon defendant placed the colt in the pasture. That he was
•before the grand jury in April, 1888, when this matter relating
to the theft of the colt was being investigated. That he testi-
fied before the grand jury in relation to this matter about as he
did on this trial. That the grand jury indicted him for this

Digitized by VjOOQIC

! 29 587

608 27 Texas Coubt of Appeals, [Austin

Byllabns.

theft, but the prosecution was dismissed at the October term,
1888.

A member of the grand jury was introduced by the appel-
lant. He swears that Mark Munday was a witness before that
body, and was interrogated with regard to the theft of the
colt, but the witness did not remember the testimony.

These are all the facts which bear upon the question as to
whether Munday was an accomplice. We hesitate not in say-
ing that they do not possess that cogency which would justify
this court in holding that the decision of the jury that Munday
was not an accomplice was wrong, unless we infer that there
must have been other facts before the grand jury upon which
the indictment was found. We can make no such presump-
tion.

It is not necessary that we pass on the suflSciency of the evi-
dence to support the verdict, as the case may be tried again.
Because the indictment is insufScient, the judgment is reversed
and the prosecution dismissed.

Reversed and dismissed.

Opinion delivered May 15, 1889.

No. 6376.
Tom Coffblt v. The State.

Robbery— Evidence— New Trial— Indictment for robbery having
unnecessarily described the moDey of which the accused robbed the
injured party as "lawful money of the United States of America," it
was essential to the validity of the conviction that the kind of money
be proved as alleged. The proof in this case, falling short of thi« re-
quirement, does not support the conviction, and the accused shoald
have been awarded a new trial.

Same— Variance.— The indictment alleges that the accused took the
money from the person of F. The proof shows that the accused and
another presented pistols at F., and demanded the money, and that F.t
in fear of his life or of serious bodily harm, and after being strack, de-
livered the money. The defense contends that this proof shows a de-
livery of the money by F. through fear, and, therefore, that there is a
fatal variance between the allegation and the proof. But Tield that
such a delivery is a taking within the purview of the statute defining
robbery, and therefore there is no variance. •

Digitized by VjOOQIC

Term, 1889.] Coffblt v. The State. 609

Statement of the case.

Appeal from the District Court of Brown. Tried below be-
fore the Hon. J. W. Timmins.

This conviction was for the robbery of W. H. Flippin, under
an indictment the charging part of which is set out in the
opinion. The penalty assessed by the verdict was a term of
ten years in the penitentiary.

W. H. Flippin was the first witness for the State. He testi-
fied that he lived in the northern portion of Brown county,
Texas, and for twelve years had known the defendant, who
lived with his father about three miles distant from witness's
house. Defendant and Tom Price galloped their horses to wit-
ness's place about sundown on the evening of February 21,
1888. By the time the witness recognized them they had their
pistols presented close to his face, and one of them said to wit-
ness: "Hand up your checks, God damn you! Dig up that pot
you have got buried! It is money we want! Dig it up! — ^We
know you have got it! Dig it up, — God damn you, dig it up!"
Tom Price then struck wifness over the head with a pistol, and
witness handed him his pocket book, which he passed to the
defendant. The said pocket book contained four twenty dollar
gold pieces, one five dollar gold piece, two ten dollar bills, one five
dollar bill, and five silver dollars, aggregating one hundred and
fifteen dollars, — all of which was the personal property of wit-
ness and was taken from him by defendant and Tom Price
without his consent. Defendant's face was partially covered
by a handkerchief, but witness recognized him both by his un-
covered features and his voice, and could not be mistaken as
to his identity. Tom Price was not disguised. After securing
witness's pocket book defendant and Price marched witness and
his two sons, Lige and Robert, to a point fifty-nine steps from
where the robbery was perpetrated, and at that point Price
produced a bottle and asked witness if he would not take a
drink of Coleman City's best whisky. Witness declined, when
one of the parties asked him: "Do you know us?" Witness re-
plied that he did not, being afraid to tell the truth. Tom Price
was then a stranger to the witness.

Cross examined, the witness said that the defendant's father
moved away from witness's neighborhood about three years
before the robbery. Witness could not say that defendant
lived with his father constantly during the four years preced-
ing the latter's removal, but during that time he often saw the

Digitized by VjOOQIC

610 27 Texas Court of Appeals. [Austin

Statement of the case,

defendant in that neighborhood. Defendant and Price were
riding bay horses at the time of the robbery. Defendant was
the man who ordered witness to **hand up his checks," etc.
Price also ordered the witness to deliver the mioney. They
were on their horses, with their pistols pointed at the witness's
face. Price dismounted and came into witness's yard and re-
ceived the pocket book from witness's hands. Witness knew
Bob Westerman, who at the time of the robbery was living in
the Pan Handle. He removed from Brown county to the Pan
Handle two or three years before the robbery, but was in the
county a few days before it occurred. Witness met and talked
with him while he was on that visit. He did not recognize the
said Westerman until he spoke. He thought at the time of
the robbery that said Westerman was the party with defend-
ant, and so stated to one or more parties afterwards. Price
and Westerman were very much alike in build, and were about
the same size and age. Witness then stated the several trans-
actions in which he received the moneys of which he was rob-
bed, but could not state the particular moneys or kind of
money that he received in the several particular transactions,
nor could he remember the dates of those particular transac-
tions. Witness's sons, Lige and Robert Flippin, Lige's wife,
and old man Douglass were at the witness's house at the time
of the robbery. Robert was with witness at the time, and
Lige was at the horse lot. Douglass and Lige's wife were in
the house. The witness was kept in terror during the process
of the robbery, and all of that time looked down the barrels of
two forty-four calibre single action Colt's revolvers. Defend-
ant and Price each wore a coat and black hat. Defendant's hat
was over his eyes at first, but was afterwards pushed back.
When defendant and Price started oflf with witness and his two
sons, they said to witness: "Old man, tell your folks good bye."
Price then said to defendant: "Let us shoot him." Defendant
demurred, and the two rode off in a gallop. Soon after the
robbery witness went with the sheriff to Cliff Westerman's
house to see Bob Westerman. The Westermans were in bed
but they got up, dressed, and received witness, the sheriff, and
Deputy Sheriff* Rushing. Cliff took witness off and said to
him: "I understand that you charge that Bob is one of the men
who robbed you." Witness made no reply to Cliff Westerman,
but on the way home he said to deputy sheriff Rushing: **I
believe I will go back and tell them that I thought Bob was

Digitized by VjOOQIC

Term, 1889.] Coffelt v. The State. 611

Statement of the case.

one of the men who robbed me until I got a second look at
him/' The witness did not, after he was released by defend-
ant and Price, say to the parties at his house: *'Do any of you
know who they are." Old man Douglass did not say: "I recog-
nized Tom Ooffelfs voice as soon as he spoke." Soon after the
arrest of Price witness went to Eastland to look at and identify
him. On his way home the witness passed Irby's house, and
saw Irby plowing the horse ridden by Price on the evening of
the robbery. Irby said that his said horse was stolen from
him some time before.

Liige Flippin was the next witness for the State. He testified
that he had lived with his father, the prosecuting witness, in
Brown county, for twelve years, during which time he had
known the defendant. The witness first saw the defendant,
on the evening of the robbery, about a mile from his, witness's,
father's house. Witness was then on his way home. Defend-
ant and Tom Price were in the brush about thirty steps from
the road. Witness went on home. Soon after his arrival de-
fendant and Price rode rapidly to the gate where witness's
father was standing, covered him with their pistols, and in the
manner stated by witness's father on the stand, demanded the
surrender of his money. Price then dismounted, went into
the yard, and received the pocket book from witness's father,
and said to him: **Dig up your pot, God damn you! Digit
up." He then seized a handkerchief, tied it around the old
man's neck, jerked it until it came off, and then struck the old
man over the head with his pistol. While Price was jerking
the old man around, the latter said: **You may kill me, but I
have no more money." Defendant and Price then marched
the old man, witness and his brother to a point about sixty
yards distant, before doing which Price told the old man to bid
all of his children good bye. After reaching the point indi-
cated Price asked the old man if he knew them, and said that
if the robbery was ever reported he and defendant would re-
turn and kill the old man, witness and his brother. He then
offered a drink of whisky to his victim. Defendant wore a
handkerchief over his face, which covered his features from
his eyes down. Witness was positive that defendant and Price
were the men who robbed his father.

On cross examination, the witness said that he recognized
the defendant when he saw him in the brush before getting
home. The defendant had the handkerchief over his face at

Digitized by VjOOQIC

612 27 Texas Couet op Appeals. [Austin

statement of the case.

that time. He also had his hat pulled down over his eyes.
When the old man handed Price the pocket book. Price said
that he was not there to fool with that "little dab," but that
the old man must dig up his pot. During the time that Price
was jerking the old man around, the defendant held the wit-
ness at bay with his cocked pistol, repeatedly ordering witness
not to move.

Robert Flippin, the twelve year old son of the prosecuting
witness, testified, for the State, substantially as did his father
and brother.

Old man Douglass testified, for the State, that he was so
nearly blind that he was unable to recognize a person by sight
at the distance of ten or twelve feet. He was at W. H. Flip-
pin's house at the time of the robbery, and heard, but could
not see, what transpired. He was confident that he recog-
nized the voice of one of the men who perpetrated the robbery
as that of the defendant. He could not, of course, otherwise
swear to the identity of the defendant. When old man Flip-
pin returned to the house after the robbery he asked: "Do any
of you know either of those men?" Witness replied: "I took
one of the voices as that of Tom Coflfelt." He was the first to
suggest defendant's name.

On his cross examination, the witness said that he was in a
violent fright at the time of the robbery, and could not swear
positively to the voice of defendant, but was satisfied in his
own mind that one of the voices was his.

The State closed.

The defendant's first witness was N". A. Perry, sheriflE of
Brown county. Mr. Perry testified that Tom Price was now a
prisoner in his custody. The said Price was a young man about
twenty-one years old, tall and straight in stature, with dark
hair, keen dark eyes, high thin nose, prominent features, and
on the whole a rather *'good looking" young man. He knew
Bob Westerman, who was now in the court room. The said
Westerman was of short stature, heavy build, with round
shoulders, round fat face, short nose, of lighter complexion
than Price, and about twenty-three or twenty-four years old.

W. H. Roach testified, for the defense, that he lived at the
town of May, about twenty miles north of Brownwood. Wit-
ness remembered the reported robbery of Mr. W. H. Flippin,
which was said to have occurred on the evening of February
21, 1888. The robbery of the bank in Cisco occurred a day or

Digitized by VjOOQIC

Term, 1889.] Coffelt v. The State. 613

Statement of the case.

two before the robbery of Flippin. The witness was at Sipe
Springs, about ten miles from May, about a week after the Flip-
pin robbery. While witness was at Sipe Springs, Tom Price
was brought in under arrest, being charged with the robbery
of the Cisco bank. He was riding a bay horse which Mr. Irby,
who was then in the said town, identified as a horse that was
stolen from him six or seven weeks before. Price was held on
the charge of stealing Irby's horse, and not on the charge of
robbing the bank.

Jo CofiFelt testified, for the defense, that he now lived, and
for ten years past had lived, in Tom Green county, about eigh
teen miles north from San Angelo, and about one hundred miles
from Brownwood. He was now living with Mr. Barfield. De-
fendant, who was witness's brother, also lived in Tom Green
county, and at the time of his trial had lived there seven or
eight years. Witness and defendant left Tom Green county on
February 8, 1888, to go to Colorado City, in Mitchell county,
Texas. They reached Colorado City on February 10, remained
there until the fourteenth, when they went to Mr. Holloway's
place, about twenty miles from Colorado City. The witness
remained at Hollo way's and defendant went on toward **home."
Witness got home on the eighteenth of the month, remained
on the nineteenth and perhaps the twentieth, and left, going
on the twentieth or twenty-first to Lum Hudson's, where he re-
mained until the last of the week. Hudson lived in Tom Green
county, about sixteen miles north of San Angelo, and about
half a mile from Norfleet's house. Witness's horse escaped
from him on the night of February 21, 1888, and witness left
Hudson's on the morning of the twenty-second on foot, to look
for him. He took dinner that day at Xorfieet's. Immediately
after dinner the defendant rode up to Norfleet's and witness
borrowed his horse and continued the search for his own horse.
He found his said hi rse on the next day, February 23, and took
defendant's horse to Norfleet's house, where defendant still was.

On his cross examination the witness verified the dates men-
tioned in his testimony by various incidents. He testified that,
when he and defendant left Tom Green county on February 8,
to go to Colorado City, he had not seen Tom Price for quite a
month. Witness and defendant separated at HoUoway's, near
Colorado City, on the fifteenth or sixteenth of February, and
witness did not see defendant again until he came to Norfleet's
house, in Tom Green county, about noon on February 22.

Digitized by VjOOQIC

614: 27 Texas Court of Appeals. [AiistiD

Statement of the ease.

When they separated at Hollo way's defendant wore oflf the
witness's white Stetson hat, and rode the witness's sorrel pony.
He came to Norfleet's on February 22, wearing the same hat
and riding the same pony. Defendant was arrested in Ooleipan
City on March 8, 1888, while en route to Baird as an attached
witness in a case pending at Baird.

Lum Hudson testified, for the defense, that he lived in Tom
Green county, Texas. He knew defendant and his brother Jo
Coflfelt, both of whom also lived in Tom Green county. Jo
Coflfelt came to witness's house on Monday, February 20, 1888,
and remained there until the end of the week. Defendant ate
supper at the witness's house on the evening of February 23.
Jo Coflfelt's horse escaped from him while at witness's house.
Jo left on foot to hunt for that horse and returned to the house
that night riding a small sorrel pony. He found his escaped
horse on the next day. On cross examination the witness said
that he remembered the date on which defendant ate supper at
his house by reason of the fact that, when defendant got there,
he said that he was on his way to the party at the house of (me
Wilson, who lived in the neighborhood, and that party occurred
on the night of February 23, 1888. When he came to witness's
house that night defendant was wearing a white hat and riding
a sorrel pony.

Jasper Norfleet testified, for the defense, that he lived in
Tom Green county, about sixteen miles from San Angelo, and
about one hundred miles from Brownwood, in Brown county.
Defendant was at witness's house on the sixteenth and seven-
teenth days of February, 1888. Witness saw him two days
later — February 19 — at the OL ranch, between witness's house
and San Angelo. He came back to witness's house on the
twenty-second day of the same month, and was there on
the twenty-third. Of these dates witness was positive. Be-
sides the defendant the two Coflfey boys and Mr. Butten ate
dinner at witness's house on February 23.

Frank Norfleet, for the defense, corroborated the state-
ment of the preceding witness, who was his father, adding
that Tom Price was with the defendant when he saw the de-
fendant at the OL ranch of February 19, 1888. In coming
to Norfleet's house on the twenty-second of February, defend-
ant came from toward Mr. William Cowley's house.

William Cowley and his son Tol Cowley testified, for the de-
fense, that they lived about three miles from Norfleet's house

Digitized by VjOOQIC

Term, 1889.] Coffelt v. The State. 615

Opinion of the court

in Tom Green county, Texas. Defendant came to their house
on Monday, February 20, 1888, remained that day and night
and the next day and night, and left on the morning of Feb-
ruary 23, 1888. They next saw defendant at Wilson's party on
the night of February 24, 1888. Wilson lived on William Cow-
ley's place.

Scott & Jenkins, for the appellant.

W. i. Davidson, Assistant Attorney General, for the State.

HuBT, Judge. This is a conviction for robbery. The indict
ment charges that appellant "did then and there, in and upon
the body of W. H. Flippin, make an assault, and did then and
there by said assault and by force and violence to the said W.
H. Flippin, in fear of life and bodily injury, fraudulently and
without the consent of the said W. H. Flippin, take from the
person and possession of the said W. H. Flippin, who was
then and there the owner thereof, five certain twenty dollar
gold pieces of the value of twenty dollars each, good and law-
ful gold coins of the United States of America; also on : cer-
tain five dollar gold coin, good and lawful money of the United.
States of America, of the value of five dollars; also two ten
dollar bills of the denomination of ten dollars each, good and
lawful money of the United States of America, of the value
of ten dollars each; also one five dollar bill of the denomina
tion of five dollars, good and lawful money of the United
States of America; also five silver dollars, good and lawful
noLoney of the United States of America, of the value of one
dollar each," etc.

Counsel for appellant assigns for error the overruling of the
motion for new trial based upon the insufficiency of the evi-
dance to support the verdict, "because there was no evidence
showing the kind or value of any of the money, as alleged in
the indictment." All of the money is alleged to be the lawful
money of the United States of America. It is contended that
the proof fails to show that any of the money was the coin or
bills of the "United States of America." Unquestionably this
is a description of the coins and bills alleged to have been
taken from Flippin, and hence a description of the particular
offense charged against appellant. This being the case, while
an unnecessary description, still it must be proved. (Childers
V. The State, 16 Texas Ct. App., 527; Gray v. The State, 11

Digitized by VjOOQIC

G16 27 Texas Court of Appeals. [Austin

Opinion of the oonrt.

Texas Ct. App., 411; Cameron v. The State, 9 Texas Ct App.,
336; 21 Texas Ct. App., 212.)

The indictment alleges that the robbery was effected by an
assault upon the body of Flippin, and also by force and violence
to the said Flippin. There is no allegation that it was effected
by ' putting him in fear of life or bodily injury.*' Something
is said in the indictment about fear of life or bodily injury, but
there is no allegation that Flippin was put in fear of anything.

The indictment alleging that appellant took the money from
the person of Flippin, and the proof showing that Flippin de-
livered the money to the appellant, counsel for appellant con-
tends that there is a variance, and that the allegation that ap-
pellant took the money is not sustained by the proof. What
are the facts bearing upon this point? Flippin says that appel-
lant and Tom Price galloped to his house about sundown; that
the first he saw of them, to know them, they had their pistols
in his face and said "hand up your checks, God damn you; dig
up that pot that you have got buried. It is money that we
want. Dig it up^ we know that you have got it. Dig it up,
God damn you, dig it up." Tom Price hit him on the side of
the head with a pistol, and he gave Price his pocket book, and
he handed it to appellant.

Now it is contended that this does not show a taking of the
money, but a delivery of the money by Flippin through fear.
A presents a cocked pistol toward B and demands his money.
B, through fear of loss of life or great bodily injury, delivers
to A his money. We are seriously told that A did not take B's
money. The authorities and common sense say that he did
take B's money. But counsel for appellant admits this would
be a taking of the money but for article 723 of the Penal Code.
This article has no reference whatever to the state of facts pre-
sented in this record. They are provided for in article 722.
This is evident, because appellant and Price not only exhibited
fire arms, but used them in the commission of the offense, and
in such a case the punishment may be for life, while the pen-
alty for a violation of article 723 is not less than two nor more
than five years.

As the case will have to be tried again, we will not give our
views on the evidence. Because the State failed to prove that
the money taken was United States money, as alleged, the
judgment is reversed and the case remanded for another trial

Reversed and remanded.

Opinion delivered May 15, 1889.

Digitized by VjOOQIC

Term, 1889.] Massib v. The State. 617

Statement of the case.

No. 6414.

Sah Massie v. The State.

AeoRAVATBD ASSAULT— EVIDENCE— FACT CASE.- See the statement of
the ease for evidence held to have been improperly admitted because
hearsay; and for evidence Tield insnffloieDt to support a conviction for
aggravated assault because it shows that the violence inflicted by the
defendant was justified in resisting an illegal arrest.

Appeal from the County Court of Parker. Tried below be-
fore the Hon. I. N. Roach, County Judge.

The conviction was for an ag^avated assault upon J. A.
Rutledge. The penalty assessed by the verdict was a fine of
twenty-five dollars.

J. A. Rutledge was the first witness for the State. He testi-
fied that the offense for which this defendant was now prose-
cuted was committed upon him, the witness, as alleged in the
information, on the sixteenth day of June, 1888. The place of
the assault was at the gate of William Edgings's pasture, in
Parker county, Texas. It consisted of several blows inflicted
with a whip, in the hands of defendant, upon the head, arms
and hands of the witness, hurting him severely but not seri-
ously— the said whip being an instrument calculated to inflict
disgrace upon the witness. The assault was committed under
the following circumstances: Mrs. Sarah Lambert told Deputy
Sheriff E. E. Taylor that certain cattle belonging to her had
been stolen, and on the day before the assault Miss A. Lambert,
the daughter of Mrs. Sarah Lambert, told Taylor that on the
day previous she saw the defendant and two others driving the
said cattle. The witness and E. E. Taylor then went by the
house of Constable Q. W. Taylor, and told him what they had
heard about the theft of the Lambert cattle, and E. E. Taylor
went home with witness and spent that night. G. W. Taylor
came to witness's house on the next morning, and he and E. E.
Taylor and witness went to Edgings's pasture to look for the
cattle and arrest the defendant. Arriving at the pasture, E. E.
Taylor directed witness to remain at the gate while he and G.
W. Taylor should go through the pasture. They expected to

Digitized by VjOOQIC

018 27 Texas Court op Appeals. [Austin

Statement of the case.

find the cattle in that pasture, because Mr. Edgings, on that
morning, told them that defendant and George Copeland, on
the morning of June 14, drove the said cattle to his, Edgings's,
lot, branded them, and then turned them into his, Edgings's,
pasture. The said pasture was about ten miles from Mrs.
I^ambert's place. When witness took his position at the said
gate, E. E. Taylor told him to remain there, and that if defend-
ant, Copeland, Frank Kirby, or either of them, should come
after the cattle, to hold them until he and G. W. Taylor got
back. The Taylors had been gone about thirty minutes when
the defendant rode up to the gate from the inside of the pas-
ture. As te reached the gate witness advanced and placed his
left hand on the neck of defendant's horse. After a few min-
utes of conversation, defendant said: "Well, I must be going."
Witness replied : **0h, no! Let's talk awhile." Defendant de-
clined, when witness proposed: "Let's sing something like we
used to when we went to singing school." The suggestion was
vain — if not unfortunate — for instead of lifting up his voice in
melody and song, the defendant viciously kicked his horse*
and, as witness seized the reins to hold him, showered blows
with his whip on the head of the witness, and on his arms and
hands. Witness, however, clung to the bridle, and defendant,
failing to release his grasp by using the whip on him, applied
it to his horse, with as little success in releasing that animal.
Thereupon he stretched forth his arm, pushed the bridle off his
horse's head, and rode oflf, leaving the witness, literally, "with
the bridle to hold." In all that he did on this occasion the wit-
ness acted by direction of Deputy Sheriflf Taylor, who summoned
him as a posse to assist in the arrest of defendant and others
for stealing Mrs. Lambert's cattle.

On his cross examination the witness said that he was not a
peace officer at the time of the arrest, and that he had no
warrant when he attempted to arrest the defendant, nor did he
know that a warrant had ever been issued for the arrest of de-
fendant.

E. E. Taylor, deputy sheriff of Parker county, was the next
witness for the State. He testified that on or about the date
alleged in the information he received word from J. A. Rut-
ledge, who lived about twelve miles from Weatherford, that
some cattle had been stolen from his, Rutledge's, neighborhood.
Witness went to Rutledge's house at once, and he and Rutledge
went to see Mrs. Lambert, from whose possession, as the cus-

Digitized by VjOOQIC

Term, 1889.] Massib v. The State. 019

Statement of the case.

todian of the cattle for one Edwards, the owner, the cattle
were alleged to have been taken. Mrs. Lambert and her
daughter told witness and Rutlege that the defendant, George
Copeland and Frank Kirby came to their place on the previous
day and drove off two two-year old heifers. This part of the
witness's testimony is the evidence held by this court to have
been erroneously admitted, over the defendant's objection, as
hearsay. The witness summoned Rutledge to go with and assist
him in the arrest of defendant, Copeland and Kirby. Witness
and Rutledge went by Constable G. W. Taylor's house that
evening, reported the alleged theft to him, and then went to
Rutledge's house, where they passed the night. On the next
morning the witness, Rutledge and G. W. Taylor went to Edg-
ings's pasture, where they expected to find the cattle. Rutledge
was left at the pasture gate with instructions to arrest either
or all of the said parties if thev * 'showed up." The witness
and G. W. Taylor then rode over the pasture in search of the
cattle.

On his cross examination the witness said that he had no
warrant for the arrest of defendant, his purpose being to find
him in possession of the cattle and arrest him. G. W. Taylor
had no warrant for the arrest of defendant. Witness did not
tell Rutledge that he had no warrant.

The State closed.

Constable George W. Taylor testified, for the defense, that
C. Lemmons, justice of the peace of precinct number four,
Parker county^ lived about four miles from the house of Mrs.
Sarah Lambert. The witness went with Deputy Sheriff Taylor
and Rutledge to Edgings's pasture on the day of the alleged as-
sault. He had no warrant for the arrest of defendant. The
witness and the two said parties went to the pasture to find
two certain two-year old heifers, said to have been placed in the
said pasture two days before. Their purpose was to identify
the animals, and they did not expect to find either the de-
fendant or Copeland or Kirby in the pasture. On cross ex-
amination the witness said that he did not know where the de-
fendant went to on the day of and after the alleged assault,
but he fled the country and was gone about six months. It was
the information of the witness that Sheriflf Sisk finally arrested
defendant in Kaufman county, on the charge of stealing the
Lambert cattle— which case is still pending against him.

No brief on file for the appellant.

Digitized by VjQOQlC

620 27 Texas Court of Appeals. [Austin

Statement of the casa

, 1

W. L. Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. Objections of defendant to state-
ments made by Mrs. Lambert to the State's witness, Taylor,
were well taken and should have been sustained by the court,
and the evidence excluded, being clearly hearsay testimony
and inadmissible.

We are further of opinion that the evidence is wholly insuffi-
cient to support the verdict and judgment. In our opinion the
evidence shows most clearly a case of illegal arrest of defend-
ant by Rutledge, the alleged injured party, and that defendant
was jutifiable in using the force complained of in effecting his
release. (Willson's Crim. Stats., sec. 976; Meuly v. The State,
26 Texas Ct. App., 307.)

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered May 16, 1889.

No. 6383.

Henry Bawcom v. The State.

Assault— Fact Case. — See the statement of the case for evidence held
insufQoieDt to support a conviction for assault.

Appeal from the County Court of Llano. Tried below be-
fore the Hon. E. C. Bonham, County Judge.

The information charged an aggravated assault, and the ver-
dict found appellant guilty of a simple assault and assessed the
penalty at a fine of five dollars.

Belton Waits was the first witness for the State. He testified
that he lived in Llano county, Texas, about twelve miles dis-
tant from the town of Llano. On the morning of July 12, 1888,
the witness and his brother Clabe went to work in the field
that they had rented from Mrs. M. J. Chadoin. Their work was
cutting top fodder. The defendant and Mr. and Mrs. Chadoin
and Travis Chadoin were engaged in like work in another part
of the said field. Witness's brother called to J. A. Chadoin to

Digitized by VjOOQIC

Term, 1889.] Bawcom v. The State. 621

Statement of the case.

come to where he and witness were, as he desired to see the
said J. A. Chadoin alone, about the top fodder. J. A. Ohadoin
came to where witness and Clabe were, and he and Clabe re-
tired to a point fifteen or twenty steps distant from witness,
squatted down in the weeds, and proceeded to talk about the
fodder. While Clabe and J. A. Chadoin were thus engaged, the
defendant came to a point near the witness and said to him:
"What kind of a game is this you are giving aunt about the
fodder?" Witness replied: "Go away and don't bother me.*'
Defendant then advanced to a point within two or three steps '
of witness, holding a butcher knife in one hand and a case
knife in the other, and said to witness: "I will carve your
damned heart out of you." Witness backed oflf and turned to
go home, when defendant said to him: *'Go on home and get
your daddy, and tell him to bring his gun and two or three
more if he has them." Witness then went home, passing near
Clabe and Jim Chadoin.

On his cross examination, the witness said that he and his
brother had rented and were cultivating Mrs. Chadoin's field.
They were to pay, as part of the rent, one- third of the fodder
grown. Witness and Clabe were cutting fodder on that part
of the field which they had reserved for themselves, and the
Chadoins and defendant were cutting fodder on the part of the
field they had assigned to Mrs. Chadoin. Defendant was a
nephew of Mrs. M. J. Chadion, and was working for her at
the time of the difficulty. J. A. and Travis Chadoin were near
by when the difficulty occurred. Defendant was whetting the
knives together when he approached and spoke to the witness.
Witness supposed that defendant had been cutting fodder with
one of the knives.

The State rested.

Travis Chadoin was the first witness for the defense. He
testified that he was present and witnessed the trouble between
defendant and Belton Waits. While the parties named by
Waits in his testimony were cutting fodder in the field, Clabe
Waits called to J. A. Chadoin to go and talk with him about
the fodder. When Clabe and J. A. Chadoin stepped aside, the
defendant asked Belton Waits: ''What kind of a game is this
you are putting up on aunt, in cutting all the fodder and leav-
ing none for rent?" Belton Waits replied to defendant: "That
is none of your damned business!" Defendant replied: **I
suppose it is some of my business, as my aunt employed me to

Digitized by VjOOQIC

C22 27 Texas Court of Appeals. [Austin

Statement of tbe case.

cut her part of the fodder, and I don't intend to see her treated
so." Belton Waits then said: "I will go home and get my
father, and he will settle with you." Defendant replied: "Go
home and get your father; I can reason with him." Belton
Waits then went home, and defendant, witness and Mrs. J. A
Chadoin went to where J. A. Chadoin and Clabe Waits were
talking. During the whole of the conversation between de-
fendant and Belton Waits, the witness stood within two feet of
defendant, and he knew that defendant did not strike nor at-
tempt to strike Belton Waits with a knife or anything else, nor
did he make any threat to strike or do him violence. Defend-
ant had two old knives in his hand, sharpening them by whet-
ting them together, which said two knives he had been using
in cutting fodder.

On cross examination, the witness said that defendant spent
a large part of his time at the house of his aunt, Mrs. M. J.
Chadoin, and was in her employ at the time of this diflSculty.
He had nothing to do with the management of Mrs. Chadoin's
business. J. A. Chadoin was Mrs. M. J. Chadoin's business
manager, and both witness and defendant worked under the
orders of J. A. Chadoin.

Mrs. J. A. Chadoin testified, for the defense, substantially as
did the witness Travis Chadoin, stating positively that defend-
ant neither struck, struck at nor threatened to strike Belton
Waits.

J. A. Chadoin testified, for the defense, that on the morning
of July 12, 1888, while he and his wife, defendant and Travis
Chadoin were cutting rent fodder on the land rented by the
Waits boys from witness's mother, the brother of defendant,
Clabe Waits, called witness to him to talk over the disagree-
ment about the fodder. Witness, accompanied by his wife,
defendant and Travis Chadoin, went to where the Waits, boys
were. Clabe requested witness to step aside, as he wanted to
talk to witness privately. While talking with Clabe Waits the
witness heard Belton Waits say: "It is none of your damned
business." Witness, who was then squatted, raised up and
saw all that transpired between defendant and Belton Waits.
Defendant was standing still, whetting two old knives together.
Witness told the boys not to have a fuss. About that time all
of the parties on the ground came to where witness and Clabe
Waits were. Belton Waits started home, saying that he would
get his father to settle the matter. Defendant replied to him:

Digitized by VjOOQIC

Term, 1889.J Hannah v. The Statb. 623

Syllabus.

*'If you will get your father we can reason the matter." Wit-
ness then told Beltoii that he and Clabe had settled the disa-
greement about the fodder, and for him, Belton, to come back,
Clabe Waits told Belton the same thing, but Belton refused to
come back and went on home. Mrs. M. J. Chadoin was the
mother of the witness. Her entire business was under ^he
management of the witness, and defendant was then working
under witness for Mrs. M. J. Chadoin.

The defense closing, the State introduced Clabe Waits in re
buttal. He testified that immediately after the alleged assault
upon Belton Waits by defendant, the several parties in the field
came to where witness and J. A. Chadoin were talking over the
fodder matter. Belton Waits was then told by defendant to go
and get his father and to tell his father to bring his gun and four
or five more if he had them.

No brief for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

White, Presiding Judge. Because we are of opinion that
the facts shown in the record before us are wholly insuflBcient
to support a conviction for an assault by appellant upon the al-
leged injured party, Belton Waits, the judgment is reversed
and the cause remanded. The case is not analagous to Coker's
case, 22 Texas Court of Appeals, 20.

Reversed and remanded.
Opinion delivered May 15, 1889,

No. 6458.

J. H. Hannah v. The State.

Thbft— Charob of the Court— Circumstantial Evidbncb— Posses-
sion OF RBCBHTiiY Stolen Property—Pact Casb.— See the state-
ment of the case for charges of the court on circnmstantial evidence
and opon the possession of recently stolen property, held erroneoos,
and see the same for evidence held insufficient to support a conviction
for theft.

30 33l|

Digitized by VjOOQIC

624 27 Texas Court op Appeals. [Austin

Statement of the case.

Appeal from the County Court of Burnet. Tried below be-
fore the Hon. R W. Cates, County Judge.

The conviction in this case was for the theft of two cotton
sacks, and three hundred pounds of seed cotton, of the aggre-
gate value of eight dollars. The penalty assessed by the ver-
dict was a fine of twenty -five dollars and imprisonment in the
county jail for sixty days.

Peter Baumgardner was the first witness for the Stata He
testified that he lived on Rock creek, in Burnet county. He
left his wagon, containing a quantity of seed cotton, and two
certain cotton sacks, standing in the field of his said place on
the night of September 10, 1888. The said two sacks, one being
a new one, and the other an old one made of an old wagon
sheet, and about three hundred poupds of the seed cotton, were
stolen from the said wagon on the said night. The sacks and
cotton 80 taken were of the aggregate value of eight dollars.
Upon discovering the theft on the next morning the witness
and certain of his neighbors, in looking over the premises, dis.
covered a trail marked at intervals by locks of cotton. They
were able to trace that trail down the Burnet and Belton road
about half a mile, where they lost it. The point where thev
lost the said trail was about a mile and a half from defendant's
house. At that point they discovered the trail of two horses
which they followed, in the direction of defendant's house, to a
point about a mile distant from defendant's said house. One
of the horses was shod in front. The other horse was unshod,
and had a '^gotch'* broken from one of his feet. When they
lost this trail the witness and his friends, in search of the cot-
ton, went first to Mr. Reed's and then to Mr. Russell's house,
and thence to the defendant's. They found defendant in his
field picking cotton, and told him of the theft of the witness's
cotton and sacks on the previous night. The information thus
given the defendant apparently excited him, and he sat down
on the sack he then had in use. Witness remarked that the
said sack then in defendant's possession looked like one of the
sacks thsit he had lost, and asked permission to examine it,
with which request defendant at once complied, but claimed
at the time that the sack was his property. Witness turned
the sack partly wrong side out, and told defendant that the
sack looked like his, but that he might be mistaken. Witness
and his friends then started oif . When thev had gone a short

Digitized by VjOOQIC

Term, 1889.] Hannah v. The State. 625

Statement of the oasa

distance witness told his friends that the sack then in posses-
sion of defendant was in fact one of the sacks stolen from his
wagon on the previous night. Witness and his party then
went back and arrested defendant. Defendant then requested
witness and his party to search his premises for the missing
cotton. The search failed to discover any cotton that witness
could identify as his property. Defendant then directed wit-
ness to the best crossing of Rocky creek. After crossing the
creek at that point, and getting across the prairie beyond, the
witness and his party discovered the trail of two horses, the
tracks corresponding to the tracks previously followed on that
day. That trail led the witness and his party to a certain place
in the fence around the defendant's field, where the fence had
evidently been recently taken down to admit the passage of
the two horses, and then replaced. The horses went into de-
fendant's field, and on the trail just outside of the field, wit-
ness discovered two or three locks or pods of seed cotton.

On his cross examination, the witness stated that he fully
identified the sack found in defendant's possession and now
exhibitsd to the jury, as his property, and as one of the same
sacks that were stolen on the said night. The witness and
his wife made the said sack of a part of an old wagon sheet.
The witness had used it a few times as a cotton sack, and had
never had bran in it. He had never pinned up a hole in the bot-
tom of the said sack with a needle. Turning the sack wrong side
out in the presence of the jury, the witness said: *'I find what
appears to be bran in the bottom of this sack, and I find in the
bottom of this sack a rusty needle which appears to have been
used to close a hole in the sack." Quite a number of people
lived in the witness's neighborhood and along the road over
which the witness followed the men and the horse tracks, as
described. At a point in the road about a mile from his, wit-
ness's, said field, the witness found the impress of a number
nine shoe. It showed a patch on the bottom in which there
were six tacks. Witness afterward observed the same pecu-
liarities in a track he saw defendant make in the field, and a
measurement showed the two tracks to be of the same exact

size.

Mrs. S. A. Baumgardner, the wife, and John Baumgardner,
the son of the prosecuting witness, identified the sack in evi-
dence as the property of the said prosecuting witness, and

Digitized by VjOOQIC

626 27 Texas Court of Appeals. [Austin

Statement of the case.

stated further that, so far as they knew, it had never contained
bran, and had never been pinned with a needle.

The State's witnesses J. N. Clark and David Houghton testi-
fied substantially as did Peter Baumgardner as to the trailing
of cotton locks and the horse tracks over the road, and the dis-
covery, at a point ih the road about a mile distant from the
Baumgardner field, of a foot track that corresponded with that
of defendant.

The State rested.

Mrs. S. A. Hannah, the wife of defendant, was the first wit-
ness for the defense. She testified that she and her husband
lived in Burnet county about three miles distant from Baum-
gardner's place. She knew that defendant owned a cotton
sack similar in every respect to the sack in evidence, but she
was unable to identify the sack in evidence as that particular
sack. She knew as a matter of fact that the defendant was
not away from his home on the night of the alleged theft. She
knew it from the fact that three of her children were sick on
that night, and she and defendant sat up throughout the whole
of the night administering medicine to and attending upon
them. They lost one of their said children in that sickness.

Jim Rutledge testified, for the defense, that he hunted for cows
on the day preceding the night of the alleged theft, and in do-
ing so traveled over the route indicated by the State witnesses
in their testimony on this trial as to a trail of horses followed
by them. He found two of his said cows in the defendant's
field, and to get into the field he tore down the fence at the
place indicated by the State's witnesses. He then drove his
cows out of th^ said field at a different place, and then rode
through defendant's cotton patch and out of the field at the
place where he had pulled down the fence, and then replaced
the fence. State's witness Nix measured the track of his horse
and told witness that, to the sixteenth of an inch it fitted the
track trailed by him and Baumgardner and others from the
field whence the cotton and sacks were alleged to have been
taken.

J. W. Williams testified, for the defense, that about three weeks
before the alleged theft he witnessed the purchase of some
seed cotton in sacks by defendant from John Ervin. The sack
in evidence looked like one of the sacks purchased by defend-
ant from Ervin. About two weeks before the alleged theft
witness borrowed some sacks from defendant for use in trans-

Digitized by VjOOQIC

Term, 1889.] Hannah v. The State. 627

Statement of the case.

porting bran. One of these sacks was made from an old wagon
sheet, and it had a hole iu the bottom. Observing the escape
of bran, the witness, having no pin, pinned up the hole with a
needle. The sack in evidence showed to have been used once
to hold bran, and it had a hole in the bottom into which a
needle was yet pinned. Witness returned the sack he bor-
rowed to defendant about September 1, 1888.

Defense closed.

Jonathan Nix was then called to the stand by the State. He
testified that, after arresting the defendant, he, witness, took
charge of the sack found in his possession — being the sack
now in evidence — and that said sack had been in custody of
oflBcers of the law ever since, and that neither the defendant
nor his counsel had been permitted to see or examine that
sack, after its seizure, until produced by the State, in evidence
on this trial.

The court's charge on circumstantial evidence, referred to in
the headnote, reads as follows: "In this case the State relies
upon circumstantial evidence, and to justify a conviction on
such evidence alone, the facts relied upon must be absolutely
incompatible with the innocence of the accused and incapable
of explanation upon any otfier reasonable hypothesis than that
of guilt."

The charge upon recent possession also involved in the ruling
of the court reads as follows: "You are further instructed that
if a party in whose possession property recently stolen fails
satisfactorily to account for his possession, the presumption of
guilt arising from recent loss and possession will warrant a
presumption of theft, and proof of possession of a part of the
stolen property, if unexplained, will support a conviction for
theft of all of it, and that it was all taken at the same time;
but proof of possession will not be sufficient to warrant a con-
viction, if the other facts in evidence are not consistent with
the guilt of the defendant. You are further instructed that if
a person found in possession of recently stolen property makes
an explanation of his possession of said property, at the first op-
portunity offered, and such explanation is reasonably and prob-
ably true, it operates to rebut the presumption of guilt arising
from his possession of the property and in such case, if such
explanation be not shown to be false, further evidence of de-
fendant's guilt will be required to warrant the conviction; but
^he State is only required to prove the falsity of the defendant's

Digitized by VjOOQIC

628 37 Texas Coubt of Appeals. [Austin

Syllabus.

explanation made at the time his possession was challenged,
and the State can not be required to disprove every conflicting
explanation the defendant may have made/*

t7. Q. Cook and T, E. Hammond, for the appellant, citing
against the suflBciency of the evidence to support the convic-
tion, Rosborough v. The State, 43 Texas, 570; Rodriguez v. The
State, 5 Texas Court of Appeals, 356; Po^ue v. The State, 12
Id., 283; Roberts v. The State, 17 Id., 82; Windham v. The
State, 19 Id., 413: and upon the proposition that the charge of
the court upon the recent possession was erroneous, the follow-
ing: White V. The State, 13 Texas, 133; Burrell v. The State,
18 Id., 713; Perry v. The State, 41 Id., 484; Anderson v. The
State, 2 Texas Court of Appeals, 10; Watkins v. The State, Id,
73; Merritt v. The State, Id., 173; Williams v. The State, 4 Id.,
178; Bejarano v. The State, 6 Id., 282; Maddox v. The State. 12
Id., 429; Davis v. The State, 10 Id., 31; Gose v. The State, 6 Id.,
121.

W. L. Davidson^ Assistant Attorney General, for the State.

White, Presiding Judge. In this case the Assistant Attor-
ney General frankly confesses that he can not ask an affirm-
ance of the judgment. The evidence is wholly insuflBcient to
sustain the verdict and judgment, and even if the evidence
was suflBcient the judgment would have to be reversed on
account of errors in the charge of the court, both in regard to
the instructions as to circumstantial evidence and recent pos-
session.

Reversed and remanded.

Opinion delivered May 16, 1889.

27 6« No. 6478.

35 539

^ — Ex Parte W. M. Robeetson.

1. Civil and Criminal Contempt of Court.— Criminal contempt of
oourt consists in the doing of an act iD disrespect of the coortorits
process, or which obstructs the administration of Justice, or tends to
bring the court into disrepute; and such contempt, if committed in a
justice of the peace^s court, may be punished by the justice of th«
peace by fine not exceeding twenty-five dollars, and imprisonment not

Digitized by VjOOQIC

Term, 1889.] Ex parte Robertson. 629

Opinion of the court.

exceeding one day. Civil contempt of court consists in failure or re-
fusal to' perform an act ordered by the court for the benefit of another
party.
Samb—Casb Statbd.— The relator, who is constable of precinct num-
ber three, of Travis county, was charged with the execution of a writ
of sequestration sued out of the justice's court. Failing to execute
the same, he was proceeded against in the said justice's court by the
plaintiflt in the writ. Acting under article 4539 of the Revised Statutes,
the justice of the peace adjudged the relator fzruilty of contempt of his
court, fined him in the sum of thirty-nine dollars and nineteen cents
to inure to the plaintiff in the writ of sequestration, and committed
him to jail until payment of said fine and costs. Held that the failure
and refusal of the relator to execute the writ of sequestration consti-
tuted civil contempt of the said judtice^s court, and that the justice
- exercised his legal authority in so adjudging*him guilty, and in im-
posing the Eaid fine and committing him pending payment thereof.

8. Same.— A fine imposed for contempt is not **debt" within the meaning
of section 18, of the Bill of Rights, which provides that "no person
shall ever be imprisoned for debt."

4. Same— Judgment and the Commitment in this case are both void
becau<'e they omit the essential recital that it was within the power of
the relator, as constable, to execute the writ; and the commitment is
void for the further reason that, upon its face, it commits the relator
on a fine imposed for criminal contempt. Wherefore the relator is dis-
charged without day.

Habeas Corpus on original hearing in the Court of Appeals,
on application from Travis.

The opinion discloses the case.

Carleton <t Buggies, for the relator

W. L. Davidson^ Assistant Attorney Greneral, for the State.

White, Presiding Judge. In this case an original writ of
habeas corpus was granted, returnable to this court, on the pe-
tition of applicant alleging that he is illegally restrained of
his liberty by the Sheriff of Travis county acting by virtue of
a certain writ of commitment issued by one J. A. Stuart, a
juhtice of the peace in and for precinct No. 3 of Travis county,
Texas, on the eighth day of April, 1889. Said order or writ of
commitment being in words and figures as follows, to-wit:

**The State of Texas,

To the sheriff of Travis County, Greeting:
Whereas a judgment was rendered by me, J. A. Stuart, a

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630 27 Texas Court op Appeals. [Austin

Opinion of the court.

justice of the peace in precinct No. 3 in the county of Travis,
adjudging W. M. Robertson guilty of contempt of court, and
a fine of $39.19 was entered against said Robertson, and judg-
ment was by me rendered on the 8th day of April, A. D.. 1889,
that the State of Texas recover of the said defendant W. M.
Robertson the sum of thirty nine and 19-100 dollars, the fine as-
sessed by the court, and all costs amounting to the further sum
of 60-100 dollars, these are therefore to command you forthwith
to take into custody and keep him, the said W. M. Robertson,
until the above fine and costs are paid as provided by law.

Herein fail not, but execute this warrant of comitment as
the law directs, and ^fail not to return the same with your en
dorsement thereon, how it was executed.

Given under my hand at office, this the 8th day of April, 1889.
J. A. STUART,

Justice of the Peace,
Precinct No. 3, Travis Co. Texas."

It is claimed that said commitment is illegal and unauthorized
by law, and exceeds the limits within which our statutes per-
mit justices of the peace to fine in cases of contempt; the pro-
vision of the statute being that "they shall have power to
punish any party guilty of a contempt of court by fine not to
exceed twenty-five dollars, and by imprisonment not exceeding
one day." (Rev. Stat. art. 1541.)

If the fine imposed had been for a criminal contempt this
statute would have been applicable and the objection would
have been fatal to the proceedinp^. Such, however, does not
appear to have been the nature of the proceeding. It is shown
that the applicant Robertson, as constable, was fined by the
justice for failing and refusing to execute and return according
to law a writ of sequestration issued in a certain civil cause
pending in the justice's court, wherein one A. A. Cooper was
plaintiff and one E. O. Sanford was defendant; that a motion
was made against said constable by the plaintiff Cooper to have
him fined for failing to execute said writ, upon the hearing of
which the court adjudged him ^'guilty of a contempt of court
for failing and refusing to execute and return said writ," and
that he *'be fined in the sum of thirty-nine dollars and nineteen
cents, which said sum, when collected, shall inure to the benefit
of A. A. Cooper, the plaintiff in said cause," and that the **8aid
Robertson be committed to the county jail of Travis county,

Digitized by VjOOQIC

Term, 1889.] Ex parte Robertson. 631

Opinion of the court.

Texas, until said sum of thirty-nine dollars and nineteen cents,
together with all costs, is paid into this court." This was the
judgment upon which the order and writ of commitment set
forth above were issued. The justice based his action upon the
provisions of article 4539 of the Revised Statutes, which declares
that "if any constable shall fail or refuse to execute and return
according to law any process, warrant or precept to him law-
fully directed and delivered, he shall be fined for a contempt,
on motion of the party injured before the court from which
such process, warrant or precept issued, in any sum not less than
ten dollars nor more than one hundred; with costs, which fine
shall be for the benefit of the party injured; and said constable
shall have ten days notice of such motion." It seems that all
the provisions and requirements of this statute were substan-
tially if not literally observed in the proceedings which resulted
in the justice's judgmc nt, but it is insisted for applicant that,
whilst it may be conceded that under this statute the justice
had the authority to fine the constable, still the statute gives
him no authority to commit him to jail as for a contempt until
such fine and costs were paid.

Contempts are of two kinds, civil and criminal. "Civil con-
tempts are those quasi contempts which consist in failing to
do something which the contemner is ordered by the court to
do for the benefit or advantage of another party to the proceed-
ing before the court; while criminal contempts are all those
acts in disrespect of the court or of its process, or which ob-
struct the administration of justice, or tend to bring the court
into disrepute," etc. (Rapalje on Contempts, sec. 21.)

Contempts are also classified into direct and constructive
contempts. Direct contempts are punishable summarily, while
constructive contempts require a different and less summary
process. We have already seen that for what may be termed
criminal or direct contempts, our statute above quoted (Rev.
Stats., art. 1541) expressly provides that the party may be fined
and imprisoned.

The question is, the statute (Rev. Stats., art. 4539) being silent
as to the imprisonment for constructive or civil contempt, can
the court inflict imprisonment as part of the punishment for
said character of contempt?

Our Supreme Court, in the case of Edrington v. Pridgham,
65 Texas, 612, which was a case involving a question of civil
or constructive contempt, say: "The proceeding for contempt

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632 27 Texas Court of Appeals. [Austin

Opinion of the court.

can properly end only in a judgment of acquittal and discharge
or conviction and sentence. The punishment is by fine or im.
prisonment, or both. (Rev. Stat., art. 1120; Rapalje on Con-
tempts, sec. 128.) The proceeding is generally regarded as a
prosecution for an offense. (Id., sec. 95; Passmore William-
son's case, 26 Pa. St., 7.) We know no authority for awarding
in such proceeding, as a softer penalty, or as a means to the
same end, a judgment in favor of the private prosecutor for a
sum of money to be collected by execution. In some jurisdic-
tions for contempt in civil cases, depriving a litigant of some
right, the court is authorized by statute to require the offender
to restore the status quo, or pay the damages, but the order is
enforced by commitment. (Bobbins v. Frazier, 5 Heisk., Tenn.,
100; In Re. Day, 34 Wis., 638.)"

In his able work on contempts Mr. Rapalje says: "An ex-
amination of the authorities, English and American, discloses
five different kinds of imprisonment for civil and criminal con-
tempts: 1. Imprisonment in the first instance by way of pun-
ishment for a criminal contempt. 2. Imprisonment for the
non payment of a fine imposed as such punishment. 3. Im-
prisonment for non payment of a fine or penalty imposed as a
compensation to the person injured by the violation of an or-
der or decree in a civil action. 4. Imprisonment to compel
compliance by a party or witness with the requirements of an
order or decree of the court; and, 5. Imprisonment for non
payment of costs." Sec. 130.)

Again, the same learned author lays it down as a rule that
** where a statute authorizes or prescribes the infliction of a
fine as a punishment for contempt of court, it is lawful for
the court inflicting the fine to direct that the party stand com
mitted until the fine is paid, although there be no specific aflSr-
mative grant of power in the statute to make such direction.'*
(Sec. 129, p. 180; citing Fisher v. Hayes, 6 Fed. Rep., 63; Ex
Parte Whittendon, 62 Cal, 534.)

In an able article on criminal contempts in the fifth volume
of the Criminal Law Magazine, the distinguished writer, Mr.
Seymour D. Thompson, says, with regard to imprisonment for
the non-payment of a fine imposed as an indemnity to a party:
*The principles governing this species of imprisonment appear
to be, for the most part, substantially the same as in cases of
imprisonment for the non-payment of a fine imposed as a
punishment for a criminal contempt;" and with regard to this

Digitized by VjOOQIC

Term, 1889,] Ex parte Robertson. 633

Opinion of the court

latter, he says that ''unless otherwise provided by statute, the
ordinary form of the judgment is that the party is committed
to jail until the fine and costs are paid." A party committed
for not paying a fine imposed on him for contempt must be con-
fined within the walls of the prison. (People v. Bennett, 4
Page, N. Y., 282.)

But it is insisted in this proceeding that, the fine and im-
prisonment inflicted upon the officer being imposed for the pur-
pose of securing and enforcing- the payment of a debt due to
the plaintiff A. A. Cooper, in the sequestration suit, is in con-
travention and violative of the eighteenth section of the Bill of
Rights of the .Constitution, article I, which declares that *'no
person shall ever be imprisoned for debt."

In the article of Mr. Thompson, above referred to, he says,
speaking of this character of fines: "Such a fine is in no sense
a civil debt." In Dickson v. The State, 2 Texas, 481, it is said
the words * 'imprisonment for debt" had a well defined and well
known meaning, and have never been understood or held to
-apply to criminal proceedings, nor to imprisonment inflicted as
a punishment consequent upon a violation of the laws, and a
contumacious refusal to submit to the pecuniary penalty im-
posed.

At page 174, 5 Criminal Law Magazine, Mr. Thompson says:
"Since the abolition of imprisonment for debt in the United
States, the idea of those contempts which are termed remedial
contempts has conae to be the refusal to do something which a
parry is adjudged to do, and which it is in his power to do.
Even in remedial contempts of the mildest character there is,
therefore, the essential idea of contumacy, wilful disobedience
of orders and decrees made in the administration of justice.
This is an offense against the administration of justice and
against society. It hence implies criminality. This idea of
criminality is so far a necessary ingredient of everything which
is called a contempt that every contempt may be said to be a
criminal contempt. It is necessary to consider this in order to
understand what the courts mean when they say as they do,
without discriminating as to the kind of. contempt that con-
tempts are crimes or misdemeanors, and that proceedings to
punish contempts are criminal proceedings."

From the foregoing discussion we think it apparent, first,
that the justice of the peace had statutory authority in this-
<ia,&e to impose the fine of thirty-nine dollars and nineteen cents

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634 27 Texas Court op Appeals. [Austin

Opinion of the court.

for the benefit of the plaintiff in the sequestration suit; that,
secondly, said fine was also legally imposed as for a contempt
of court, the officer having failed and refused to execute the
process of the court. (Crow v. The State, $14 Texas, 612.)
Thirdly, that, in addition to the fine, the court had also the
authority to order and commit the officer to imprisonment
until the fine and costs were paid.

The only remaining question for our consideration is whether
the judgment, the order, and- the commitment issued by the
justice are valid and suflicient to authorize this imprisonment
for said contempt.

It is well settled that, to justify the imprisonment of a party
adjudged to be in contempt, an order or warrant of commit-
ment of some sort is necessary. (Ex Parte Beaufort, 1 Cranch.
U, S. C. C , 456.) "As to whether the order should contain a
statement of the facts found in the proceedings prior to the
commitment, the cases are in conflict. Thus, in New York, it
is held that it must designate the particular misconduct pf
which the defendant is convicted. And in California it is laid
down that it must state specially all the material facts on
which the action of the court is predicated; and, where the
commitment is for refusing to obey an order of the court, it
must set forth that it is in the power of the person to comply
with the order. Again, it has been said that a warrant to
commit for contempt, issued by a limited authority, should
show that the contempt fell within the limits of that authority,
but that, when issued by a superior court of record, the adju-
dication of contempt may be general, and the particular cir-
cumstances need not be set out; that in such a case jurisdic-
tion and regularity will be presumed. Again, it is held in New
York that the process of commitment by a surrogate against
a guardian for contempt need not recite all the facts necessary
to confer jurisdiction. It should show, on its face, that it issued
in a proceeding wherein the surrogate had jurisdiction; what
was the cause of commitment; what act or duty must be per-
formed, and what expenses paid." (Rapalje, sec. 129.)

**Either the order or judgment finding the defendant guilty
of contempt in disobeying the command of the court, or the
order of commitment for such contempt, must recite that it was
in the defendant's power to perform the required act, or else
the commitment will be void." (Id., sec. 137; see also 5 Crim.
Law Mag., p. 520, sec. 40; Fischer v. Langbein, 103 N. Y., 84.)

Digitized by VjOOQIC

Term, 1889.] Bird v. The State. 635

Syllabus. »

Under these rules with regard to what is necessary to be
stated in the judgment and order or writ of commitment, in
such cases of constructive contempt as the one in hand, we
must hold that an inspection both of the judgment and of the
writ of commitment show them each to be wanting in the es-
sentially requisite allegation that it was in the power of the
defendant Robertson to perform the act required of him by the
writ of sequestration issued to him for execution, to wit, that
it was in his power to execute the same. Unless this matter
sufficiently appears, it is beyond the jtirisdiction of the court
to render a judgment for such contempt; and, it being essen-
tial to the validity of the judgment, the judgment itself should
recite the fact. Failing to recite this essential fact, the judg-
ment is void.

As to the order or writ of commitment, it is open to the
further objection that upon its face it shows the imposition of
a fine as for a criminal contempt which, ostensibly, the court
had no authority to inflict, and fails to recite all the facts neces.
sary to confer jurisdiction upon the court to inflict punishment
for a constructive contempt in the failure and refusal of the
officer to obey the commands of the court.

Because the judgment finding the officer guilty of contempt,
and the writ of commitment ordering his imprisonment are,
each and both, void in law, the applicant, W. M. Robertson, is
hereby released and discharged from further detention in cus-
tody on account of the same, and his discharge is ordered ac-
cordingly.

Ordered accordingly.

Opinion delivered May 15, 1889.

No. 6244.

W. C. Bird v. Tb[e State.

Adultery is an offense -which, under the present law of this State, can
be committed in but one of two ways: 1, by the parties (one or both
being legally married to some other person) living together and" having
earned intercourse with each other; and, 2, by the parties havii g
habitnal carnal intercourse with each other without living together.
To convict under the first mode the proof must sh6w a living together
of the parties, but need show no more tlian a siugle act of carnal inter-

27 685

28 800

27 6;«|

34 4IU

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636 27 Texas Court of Appeals. [Austin

Opinion of the ooort.

oonrse, but under the second mode the oamal intercoane must be
shown to have been habitual.
2. Samb^Tbrm Defined— Fact Case. — * 'Living together," though not
defined by the code, means within the purview of the statute defining
adultery, that the parties **dwell or reside together; abide together in
the same habitation as a common or joint residing place ." The convic-
tion in this case is for adultery committed by the first mode, but the
evidence, failibg to show that the parties lived together^ although it
proves habitual intercourse, is insufficient to support the conviction.

Appeal from the County Court of Wise. Tried below be-
fore the Hon. W. H. Bullock, County Judge.

The indictment jointly impleaded the appellant and Ida Smith
for adultery. The appellant, being alone upon trial, was con-
victed, and his punishment assessed at a fine of one hundred
dollars.

The testimony shows that the defendant rented a certain
house in Decatur which for a time was occupied by his co-
defendant, Ida Smith; that he bought and paid for the furni-
ture that was used in the said house, and that he bought and
paid for supplies of groceries that were delivered at the said
house. When he rented the said house he represented that he
was renting it for other parties and not for himself. No wit-
ness testified that the defendant lived in the said house, but
several testified that they had frequently seen him enter the
house at night, and leave the next day, and on more than one
occasion he was seen on the premises but partially dressed.
Defendant was shown to be a married man, and that, until
early in the year 1888, he lived with his family in Decatur, and
that since he broke up house keeping, on the removal of his
family to Fort Worth, he had boarded at the house of Mrs.
Prigmore.

Graham & 3IcMurr ay, for the appellant.

W. L, Davidson, Assistant Attorney General, for the State.

WiLLSON, Judge. Two modes of committing the crimes of
adultery and fornication are prescribed by the Penal Code of
this State. 1. By the parties living together and having car-
nal intercourse with each other. 2. By the parties having
habitual carnal intercourse with each other, without living to-

Digitized by VjOOQIC

Term, 1889.] Bird v. The State. * 637

Opinion of the court.

gether. (Penal Code. arts. 333-337.) The articles cited became
law upon the adoption of the Revised Code, and they changed
materially the statutes then in force, relating to said offenses,
and the changes made rendered inapplicable some rules and
principles announced in decisions made under the former stat-
utes. (CoUum V. The State, 10 Texas Ct. App , 708.)

In the case before us, the defendant stands convicted of
adultery, committed in the first mode named in article 333, by
living together with one Ida Smith, and having carnal inter-
course with her. To support such conviction it was essential
that the State should prove not only that the parties had car-
nal intercourse with each other, but also that they lived to-
gether. A **living together" is not defined by the code. These
words are, therefore, **to be taken and construed in the sense
in which they are understood in common language, taking
into consideration the context and subject matter relative to
which they are employed." (Penal Code, art. 10.) Guided by
this rule of construction, we are of the opinion that the term
**living together," as used in articles 333 and 337 of the Penal
Code, means that the parties must dwell or reside together, —
abide together in the same habitation as a common or joint re-
siding place. This interpretation of the term is more restricted
than has been given to it in decisions made under the former
statutes. (Swancoat v. The State, 4 Texas Ct. App., 105; Parks
V. The State, Id., 134.) But the former statutes prescribed but
one mode of committing adultery, which was by the parties
living together and cohabiting with each other. Carnal inter-
course with each other, however frequent, did not constitute
the crime unless the parties in some sort of way lived together.
But as the law now is, habitual carnal intercourse, without
living together, is adultery. It is plain to our minds, therefore,
that in providing the two different modes of committing adul-
tery, it was intended that the words "living together" should
mean what we have above construed them to mean, and that,
where the parties did not actually live, that is, dwell, re-
side together, they would still be guilty of adultery by having
habitual carnal intercourse with each other. But, unless such
intercourse was habitual, the parties not living together, adul-
tery would not be committed; while, on the other hand, a sin-
gle act of carnal intercourse, if the parties at the time lived
together, would, under the law now in force, constitute the
crime.

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638 27 Texas Court of Appeals. [Austin

Syllabus.

In this case, we do not think the evidence supports the con-
viction, in that it does not show that the parties lived together
within the meaning of that term. If the defendant had been
prosecuted for having habitual carnal intercourse with the
woman, without living with her, the evidence would sustain a
conviction, but he was not prosecuted or convicted for that
kind of adultery, and we can not sustain his conviction for
committing the crime in one mode, when the evidence shows
that he did not commit it in that mode, although he may have
committed it in the other mode.

With respect to the rulings and charge of the court we have
found no error. Because the conviction is not supported by
the evidence^ the judgment is reversed and the cause Ib re-
manded.

Reversed and remanded.

Opinion delivered May 18, 1889.

• No. 6190.
J. T. White v. The State.

1. Injuring a Fbncb.— To charge the offense denounced by article 68t

of the Penal Code, the informatiou or indictment mast charge sooh
acts of injury to property as do not come within the description of
any of the offenses against property otherwise provided for in the
Penal Code. The indictment in this case is formulated under siud
article 683, and charges an injury to a fence— an act which oom«
within the definition of two other offenses provided for in the Penal
Code. (Arts. 684, 6d4a.) Exception that the acts charged constitote
the offense defined in article 684 should have been sustained by the
court.

2. Same — Charge of the Court. — On the trial the defense requested

the court to instruct the jury as follows: **1. If you believe from the
evidence of the witnesses that J. T. White had leased the farm of
Watson for the year 1887, that he was for the time owner of said prem-
ises, and bad the right to use the premises for his own convenience, so
that he did not use them to the injury of another, and in the use of
the same he had a right to open the fence for his own convenience. 2.
Gentlemen, if you believe from the evidence that defendant cot the
fence of Watson for his own convenience, and not maliciously for the
purpose of injuring Watson, you will acquit. If you have a reasona-
ble doubt as to defendant's guilt you will acquit." Held, that, being
correct in principle, and embodying issues made by the proof, the re-
fusal of the court to give said instructions was error.

Digitized by VjOOQIC

Term, 1889.] White v. The State. 639

Statemfnt of the case.

Appeal from the County Court of Collin. Tried below before
the Hon. M. W. Johnson, County Judge.

The opinion sets out the nature of the case. The penalty as-
sessed by the verdict was a fine of one cent. The prosecution
is dismissed because the indictment is bad in substance, but
the ruling of this court upon the action of the trial court, in re-
fusing the special instructions asked by the defense, necessitates
a statement of the evidence adduced on the trial.

J. B. Watson was the first witness for the State. He testified,
in substance, that he owned the place or farm in Collin county
which the defendant leased and cultivated during the year
1887. That farm was enclosed by a good fence constructed of
barbed wire in three strands, some of the supporting posts being
eight feet, and others sixteen feet apart. There was a pair of
bars near the house used in going into and out of the field with
wagons and teams. In October, 1887, the defendant cut the
said fence in two places, which materially damaged it, inas-
much as it could not be so spliced at the gap made by the cut-
ting without leaving the wire slack. On cross examination
the witness said that a good state of feeling did not exist be-
tween him and the defendant. Witness went to the house oc-
cupied by defendant and asked him why he cut the fence.
Defendant replied that he had a right to cut it, whereupon the
witness struck him. The ground was about as firm, even and
good at the bars as it was at the places cut by the defendant,
and the bars were at no greater distance from the house than
the places cut. It had not been raining recently before the bars
were cut, and the ground was not then muddy. Witness never
heard of stock getting into that field.

E. A. Kirkland testified, for the State, that the fence around
the Watson farm, occupied by the defendant in 1887, was cut
in two places on or about October, 1887. The gap made by the
two cuttings opened a wagon way out of the farm to the public
road. Defendant said that he cut the gap in the fence for his
convenience, as a way through which to haul his cotton and fire
wood. Sam H. Graves testified, for the State, substantially as
did Kirkland, and in addition that he saw the defendant cut the
fence. It had been raining at the time of the cutting, and the
ground was wet and muddy, but not so muddy at the gap opened
by defendant as at the bars near the house.

John H. Watson, the son of the prosecuting witness, testified.

Digitized by VjOOQIC

640 27 Tbxas Court of Appeals. [Austin

Statement of the case.

for the State, that the ground, at the time the fence was cut,
was in about the same condition at the gap opened by defend-
ant as at the bars. "Witness hauled some of the rent corn to
his father's house through the gap opened by defendant.

The State closed.

T. W. Harrison testified, for the defense, that he worked for
defendant on the J. B. Watson place in 1887; helped him gather
his crop of corn and cotton, and to cut the gap in the fence
mentioned by the State's witnesses. When he opened the gaps
the defendant said that he did so because it afforded him a
better course over which to haul his crops and firewood. A
great deal of rain had recently fallen, leaving the ground wet,
heavy and muddy. The ground was much muddier and heavier
at the bars than at the gap made by defendant. The road
through the bars passed over a large number of stumps, and to
travel it in the field the defendant would have to drive his
wagon over some of his growing cotton. Witness several
times, before the cutting of the fence, helped defendant drive
stock out of the field. The fence was a three strand barbed
wire fence, the posts standing far apart and the wire very slack
in places. Stock could get through that fence at almost any
pfoint.

E. C. White, for the appellant.

W. L. Davidson^ Assistant Attorney Gteneral, for the State.

WiLLSON, Judge. This conviction was had under article 683
of the Penal Code, the indictment charging that the defendant
did "wilfully and mischievously injure and destroy certain
agricultural property, to wit: a certain fence which then and
there surrounded and enclosed a farm belonging to J. B. Wat-
son, said farm and fence then and there being in the posses-
sion of said J. T. White, who had rented the same from the
said J. B. Watson, the said White being then and there the
tenant of said Watson, the said Watson being the owner in
fee of said land and fence, said injury and destruction being
done in violation of article 683, of the Penal Code of the Re-
vised Statutes of the State of Texas, and being done in such a
manner as that the same does not come within any of the
offenses against property otherwise provided for by said Penal
Code."

Digitized by VjOOQIC

Term, 1889.] McDade v. The State. 641

Syllabus.

Exceptions to the indictment were overruled, one of said ex-
ceptions being that the facts as charged constitute an offense
under article 684 of the Penal Code, and are therefore not
within the purview of article 682. This exception, we think,
should have been sustained. The offense declared and made
punishable by article 683, must be one that does not come
within the description of any of the offenses against property
otherwise provided for in the Penal Code. Injury to a fence
comes within the description of two other offenses against
property provided for in the Penal Code, to wit, the offenses
described in articles 684 and 684a, and under one or the other
of these articles any injury done to a fence must therefore be
prosecuted, and not under article 683.

Under the issues presented by the evidence the court should
have given the special charges requested by the defendant,
they being correct in principle, and demanded by the evidence.
(Hooks V. The State, 25 Texas Ct. App., 601.) The refusal of
the court to give such instructions was excepted to by the de-
fendant, and constitutes ground for reversal

The judgment is reversed, and because the indictment is bad
in substance the prosecution is dismissed.

Reversed and dismissed.

Opinion delivered May 18, 1889.

No. 2740. -^Tm

33 537

Jack McDadb v. The State. ,g «J}

Murder— MansiiAUGhtbr— Charge of the Court.— The proof shows
that abont one month before the homicide involved in this prosecu-
tion, the deceased killed one C, a relative of the defendant, and that
the said killing resulted in creating relations of open and avowed en-
mity between the defendant and one S. on the one side, and the de-
ceased on the other; that these relations became so strained and dan-
gerous that mutual friends finally intervened and induced the parties
to agree, on the part of defendant and S., not to molest the deceased,
and on tlie part of deceased that, in visiting Hempstead, he would
only carry his Winchester rifle in his baggy, or, if on horseback, in the
ieabbard t« the saddle, and that any other mode of carrying the said
ffon was to be construed by defendant and 8. as a declaration of hot-

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642 27 Texas Court of Appeals. [Austin

Syllabus.

tility by deceased; and that threats uttered by either party were by
the mutual friends to he reported to the other party. The proof fur-
ther shows divers breaches by the deceased of the agreement as to the
carrying of the gun, and frequent threats of a deadly nature uttered
by deceased, some of which were communicated to the defendant and
S. The inculpatory proof shows that, when shot, the deceased was
sitting on his horse, with his gun across his lap, and his back toward
the place from whence he was shot, and that, so far as was apparent,
he was unconscious of the proximity of any person save those to whom
he was talking, that he fired no shot, and that he made no motion to
seize his gun, at least until immediately before he was fired upon, when
he was warned by a bystander to 'look out;^' that a few minutes prior
to the shootiog the defendant and S., from a short dihtance, remarked
deceased^s presence, and imtnediately, by a circuitous route, and
through an alleyway, approached to within a few feet of the deceased,
and opened fire upon him from behind him, with fatal effect, and con-
tinued to shoot him while in the death agony. The defendant pro-
duced testimony to the effect that he and S. went to the place of the
killing in the manner they did to execute a warrant for the arrest of a
desperate criming, who was reported to them to be at that place, and
that their coming upon the deceased was sudden and wholly unex-
pected. Upon this state of proof the defendant claims that, by reason
of the recent threats and acts of the deceased, in violation of the agree-
ment, and their sudden and unexpected discovery of him with his gun
carried contrary to the agreement, they were confronted with such
appearance of danger as was calculated to arouse, in men of ordinary
temper, such emotions as would render the mind incapable of cool re-
flection; and upon this theory he demanded of the court the submis-
sion to the jury of the issue of manslaughter. Held that the proof did
not present, and the trial court did not err in refusing to submit to
the jury the issue of manslaughter, because the evidence does not es-
tablish ^'adequate cause, ^* nor show any purpose on the part of the
deceased, when killed, to execute threats previously made by him.

S. Same— Self Defense.— See the statement of the case for a charge of
the court on the issue of self defense, held sufficient under the evidence
adduced; and see the opinion for requested instructions on the same
question held to have been properly refused as unwarranted by any
proof in the case.

8. Same— -Rkason ABLE Doubt.— Upon the doctrine of * 'reasonable doubt"
the trial court charged the jury as follows: "The defendant is pre-
sumed to be innocent until his guilt is established by the evidence to
the satisfaction of the jury beyond a reasonable doubt" — omitting the
statutory word "legal" before the word **evidence." Held, that the
omission was immaterial, and the instruction in substantial compli-
ance with the statute.

4. Same— Ev IDE NCE.—In the examination of his own witness the defend-
ant proved the declaration of deceased to the said witness, that de-
fendant had uttered threats against him, deceased. Defendant re-
quested the court to charge the jury that such declaration of the de-

Digitized by VjOOQIC

Term, 1889.1 McDadb v. The State.

643

Statement of the case.

ceased could not be considered by them as evidence that such threats
were made by the defendant. Held that, having himself elicited the
adverse testimony, the defendant could not he heard to complain, and
the court did not err in refusing the instruction.
5. Murder— Pact Case. —See the statement of the case for evidence held
sufficient to support a conviction for murder in the second .degree.

Appeal from the Criminal District Court of Harris, on
change of venue from Waller. Tried below before the Hon. C.
L. Cleveland.

This conviction was in the second degree for the murder of
S. W. AUchin, in Waller county, Texas, on the twelfth day of
May, 1888. The penalty assessed against the appellant was a
term of eight years in the penitentiary.

William Cameron was the first witness for the State. He
testified that he lived in Waller county, Texas, about seven
miles east of the town of Hempstead. He was in Hempstead
on the morning of May 19, 1888, and witnessed the killing of
Allchin by the defendant and Dick Springfield. It occurred
between ten and eleven o'clock on that morning. At the time
that the first shot was fired the witness was standing in front
of the south door of Fritz Zeisner's saloon. At that time Have-
mnii & Co. occupied the south corner store of the block. Zeis-
ner occupied the next building north. Pointer's store was the
building north of Zeisner's, and Cole's drug establishment was
the next. The next store was Keiser's; the next was Schwartz's,
and the next was the north corner of the block, into which
Haveman & Co. had removed since the homicide. The south
corner of that block is the corner hereafter referred to as Have-
man's corner. While standing at Zeisner's south door, as stated,
talking to Mr. Joe Nast, the witness heard the report of a gun
fired from a point near him. Looking in the direction whence
the report came, the witness saw Dick Springfield with a shot
gun in his hands, standing near the southeast extreme of Have-
man's corner. Turning to his left, the witness saw Allchin,
sitting (m his horse, about eight feet distant from where wit-
ness was standing, Allchin had been shot in the arm and in
the left side behind the arm. He was then leaning his body
slightly forward on his horse, holding a bridle rein in each
hand and kicking his horse. His Winchester rifle was across
his saddle between his body and the pommel of the saddle.
The first step or two of the horse caused Allchin to slacken his

Digitized by VjOOQIC

644 27 Texas Court of Appeals, [Aiustin

statement of the case.

grip on the bridle, when the horse wheeled to run. About that
time Springfield fired again, and when the horse had taken
twenty or twenty-five steps the defendant fired with his shot
gun, and Allchin fell off of his horse on the right hand side,
his gun falling partially under him and to his left. Springfield
and defendant then ran to the body, when Springfield fired
three shots into it with a pistol, and defendant three other
shots with a pistol and one with a shot gun.

After firing the seven shots as stated into the prostrate body
of Allchin, the defendant and Springfield reloaded their shot
guns, which were breech loaders, and walked west, twenty or
twenty five feet to the pavement. Upon reaching the pave-
ment defendant pointed to several parties standing, in front of
Pointer's store, and said: ** AH those men" or "all those sons of
bitches ought to be killed." The witness went to Allchin as
soon as defendant and Springfield left him, remained but a
moment, and then went to a point on the street about opposite
Reiser's store. By that time defendant and Springfield reached
the north corner of the block, where they met defendant's
uncle. Sheriff Thomas S. McDade. Defendant exclaimed to
Captain McDade: '*Uncle Tom, we got him." Witness then
turned and went back to Allchin, who had ceased, to breathe
since witness left him a minute or two before. Quite a crowd
had now collected about the body. Bob Pointer, who was very
much excited exclaimed: ''Here lies his gun," and took hold of
it but dropped it when advised by somebody present not to
handle it. The said gun, which witness then observed, was in
the condition in which Allchin usually carried it. After fall-
ing off his horse Allchin raised his head as high from the ground
as he could raise it without moving his body. The body had
been turned over when the witness went to it the second time,
and witness for the first time saw that the face had been shot
off from the chin to the eye brows. He lived not exceeding
five minutes after he was shot. The witness and Allchin were
about eight feet apart when the shooting began, Allchin sitting
on his horse, which faced a little north of west, and thus placed
him to the left of witness. The street extended north and
south. Witness had just stepped away from Allchin when the
first shot was fired, and at that particular time was talking to
Joe Nast. The witness was standing on the sidewalk, and
Allchin's horse was as near to the sidewalk as he could get, and
was standing still. Defendant and Springfield, when witness

Digitized by VjOOQIC

Term, 1889.1 McDade v. The State. 645

Statement of the case.

first saw them, were a little southwest from AUchin, Spring-
field five, six or seven feet north from the corner of Haveman's
store, and the defendant three or four feet north from that cor-
ner. They were standing about thirty-five feet distant from
Allchin. They were "to the side of Allchin and a little back
of him." The witness did not see the defendant until the first
shot was fired. The first three shots were fired from shot guns,
two of them by Springfield and the other by defendant. The
other shots, except one fired by defendant into AUchin's body
after it had fallen, were fired from pistols in the hands of de-
fendant and Springfield.

Continuing, the witness said that the first shot was fired
within three minutes after he spoke to Allchin, and had stepped
off and joined Joe Nast. When the witness spoke to Allchin,
the latter had his Winchester gun across his saddle, the muzzle
pointing a little southwest, and it was in that position imtne-
diately before the shooting. He was not facing the direction
whence the shots were fired. His left side was towards de-
fendant and Springfield when the first shot was fired, and his
back was towards them when the second shot was fired, his
hands still grasping his bridle reins. The witness could not
see Allchin's hands after the second shot, but saw that he con-
tinued to lean forward until he fell. His gun was balanced
across the saddle until it fell with him, off the horse, on the
same side. The witness could and did see Allchin's face as he
fell off his horse. It had not then been shot. After shooting
into Allchin's prostrate body and reloading their shot guns,
defendant and Springfield walked along the pavement to the
north corner of the block, where they met Sheriff McDade.
Witness saw no person other than Sheriff McDade with de-
fendant and Springfied after the shooting. Springfield at that
time, was a deputy sheriff under Sheriff McDade. Witness
knew that defendant was a nephew of Sheriff McDade, but
did not know that he was a deputy sheriff.

Cross examined, the witness said that it was generally re-
ported and generally conceded that about a month or six weeks
before his death, Allchin killed one Chambers, a son-in-law of
Sheriff T. S. McDade, the uncle of this defendant. The kill-
ing of Chambers by Allchin was understood to have occurred
in Waller county. Allchin had never talked to witness about
the killing of Chambers, The witness knew nothing whatever
about the existence of a political feud in Waller county at and

Digitized by VjOOQIC

646 27 Texas Court of Appeals. [Austin

Statement of the case.

before the time of the killing of Allchin. He did not know,
as a matter of fact, that defendant and Allchin were members
of rival political clubs. He had heard of the existence in
Waller county of two antagonistic parties, but was unable to
say whether the nature of said parties was political or not
He had heard that the **parties" were at enmity with each
other; that "they were on different sides, and took different
positions," but he could not say whether this division was on
private or public questions. Witness did not on the fatal morn-
ing, before the shooting, see Allchin at the railroad depot, and
on the platform displaying his Winchester. The witness had
no conversation with Allchin just before the shooting, but
merely passed the usual salutation of a friend, and passed on
to Zeisner's saloon, got a glass of beer, stepped out and was talk-
ing to Nast when the shooting occurred. Witness did not see
the defendant and Springfield when they reached the point on
the sidewalk from where they fired the fatal shots, but he
could have seen them had he then been looking that way.
Witness saw Springfield at the firing of the first shot, and he
was then standing on the sidewalk about ten feet from the
corner. He did not observe the defendant or the deceased im-
mediately before the first shot was fired, and could not say what
they were doing at that particular moment. Immediately after
Springfield fired the first shot, witness looked and saw that he
had shot Allchin through the arm and side. Witness plainly
saw the bullet or buckshot holes in Allchin's coat. Allchin's
horse had gone fifteen or twenty feet when defendant fired his
first shot. The witness did not hear what reply, if any. Cap-
tain McDade made to defendant's exclamation: "Uncle Tom,
we got him." The witness was not a member of any political
club of which Allchin was a member. Witness had heard that
Allchin had had a body guard, but he was not a member of
that guard.

On re-examination the witness said that all he knew of the ex-
istence of AUchin's body guard was what he had heard as cur-
rent rumor in the neighborhood. Chambers, the son-in-law of
Sheriff McDade, who was killed by deceased about six weeks
before the latter's death, was a deputy sheriff under Sheriff
McDade. Deceased was a teamster by trade and held no oflScial
position at the time of his death. • If he belonged to any club
or other political organization, the witness was not aware of it.
When witness's attention was first directed to defendant and

Digitized by VjOOQIC

Term, 1889.] McDadb v. The State. 647

statement of the case

Springfield immediately before the shooting, they had their
guns in a shooting position, defendant standing somewhat to
the rear of Springfield. AUchin did not raise or attempt to
raise his gun from the time that Springfield fired the first shot
until he fell off his horse.

The plat of that part of the town of Hempstead contiguous
to the place of the homicide was put in evidence at a later
stage of the trial, but for convenient reference it is here in-
serted.

Digitized by VjOOQIC

648

27 Texas Court of Appbals. [Austin

Statement of the (Oae.

Public Park.

STBEXT.

Sidewalk.

' 6
] -«

. 1

1 a

] Frite
] Zeiiner.

1 Pointer^

1 Cole A
] Nabon.

P. A Co.

]

] Kaiser.

]

] Mm
] Jacobo.

I. SchnltH.

The HaTeman

Corner,
(now Tacant.)

STBEET.

STREET.

8TBEET.

*~~

•"^

*— '

o
33

Digitized by VjOOQIC

Term, 1889.] McDade v. The State. 649

Statement of the case.

C. D. Bobinson was the next witness for the State. He tes-
tified that he lived in the town of Hempstead, Waller county,
and was engaged in the mercantile business. His store faced
south and was about one hundred feet distant from the alley
on which the corner of the Haveman store rested. While
standing in his store door on the morning of May 19, 1888, the
witness saw the defendant and Dick Springfield, each armed
with a shot gun, step out of the side door of Wheeler's saloon
into the alley. They went south from witness's store. About
the time they could reach the place from which the fatal shots
were fired, the witness heard the shooting, and soon saw All-
chin's horse "run up." To get to that place the defendant had
to go the width of a street and the length of a block. Leaving
the saloon, defendant and Springfield went in a southwest
direction until they struck the alley next to Haveman's corner,
when they went south. **To bring them to the Haveman store
they would have to go due east, and to bring them to Have-
man's (corner?) they would have to go north." They walked
rapidly and appeared to be in a hurry, carrying their guns at
their sides. Witness heard the defendant cock his gun as he
entered the alley. Witness next saw defendant and Springfield
in the street between his, witness's, store and the Haveman
block. That was about five minutes after the shooting. Spring-
field exclaimed: "If there is any damned scoundrel who wants
to take up the fight, come out in the street! Come on, boys,
let's go over to Wheeler's and take a drink." Three or four
parties were then with defendant and Springfield, but witness
did not know who they were. Sheriff McDade soon afterwards
joined the party.

Cross examined, the witness said that he did not see Allchin
on the day of the homicide, either before or after he was killed
The first time witness saw Allchin, to know him, was about a
week before the killing, when he saw him passing on the street.
Allchin, after that, came into the witness's store. Witness
knew nothing about Allchin being on the platform at the rail-
road depot on that morning, fiourishing his Winchester. Wit-
ness did not see defendant and Springfield after they passed
into the alley, until a very few minutes after the shooting, thev
appeared on the street, and Springfield called on the "boys" to
go to Wheeler's and get a drink. It was the opinion of the
witness that the killing of Allchin was a result of the previous
killing of Chambers. The coinnuinity about Hempstead was a

Digitized by VjOOQIC

650 2? Texas Court of Appeals. [Austin

statement of the case.

peculiar one at the time of the killing of Chambers and AUchin.
Since the killing of Allchin the witness had been elected justice
of the peace, and the community was not now so peculiar.
Witness anticipated trouble when he saw defendant and
Springfield step out of Wheeler's saloon into the alley with
their shot guns. After his election to the office of justice of
the peace the witness held the inquest upon the body of T. S.
McDade, who was sheriff of Waller county at the time of this
homicide. T. S. McDade, and another member of the McDado
party, were murdered in cold blood — assassinated at night
The witness, at this point, was asked if it was not a matter of
public notoriety that the killing of T. S. McDade, Louis Mc-
Dade, a colored man, and Chambers, was a part of the same
feud? He replied that he had never heard that the killing of
Louis McDade was a part of that feud.

Re-examined, the witness said that Louis McDade was
murdered after the killing of Allchin and just before the elec-
tion in 1888. Chambers was killed by Allchin about a month
or six weeks before he was killed. He was wounded by Cham-
bers at the time he killed him, and when killed himself was at
liberty on bail. The killing of Chambers, as the witness under-
stood and believed, grew out of an article published in the
Advance Guard newsp j per. That article reflected very severe-
ly upon a recent grand jury of Waller county and upon the
Waller county officials. The said officials very bitterly resented
the said publication. Witness understood that Allchin pro-
claimed himself to be the author of that article. Witness did
not hear politics •mentioned in connection with the killing of
Chambers. Witness knew of no political organization at the
times of the several killings. He did not know how long it was
after the killing of Chambers when Springfield was appointed
deputy sheriff, but it was only a short time.

R. B. Pointer testified, for the State, that he lived in Waller
county, Texas, and followed the business of merchandising in
Hempstead, and farming in the country. He came to the store
on the fatal morning and hitched his buggy and horse in front
of Haveman's store. While leaning on his show case making
out a bill against a negro, the witness heard a shot. Looking
up instantly he saw Allchiii's horse wheel and run from in front
of Zeisner's store, with Allchin, bare headed, on his back.
Another shot was fired and Allchin fell. A few minutes before
the first shot was fired the witness saw Allchin sitting on his

Digitized by VjOOQIC

Term, 1889.] McDade t;. The State. 651

Statement of the case.

horse in front of Zeisner's store, with one leg around the pom-
mel of the saddle, and his Winchester across the saddle be-
tween his body and the pommel. He still had the gun in that
position when the horse fled from Zeisner's store, and when he
fell off. He made no attempt to raise his gun that witness saw,
but witness did not observe him just before the first shot was
fired. The distance between the point where witness was stand-
ing and that where Allchin was sitting on his horse when the
shooting began, was between fifteen and twenty-fiv6 feet. Wit-
ness did not see who fired the first two shots, but after they
i?eere fired, and Allchin fell, witness went to his front door and
saw defendant and Springfield step off Haveman^s gallery,
armed with shot guns. At that time Allchin was lying on the
ground working his head from side to side. His face, which
-witness plainly saw, was then perfectly natural, but defendant
and Springfield walked up to his body, and fired several shots
into his head, and when witness next saw Allchin, a few min-
utes afterwards, his entire face was shot off. Defendant and
Springfield fired into the body at the same time, but witness
thought that Springfield shot the face off with a shot gun. De-
fendant had a pistol as well as a shot gun, but witness saw no
pistol in Springfield's hands. Immediately after discharging
the shots into deceased's body, Springfield stepped to the side-
walk in front of Armstrong's drug store, and exclaimed: "This
is the way we treat men who murder men on the streets." De-
fendant then said: "There are some other sons-of-bitches down
this way that ought to be murdered." The parties thus referred
to were parties then in witness's store. John and Jo Peebles,
Dick Kimball and Bozeman then stayed in witness's store. The
witness knew the defendant very well, but had only a slight ac •
quaintance with Dick Springfield. About the time defendant
made the above remark, he walked on up the street, and the
witness re-entered his store. He remained in his store but a
minute, and then went to AUchin's body. Allchin was then
lying with his face to the ground, and was breathing his last
breaths. Phil Duer told witness to turn the body over, which
the witness did. The witness then picked up AUchin's Win-
chester, which was lying on the ground with the butt near AU-
chin's feet. The slide of the gun was pushed back, and there
was sand in the slide at the place where the "plunger" works.
Witness examined the gun and put it back where he got it.
The lever was up about an inch. It was an old gun with a loose

Digitized by VjOOQIC

662 27 Texas Court of Appeals. [Austin

Statement of the case.

guard. At the very moment the first shot was fired the witness
looked up from his show case and caught sight of AUchin, his
horse then being in the act of wheeling. Witness could not
tell the position in which Allchin had his hands at that very
moment The witness did not see the first two shots fired, and
did not know, of his own knowledge, from what point they
were fired. It looked to him like the other shots were fired at
AUchin's back as his horse ran oflf.

Cross examined, the witness said that he thought it was the
left leg that Allchin had around the pommel of the saddle,
when he observed him just before the shooting, but he was not
absolutely certain that it was not the right leg. Witness did
not see the deceased on the depot platform that day, nor did he
Fee him come to town from the depot. He did not know how long
deceased had been in front of Zeisner's saloon when he was
shot. Witness did not, prior to the shooting, see a man on the
corner at Haveman's store whom he did not know. He saw a
well dressed stranger on that corner about twenty minutes
after the shooting. Witness took that man to be a drummer
who had been soliciting trade from Haveman. That man was
not Claude Loraine. Drays, carts, etc., .traversed the alley next
to Haveman's corner, but witness knew nothing about the char-
acter of that alley — whether a public or private thoroughfare.
The distance between the railroad depot and Haveman'^ store
was between one hundred and twenty and one hundred and
fifty yards. The witness's store was next to Zeisner's, but wit-
ness did not go into Zeisners on that day, nor did he know
whether or not there were any guns in Zeisner's place on that
day. Witness could not say how long it was before the first
shot was fired that he last saw the deceased, but it was not
longer than a minute and a half. He then had his leg across
the pommel of the saddle. Witness did not know when the
deceased took his leg from around the pommel of the saddle.
When witness saw Springfield and defendant advancing upon
deceased, Springfield was one or two feet in advance of defend-
ant. Springfield, when he reached the body, fired into the
head with a shot gun. Witness was quite positive that it was
Springfield and not defendant who emptied the .shot gun into
AUchin's head after ho had fallen. It was the opinion of the
witness that Allchin received the fatal wound when he fell
from his horse, which was at a point in the street near the front
of Zeisners south door. Witness did not notice but one man

Digitized by VjOOQIC

Term. 1889.] McDade v. The State. • 655

Statement of the case.

on the street when he started to the body after the shoot-
ing, but there might have been as many as a hundred men on
the street at that time. A large crowd was present when wit-
ness turned AUchin's body over. Phil Duer was with defend-
ant when witness first stepped into the street after the shoot-
ing. As defendant and Duer started up the street the witness
stepped into his store. He stepped out again- almost immedi-
ately, was joined by Phil Duer, and the two went together to
AUchin's body.

Further cross examined, the witness said he knew nothing of
an agreement to which Allchin was a party, and which bound
him not to carry his Winchester gun on the street. He did not
know whether or not Allchin was an expert in the use of a
Winchester gun. He had known Allchin for eight or nine
years, and during the last seven or eight months of AUchin's
life had never seen Allchin without his Winchester. He had
no recollection of ever seeing deceased carry a gun prior to the
time alluded to, seven or eight months before his death. The
witness did not belong to any political club or organization
which, at that or any other time, was on what was termed the
"Steve Allchin side of politics." Witness had never heard of
such a club or political organization until, soon after the kill-
ing of Allchin, he was attached as a witness for defendant and
Springfield. Claude Loraine then told witness about such an
organization, and witness had never heard anything more
about it. Witness knew, at the time of the killing, that for
some days or weeks Allchin had harbored in his house a body
of six or eight men who were said to constitute a ''body guard"
for the said Allchin. He knew also of public or political meet-
ings that were held during the three or four months preceding
the election of 1888, and that Zeisner's place was the headquar-
ters of that faction, but he never attended any of those meet-
ingSy and knew nothing about them, except that they were
held. The trouble which culminated in the Allchin and other
killings grew out of an article that was published in a newspa-
per refiecting severely on the *'court house" officials. Witness
was not in Hempstead when the first of this series of killings
occurred, and it was by mere chance that he came to town on
the day that Allchin was killed. He did not know that the
purpose of the political meetings arranged or held at Zeisner's
was to organize for the defeat of Captain T. S. McDade, who
was then running for re-election as sheriff. Witness knew

Digitized by VjOOQIC

654 27 Texas Court of Appeals. [Austin

Statement of the case.

Captain T. S. McDade well, and knew him as a good citizen,
kind hearted and generous, and as quiet, peaceable and law
abiding a man as lived in Waller county, or any other county
in Texas. Captain T. S. McDade was assassinated, in the
night time, six or seven months after the killing of Allchin,
and it was not known who murdered him. AUchin had on a
black coat when shot, and the witness was satisfied that he saw
the shot strike him; at all events, he witnessed the sudden ap-
pearance of white spots on the coat immediately upon the firing
of one of the shots. The sidewalks in front of Haveman's
block, and along the line of that street, were constructed of
plank. A man walking along them would not necessarily make
a noise. Witness did not know that defendant and Springfield
approached Allchin on the sidewalk.

On re-examination the witness said that Captain McDade
had been sheriff of Waller county, at the time of the Allchin
killing, for eight or ten years. He was nominated for re-elec-
tion in 1888 on the Republican ticket, but withdrew from the
race, and finally resigned the oflRce before the election. Wit-
ness did not hear of the rival political organizations until Oc-
tober, 1888. He did not remember whether Captain McDade
had then resigned the sheriff's oflRce, nor did he remember
whether, at that time, Captain McDade was running as the
Republican nominee or whether Mr. Faulkner had been sub-
stituted. The race for that oflSce was finally made by Mr.
Faulkner as the nominee of the Republican party, and Captain
Allsburn as the nominee of the "People's" party. The witness
knew nothing whatever about the organization of the two po-
litical factions or parties. The witness did not know who de-
fendant referred to when, just after the shooting of Allchin,
he pointed towards witness's store and said that "there are
other sons-of -bitches who ought to be murdered." It was
possible that he referred to witness for one. Witness's brothe^
in-law, Mr. Peebles, was then an announced candidate for
sheriff of Waller county. Allchin owned and "run" teams as
a business. At that time his teams were at work at a point
between two and four miles northwest from Hempstead, He
lived about a quarter of a mile south from Hempstead. The
parties who stayed about AUchin's house were his teamsters.

On his re-cross examination the witness said that he did not
know whether Christy Williams, Floyd and Davidson, or either
of them, were in the employ of deceased, just before his death,

Digitized by VjOOQIC

Term, 1889.] McDade v. Thk State. 655

Stateuient of tho cose.

as teamsters. He had never seen cither of those parties about
deceased's place. Witness had reason to believe or know that
defendant, at the time AUchin was killed, wanted to hurt Jo
Peebles, a brother-in-law of witness, and a candidate for sheriff.
It was the public understanding that Captain McDade resigned
his position as sheriff in response to a petition, and for the pur-
pose of harmonizing conflicting elements. Jo Peebles was a
withess for Allchin in his pending trial for the killing of Cham-
bers, and he, Peebles, had told witness that, in killing Chambers,
Allchin acted in self defense. Allchin was himself wounded
in the fight with Chambers.

Dr. L. W. Groce, testifying for the State, described the
twenty-seven wounds he found on the body of the deceased,
and declared that of the said wounds those that penetrated the
body in the region of the left kidney; those that penetrated the
breast bone; the one that entered at the left eye, and those that
passed out of the back of the head were necessarily mortal
wounds. The face was horribly mutilated and almost entirely
shot away. The said wounds were made by buck shot and
bullets.

William Leary testified, for the State, that he lived in Waller
county, Texas, about three and a half miles from Hempstead.
He was in Hempstead on the morning of the fatal day, and
imperfectly saw the killing of Allchin. When witness was
driving past Fried's store, which was be ween Armstrong's
drug store and the place of the killing, he was hailed by a
friend and stopped. While talking with his friend the shoot-
ing commenced, the parties doing the shooting being behind,
and not within the view of witness at that time. He caught
sight of Allchin just after his horse turned, and did not see the
parties until after Allchin fell, when they came into the street.
Both of those parties were strangers to witness, and witness
could not now identify either one of them. He heard Allchin,
after his body struck the ground, exclaim: ''Don't shoot any
more.'' The witness saw only one of the two parties shooting.
Both parties had guns, and the one who did no shooting was a
few feet behind the other. Witness was at the back of his
wagon, ten or twelve steps distant from Allchin when the latter
fell. When witness first observed Allchin, just before the
shooting commenced, he was sitting on his horse in front of
Zeisner's saloon, facing that saloon. He seemed to be holding
the bridle reins with a strong grip. His side was then presented

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656 27 Texas Court op Appeals. [Austin

Statement of the case.

to the witness. He was carrying his Winchester ^un either
across his lap or across his saddle, between his body and the
pommel. Witness did not again observe the gun when it and
the body fell from the horse together. As the witness thought
himself within the range of the shots, he left his wagon with-
out taking note of the number of shots fired. The witness did
not hear any of the parties say anything before the shooting
began, and if he heard anything said afterwards he did not
now remember it.

Cross examined, the witness said that he was standing be-
hind the wagon in the street when the first shot was fired, was
standing there when AUchin passed him, and stood there until
Allchin fell oflf his horse, when he ran into Fried's store. All-
chin had struck the ground and was feebly moving his head
when he exclaimed: "Don't shoot any more." The friend to
whom witness was talking when the shooting commenced was
W. B. Peebles. Witness's back was towards Allchin when
the first shot was fired, and he was unable to say what Allchin
was doing at that particular time.

Mrs. Brent Brown, wife of James Brown, testified, for the
State, that she was in Hempstead on the fatal day and wit-
nessed the killing of Allchin. She, her husband and sister-in-
law went to Hempstead in a wagon. The wagon was stopped
in front of Haveman's, and in front of and thirty or forty feet
from Armstrong's drug store, into which drug store the wit-
ness's husband went. While sitting in the wagon waiting for
her husband, witness observed Allchin talking to a gentleman
whom she could not well see. Allchin was sitting on his horse,
with his right hand on the pommel of the saddle and his left
arm hanging down. He faced north with his right side pre-
sented to witness. His general appearance reminded witness
of an acquaintance who lived in her neighborhood, and.she re-
marked to her sister in-law: "That man looks like Tom Wei-
lingford." At that instant the first shot was fired, and Allchin
turned to face the witness and her sister-in-law. The horse
started off, the firing continued, and Allchin and his gun fell
off the horse together. Witness did not see the parties who
fired those shots, but saw that Allchin had nothing in his
hands at the time the shots were fired. Witness heard at least
two shots after Allchin fell. She saw two parties with guns
after Allchin's fall, but saw none of the shots fired.

Mrs. Kate Wright testified, for the State, as follows: *1 was

Digitized by VjOOQIC

Term, 1889.] McDadb v. The State. 657

Statement of the case.

at Mr. George Burton's house in Hempstead at the time Steve
Allchin was killed. I was down stairs in his residence. I saw
two men come out of the back alley behind Haveman's. They
came out of the south end of the alley and went up the^ south
side of the block, and then stepped on the side walk in front of
Haveman's store. They had guns, and when I first saw them
one of them had his gun on his shoulder. I saw them last
when they stepped up on the side walk in front of Haveman's
store. I then turned to call one of my cousins to come and
tell me who they were. Just as I turned around I heard shoot-
ing and it sounded like it was around at Haveman's. It did
not seem to me more than a second from the time they got on
the side walk until the shooting conmienced. Those men
walked fast. I did not see them at the time of the shooting,
nor I did not see Allchin. I was not in a position to see them
at that time."

B. Scheuler testified, for the State, that just before the killing
of Allchin, he had occasion to pass along the pavement in front
of Wheeler's saloon, at the corner of which pavement he
stopped. In going by the front door of that saloon, he passed
the defendant and Springfield, who were standing on the pave-
ment talking to a third party. Just as witness stopped at the
end of the pavement he looked back and saw defendant and
Springfield cross the street in a southwesterly direction towards
the alley mentioned by previous witnesses, beyond which wit-
ness did not for a time see them. They walked fast and each
of them had a double barreled shot g^n. Witness went on his
way, and when he reached I. Schwartz's corner, about three
minutes later, he heard the shooting, and came within view of
Allchin just as he fell off his horse. A few minutes later he
heard defendant exclaim, as he passed Armstrong's drug store:
**I reckon we got them this time!" His tone of voice was some-
what boisterous, and he appeared to address no person in par-
ticular.

Fritz Zeisner was the next witness for the State. He testi-
fied that he was the proprietor of a beer saloon and a grocery
store at the time that Allchin was killed. He was inside of his
said establishment, and from his position in there he saw All-
chin when he fell from his horse. He did not see the firing of
the first shots, but saw defendant and Dick Springfield when
they fired into Allchin's body after he had fallen. Allchin, for
a while before and at the time he was shot, was sitting on his

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658 27 Texas Court of Appeals. [Austin

Statement of the case.

horse in front of the south door of witness's said saloon. He was
facing the gallery, looking up and down the sidewalk a few
moments before the shooting, and when the first shot was
fired he was talking to Gus Miller and some other parties, and
was shaking hands with somebody. He had his bridle reins in
one hand, and a Winchester gun across his lap. He made no
attempt to raise that gun either before, at or after the firing of
the first shot. Immediately upon the firing of the first two
shots AUchin's horse sprang forward, made two or three jumps,
covering about fifteen feet, and AUchin and his gun fell off on
the same side. Defendant and Springfield ran at once to the
body and fired several shots into it. They ran to the body from
around the south door of witness's store. Witness's said store
was north of Haveman's store, and they came from the direc-
tion of Haveman's store. Both defendant and Springfield had
a shot gun and pistol. As they came on the gallery, going to
where Allchin was lying on the ground, witness thought they
were coming into his store. He accordingly retreated, and
heard nothing that was said by them or anybody else after the
shooting.

On his cross examination, the witness said that if a gun and
sixteen loaded shells were placed in his store on the fatal day
by Christy Williams he, witness, did not know it. He saw no
such gun or shells then or afterward. The killing of Chambers
by Allchin occurred at the comer near witness's store. Wit-
ness saw it, and was then under process to attend Allchin's trial
as a witness in his behalf, and it was because of that fact that he
feared for his life at the hands of defendant and Springfield,
and ran when he saw them coming toward his store on their
way to where Allchin was lying in the street. The political
club or organization that was opposing the re-election of Sherifif
T. S. McDade had its headquarters and meeting place in the
hall above the witness's store, but said organization got per-
mission to use that hall from the hook and ladder fire company,
which rented it from witness. The witness attended several
of the meetings of that organization in that hall, ana knew
that Winchesters and six shooters were frequently carried into
those meetings. The said organization met sometimes in the
afternoon and sometimes at night. Witness denied that when
Eli Browning came to him and said: "All the McDades should
be killed," he replied: **Yes, and the women too." Christy
Williams was in town on the fatal morning with a cart load of

Digitized by VjOOQIC

Term, 1889.] McDade v. The State. 659

Statement of the case.

flour, but he did not, nor did, anybody else, take a shot gun
into witness's store and leave it, or, if they did, the witness
did not then nor now know that fact. Witness did not find a
gun and cartridges in his store on that day, and he did not fce^
a gun from there or anywhere else on that day and give it to
any person. Allchin rode up to the front of witness's store,
stopped and sent a negro into the store with some money to be
changed. Witness changed it and sent the change back. In
a very short time the shooting occurred, — before the party
handed the change to him.

At this point witness was asked if he did not testify on the
examining trial that Allchin was shot when the party was in
the act of handing him the change. He replied that he did not
see the negro hand Allchin any change, because the shooting be-
gan just as the negro stepped out of the store. The witness now
states that AUchin's right hand was on the pommel of the sad-
dle when the first shot was fired. His written statement on
the examining trial represents him as testifying then that he
did not know where AUchin's right hand was. Witness did
not undertake to explain the conflict between his two said state-
ments. It was either Nast or Miller, but witness was not posi-
tive which, that Allchin was talking to when the first shot was
fired. The killing of Louis McDade occurred about twenty
steps above the witness's place of business. Witness saw the
said Louis four or five minutes before he was killed, but he did
not see and did not know who killed him. Chambers was killed
about one month before Allchin was killed, and witness was
known to be a witness for Allchin with reference to that kill-
ing, and it was for that reason that, at the time of the killing
of Allchin, he was afraid of guns in the hands of Springfield
and the defendant. Witness denied that on the Monday after
the killing of Allchin he told A. T. Bedell or anybody else that
he was behind his counter and knew nothing more about the
killing than that he heard the guns and saw Allchin fall off his
horse. The political club which held its meetings in the hall
above the witness's store was a club of the Democratic or Peo-
ple's party, in opposition to the Republican party. It was or-
ganized after the killing of Allchin, and for the campaign.

Gus Miller was the next witness for the State. He testified
that he was in Hempstead on the fatal morning, and witnessed
the killing of Allchin by the defendant and Springfield. See-
ing Allchin on his horse in front of Zeisner's, south door, the

Digitized by VjOOQIC

660 27 Texas Coubt of Appeals. [Austin

Statement of the ease.

witness stepped and shook hands with him, Allchin leaning
forward and resting one hand on the pommel of his saddle.
Having shaken hands, witness stepped back, or rather turned
his body to face the same way Allchin was facing, which was
north. About that time somebody exclaimed: "Look out!'*
Witness turned around and saw defendant and Springfield,
armed with shot guns, on the gallery in front of Haveman's
store, about six feet from the southeast corner. Witness step-
ped back quickly at about the moment two shots were fired.
Allchin's body, when the person exclaimed "look out," was
"quartering just a little back," and he was facing up the street,
north. Witness could not say in which direction he, Allchin,
was looking at the precise time the two shots were fired. He
had his Winchester rifle across his lap between the pommel of
the saddle and his body, and, when witness last observed him
before the shooting, one of his hands was on the pommel. The
first time witness looked at Allchin after the warning to 'look
out" was as the fourth shot was fired, when he, Allchin, fell
off his horse. His gun fell with and partly under his body.
Defendant and Springfield then walked to where he was lyinp
and fired other shots into his body. Allchin at no time, either
before or after the shooting commenced, raised or attempted to
raise his gun so far as the witness saw. George Burton shook
hands with Allchin just before the shooting.

Cross examined, the witness said that when he first saw and
spoke to Allchin on that morning — which was just before the
shooting — ^he, witness, had just come out of Haveman's store.
Allchin was shaking hands with Cameron when witness joined
him. He then shook hands with witness and then with Bur-
ton. As soon as he had shaken hands with Allchin, witness
turned his face to look north up the street, and a few seconds
later he stepped off a few feet, and was thinking about where
he could find a purchaser for produce he had brought to town,
when he heard the warning "look out!" Witness did not know
where Fritz Zeisner was when the warning was spoken nor
when the first shot was fired. Defendant and Springfield ad-
vanced upon Allchin after he fell, passing the witness on the
side walk between the two doors of Zeisner's establishment.
Zeisner came out of his store after defendant and Springfield
had passed, and kept pulling at witness to leave until witness
did leave. Witness did not know where 2Jeisner was when
the first shot was fired.

Digitized by VjOOQIC

Term, 1889.] McDadb v. The State. 6ffi

Statement of the case.

Describing the occurrences immediately preceding the firing
of the first shots, George Burton, a witness for the State, testi-
fied that he saw AUchin in front of Zeisner's saloon, on horse-
back, talking to either Nast, Cameron or Miller, all of whom
were present. He was facing north or northwest, exposing his
side to the south. Witness shook hands with him and stepped
away. As witness started off he saw the defendant and Spring-
field on Haveman's pavement or sidewalk. One of them was
aiming a gun and the other was raising a gun to his shoulder.
Witness exclaimed "look out!'* and sprang out of the way,
when the firing began. He saw AUchin after he hallooed "look
out!" and AUchin was then leaning forward on his horse, but
witness -could not say in what position his hands then were.
He made no efifort at any time, so far as witness saw, to raise
his gun. Allchin's horse made two or three jumps after the first
shots were fired, and AUchin fell oflf, when defendant and
Springfield advanced upon him, and witness saw defendant fire
one or two shots into the prostrate body. He did not hear
-either defendant or AUchin say anything after AUchin fell.
Witness saw Springfield before the shooting at Wheeler's cor-
ner, and again between Jacobs's and Kaiser's places, going
north. He was then alone and the witness thought had been
down the Haveman block as far as Fried's, in search of and to
arrest a man that Loggins was after. Springfield then had no
gun. The shooting occurred fifteen or twenty minutes after
the witness saw Springfield between Jacobs's and Kaiser's.

John Peebles, a clerk in Pointer's store, was the next witness
for the State. His statement of the fatal transaction did not
differ materially from that of Mr. Pointer, but he testified that
Springfield reloaded his gun before advancing upon and firing
into Allchin's body after the latter had fallen off the horse; and
that, when he walked off from the body after the shooting was
over, he, Springfield, exclaimed: **There he is, the damned
murdering son-of a-bitch! I will show him how to murder men
on the streets!" Wheeler's saloon was about one hundred yards
from the front of Zeisner's saloon.

Thomas Whitman testified, for the State, that he lived in
Brenham, Washington county. On the Monday or Tuesday
before the killing of AUchin, the witness met defendant, then
a total stranger to him, at the railroad depot, and asked him if
the trouble in Hempstead was settled yet. Defendant replied:
**No, it is not settled, and AUchin will bite the dust within two

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0C2 27 Texas Court of Appeals. [Austin

Statemeut of the case.

weeks. Uncle Tom is willing to drop it and let the law take ite
course about the killing of Chambers, but Allchin is still toting
his Winchester, and keeps seven or eight armed men— all
strangers, — at his house. Probably others besides Allchin will
be killed."

The material part of the testimony of the State's witness, T.
Johnson, was that the Houston & Texas Central Railway
freight depot was about two hundred yards distant from Zeis-
ner's saloon and about three hundred yards distant from
Wheeler's saloon. The platform at the said depot was elevated
four or five feet above the ground. Allchin came to the said
depot on the morning of the fatal day, bringing his Winchester
with him. Witness asked him: **Steve, can you manipulate
that thino^ well?" He replied: **Yes," and at the request of
witness flourished it about his head', handling it with apparent
ease. Witness then remarked to Allchin: "I am glad the
trouble between you and Captain McDade has been settled."
He replied: '*Yes, that tr6uble has been adjusted. I will never
bother the McDades if they never bother me." He did not ex-
plain to the witness the basis of the settlement, nor tell him of
any agreement about the trouble to which he was a party.

C. C. Pye testified, for the State, that about fifteen or twenty
minutes before the shooting of Allchin occurred he, witness,
went from the post office to Wheeler's saloon to get a drink.
He got his drink, and as he passed out of the saloon he saw de-
fendant and Springfield standing on the southeast corner of
the sidewolk, in front of Wheeler's said saloon, and heard one
of them say to the other: 'That's him down there now.'*
Witness did not know who was referred to. He went on back
to the post office and soon afterwards heard, but did not see,
the fatal shooting. He did not see Christy Williams in Whee-
ler's saloon.

The material part of the testimony of E. H. Jones, a witness
for the State, was to the effect that he was at Felker's store
and at Wheeler's saloon a few minutes before the shooting.
Defendant and Springfield, neither of them having a gun at
that time, invited the crowd present to drink. Witness stepped
out of the saloon and soon afterwards Eck McDade and several
others came out, but witness saw no more of defendant or
Springfield until after the first shot was fired. When the
shooting commenced the witness ran to Haveman's corner, and
saw Springfield standing on the sidewalk. He said: "That is

Digitized by VjOOQIC

Term, 18S9.] McDade v. The State. 663

Statement of the case.

the way we do the damned sons of-bitches." About this time
Deputy Sheriff Tommie McDade came running to the crowd
with a six shooter. Springtield remarked: "I am ready to
surrender." Phil Duer said: "Boys, this thing has gone far
enough." Springfield again said that he was ready to surren-
der, and added, speaking to defendant: **Come on, Jack." De-
fendant remarked that there were other damned sons-of-bitches
in the store, and the party, including Springfield and defendant,
Tom and Eck McDade and Phil Duer, went up the street, and
witness saw them no more.

George Burton, recalled by the State, testified that on his way
down the street, to the point where he shook hands with All-
chin, he met Springfield goinfe hurriedly towards Wheelers
saloon. He then had no gun in his hands.

E. Crews testified, for the State, to the effect that just after
the shooting was over, he met defendant, Springfield, T. S.
McDade and Eck McDade, going towards the court house.
Defendant shouted and said: **We got him that time, Uncle
Tom!"

At this stage of the proceedings a saddle and a suit of clothes
were introduced in evidence by the State. They were identi-
fied as the saddle used and the suit of clothes worn by deceased
when killed.

The State closed.

James A. Felker was the first witness for the defense. He
testified that he had known the deceased about five years at
the time of his death, during which time his relations with de-
ceased were of a very friendly nature. He was not on the
bond of the deceased to appear and answer an indictment
charging him with the murder of Chambers. The deceased
was wounded in the fight with Chambers, and was confined to
his room about three weeks as the result of his wound. Dur-
ing the time that the deceased was thus confined, two gentle-
men came to witness and requested his co-operation in an
attempt to bring the trouble between the deceased and the Mc-
Dades to an amicable settlement. They assigned to the witness
the part of intercessor with the deceased. The witness at first
declined to have anything whatever to do with the matter, but
finally agreed to act in conjunction with Mr. Pinckney in ap-
pealing to Allchin and the McDades for peace. It was then
agreed that witness and Pinckney would go to AUchin's house
on ihat night. Witness first called upon ^Ir. R. R. McDade,

Digitized by VjOOQIC

664 27 Texas Court of Appeals. [Austin

Statement of the case.

nephew of Sheriff T. S. McDade, and asked him if the McDade
side of the trouble was willing for the attempt to make peace
to be made. Mr. R. R. McDade replied that he and Sheriff Mc-
Dade were not only willing to accept a peaceable settlement,
but were anxious for it; and that it was at his, R. R McDadtfs
instance that Pinckney and the other gentleman appealed to
witness to act as a joint mediator in the matter. According to
this arrangement, witness and Mr. Pinckney went to AUchin's
house that night and proposed to him a peaceable settlement—
or, perhaps, it might be more properly termed a truce — pend-
ing his, Allchin's, trial for the killing of Chambers. The de-
ceased at first refused absolutely to entertain the proposition,
declaring that he had no confidence whatever in the *'seed,
breed or generation of McDades," but the witness vouched for
them as honest, upright citizens, and deceased, protesting that
he wanted no trouble with the McDades, finally agreed to make
terms on an equitable basis, and asked what was required of
him. At this point the witness and Pinckney suspended the
negotiation and went back to the McDades to ascertain the
terms or conditions they would insist upon. Captain (Sheriff)
McDade said that Allchin must be required to quit carrying his
Winchester. Witness and Pinckney reported to Allchin that
he would be required to quit carrying his gun, and he at once
positively and emphatically rejected the terms, saying that he
had been in the habit of carrying his Winchester since long
before the trouble with the McDades, and that, in view of the
circumstances surrounding him, he did not propose to go un-
armed. Witness and Pinckney reported accordingly to Cap-
tain McDade, who proposed that if Allchin insisted upon bear-
ing arms as a necessary precaution to his protection, he, as
sheriff, would license him, Allchin, to carry a pistol. This
proposition was made to Allchin, who rejected it, saying that
he would not discard the gun he had been long carrying for a
pistol, in the use of which he was totally unpracticed. The
witness and Pinckney, as mediators, agreed that Allchin could
continue to carry his Winchester, but only as he had hitherto
carried it,— that is, on his horse or in his buggy, but not on the
streets of Hempstead when on foot. In short, the agreement
was that Allchin was to carry his gun as he had been in the
habit of carrying it; and up to the time of the killing of Cham-
bers, with one exception, he had never, so far as the witness
knew, carried his i^un in his hands, but always carried it either

Digitized by VjOOQIC

Term, 1889.] McDadb v. Tuk State. 665

StatemeDt of the ca^^e.

in his buggy or in a scabbard on his horse. The exception
mentioned by witness was soon after a difficulty he, Allchin>
had with Mr. Dan Woods., and on the occasion referred to he
was in his buggy with the gun in his hands.

A few days after this agreement was entered into, the wit-
ness saw Allchin walking on the streets of Hempstead, carry,
ing his gun in his hands in violation of the agreement. Fear-
ing that the McDades might meet him, and that his manner of
carrying the gun might provoke trouble, the witness went to
Allchin, reminded him that he was carrying his gun in a man-
ner prohibited by the agreement, and appealed to him to desist.
Witness said to him: **Now place yourself in their position.
Suppose you should come to town and find them walking the
streets with Winchesters in their hands, would you like it?"
Allchin replied: **By Gosh, you are right. I have not thought
about that." He then promised that he would not again violate
the agreement, but on coming to town in his buggy he would
leave his gun in his buggy, and on coming to town on horse-
back he would leave his gun in one of the stores until he should
get ready to leave. On the evening of that day or the morn-
ing of the next Mr. R. R. McDade, having heard of Allchin's
violation of the agreement with regard to the carrying of the
gun, came to see witness about it, and witness told him that
he had already complained to Allchin about the violation of the
compact, and that Allchin had promised not to violate it again.
Subsequently Captain (sheriflf) McDade had an interview with
the witness about the agreement, and Allchin's violation of
the condition that he was not to carry his gun in his hands on
the street — the other condition being that the McDades, includ*
ing Dick Springfield, were not to molest Allchin, and that
either party hearing of threats uttered by the other was to re-
port the same to the witness and Pinckney for investigation,
before acting upon them. In that interview Captain McDade
was told that Mr. Allchin had promised not to carry the gun
again in violation of the contract, and he said that the viola-
tion then complained of not having resulted in a rupture, it
made no diflference, but that if the act was repeated the agree-
ment would be considered '*off " by the McDade party, and
that he. Captain McDade, would no longer bo responsible for
the future conduct of the McDade boys and Springfield. The
carrying of the gun in his hand on the streets, by Allchin on
the occasion referred to, the witness considered a positive vio

Digitized by VjOOQIC

C66 27 Texas Court of Appeals. [Austin

Statement of the case.

lation of the agreement, and he knew of nothing havmg oc-
curred to justify or excuse the violation.

Oq the Tuesday morning before Saturday on which he was
killed, AUchin came to see the witness about the trouble be-
tween him and the McDades. He was unarmed. He came into
witness's oflSce while witness was preparing to go to Austin to
attend the interstate drill. Witness said to him: ''Good morn-
ing, Steve. I am glad to see that you have not got your gun.*^
He replied: "I have promised you that I will not carry it any
more, and I do not propose to do it without your permission;
but I have come to tell you that they are laying their plans to
kill me." The witness said to him: ''There is not a word of
truth in it." AUchin replied: **Yes they are, and I can name
the boys who are going to do it. Jack McDade and Dick Spring-
field are going to do it, and they are going to do it right out
out there" (pointing towards Zeisner s establishment.) Witness
replied: "You are a fool, Steve; those people are honorable and
if you pursue the course I have advised for you, they won*t
trouble you."' AUchin protested his conviction that the Mc-
Dades were planning to kill him, and witness asked him if he
had had any further trouble with them. He replied that he
had not; that, on the contrary. Jack McDade had recently over
taken him on the highway, and that they rode some distance
in company, conversing on friendly terms, but that he had re-
ceived his information **too straight" to doubt that they were
planning to kill him. Witness again told him to abide by the
contract and he would not be hurt, and then remarked to him:
"I am going to Austin to the drill, and will be gone two
or three days, apd have not time to now investigate this
matter, but I will look into it as soon as I get back. Mean-
while you keep out of town. If, when I get back, I find there
is any truth in this suspicion of yours I will let you know it
I am placing myself between you and them, and if they should
violate their obligations, I would feel very bad about it." AU-
chin replied: **I would rather have my right arm cut off than
to do anything without letting you know." He then started off
but came back and said: **I want to let our first contract stand."
Witness replied: '*You must not carry your gun on the street,
and if you do you will do it at your peril." He then asked wit-
ness: **If I stay on my horse or in my buggy, will I be violat-
ing that contract?" Witness told him that he would not, and
he left. Witness went to Austin on that day and did not get

Digitized by VjOOQIC

Term, 1889.] McDade v. The State. 667

Statement of the Cv^se.

back to Hempstead until Friday night — the night before the
tragedy.

The agreement, contract, truce, or whatever it should be
properly termed, did not permit AUchin to get off his horse with
his hands and flourish and display it publicly on the railroad
depot, and if. he did that on any occasion after the agreement
was entered into it was a violation of the same, and must have
been known to him as a violation. The trouble which resulted
in the killing of Chambers by Allchin, and the subsequent kill-
ing of Allchin, grew out of an article published in a local
newspaper, the authorship of which was attributed to Allchin.
The witness never believed that Allchin wrote that article, and
when attending on Allchin when he was **laid up" by the
wound received in the fight with Chambers, the witness said
to him: **Steve, I have never believed you wrote that article.
Did you write it or not?" He replied: "Well, I daddied it, all
the same." Speaking of the trouble with Chambers, Allchin
on that occasion remarked: **There are seven or eight men
who ought to have come to my help in that trouble, but only
two or three came." At that time there were several men about
AUchin's house, including, as witness remembered the names,
a Mr. Davidson, a Mr. Williams and a Mr. Floyd. He had also
seen a man named Clark about AUchin's house. He knew a
man named Swain, but had no recollection of ever seeing him
about AUchin's place. Davidson, at the time of AUchin's death,
was a stranger in the community. Davidson, armed with a
Winchester, was with Allchin on the streets on the occasion
when Allchin, in violation of the agreement, was carrying a
Winchester. Captain McDade complained about Allchin being
accompanied by an armed stranger. Witness informed All-
chin of that complaint, and stated to him that, in view of the
relations existing between him and the McDades, the McDades
were not unreasonable in objecting to his parading the streets
in company with an armed man who was unknown in the com-
munity. Allchin explained then that the reason he had his
Winchester on that occasion was that he had left it in a certain
store; that the proprietor of that store had closed it and gone
home, and he took the gun out because he did not know but
that he would need it before the store keeper came back; and
that Davidson was. armed in anticipation of trouble with a
party who had threatened his life. He promised not to again
associate with Davidson on the streets. Witness did not know

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668 27 Texas Court of Appeals. [Austin

statement of the case.

whether or not he kept that promise. If Davidson ever worked
for AUchin, the witness did not know it.

On his cross examination, the witness said that he did not
understand the agreement to preclude AUchin from carrying
his gun across his lap when on horseback, but it did preclude
him from having it in his hands on the streets. The parties to
that agreement were AUchin on one side and T. S. McDade,
Jack McDade, Eck McDade, Tommy McDade and Dick Spring-
field on the other; T. S. McDade agreeing to be responsible for
Dick Springfield. AUchin did not tell witness, on the day wit-
ness went to Austin, who the parties were that told him Jack
McDade and Dick Springfield, under plans agreed upon, were
to kiU him, but did tell him that he got it too straight to doubt
the fact. Either party to the agreement, hearing of threats by
the other, was to report the fact to the witness, and he was to
investigate the truth of such reports and stop them. When
witness started to Austin, AUchin promised that while witness
was gone he would do nothing to arouse the suspicion or appre-
hension of the McDade party. He said at the same time that
he would suffer his right arm to be cut off, or would die, before
he would o^o back on his contract, and that he would never at-
tack the McDades, but would act only on emergency and in self
defense. It was under the agreement referred to that AUchin
came to witness about the alleged plan of the McDade party
to kill him. Witness did not investigate the charge thus made
by AUchin, because he had to go to Austin to get his family,
and did not have an opportunity to investigate on his return.
AUchin persistently declared his confidence in the existence of
the plan to kill him, and when witness told him that the Mc-
Dades and Springfield would not kill a man for fun, and would
not molest him, he replied: *'I have confidence in you, but not
a particle in the seed, breed or generation of McDade." The
witness knew by common report that a guard of armed men
was kept about AUchin's house after the killing of Chambers,
but he did not personally know that fact, and did not know
that the guard was put there by the county. It was distinctly
understood as a part of the agreement that neither party were
to pay any attention to irresponsible rumors of threats uttered
by the other, but that any threats reported to them through a
source in which they had confidence were to be reported to and
investigated by the witness. The **first contract" referred to
by AUchin in his conversation with witness on Tuesday morn-

Digitized by VjOOQIC

Term, 1889.] McDade v. The State. 669

Statement of the case.

ing, when witness started to Austin, was his, Allchin's, original
proposition, at the beginning of the negotiation, that he be
permitted to carry his gun in any way that he pleased, includ-
ing his hands. To that witness replied: "That will never do.'*
Captain McDade never reported any threats to witness as hav-
ing been made by AUchin.

Continuing on cross examination, the witness said that when
Allchin admitted that he had "daddied" the article in the local
newspaper, which created the feud, he talked to witness freely
and unreservedly about the killing of Chambers. He told wit-
ness he regretted that occurrence extremely; that he would
not have killed Chambers could he have avoided it, but that he
had to kill him, run, or get killed himself; and that he realized
positively that had he not killed Chambers he would have been
killed himself. He said that of the seven or eight *sons-of-
bitches," who ought to have come to his rescue, only three
came, the only one of whom, whose name he mentioned, being
Jim Armstrong, the druggist. He described to witness one of
the encounters he had with Chambers before the killing, as
follows: **I went to your (witness's) store and bought some-
thing, and from there I went to Haveman's to buy a bridle.
While I was in Haveman's, Chambers walked up to me, handed
me the paper and asked me: 'Did you write that?' While I
was reading the article it suddenly flashed across my mind that
he would shoot me while I was reading it, and I handed the
paper back to him and said to him: 'You read it, Dick. I did
write it, and I have no apologies to make and nothing to take
back.' He said to me: 'You have got the advantage of me
now, but I will see you some other time.' I said to him: *You
are armed with a six shooter, and we can settle it right now.'
Chambers said: *I will see you another time when I am in
town.' I then backed out of the store with my rifle in my hand,
and Chambers came out and told me when he would be in
town."

This witness was examined at considerable length but little
more of material importance was adduced. He stated that the
agreement contemplated that Allchin was to carry his gun as
he had theretofore carried it, and that, as he had always before
carried it in a scabbard, he, witness, considered his obligation
to be to continue to carry it in the scabbard. The carrying of
the gun across his lap, after displaying it in the manner stated
by the witness Johnson, on the depot platform, on the fatal

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670 27 Texas Court op Appeals. [Austin

statement of the case.

morning, the witness considered a violation of the agreement.
Allchin was expert in the use of a Winchester rifle.

Phil Duer was the next witness for the defense. He testified
that he heard the reports of the fatal shots, and at once started
down the street. He raet Springfield first and then defendant,
both armed with guns. He met Springfield between the stores
of Fried and Keiser, in the Haveman block. He asked Spring-
field what was the matter, and Springfield replied; "The
damned son-of-a-bitch tried to kill me and I shot him." The
witness and Pointer were the first parties to reach Allchin's
body after the shooting, and at that time they examined All-
chin's Winchester, which they found lying partly under the
body. The guard was pulled clear back, and the gun would
not work until a cartridge was taken out of it. That cartridge
showed an indentation which looked like the hammer of the
gun had snapped on it. The witness had no personal knowl-
edge of the truce agreement entered into between Allchin on
one side and the McDade party on the other, but on one occa-
sion, after Allchin got well enough of the wound inflicted upon
him by Chambers, the witness saw him on the streets of Hemp-
stead with his Winchester in his hands. The man Davidson
was with him, and he, too, was armed with a Winchester.
They got out of a buggy with the Winchesters in their hands,
and entered a store or barber shop. Witness did not see them
come out. Soon after the killing of Allchin the witness sent
his, Allchin's, gun to Mrs. Allchin, and afterwards he and Lip-
scomb went to Mrs. AUchin's house and got it. Witness and
W. T. Du^r were brothers, and they were related to the de-
fendant. On the Thursday preceding the fatal Saturday, the
witness went with Springfield to Waller station, in search of a
man who was **wanted" for crime in Montgomery county.

C(iunty Attorney Lipscomb testified, for the defense, that he
weit with Mr. Duer to Allchin's house and got Allchin's gun,
which had been sent to the house with the body about an hour
before. The said gun was then taken to witness's office. Two
cartridges were then removed from it, one from the barrel and
one from the magazine. The cap on one of the said cartridges
showed an indentation such as would result from the snapping
of the hammer on it. The witness was well acquainted with
the defendant and Captain T. S. McDade, and with their re-
spective reputations for peace and quietude. It was good.

Digitized by VjOOQIC

Term, 1889.] McDade v. The State. 671

Statement of the case.

Allchin's reputation was that of a dangerous character and an
expert in the use of a Winchester.

On cross examination, the witness said that he reached All-
chin's body a few minutes after the killing. One of the per-
sons present — Mr. Duer, according to witness's recollection —
picked up AUchin's gun. Witness then examined the said gun
and found the slide pulled back and open. Correcting himself,
the witness said that he was not positive that the gun had a
slide, but the place where there should have been a slide, was
open and contained a cartridge. A considerable quantity of
sand was on the gun. This witness and Duer both testified that
the parties present at Mrs. AUchin's told them that the gun was
not handled nor examined by anybody after it reached the
house. .

R. E. McDade testified, for the defense, that he was one of
the parties who negotiated the "truce" agreement testified
about by Felker. He represented the McDade side. Mr. Hanks
asked him one evening if the matter of the quarrel could not
be settled by the intervention of friends. Witness replied that
he would see Captain McDade, Felker and Pinckney, if he,
Hanks, would see AUchin. Witness went to see Captain Mc-
Dade, who agreed at once to enter into a compromise. The
negotiation was then conducted by witness interviewing the
McDades and Felker and Pinckney interviewing AUchin. The
terms first proposed by Captain McDade were that AUchin was
not to parade the streets with his Winchester, but to "lay it
down." AUchin refused to quit carrying his Winchester alto-
gether, and it was finally agreed that AUchin was to carry his
gun exactly in the manner he had previously carried it. He
had customarily carried it in a scabbard attached to his saddle,
and the witness understood the agreement to confine him to
that manner of carrying it. On the Thursday or Friday of the
week preceding the fatal Saturday, the witness's son reported
to witness that he had just seen AUchin and Davidson on the
streets with Winchester guns in their hands. On the very next
morning witness went to Felker and complained about this
violation of the compact. Felker replied that he had already
taken AUchin to task about it, and that AUchin admitted that
he bad wrongfully carried the gun, and promised that he would
not so carry it again. Three or four days later General Bedell
reported to witness that he had just seen AUchin and Davidson,
both armed with Winchesters, on the street between Arm-

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672 27 Texas Coubt of Appeals. [Austin

Statement of the case.

strong's drug store and the barber shop. Witness again com-
plained to Felker about AUchin and Davidson, the latter being
then a stranger in the community, parading the streets armed
with Winchesters. Felker subsequently reported to witness
that he had seen AUchin, and that AUchin bad promised not to
violate the agreement ai^ain, and not to be again ^found on the
street with Davidson while the latter was armed with a shot
gun. Witness and Felker as mediators, had a final meeting
after this with the McDade party. The parties present at that
meeting were witness, Felker, Captain T. S. McDade, Jack,
Tom and Eck McDade and Dick Springfield. On that occasion
Captain McDade complained about the persistent violation of
the compact by AUchin, and said that if it was again violated
by him he would no longer be responsible for his boys. Wit-
ness presumed that Captain McDade's said complaint and state-
ment were reported to AUchin, as he soon afterwards saw
AUchin in his buggy in front of Felker's store. After this final
meeting Captain McDade asked for a personal interview with
AUchin, but witness could not say, and in fact did not suppose.
that Felker proposed it to AUchin, as, when he subsequently
called Felker's attention to the matter, and asked him why he
did not bring the meeting about, Felker said that '*Steve is such
a hot headed fellow I can not trust him." The witness was a
nephew of Captain T. S. McDade and a cousin of the defend-
ant.

Deputy Sheriff Claude Loraine testified, for the defense, that
he got back to Hempstead from the Austin drill on the morning
of the tragedy. He remained at the depot until about eight
o'clock, when he went to the jail where Dick Springfield, then
acting office deputy, showed him a letter, which letter was ad-
dressed to the sherifif, giving the description of a certain fugi-
tive from justice, and asking for his arrest. The witness at a
later hour started from the said jail to the house of Burton, his
father-in-law, to ^et breakfast. En route he passed along in
front of the Haveman block, and saw a stranger standing by a
post at the corner of Haveman's store. That man in'appearance
corresponded with the description of the fugitive from justice
as given in the letter. About ten minutes later witness went
into Ingram's saloon where he again met Dick Springfield. He
then told Springfield that he had just seen a man standing at
Haveman's corner, who corresponded in appearance with the
man described in the letter. Springfield then asked witness to

Digitized by VjOOQIC

Term, 1889.] MoDadb v. The State. 673

Statement of the ease.

go with him and help him arrest that man, but witness declined
and went on to Burton's, got breakfast, and slept for a while-
When he got up he heard about the shooting. The witness
was informed of the "truce" compact between AUchin and the
McDades, and understood that compact to require of Allchin *
to carry his gun just as he always carried it before, and that
was in the scabbard. The stranger referred to by witness may
or may not have been the man seen by Mr. Pointer on Have-
man's comer. The witness was not with Pointer and did not
see the man at that time.

James Avery was the next witness for the defense. So far
as material, his testimony discloses that a few minutes before
the killing he and Cameron, Burton, Nast and Miller stepped
into Zeisner's saloon to get a glass of beer. While they were
in there Allchin rode up to the pavement on his horse, and sent
a negro into the saloon to get a dollar changed for him. About
the time the negro handed the dollar to Zeisner the witness and
his party stepped out of the saloon and each of them shook
hands with Allchin, who was then sitting on his horse facing
"sort of southeast of northwest with his left side to the south.'*
He had his Winchester across his lap, with his right hand on
the breech, his left hand holding the bridle reins, and his leg
thrown around the pommel of the saddle. When the witness
had shaken hands with Allchin and stepped off about eight feet
somebody exclaimed, "look out," and witness, seeing defend-
ant and Springfield on the sidewalk near Haveman's, sprang
into Haveman's store and did not see the firing of the shots.
The witness at no time before the shooting saw any change in
the position of either Allchin or his horse. The witness met
Allchin several times on the streets of Hempstead after he was
said to have entered into the agreement with the McDades, and
on each of those occasions he was carrying his Winchester in
his hands. On his cross examination the witness said that
when he first saw the defendant and Springfield, just as Mr.
Burton gave the alarm to "look out," one of them had a gun
partly raised. Witness was between them and Allchin, and,
knowing them to be hostile, he did not tarry in that position to
witness the subsequent proceedings, but got into Haveman's
store as speedily as possible. Witness did not see Allchin at the
instant the alarm was given by Burton. He did not see All-
chin raise or attempt to raise his gun at any time.

Frank Lipscomb testified, for the defense, that he heard but

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674 27 Texas Court op Appeals. [Austin

Statement of the case.

did not see the shooting, and reached AUchin's body about
twenty-five minutes after he was killed. AUchin's gun was
then lying by the body, but witness could not say that it had
not been taken up and put back before that. The guard and
slide were entirely back, exposing one cartridge in the barrel
and one in the magazine. It was an old gun and the slide was
quite loose. A jar would not throw back the slide of such a
gun in good repair. On his cross examination, the witness
said that he did not pick up the gun, nor did any other person
while witness was present. It was on the ground when wit-
ness saw it, and it was then at full cock. The lever was not
off the cartridge.

H. J. Harvey was the next witness for the defense. His atten-
tion was called to a certain note which he identified as a note he
wrote to Dick Springfield, and sent to Springfield a day or two
before the killing. The note is not set out in the statement
of facts, nor does the testimony clearly disclose the substance of
its contents, but it is clearly to be inferred from the statements
of the witness that it was a warning to Sprinfield to expect
trouble with AUchin, or danger from Allchin and his friends,
on the following Saturday — the Saturday of the killing. The
witness admitted that the information conveyed to Springfield
was not obtained by him from any direct source, and his tes
timony clearly indicates that he informed Springfield that a
man named Davidson was then in that part of the county of
Waller in which the witness lived, acting ostensibly at the in-
stance of Allchin, and summoning AUchin's friends to assem-
ble in Hempstead on Saturday, under arms, and for a hostile
purpose in connection with the Allchin-McDade feud.

Mr. Willis, the next witness, was subjected to an exceedingly
close and searching examination by the defense, and an equally
rigorous cross examination by the State. The material sub-
stance of his testimony was that he lived in Waller county,
Texas, about thirteen miles south of Hempstead, and three or
four hundred yards distant from the house of the preceding
witness Willis. The witness served on the jury at the trial of
the "Anderson case," at the March term, 1888, of the Waller
county district court. As he left the court house after the ver-
dict in that case was rendered, being then in company with
Jake Quillen, a neighbor, the witness met Allchin, who re-
marked to him: **Well, you turned Anderson loose." Witness
replied in the affirmative. He then said something which

Digitized by VjOOQIC

Term, 1889.] McDade v. The State. 676

Statement of the case.

amounted to an invitation to witness to join a club, adding:
*' Jake will tell you about it.*' Witness at once asked Quillen
about the club, and Quillen advised him to go to the drug store
and see Armstrong about it. After this, and before the killing
of Chambers, which killing occurred in April, 1888, witness
and AUchin rode out of Hempstead together. Allchin had
previously told the witness that the McDades had assassinated
one person, and that he expected them, in connection with Dick
Chambers as the active agent, to attack him. As they ap-
pnmclied the jail on this occasion, Allchin said to witness : "Will,
you had better either ride on ahead of me or come on behind."
Witness's next conversation with Allchin was after the killing
of Chambers and but a few days before he was killed himself.
On that occasion he met Allchin, who had his Winchester in
his hands, near Haveman's store, and during that meeting All-
chin told witness that he killed Chambers, and that he was jus-
tifiable in doing so; that Springfield intended to kill him, AU-
<5hin, but that he intended to get the drop on Springfield; that
he, Allchin, had been going about the streets of Hempstead,
using his Winchester as a walking stick, but that Springfield
had not taken it up, and that the coming Saturday — which
proved to be the fatal Saturday — would be the last day that
Springfield would walk the streets of Hempstead. In the
course of a previous conversation about Captain McDade's can-
vass for re-election as sheriflf of Waller county, Allchin said to
witness: "He (Captain McDade) can not be beaten. He will
get a majority every time, and the only way to beat him is to
get him out of the way." He did not say that he, Allchin, was
going to put McDade out of the way, nor did he suggest any
mode in which it could or should be done.

On the Tuesday or Wednesday preceding the fatal Saturday
Allchin charged the witness to tell Jake Quillen that **the thing
was coming off on Saturday," and that he, Allchin, hoped
Quillen would be in town on that day. Witness did not deliver
that message to Quillen, but late on Friday evening Quillen
went with witness to witness's house, where they found a Mr.
Polk who had come to return a borrowed plow. The witness
invited Quillen and Polk to take supper with him, but they de-
clined, and retired to a point behind the house, where they
conversed privately for an hour. Witness overheard that con-
versation in part. He could not repeat what he heard, word
for word, but the substance of it was that Allchin wanted Quil-

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676 27 Texas Court op Appeals. [Austin

Statement of the case.

len to go to Hempstead on the next day^ and that the message
to that effect was brought by Davidson. Mr. Quillen was a
special friend of AUchin.

On cross examination the witness declared that, while he
and Captain McDade, during the latter's life time, were partic-
ular friends, he and this defendant were not especial friends.
In the conversation at Haveman's, detailed on direct examina-
tion, AUchin told witness that he wanted him, witness, and all
of his friends to come to Hempstead on Saturday, and that he
wanted them to come armed; that he was going to station bis
friends at different points on the streets of Hempstead, and
that, if the McDade party interfered wiih them, he and his
party would "get away" with them. Witness replied to All-
chin's invitation to join him that he had a family to provide
for, and that upon principle he could take no part in such an
enterprise. AUchin then asked witness to say nothing a bout
what he had told him, but to tell Quillen not to fail to come
to Hempstead on Saturday. Witness did not report his
conversation with AUchin to Springfield or either of the Me-
Dades. AUchin was a "straight man" whom the witness liked,
and he readily agreed to and did comply with AUchin's request
to repeat nothing he had said, but he did not deliver AUchin's
message to Quillen. Witness went to Hempstead on the fatal
Saturday, but not in consequence of AUchin's request. He
reached Hempstead about thirty minutes after AUchin was
killed. He went first to Zeisner's saloon, and then to the jail,
where he saw the defendant and Springfield. He went to the
jail to satisfy a curiosity common to him and the majority of
other people — ^to see the men who did the killing. He did not
then tell Springfield nor any of the McDades what AUchin said
to him on the previous Tuesday or Wednesday. He did not
tell that until some time after the killing, and among the first
persons whom he told was Mr. Jim Bethany, who was his, wit-
ness's, uncle and the defendant's father-in-lavr. Jake Quillen
went to the jail with witness on the fatal Saturday, after the
killing. The forty or fifty other people then in the jail the
witness understood to be a crowd collected by the sheriff to
protect defendant and Springfield. Witness was not a part of
that guard. Witness and old man Harvey and Charley Quil-
len went to Hempstead on Monday after the killing to get a
coffin in which to bury one Frank Shelby, who died on Sunday
night. Near Three Mile creek they met old man Wommack at

Digitized by VjOOQIC

Term, 18 - McDade v. The State. 677

Statement of the case.

the head of a mob of forty or fifty men who had organized on
said Three Mile creek on the preceding night. The mob was
moving away from Hempstead. Old man Wommack said that
they intended at first to go to Hempstead and "take out" the
defendant and Springfield. He then said to Harvey and wit-
ness: **You tell old man Tom McDade that I am sorry I under-
took this thing; that we were going there to see the laws put
in force; but we have found out that we are wrong and are on
our way back." Witness did not go the jail on that day, and
did not see either defendant, Springfield or Captain Tom Mc
Dade.

Pillott Wood was the next witness for the defense. The ma-
terial substance of his testimony was that, subsequent to the
killing of Chambers by AUchin, he frequently saw parties about
Allchin's house who appeared to stay there. Of that number
the witness only knew Jimmy Clark. He did not know David-
son, Floyd, Swain nor Charley Wall, nor could he say that they
were among the parties who stayed about AUchin's house.
About two weeks previous to the fatal Saturday, which was
subsequent to the killing of Chambers, the witness, in passing
Allchin's house, saw a crowd of men shooting at a mark with
Winchesters. He recognized only Allchin and Clark, The
witness saw Allchin in Hempstead, armed with a Winchester,
about two days before he was killed. He was on horseback.

On his cross examination the witness said that he had known
Allchin for several years. AUchin's reputation was that of an
ordinarily quiet, peaceable law abiding citizen, but dangerous
when aroused to anger, and easily aroused. The witness was
one of the sureties on the appearance bond of Allchin for the
killing of Chambers. The killing of Chambers and the subse-
quent killing of Allchin did not grow out of a political feud,
but out of enmities engendered by the publication in a local
newspaper of an article attributed to Allchin, reflecting severely
upon the grand jury and certain of the county oflBcials. The
witness was a member of the impugned grand jury. After the
killing of Allchin the feud over the published article was taken
into politics to secure the defeat of Captain McDade in his can-
vass for re-election as sheriff. The witness had never heard
the character of Allchin impeached as a quarrelsome bully.
He saw Allchin near the freight depot on the day before he
was killed. He was on horseback and had his Winchester
across his lap. The witness knew, by current report, of the

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678 27 Texas Court of Appeals. [Austin

statement of the case.

compact then existing between Allchin on one side and the
four McDades and Springfield on the other. As to the manner
in which Allchin carried his gun being a violation of the com-
pact, the witness had no opinion to express other than that he
thought if he had been in AUchin's place he would not have
carried the gun at all under the circumstances. The witness
could not be induced to believe from what he knew of Allchin,
that he would "put up a job" to assassinate a man. He was
an honest, hard working, economical man. Captain McDade,
until he retired from the contest for sheriflf, was running as the
candidate of the Republican party.

N". A. Cuney testified that he was the present owner of the
gun owned by the defendant at the time of the killing of All-
chin. It was a hammerless gun, and would not make a noise
in preparation for discharge that could be heard at a greater
distance than four or five feet. It did not make a noise in any
way similar to the noise made by the cocking of an ordinary
gun.

P. H. Floyd testified, for the defense, that he was the Floyd
who stayed at times at AUchin's house, and who was referred
to by other witnesses in this case, and his home was in Wash-
ington county. Allchin was a "sort of cousin to the witness.
He sent Davidson and Jim Clark to hunt for witness on Friday
of the week preceding his death. His reason for sending for
witness was, as stated by him, that he had heard a rumor to
the effect that the witness was drowned. Witness remained
at AUchin's until Tuesday before the fatal Saturday. While
at AUchin's house Allchin told witness that he was going to
send into the country for Jake Quillen and others of his friends
to assemble in Hempstead under arms on the following Satur-
day; that Davidson was to go after Quillen and his said friends,
and on Saturday was to post those men at different points on
the streets of Hempstead; that he expected to have a little
difficulty in Hempstead on that day; that Davidson was to ride
through the streets of Hempstead armed with a Winchester and
start the fuss by making remarks; that he wanted witness to
come to Hempstead on that Saturday, and to come armed with
a Winchester rifle if he could borrow one. The witness agreed
to be in Hempstead on the said Saturday, but made no promise
about helping Allchin in the fuss he was to provoke through
Davidson. On the following Friday evening — the evening be-
fore the killing— the witness borrowed a Winchester rifle from

Digitized by VjOOQIC

Term, 1889.] McDadb v. The State. cro

statement of the case.

Phil Huffman. Huffman asked him what he wanted with the
rifle. He replied that he wanted to kill rabbits with it, which
was the truth. Witness did not go to Hempstead on the fatal
Saturday, as he promised. While on the said visit to Al'chin's
house, the witness, AUchin and several others, including David-
son, Clark and a man named Swain, four or five of the party-
being armed with guns, went to the Brazos river in a wagon.
They had no other object in going to the river than to see the
extent of the rise in it. Witness heard nothing said by any-
body about defendant on that trip.

Cross examined, the witness said that when All chin asked
him to come to Hempstead on Saturday, he said that he was
going to have a little difficulty. He did not say what he was
going to do, but did say that either Jack McDade or Dick
Springfield would **bite the dust." Further interrogated the
witness stated that on that occasion AUchin told him that he
was going to settle the difficulty without a fuss if he could, but
that he expected to have a difficulty, and if he did Jack Mc-
Dade or Springfield would "bite the dust," and he wanted wit-
ness in town to help protect him. He did not designate the
various points where Davidson was to station his men, nor did
he, that witness remembered, state what particular remarks
Davidson was to make on the streets, as a means of starting
the fuss. If the witness testified on the habeas corpus trial
that AUchin told him that Davidson was to ride through the
streets of Hempstead armed with a Winchester, hallooing:
* 'Hurrah for AUchin! and that if Jack McDade or Springfield in-
terf erred they would bite the dust," then that testimony was true.
It was on Tuesday that this conversation between witness and
AUchin occurred. It occurred in the yard at AUchin's house.
It was on the same day that the party went to the river. AU-
chin was in Felker's store talking to Felker on that morning
before he went to the river. Witness crossed the river and
went home, and did not go back to AUchin's house on that
day. In the same conversation above referred to, AUchin told
the witness that his life had been threatened by certain par-
ties. The witness did not think that, on a previous examina-
tion of this case, he testified that he failed to go to Hempstead
on the fatal Saturday because the river was too high to be
crossed. As a matter of fact he was prevented from going by
a combination of business and high water — the business being
the insuperable obstacle. He promised AUchin to be in Hemp-

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680 27 Texas Court op Appeals. [Austin

statement of the case.

stead, but did not promise him to take part in the fuss. The
witness borrowed the Winchester for the purpose of killing
rabbits and not for the purpose of participating with it in the
fuss between Allchin and the McDades. Since the preliminary
trial of this defendant the witness had married the sister of a
man who was now under indictment for the murder of Captain
T. S. McDade.

The defense closed.

Mike Floeck was the first witness introduced by the State in
rebuttal. He had handled Winchester rifles ever since they
had been in the market. Winchester rifles were usually car-
ried with the hammer on the half cock. If the hammer was
down on the cartridge there was constant danger of explosion
by contact with other objects.

J. A. Loggins testified for the State, that he was near Spring-
field and the witness Duer when they met in front of Fried's
store just after the killing of AUcfiin. Springfield did not say
to Duer, at that time: "He tried to kill me and I shot him."
Springfield said nothing to Duer at that time. He could not
l]ave spoken to Duer without witness hearing him. On cross
examination this witness said that Springfield and defendant
went north together just after the shooting, Springfield per-
haps a little in advance. They passed Pointer, witness, Duer
and others in front of Fried's store. Springfield made no re-
mark to any body in passing that point, that the witness heard,
Wlien Springfield and defendant passed Fried's store Duer was
on his way to the body.

George Arnold testified, for the State, that he had known
Allchin at the time of his death about eight years, and during
that time knew him to be a quiet, peaceable, law-abiding
citizen.

Jim Hoed testified, for the State, that he was in Hempstead
on the fatal Saturday, and met the body of Allchin when it was
being removed to his home. He went back to Allchin's house
and saw and examined Allchin's gun after it was taken out of
the conveyance. It and the body were taken home at the same
tim? and in the same conveyance. That gun was examined
and manipulated by Jim Clark before it was called for and
taken away by Phil Duer and Mr. Lipscomb. Clark worked
the lever and threw out a cartridge or two. which he put back.
Besides the witness, Jake and Charley Quillen were present
when Clark manipulated the said gun at Allchin's house. The

Digitized by VjOOQIC

Term, 1889.] McDadb v. The State. 681

Statement of the case.

gun was examined at the time because a little boy who was
present said the gun was fired twice during the fatal transaction.
Clark, after examining the gun, declared that it not been re-
cently discharged.

Jake Quillen was the State's next rebutting witness. He
testified, respecting the examination of the gun at Allchin's
house, after Allchin's body was brought home, substantially as
did the witness Hood. He stated further that he went to All-
chin's house on the fatal Saturday to complete a horse trade
with Allchin. He was unarmed. He knew nothing of the
killing of Allchin imtil he got to the house. Witness was an
intense friend of Allchin, and was one of the crowd or mob that
organized on Three Mile creek on the Monday morning suc-
ceeding the tragedy. Charles Graham testified substantially
as did Hood and Quillen about the examination of Allchin's
gun, at the house, before it was taken away by Duer and Lips-
comb.

Dr. L. W. Groce testified, for the State, in rebuttal, that he
saw Allchin's gun and body before either was removed from
where they fell. The gun was not cocked but was half-cocked,
and the slide was open and nearly filled with sand. Witness
thought that Allchin was in the habit of carrying his said gun
half cocked, and Allchin told him that he always carried it with
the slide open.

John Pinckney testified, for the State, that he was one of the
mediators, or parties who negotiated the "truce" or compact
between Allchin and the McDades. One of the conditions of
that agreement was that all threats uttered by either party that
came to the ears of the other were to be reported by the
threatened party to the mediators for investigation. No notice
of threats was ever given to the witness by the McDade party.
Witness got to Hempstead from Houston at eleven o'clock on
the morning of the fatal Saturday. He was of counsel for the
State in this case, and worked up the prosecuting evidence for
the examining trial.

The foregoing statement of the case is very greatly condensed
froni nearly two hundred pages of testimony set out in the
record, but is believed to comprise all the material evidence.

The charge of the court referred to in the second head note
reads as follows: "The defendant is presumed to be innocent
until his guilt is established by the evidence tn the satisfaction of
the jury beyond a reasonable doubt, and unless the evidence so

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082 27 Texas Court of Appeals. [Austin

Argument for the appellant.

satisfies you, in this case, of the guilt of the defendant of mur-
der of the first degree or murder of the second degree, you will
find him not guilty. Or if you believe from the evidence that
the defendant was first assailed by the said Allchin in a manner,
considering the relative condition and circumstances of the par-
ties, to cause the defendant reasonable apprehension of im-
mediate danger of serious bodily harm to himself, — nor would
he be bound to retreat in such case, — and that he acted upon
this apprehension in defense of himself against the deceased,
he would not be guilty of any offense, unless it reasonably ap-
pears from the evidence that the diflBculty was begun by de-
fendant, or by Dick Springfield acting together and in concert
with defendant, with the intent and purpose of killing said
Allchin; in which case the defendant would not be excused or
justified, but would be responsible for his acts as you have al-
ready been instructed.'*

HutchesoYij Carrington cfc Sears and Oustave Cook, for the
appellant.

The evidence in this case clearly raised the issue of man-
slaughter, and the court should have given a charge upon that
issue. The rule is invariable and without exception that the
^i^w, and all the law, applicable to every phase of the testimony
JDM^ b© given by the court in charge to the jury. (Reynolds
V. The State, 8 Texas Ct. App., 415; Neyland v. The State, la
Id., 2GG; Old v. The State, Id., 612; Rutherford v. The State,
15 Id., 23G; Williams v. The State. Id., 617; Washington v.
The State, 19 Id., 26C; Johnson v. The State, 22 Id., 225.)

The evidence taken throughout, threats, appearances, acts,
etc., required a charge on manslaughter, for the whole testi-
mony, up to and at the time of the killing, raised that issue.
(Johnson v. The State, 22 Texas Ct. App., 22G; Wheelis v. The
State, 23 Id., 238; Barron v. The State, Id., 476.)

The court, having refused to give a charge on manslaughter,
should have granted defendant a new trial, for the verdict and
affidavits of the jurors — the sole judges of the facts— showed
that had that issue been submitted to them they might have
determined on that degree of homicide, and not found defend-
ant guilty of murder. The jury, in view of their standing,
should have been allowed to pass on the evidence under the law
of manslaughter. The facts raised that issue, and the defend-

Digitized by VjOOQIC

Term, 1889.] McDade v. The State. 683

Opinion of the court

ant had a right to have them pass on that question, and not
the judge.

The court erred in not charging the presumption of innocence
and of reasonable doubt in the language of article 727 of the
Code of Criminal Procedure, and article 11 of the Penal Code,
especially in leaving out the language **legal evidence." (Ferry
V. The State. 8 Texas Ct. App., 471; McPhail v. The State, 9
Id., 173; Cohea v. The State, Id., 313; Bramlette v. The State,
21 Id., 611.)

W. L. Davidson, Assistant Attorney General, and Pinckney
€& Poole, for the State.

White, Presiding Judge. This appeal is from a judgment
of conviction for murder of the second degree, with the pun-
ishment assessed at imprisonment in the penitentiary for a
term of eight years.

It is an undisputed, uncontroverted fact that this appellant
and one Dick Springfield shot and killed the deceased, S. W.
AUchin, with shot guns and pistols, as alleged in the indict-
ment. This appellant does not deny but admits the fact, claim-
ing that he was justifiable in so doing, or at most that his
offense in so doing, under the facts developed on this trial, did
not amount to murder, but was manslaughter. No issue of
manslaughter was submitted in the charge of the learned judge
on the trial below, and the omission of the charge in this regard
is urgently insisted upon as serious, radical error.

A brief resume of the facts is necessary in order to properly
determine the merits of this objection to the charge. About a
month before the day of this homicide, the deceased, Allchin,
had killed one Chambers, a relative of this appellant and a
deputy sheriff of Waller county. Appellant and Springfield
were also deputy sheriffs. Out of the killing of Chambers by
Allchin a bitter feud and hostility arose between the McDade
or sheriff's party and Allchin, which became of so serious a
character that mutual friends of the two parties interfered to
settle it, and finally succeeded in patching up or arranging an
agreement or truce between them. By this agreement or truce
it was, amongst other things, stipulated on behalf of Allchin that
he was not to go to Hempstead with his Winchester rifle in his
hand, but was to carry it in his buggy, or holster or scabbard on
his saddle when he was upon horseback, and that to carry it in

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€84 27 Texas Court of Appeals. [Austin

Opinion of the court.

any other way was to be considered by the other party as a de-
claration of hostility. None of the McDades were to molest him
in any way, and if either party heard of threats made by one
against the other, or of acts against the agreement, they were
to report it to mutual friends. A week or so before the killing
Allchin, on one or two occasions, was seen by the McDades
carrying his Winchester in his hands on the streets of Hemp-
stead, and the McDades complained of it as exciting their seri-
ous apprehension of danger. Allchin was told in the final con-
versation, by mutual friends, that again to carry his gun in his
hands would excite apprehension in the McDades' minds and
would be to them a declaration of hostility, and he assented to
the justice of this statement. Several ruptures of the agree-
ment were shown on the part of Allchin, and these breaches
of the contract were known to defendant. A few days before
the killing defendant received a written notice from Harvey
that Allchin would be in town on Saturday, with his friends,
to kill defendant; threats of death were communicated to de-
fendant. The evidence shows threats upon the part of Allchin
against defendant, some communicated and others not. On
Saturday Allchin came to town on horseback, and was seen at
several points in and upon the streets and at the depot. He
had his Winchester rifle with him, and was handling it upon
the depot platform. There was a public park or square in the
center of the town, surrounded on the north and west by busi-
ness houses. Haveman's corner or business house was the
corner house on the south of -the west block which fronted this
square. On the northwest corner of this square was Wheeler's
saloon. Some time before the killing Allchin was on horseback
at or near Haveman's corner talking to some friends on the
side walk. His horse's head was north, or up the street, in the
direction of Wheeler's saloon. He had his back to Haveman's
corner, and his leg was thrown over the horn of his saddle,
and his Winchester was lying across his lap, half cocked,
which was the usual way he carried it for safety from acci-
dental explosion. He could be seen from Wheeler's saloon.
A short time— a few moments — before the shooting, Springfield
and appellant were near Wheeler's saloon, and one of them
was heard to say to the other: "That's him," or "is not that
him down yonder now?'' They went into the saloon, took a
drink, and were next seen to emerge from the rear end of said
saloon, in an alley between it and the adjoining building, with

Digitized by VjOOQIC

Term, 1889. J McDade v. The State. 685

Opinion of the court.

double barreled shot guns in their hands. They proceeded
diagonally across the street into the alley in rear of the build-
ing on the west side of the square; went down this alley rapidly
a distance of six or seven hundred feet from Wheeler's to the
street west of Haveman's, and then up said street to the front
or southeast corner of Haveman's, which brought them to the
sidewalk within a few feet of where Allchin was sitting on
his horse, as above described, with his back to them. Just as
they got upon the sidewalk, some one exclaimed: **Look outl'^
and the shooting commenced, and was kept up by Springfield
and defendant until deceased fell from his horse, when they
went up to the struggling and almost inanimate body and fin-
ished the work by other shots from gun and pistol into his head
and face, saying, when they had finished by shooting his face
off entirely: * That's the way we do men who murder men on
the streets." Allchin did not fire a single shot, nor does it ap-
pear that he had time to do so, or even time to make an effort
to do so. It does not appear that he even saw the parties, or
could have seen them from the time they left Wheeler's saloon
until they fired upon him.

Evidence was adduced by appellant tending to show that he
and Springfield went from Wheeler's saloon to Haveman's
corner in the manner ihey did and armed as they were, for the
purpose of arresting a fugitive deperado and murderer from
Montgomery county, for whom they had a warrant of arrest,
and who was reported to them as having been seen at or near
Haveman's corner just before they armed themselves and
started by the alley way from Wheeler's, and that their seeing
Allchin when they reached the front of the Haveman corner
upon the sidewalk was sudden aud wholly unexpected.

Upon the above recited state of facts, it is streuously insisted
that on account of the previous threats and acts of Allchin,
the fact that he was thus suddenly seen carrying his gun in
violation of his agreement, and which in itself was by said
agreement a declaration of hostility, the appearances of dan-
ger to appellant and Springfield were such as were calculated
to arouse a degree of anger, rage, sudden resentment or terror
in persons of ordinary temper, sufficient to render their minds
incapable of cool reflection, and that, having acted upon such
appearances and from such impulses and passion, the issue of
manslaughter was clearly raised, and should have been given
in charge to the jury as a necessary part of the law of the case.

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€86 27 Texas Court of Appeals. [Austin

Opinion of the court.

Suppose, in the light of the most potent if not overwhelming
facts to the contrary, we concede for the argument's sake that,
' as appellant contends, the coming upon AUchin by appellant
and Springfield was sudden and unexpected, and without pre-
meditation or intention, could his mere presence, and his pres-
ence with his back to them at that, unaccompanied by a single
hostile word or deed, save the single fact that he had his gun
across his lap, have aroused in the mind of a person of ordinary
temper any of the emotions of the mind calculated to render
it incapable of cool reflection? But it is said his having his
gun in his lap, and not in his scabbard, was according to his
own solemn agreement and contract, an overt act of hostility*
as much so as if it were directly drawn and presented upon
them. If such had been the spirit and intent of the agreement
as between the parties, the law could not aflford to tolerate,
much less recognize a doctrine so variant from and at war with
every principle it maintains for the welfare of society and the
protection of human life, and sanction or mitigate the taking
of human life under such pretext. Because it was so "nomi-
nated in the bond" could neither justify nor mitigate or excuse
it, if in contravention of the law. The law can not and will
not permit men to kill each other with impunity, notwithstand-
ing they may have bound themselves to that effect with each
other by the most solemn obligations.

It was held at one time in Kentucky "that if a man feels sure
that his life is in continual danger, and that to take the life of
his menacing enemy is his only security, he may kill that
enemy whenever and wherever he gives him a chance, and
there is no sign of relenting." (Carico v. Com., and Phillips v.
Com. , Horrigan & Thompson's Self Defenses, pp. 383-389.) But
this doctrine has been overruled even in that State (Bohannon
V. Com., Id., 395), and has never, so far as we are aware, been
recognized as the law elsewhere. Such a doctrine would make
the bare presence of an enemy an overt act justifying his de-
struction.

But, it is said, AUchin was not only guilty of a "declaration
of hostility" by the manner in which he was carrying his gun,
but, in addition thereto, he had made threats that he would kill
the McDades or any of them he might get an opportunity to
kill, on that very day. In Johnson v. The State, 27 Texas, 758,
Judge Moore says: **In no case under the provisions of the
Code, or out of it, if we were permitted to look elsewhere to

Digitized by VjOOQIC

Term, 1889.] McDadb v. The State. 687

Opinion of the court.

ascertain the law upon the subject, can it be held that mere
threats, unaccompanied by some demonstration from which
the accused may reasonably infer the intention of their execu-
tion by the deceased, either justify such homicide or reduce it
from murder to manslaughter. * * * The doctrine con-
tended for must, therefore, be narrowed down to this simple
proposition: that the mere fact of being encountered or over-
taken in the street or public highway by one who has threat-
ened another's life some months before, without any act what-
ever indicative of an intention of then carrying such threats
into execution, is 'adequate cause' to excite such 'anger, rage,
sudden resentment or terror' as renders the mind 'incapable of
cool reflection.' The bare statement of this proposition is suf-
ficient for its refutation. If such was the case, the language
of passion, forgotten with the occasion which gave it utterance,
the idle talk of the silly or the inebriate, must be paid for with
the penalty of life. A full floodgate would be given to the
most wicked passions, and murder, fearful as it already is, in
a ten fold greater degree would stalk through the land, clothed
in the panoply of law." (Penal Code, art. 594; Willson's Crim.
Stats., sec. 1009.)

Under our statute with regard to threats as evidence (Penal
Code, art. 608), "it is not practicable to fix on what the act
manifesting the intention of the deceased to execute his threats
shall be, but it must be some act reasonably calculated to in-
duce the belief that the threatened attack has then commenced
to be then executed, and not a mere act of preparation to exe-
cute the threats at some other period of time, either speedy or
remote." (Irwin v. The State, 43 Texas, 236; Lynch v. The
State, 24 Texas Ct. App., 350; Brooks v. The State, Id.. 274;
Waison's Crim. Stats., sec. 1053.)

We are of opinion, for the reasons above given, that the
court did not err in declining to submit in the charge to the
jury the issue of manslaughter as an issue in this case. And
for the reasons above giVen, we are further of opinion that the
court did not err in refusing to give the following special re-
quested instruction asked in behalf of defendant, viz: "If
you believe from the evidence that the defendant and the de-
ceased, either in person or by parties representing them, made
an agreement, the object of which was to prevent further hos-
tilities and to preserve the peace, and that they agreed on cer-
tain conditions which were to be observed by both parties, the

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688 27 Texas Court of Appeals. [Austin

Opinion of the court.

violation of which was to nullify the agreement and give no-
tice that it was terminated, and if you further believe that
after such agreement was made, if any ever was, that the de-
deceased, AUchin, in violation of his agreement, if any, did
any act or acts in violation thereof, and that the defendant
knew, or heard, of the same, and honestly believed that the
same was a declaration of hostility, and that he was in danger
of death or serious bodily harm; and if you further believe
that, after the agreement, if any, was broken by the deceased,
the defendant saw deceased in the act of violating his agree-
ment, and that so peeing him, defendant believed himself in
immediate danger of death or serious bodily harm, then defend-
ant had a right to act on the appearances of danger to himself,
if any, and though defendant may have been mistaken in his
belief of immediate danger of death or bodily harm, yet if he
honestly believed, and had reason to believe, that he was in
such danger, and honestly acting on such appearances he killed
Allchin. he would be guilty of no offense, and you will find
him not guilty."

**If the jury believe from the evidence that there was a con-
tract between the deceased and the defendants, by the terms of
which he was not to carry his Winchester in his hands, or
otherwise than attached to his saddle in a scabbard, or in his
buggy, and if they further believe that the said contract was
made, and that deceased failed to conform to the same, and
that complaint was made to the parties negotiating between
the deceased and the defendants concerning such contract and
breach thereof, and that said parties notified the deceased that
again to carry his weapon in a manner not provided in said
contract would be regarded as a breach thereof and a hostile
demonstration, but that such was the understanding between
the parties; and if the jury believe that at the time of the kill-
ing the deceased with such knowledge on his part, and the de-
fendants with guch un ierstanding on their part, found the de-
ceased carrying his weapon in an attitude which was in viola-
tion of the contract, what the parties regarded as a hostile
demonstration, and came suddenly upon him, and thereupon
shot and killed the deceased, then the defendants are not, in
law, guilty, and you will acquit by your verdict."

The charge of the court on self defense was, in our opinion,
suificient and pertinent to the facts in evidence, if, indeed, the
issue of self defense could in any manner be said to have been

Digitized by VjOOQIC

Term, 1889.] McDadb v. The State. 689

Opinion of the court.

legitimately raised by the facts. (Willson's Orim. Stats., sees.
969, 970, 978.) The evidence totally fails to show any real or
apparent danger at the time appellant and Springfield opened
fire on AUchin. He was sitting on his horse, with his back to
them, his gun across his lap, talking to some party or parties
on the sidewalk; he did not and could not have seen them, and
if he grasped his gun nt all it was after the appearance of
appellant and Springfied upon the sidewalk, with their guns,
had occasioned some one to exclaim "look out;" and then,
before he could have raised his gun from his lap he was fired
upon by these parties, and his gun was never in a condition to
be used upon them after they commenced the attack.

Upon '^reasonable doubt" the court instructed the jury that
^'the defendant is presumed to be innocent until his guilt is
established by the evidence to the satisfaction of the jury be-
yond a reasonable doubt." This was specially excepted to
because of the omission of the word **legal," as used in the
statute before the word * 'evidence." (Code Grim. Proc, art.
727.) Whilst it has been uniformly held and recommended by
the court that reasonable doubt should be charged in the exact
language of the statute (Bramlette v. The State, 21 Texas Ct.
App , 611), we have never held that a substantial compliance
with the terms of the statute was not suflBcient. (Willson's
Grind. Stats., 2426, 2427, 1071.) It is not perceived how the
omission of the word **legal" before the word "evidence" could
in any manner have misled the jury, or have proved prejudi-
cial in any manner to the rights of the accused.

In the seventh assignment of error it is complained that "the
court failed to instruct the jury that the declaration of Allchin
to Felker that threats had been made against him by defendant
was not any evidence that such threats were made, and that
they should not consider such statement as a part of the evi-
dence for that purpose, when it was expressly requested so to
charge by defendant." This evidence was drawn out by de-
fendant upon the direct examination of his witness Felker, and
neither the prosecution nor the court was responsible for it. If
the defendant elicits testimony adverse to himself he must
abide the consequences. (Speight v. The State, 1 Texas Gt.
App., 651; Moore v. The State, 6 Id., 562.)

One of the grounds of motion for new trial was that the ver-
dict of the jury was arrived at by unfair and illegal means, and
was in fact decided by lot or means equivalent thereto. A juror

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690 • 27 Texas Court of Appeals. [Austin

Statement of the case.

made affidavit to this eflfect. But in addition to the fact that
no complaint or objection was heard from him when the jury
was polled after the verdict was returned into court, he is flatly
and positively contradicted upon the point relied upon, by the
affidavits of ten of his fellow-jurors filed by the State in answer
to this ground of the motion. It was not error to overrule the
motion based upon this objection to the verdict.

We have examined and discussed all the grounds mainly re-
lied upon by able counsel for appellant, and besides have read
re-read and maturely considered this voluminous record with a
view of seeing whether in the conduct of the trial any proceed-
ings were allowed likely to impair the fairness and impartiality
of the /trial, and impeach the legality of the conviction; and
we are constrained to say we have found none. The trial has
been fair and impartial §o far as we have been able to judge of
it from the record, and, considered in the light of the record, we
think appellant has every reason to congratulate himself upon
the mildness of the punishment awarded him. The judgment
is affirmed.

Affirmed.

Opinion delivered May 18, 1889.

No. 6452.

W. S. Nuckolls v. Thb Statb.

Theft— EviDBNCB.— See the opinion and statement of the case for evl'
dence held to have been erroneously admitted, beoanse it was hearsay
testiiuony calculated to prejudice the defendant.

Appeal from the County Court of Clay. Tried below be-
fore the Hon. B. F. Turner, County Judge.

This conviction was for the theft of a plow, a double tree,
a single tree and clevis, of the aggregate value of six and a
half dollars. The penalty assessed was a fine of two hundred
dollars and confinement in the county jail for twenty days.

D. Gilvin was the first witness for the State. He testified
that in April, 1888, he lived on Mrs. Mason's place, in Clay

Digitized by VjOOQIC

Term, 1889.] Nuckolls v. The State, 691

Statement of the case.

county, Texas. A severe rain fall interfered with plowing on
Friday, April 20, 1888, and witness's boy, who had been plow-
ing on the place, left the plow and the plow gears — which gears
belonged to one Thompson — in the field about twenty feet from
the road. Witness and Thompson passed over that road late
on Saturday evening, and noticed the plow and gears. Witness
remarked: "There is a good chance for somebody to get some
gears." Thompson replied that the gears being old and worn,
the plow was more likely to be stolen. The plow was next
seen by witness on the defendant's place in Buffalo Springs on
or about May 30, 1888. When witness and Bill Evans first
went to defendant's place the defendant was not at home, and
Evans refused to help search defendant's pl9.ce without a search
warrant. Accordingly the witness went to 'Squire Goad and
got a search warrant. He then got Constable Jack Evans and
Mr. Wear and went to the defendant's west place, which was
about five miles distant from his Buffalo Springs place. Thence
they went to where defendant was building a tank, about half
a mile from the said west place*, and there the witness found
his clevis, which he fully identified. Thence the witness. Jack
Evans and Wear went to defendant's place in Buffalo Springs.
Arriving late, they made but a short search, and went to Bill
Evans's place and passed the night. Early on the next morning
they went back to defendant's house, and were met at the door
by the defendant. Jack Evans told defendant that he was
hunting for a cast plow that had been stolen from witness, and
that he was acting under a search warrant. Defendant replied
that there was no such plow on his place, and that no such
plow had been on his place since Mr. Burnett's was removed
thence during the preceding January. Witness remarked:
"That is not the plow I want. I want the one for which you
bought the new points that were brought from town to you by
Mr. Lonj?." Defendant made no reply, and the witness and
his party went to a wagon on the place, where he found his
double tree, the same being the double tree of an Osbom mow-
ing machine. Defendant claimed that he brought that double
tree from Tarrant county. Jack Evans then arrested defend-
ant, telling him that whatever statement he saw proper to
make could be used in evidence against him. Evans then
turned defendant over to Wear with instructions to take him
to 'Squire Goad, and witness and Evans then went back to the
Buffalo Springs place to hunt for the plow. En route they met

Digitized by VjOOQIC

692 27 Texas Court op Appeals. [Austm

Statement of the casa

Bill Evans, who told them that J. R. Whitley told him, Bill
Evans, that the plow was in a rail pile on defendant's place in
Buffalo Springs, and that if he, Bill Evans, and witness had
looked there for it on the night before, they would have found
it. Witness and Jack Evans went to the said rail pile, and
there found the said plow, which witness fully identified.
They took the plow to 'Squire Goad's office. Goad then asked
defendant what should be done with the plow? He replied:
"He will swear to it; let him take it." On his cross examina-
tion the witness said that the plow was not a Deere plow, and
he did not tell Bill Evans and A. D. Long that it was a Deere
plow. He did not describe it by the name of the manufacturer,
for at that time he did not know it himself.

The State witnesses Wear and Jack Evans corroborated Gil-
vin in detail as to what transpired during the search for the
alleged stolen property, as to the finding of the same and the
arrest of the defendant. Wear testified, in addition, that, en
route to 'Squire Goad's court with the defendant after his ar-
rest, the defendant requested to be taken by the house of one
Parish, so that he might there employ some hands to continue
work on a tank he was constructing. Witness stopped on high
ground and permitted defendant to go to Parish's house, on his
promise to return and accompany him to 'Squire Goad's. De-
fendant not returning within the time allowed him. witnes-
went to Parish's house and learned that defendant had left
He then rode hurriedly toward the defendant's east or Buffalo
Springs place. About a mile distant from that place he over
took defendant and asked him why he had attempted to escape
him. He replied that he was going to see one Whitley to get
him to work on the tank. Witness then took defendant to
'Squire Goad's office. The witnesses Wear and Jack Evans tes-
tified that they had known the defendant for five years, during
which time his reputation for honesty was excellent. He was
in easy financial circumstances, and able to purchase a car load
of plows if he wanted them.

The material part of the testimony of the two Messrs. Long,
State's witnesses, was that one of them worked for the defend-
ant, on his place, from March 10 to March 28, 1888, during
which time he plowed with a South Bend cast plow, furnished
by defendant, and the other witness, about April 20, 1888, at
the request of defendant, got a point for a cast plow, at Bar-
ber's hardware store in Henrietta, and took it to defendant

Digitized by VjOOQIC

Term, 1889.] Nuckolls v. Thb State. 693

Opinion of the court.

These witnesses also supported the defendant's reputation for
honesty.

The State closed.

Bill Evans testified, for the defense, that Qilvin came to wit-
ness's house on the day before the arrest of defendant, and
he and witness went to defendant's east place to see de-
fendant and search for the plow. Defendant was not at home.
Witness then helped Gilvin search the premises for the plow,
and did not, as testified by Gilvin, refuse to do so, without a
search warrant. Failing to find the plow, Gilvin and witness
went to witness's house and spent the night. Gilvin and Jack
Evans left early in the morning. During that day, after the
arrest of defendant, witness met Gilvin and Jack Evans going
towards defendant's east place, and had a conversation with
them, but he was satisfied he did not tell them that the missing
plow would be found on the rail pile. The said plow was not
on the rail pile on the day before, because, if it had been, wit-
ness and Gilvin, in passing within ten feet of that pile would
certainly have seen it.

A witness for the defense testified that, to his positive knowl-
edge, the defendant, when he moved to Clay county from Tarrant
county, brought with him the double and single trees of an Os-
born mowing machine, and afterwards used them on his wagon.
The witnesses for the defense testified, and counsel for the State
admitted, that the reputation of the defendant for honesty was
excellent until this charge was brought against him.

L. V. Barrett, for the appellant.

W. L. Davidson,^ Assistant Attorney General, for the State.

WiLLSON, Judge. That portion of the testimony of the
State's witnesses D. Gilvin and Jack Evans, which states that
Bill Evans told them that one Whitley said the stolen plow
was on a rail pile in defendant's lot, was clearly inadmissible,
being hearsay, the said statement of Whitley not having been
made in the presence and hearing of defendant.

Under the peculiar facts of this case, said illegal testimony
was well calculated to injure the defendant in the trial.
Whether or not the defendant had any agency in placing said
plow on said rail pile in his lot was a most material issue in the
case. On the evening before the plow was found on said rail
pile, Gilvin and Bill Evans had searched said premises for said

Digitized by VjOOQIC

694 27 Texas Court of Appeals. [Austin

statement of the case.

plow, and had failed to find it. Bill Evans testified that in
Uiaking said search they had been near to said rail pile, and if
the plow had been there he thinks they would hav.e discovered
it. He further testified that he did not remember telling- said
Gilvin and Jack Evans that Whitely had told him the /plow
was on the said rail pile — did not think he had told them any
such thing.

The theory of the defense was that said plow had been placed
on the rail pile during the nrght, pending the search for it, by
some person other than the defendant, and without his agency
or knowledge, with a view, as the defendant asserted, of "put-
ting up a job on him." It was material error, we think, to ad-
mit said testimony, which error, having been properly excepted
to, requires a reversal of the judgment.

There are other supposed errors presented by defendant, but,
after a consideration of these, we think the only reversible
error disclosed by the record is the one above stated, and be-
cause of which the judgment is reversed and the cause is re-
manded.

Reversed and remanded.

Opinion delivered May 22, 1889.

No. 6509.

James Lbepbb v. The State.

Attempt to Pass a Forged Instrument— Fact Case.— See the opinion
and the etatement of the case for evidence held insuilicient to sappcnrt
a conviction for attempting to pass a forged instrument, knowing it
to be forged.

Appeal from the District Court of Callahan. Tried below
before the Hon. T. H. Conner.

This conviction was for an attempt to pass a forged instni-
ment, knowing it to be forged, and the penalty assessed by the
jury was a term of two years in the penitentiary.

Digitized by VjOOQIC

Term, 1889.] Leeper v. The State. 695

statement of the case.

The instrument, as set out in the indictment^ and as intro-
duced in evidence, reads as follows:

"No. 72

Baird, Texas, 12—38, 1888.
First National Bank of Baird:

Pay to James Leeper or bearer one hundred and fifty-four
dollars.

R. B. Dobson.
$154.00"

W, C. Powell was the first witness examined by the State.
He testified that he was the cashier of the First National Bank
of Baird in January, 1889. On the fourteenth day of that
month the defendant came into the said bank, threw on the
witness's counter the check in evidence and asked: "What is
that good for here?" Dobson at that time had no money, or at
least not enough on deposit to pay the said check, and witness
called General F, W. James, the president of the bank, who
was in his private room, to ascertain if Mr. Dobson could over-
draw his account. General James came into the bank and
said in the presence and hearing of defendant that Dobson
had arranged to borrow a thousand dollars from the bank to
use in the purchase of yearlings, but had not made the required
security. He added, however, that if the check was given in
the payment of yearlings it would be cashed, and asked de-
fendant: **Is that check for yearlings?" Defendant replied
that it was not, and that, as Dobson would be in town either
on that or the next day, he would see him, arrange the matter
and come back. He then left the bank, and never came back,
so far as the witness knew. This check was presented to wit-
ness in the said bank on Saturday, and Dobson's dead body was
brought to town on the following Monday or Tuesday. The
signature "R. B. Dobson," appended to this check, in the opin-
ion of the witness was not Dobson's signature, and witness,
acting on his own responsibility, would not have paid that
check except to a responsible party whose indorsement of the
same would make the bank safe. At this point the witness
was shown seventy-seven different checks bearing the genuine
signature of R. B. Dobson. He declared that the **R. B. D" in
each of the seventy-seven checks was the same in formation,
and all were different from those letters in the signature to the

Digitized by VjOOQIC

27 Texas Cocrt of Appeals. [Austin

statement of the case.

alleged forged forged check. In the genuine signatures the D
and o in the name '^Dobson" were connected, and in the alleged
forged check they were separate. The witness did not partic-
ularly observe the signature at the time the check was pre-
sented to him by defendant, because he knew at once that the
amount named in the check was an * 'overdraw," — and Dobson
had never overdrawn his account.

C. Estes testified, for the State, that he was familiar with the
signature of R. B. Dobson. The signatures to the seventy-seven
checks introduced in evidence as standards of comparison were
genuine signatures of R. B. Dobson, but the signature to the
alleged forged check was not written by Dobson. There was
great uniformity in Dobson's signature. In none of the genuine
signatures in evidence can it be found that the stem of the D
extends above the body of the letter, as in the alleged forged
signature, and while the small letters in the forgery somewhat
resemble those in the genuine signatures, the **D" is separated
from **obson," which is not the case in any of the genuine sig-
natures. The witness had seen this alleged forged check be-
fore. When he first saw it there was not, as now, a small line
extending from the top of the D to the o. showing an effort to
connect the two letters as Dobson always connected them in
writing his signature,

W. A. Hinds, ex-vice-president of the First National Bank of
Baird, testified that the signature to the alleged forged check
was not in the handwriting of R. B. Dobson. Ex-cashier
Rushing, of the same bank, testified as did Hinds.

C. R. Corbett testified, for the State, that he and the defend-
ant were members of the party that took Dobson's dead body
to Baird, on January 16, 1888. En route the defendant re-
marked that Dobson owed him for some yearlings, and that he
was afraid Dobson's death would render the collection of that
debt troublesome and diflBcult. C. Stahl testified to the same
effect.

J. E. W. Lane testified, for the State, that on the day Dob-
son's dead body was taken to town, which was January 16, de-
fendant told him that he, defendant, and Dobson, on the eve-
ning of January 13, met about one hundred and fifty yards
from Dobson's house, and had a settlement of the business and
accounts then existing between them, and that no person was
present at that meeting and settlement save themselves.

The State closed. •

Digitized by VjOOQIC

Term, 1889.] Lkbper v. The State. 897

Statement of the case.

Herman Schwartz testified, for the defense, that early in
January, 1888, defendant came to his store in Bsdrd and got him
to calculate the interest on a promissory note. The said note
was for about one hundred and fifty dollars, was payable to the
defendant and purported to have been executed by R. B. Dob-
son. The witness was not familiar with Dobson's signature.
The interest, according to the witness's recollection, amounted
to about fifteen dollars.

J. P. Hill testified, for the defense, that in April, 1887, the
defendant sold two brands of cattle to Dobson, the animals
aggregating thirty-five or forty head in number. Cattle at
that time were worth eight or nine dollars per head. Witness
knew of that sale from information derived from both defend-
ant and Dobson; also from the fact that he, witness, as agent
delivered some of the cattle, and from the further fact that
Dobson gave defendant five horses, at thirty dollars each, in
part payment.

John Walker testified, for the defense, that on the Friday
preceding the Monday on which Dobson's dead body was taken
to Baird, he bought from defendant a cow which defendant
was to get from Dobson. The witness, his brother Jesse and
defendant then went to Dobson's place, four or five miles north
Irom Baird. Dobson delivered the said cow, in the pasture, to
dt^fendant, and defendant, witness and Jesse Walker drove the
cow to town. The price of that cow was eleven dollars. Wit-
ness saw no papers pass between defendant and Dobson on that
occasion, and heard nothing said by either of them about a
settlement.

Jesse Walker, testifying for the defense, corroborated his
brother John, and stated in addition that, at the time he deliv-
ered the cow to defendant, Dobson put a paper on the horn of
his saddle, wrote something on it, and then handed it to the
defendant, with the remark: "The cow is eleven dollars, and
that leaves the amount I owe you one hundred and fifty-four
dollars.*' This witness stated that it was not true, as testified
by John Walker, that when he, John Walker, came into the
pasture, the defendant and Dobson and witness were holding
the cow about one hundred yards from the pasture gate.

Being pressed by the State, on cross examination, the witness
stated that he "guessed'' the testimony of John Walker in this
respect was true, and that the statement made by hi.a, witness,
was partly true and partly false.

Digitized by VjOOQIC

698 27 Texas Court of Appeals, [Austin

Opinion of the court.

I. L. Merriam testified, for the defense, that in the summer of
1887 he remarked to defendant, in the presence of R. B. Dob-
son, that one of his, defendant's, JTL cows was at a certain
place. Dobson remarked: "I now own that brand." Subse-
quent to that time he. had heard Dobson inquire for cattle in
that brand.

Testifying as experts, Mr. Rushing and Mr. Richardson
stated that a person's handwriting would vary according to the
position of the body at the time of the writing. A man would
not probably write the same hand using a saddle horn as a rest
that he would in writing on a table. Keeping this fact in view,
they stated that they could not swear, by comparison, that R.
B. Dobson did not sign the alleged forged check.

F. W. James, president of the First National Bank of Baird
testified, for the defense, regarding the presentation of the
check at the bank by defendant, and what then transpired, sub-
stantially as did the witness Powell, for the State. He stated
further that, when he told defendant that if the check was in
payment of yearlings he would pay it, and asked him the ques-
tion if such was the fact, -defendant replied that it was not, but
was in settlement of an old debt. The witness did not suspicion
the genuineness of the signature until after his attention was
called to an apparent variance between it and the genuine sig-
natures in the bank, and could not now testify that the signature
was not genuine.

J. E. Thomas and J. J. Vardeman^ for the appellant.

W, L. Davidson, Assistant Attorney General, and F. 8. BeUy
for the State.

Hurt, Judge. This is a conviction for attempting to pass a
forged order on the First National Bank of Baird, purporting
to have been signed by R. B. Dobson.

Appellant presented the order to the bank for payment
Dobson had no money in the bank, or not enough to pay the
order. The cashier called in the president and asked him if
Dobson could overdraw, and the president said, in the hearing
of appellant, that ''Dobson has made an arrangement with
the bank to borrow one thousand dollars, but has not given the
required security; Dobson is going to buy yearlings with the
money, and if this (the check) is for yearlings he can get the

Digitized by VjOOQIC

Term, 1889.] Leeper v. The State. 699

OpiDion of the court.

money." He then asked defendant if the check was for year-
lings, and defendant said **no." Defendant then said that Dob-
son would be in town, either that day or the next day, and that
he, defendant, would see him and settle the matter. Defend-
ant did not return to the bank.

There are some strong circumstances tending to show that
Dobson executed the check. On the other hand, quite a num-
ber of witnesses swore that the signature to the check was not
Dobson's.

It seems that Dobson died about this time or a day or two
afterwards. If dead at the time the check was presented,
there was no evidence showing that appellant was aware of it.
There is not the slightest proof that Dobson did not authorize
appellant or some one else to write and sign his name to the
check.

Under this state of case we think the evidence fails to sup-
port the verdict. If appellant knew the check to be a forgery,
he certainly would not refuse to tell a lie, that being all that
was required to procure the money. The check, if forged, was
in itself, a falsehood. This, the appellant knew. If guilty^
why halt or refuse to utter another falsehood if his purpose
was fraudulent?

The act of appellant being diametrically opposed to guilt, we
must rather infer iimocence from the circumstances tending to
show that Dobson signed the check; and that the witnesses
who swore that the signature was not his were mistaken, or
that Dobson had authorized its execution. This inference is
the only one by which all the facts in the case can be recon-
ciled and made to harmonize.

Because the evidence is insufficient to support the verdict,
the judgment is reversed and the cause remanded for another
triaL

Reversed and remanded.

Opinion delivered May 22, 1889.

Digitized by VjQOQlC

700 27 Texas Court op Appeals. [Austin

Opinion of the court

No. 6237-
William Powers v. The State.

1. Pracjtioe— Continuance— Bill op Exception.— Unless presented by

a sufficient bill of exception, the ruUns^ of the trial coart refusing a con-
tinuance will not be revised on appeal.

2. Same— Disqualified Juror— A brother-in-law of the person alleged

in the indictment to be the person injured by the act of the defendant
is not a competent juror on the trial of the latter.

Appeal from the District Court of Coryell. Tried below be'
fore the Hon. C. K. Bell.

This conviction was for horse theft, the penalty assessed by
the verdict being a term of seven years in the penitentiary.

The rulings of this court do not involve the facts proved on
the trial.

Crain & Halbrook, for the appellant.

W. L. Davidson, Assistant Attorney Gteneral,/for the State.

White, Presiding Judge. A considerable portion of the brief
of appellant's counsel is devoted to a discussion of the sup-
posed error committed by the court in overruling the defendants
application for a continuance. No bill of exception having been
reserved to the ruling, this question is not before this court
for revision. ^Willson's Crim. Stats., sec. 2187.)

One of the jurors, S. R. Tippit, was a brother-in-law to J. T.
Morgan, who, by one of the counts in the indictment, was al-
leged to be the owner of the stolen horses. When the qual-
ifications of the jurors were tested, they each, in answer
to the question as to relationship to the person injured by the
commission of the offense, answered — Tippit among the rest-
that they were not related. It transpired, however, that Tip-
pit was deaf, and either did not hear or did not understand the
question, and his relationship to J. T. Morgan was unknown to
defendant and his counsel until after the trial and conviction.
As soon as ascertained, it was made one of defendant's grounds
for his motion for a new trial. It was error upon this ground

Digitized by VjOOQIC

Term, 1889.] Brookin v. The State. 701

Syllabus.

to overrule the motion. The juror was manifestly incompetent
and disqualified by our statute from sitting in the trial of the
case. (Code Grim. Proc, art. 636, subdivision 10; Wright v. The
State, 1% Texas Ct. App., 163; Page v. The State, 22 Texas Ct.
App., 551.)
The judgment is reversed and the cause remanded.

Reversed and remanded.
Opinion delivered May 22, 1889.

No. 6231.
W. H. Brookin v. The State.

1. Pkrjurt.— A false statement nnder oath, to constitute perjury, must

have been deliberately and wilfully made, the accused at the time
knowing it to be false. A false statement under oath, if made through
mistake, is not perjury.

2. Same— EviDBNCB— Case Stated.— When previously arraigned for

trial for cattle theft, the accused applied, nnder oath, for a continu-
ance for want of two absent witnesses, whose absence, he averred in
his* application, was not by his procurement or consent, — and this
averment in the said application is the perjury assigned in this case.
On this trial it was proved that, several days before the case for cattle
theft' was called, the defendant told the said witnesses that he would
not need them on his trial; that they need not attend, and they were
excused by him^rom attending that trial in his behalf. To meet this
evidence the defendant oflTered to prove by the witness B. that, after
he had excused the said witnesses, and before the theft oase was called
for trial, he directed the said B . to countermand his agreement excus-
ing them from attending and te3tifyiug in his behalf on the trial, and
to require them to be present as witnesses in his behalf; that, being
himself confined in jail, he could not attend to the matter himself, and
B. promised but failed to do as directed by him. This proof was ex-
cluded upon objection of the State. Held^ error, inasmuch as it tended
to show, and, if true, did show, a false statement under oath made by
mistake.
S, Same.— Charge op the Court on a trial for perjury is fundamentally
erroneous if it fails to instruct the jury that a conviction for perjury
can not be had except upon the testimony of at least two credible
witnesses, or of one credible witness strongly corroborated by other
evidence, or upon the accused's confession in open court, as to the
falsity of the statements under oath.

27 701
81 590

Digitized by VjOOQIC

702 27 Texas Court of Appeals. [Austin

Opinion of the court.

Appeal from the District Court of Jones. Tried below before
the Hon. J. V. Cockrell.

This conviction was for perjury, and the penalty assessed by
the verdict was a term of five years in the penitentiary.
The opinion sufficiently discloses the case.

No brief on file for the appellant.

W. L, Davidson, Assistant Attorney General, for the State.

White Presiding Judge. On the trial of appellant upon a
charge of theft of cattle, he made an application, under oath,
for a continuance for two absent witnesses, Moses Dameron
and H. E. Jones, and amongst other things, in said application)
stated that said witnesses were "not absent by the procurement
or consent of defendant." He was indicted in the case under
consideration for perjury, the matter assigned as perjury being
the statement so made by him with regard to the absence of
said witnesses.

On the trial it was proven by the State, by the witnesses
Dameron and Jones, and also by other testimony, that they did
not attend the theft trial after they had been summoned as wit-
nesses, because, some days before said trial, appellant had told
them that they need not attend the trial; that he would not
need them, and he excused them from attendance as witnesses
in his behalf. To meet this evidence defendant proposed to
prove by R. P. Brookin that after he, defendant, had excused
said witnesses, and before the theft case was called for trial,
defendant told said R. P. Brookin "to see the witnesses Dameron
and Jones and countermand his order releasing them, and tell
them to be at the district court as witnesses for him." This
R. P. Brookin promised to do, but never did; defendant him-
self being in jail, and unable to see the witnesses in person,
nor had he seen R P. Brookin from the time he requested him
to see said witnesses until after the application for continuance
had been made on account of their absence. On objection by
the State, this testimony was excluded. In our opinion the
court erred in excluding the evidence because it tended to show,
and if true did show, that the statement assigned as perjury
would not be a false statement deliberately and wilfully made—
the defendant at the time knowing it to be false (Penal Code,

Digitized by VjOOQIC

Term, 1889.] Kegans v. The State. 703

Statement of the case.

art. 188), but, on the contrary, was a false statement made
through mistake, which is not perjury. (Penal Code, art. 18d.)

In his charge to the jury the learned judge omitted to in-
struct them that a conviction for perjury could not be had un-
less upon the testimony of at least two credible witnesses or
one credible witness strongly corroborated by other evidence,
as is required by article 746, Code of Criminal Procedure. The
Assistant Attorney General confesses error upon this point,
and the error is fundamental. (Washington v. The State, 22
Texas Ct. App., 26; Miller v. The State, ante* 497.)

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered May 22, 1889.

No. 6331.
John B^bgans v. The State.

y Thbft— Conspiracy— Charge of thb Court.— On a trial for theft
the trial coart charged the jury as foUows: ^^When two or more per-
sons coDspire together to oommit an offense, and each carries out the
part agreed to be done by him, and saoh offense is actually committed,
then all parties to such an agreement are equally guilty of such offeuFe;
and if the jury believe from the evidence, beyond a reasonable doubt
that the defendant fraudulently took the property charged to have
been stolen, as given you in charges Nos. 1 and 2, and that defendant
and others agreed or conspired, before or after such taking, to prove a
purchase or pretended purchase of said cattle, either before or after
such taking, this would be no defense to such fraudulent taking.^
Held that, under the proof on the trial (for which see the statement of
the case), the charge was not erroneous.

2. Samb.— See the opinion for the substance of proposed testimony for th
defense held, in view of the other proof in the case, to have been
neously excluded.

Appeal from the District Court of Haskell. Tried below be-
fore the Hon. J. V. CockrelL

The first count of the indictment charged the theft, and the
second tho illegal branding, of two head of cattle, the property

Digitized by VjOOQIC

704 27 Texas Court of Appeals. [Austin

statement of the case.

of S. J. Pate. The conviction was had upon the second count,
the penalty assessed being a term of two years in the peni-
tentiary.

Hiram Gilbert was the first witness for the State. He testi-
fied that in October, 1886, he was an employe of the "LIL
outfit," at that time engaged in a "round-up" on Lake creek, in
Haskell county. Some time during the said October, the de-
fendant came to the camp of said "outfit," and asked the boys
to look out for a JSP cow, which, he said, he either had bought
or traded for. The witness could not now remember whether
defendant named J. S. Pato or Mike K^gans as the party from
whom he "got" the said cow. That evening's round-up in-
cluded a JSP cow and calf. Defendant put his brand,— the
letter D above a bar, — on the cow, but witness could not re-
member, whether or not he branded the calf, nor did he remem-
ber whether or not the defendant barred out the JSP brand.
This occurred on Lake creek in Haskell county, Texas, in Oc-.
tober, 1886.

William Word testified, for the State, that he was one of the
"round-up'' party referred to by the witness Gilbert. Two of
the animals included in one day's "round-up" were a JSP cow
and her calf. Defendant claimed the said cow and put his
brand on her. The same brand was put on the calf, but witness
could not say that the defendant was the man who put it on the
calf. Witness asked the defendant where he got the cow, and
he replied that he got her from Bud Pate. On cross examina-
tion the witness said that it was his recollection that defendant
said he got the cow from Bud Pate, and that he could not re-
member that defendant mentioned Mike Kegans's name. Asa
rule it was commonly understood on the range that a person
purchasing a cow on the range gets the calf of that cow if it
transpires that she has one. Re- examined, and subsequently
recalh^d by request of the jury, the witness stated positively
that defendant told him that he got the cow from J. S. Pate,
and did not mention Mike Kegans^s name in that connection.

S. J. Pate testified, for the State, that he lived in Shackelford
county, Texas. The witness, his wife and their children owned
the JSP brand of cattle, which said cattle were under the care,
management and control of the witness. Witness had never
given authority to any person to sell or use any of said cattle.
In June, 1S87, the witness learned, through a letter from his
wife, that defendant had branded a JSP cow, and he went to

Digitized by VjOOQIC

Term, 1889.] Kkgans v. The State. 706

statement of the case.

Haskell county to see about it. On reaching the town of Has-
kell, witness met Mike Eegans, whom he told that he wanted
to see defendant. Mike went off and in a few minutes returned
with defendant. Upon meeting witness the defendant asked:
"Did you get that letter about tlie JSP cow of yours that I
branded?" Witness replied in the negative, when he asked
witness what would satisfy him for the cow and calf. Witness
replied: • 'Another cow and calf." The defendant then agreed
to give witness a certain cow and calf, and took witness to see
the animals. Witness rejected those animals, and Mike Ke-
gans agreed to pay witness for his cow and calf by giving him
three yearlings. He paid witness two of those yearlings, but
had never paid him the third.

Cross examined, the witness said that he stopped two nights
in Shackelford county with a "cow outfit," of which Mike Ke-
gans and Payt. Parker were members. This was in the sum-
mer of 1886. On one of those nights the camping place was
on Bluff creek, and on the other at the **7W" ranch. The wit-
ness denied that, on either of those nights, he told Mike Ke-
gans, in the presence of Payt. Parker, that he, witness, had a
JSP cow in Haskell county, and that he wanted said Mike
Kegans to get up and sell the said cow, so that he, witness,
could get something for her. At that time the witness had
sold to the WOO Cattle Company all the JSP cattle he could
gather, and did not know that he had an animal in that brand
in Haskell county. Witness also denied that at the **7W"
ranch, about a year before the date of this offense, he told the
defendant, in the presence of Jimmie Payne, that he, witness,
had a JSP cow in Haskell county, and that he wanted defend-
ant to get her up for him. He did tell the defendant on that
occasion that he had a steer in Haskell county, and that he
wanted him, defendant, to send that steer to him, witness, to
be shipped with the **7W" cattle. The witness came from
Shackelford county to Haskell county to testify before the
grand jury about this case, deputy sheriff L. F. Tucker coming
with him. He did not, on that trip, tell the said Tucker that
he did not know what the grand jury wanted with him unless
it was about the cow defendant got; that he had told defend-
ant-and Mike Kegans to look after his cattle in Haskell county,
and that he had given them permission to sell his cattle. Wit
ness never authorized defendant to put his, defendant's, brand
on any of his, witness's, cattle. The defendant and Mike

4«

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706 27 Tbxas Court op Appeals. [Austin

Statement of the case.

Kegana were brothers, and were cousins of the witness. The
witness and the Kegans boys had worked the cattle range to-
gether for a long time, and had branded cattle for each other.

Deputy Sheriff Tom Tucker testified, for the State, that the
defendant was not in Haskell county at the time this indict-
ment was found, nor until about two months before this triaL
He was engaged in "cattle working," and "cattle workers,"
unless in charge of a good steady job, rarely ever remain long
in one county.

The State closed.

R. W. Barrett testified, for the defense, that in December,
18B6, he. and defendant were partners in the butcher business
in Haskell county, Texas. About that time the witness de-
livered to the defendant a certain sorrel horse, and directed
him to trade off the said horse for cattle. That horse passed
out of the possession of the witness, and defendant brought
five head of cattle into the business. The witness only knew
from the statement of Mike Kegans and the defendant what
the defendsmt did with the horse, and what cattle he obtained,
and from whom he obtained them. On his cross examination
the witness said that he was a deputy sheriff at the time this
bill of indictment was found. Defendant was not then in
Haskell county, but, as the witness understood, was at work
on the <*7W" ranch. On re examination the witness said that,
some time after the indictment was returned, he received a
letter from the defendant aaking if it was true that he had
been indicted for cattle theft, and stating that, if true, he
wanted to return to Haskell county to meet the charge.

Jimmie Payne testified, for the defense, that about a year
before the date alleged in this indictment he met the defendant
and S. J. Pate at the **7W" ranch. He heard a conversation
between defendant and said Pate, in the course of which, as
well as witness could remember. Pate told defendant to get a
steer and other cattle of his, Pate's, then running in Haskell
county, and send them to him in time to ship them with the
WOO cattle.

• Tom Tucker testified, for the defense, that, as deputy sheriff,
he took S. J. Pate from Shackelford county to Haskell county,
under attachment to go before the grand jury in regard to theft
charged in this indictment On the way S. J. Pate said to wit-
ness: **T don't know what the grand jury wa«ts with me unless
it is about the cow that John (defendant) got. I told John

Digitized by VjOOQIC

Term, 1889.] Keqans v. The State. 707

Opinion of the court

and Mike Kegans to look after my cattle in Haskell county, and
let me know about them." He also, in the same conversation,
said something about having authorized the Kegans boys to sell
his cattle, but witness, who at that time was tired, sleepy and in-
attentive, did not understand what he said about it — whether
he gave or withheld his consent for the Kegans to sell his said
cattle.

Amos Ooffman testified, for the defense, that about the mid-
dle of September, 1886, he witnessed a trade between the de-
fendant and Mike Kegans. That trade occurred in the town
• f Haskell. Defendant gave Mike Kegans a certain sorrel
horse, for which Mike gave him five head of cattle, including
a JSP cow, by range delivery.

On his cross examination, the witness said that he once lived
in Barber county, Kansas, where he passed under the name of
A. S. Coffman. He had never been arraigned in the district
court of Barber county, Kansas, nor convicted in that court of
forgery. The witness was not the Amos S. Kaufman alluded
to in the copy of the judgment of the district court of Barber
county, Kansas, now placed in evidence, which said judgment
recites the conviction of Amos S. Kaufman for forgery, and
the assessment against said Amos S. Kaufman of a term of one
year in the penitentiary of Kansas;

The defense closed.

In rebuttal, the State proved by his honor, the presiding
judge, by J. E. Cockrell, E. J. Hamner, H. R. Jones and Oscar
Martin that, on a previous* and different proceeding in this
court, the witness Amos Coflfman testified that he was the iden-
tical Amos S. Kaufman alluded to in the copy of the judgment
of the district court of Barber county, Kai^as.

JB. J. Hamner, for the appellant.

W. L. Davidson, Assistant Attorney General, for the State.

White Presiding Judge. Most of the questions so earnestly
and ably presented in the oral argument and brief of counsel
for appellant are of a character not likely to arise at another
trial bf this case, and consequently will not be discussed by us.

Serious complaint is made of the sixth paragraph of the
charge of the court to the jury. It is claimed that there is no
evidence in the case authorizing, inuch less calling for,^uch an

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708 27 Texas Court op Appeals. [Austia

Opinion of the ooui:t.

instruction, and moreover it is contended that said instruction
is not abstractly correct as law. We are not prepared to saj
that the charge was not called for by the evidence; on the con-
trary, there was evidence tending to show that defendant and
other parties conspired to fix up and prove a purchase of the
animal after it was taken possession of by defendant. And
whilst the said instruction is awkwatdly expressed, perhaps^
we are clearly of opinion that, when critically scanned, the
doctrine it announces is a correct principle in law. We do not
think said instruction is obnoxious to either of the objections
urged to it.

We are of opinion, however, that the court erred in exclud-
ing the testimony of the witness Barrett, as shown by defend-
ant's bill of exceptions No. 2. Barrett and defendant were
partners in the butcher business. Barrett authorized defendant
to trade a certain horse of his for cattle. Defendant proposed
to prove by Barrett that he, defendant, had told Barrett that
he had traded said horse to one Mike Kegans for five head of
cattle, four of which had been delivered, and that the other was
a JSP cow, running upon the range. Defendant also proposed
to prove by Barrett that Mike Kegans had also informed him,
witness, of the same facts.

In explaining his ruling in excluding this evidence the learned
judge places it upon the ground that defendant's statements to
Barrett were made before he was charged with the theft, and
that when his right to the animal was first questioned he gave
a different account of his ownership. We take a different view
of the matter. Defendant explained to Barrett how he had
traded the horse, and what cattle he had traded him for. This
was just after he had made the trade and when he first asserted
any claim or ownership of the animal in question. It was in
fact an explanation of his right to the possession of the animal,
though that right may not have been then controverted or
called in question. As to the conflict in the account he then
gave and that subsequently made by him, it seems that in the
first instance he claimed to have purchased it from Mike
Kegans, and in the second, to have gotten it from Pate, the
owner. This discrepancy may be reconciled by the fact that Mike
Kegans claimed to have gotten it from Pate and sold it as Fate's
agent to defendant, and in this light it may be said that defend-
ant got it from Pate.

The importance of Barrett's testimony is apparent, especially

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 709

Syllabus.

m view of the fact that the jury, after they had been in retire-
ment some time considering of their verdict, came into court
and asked to have him recalled to the witness stand, to know
if he had not stated in evidence "that one of the cows John
Eegans bought for him was a JSP cow on the range." In
answer to their request the court replied that the evidence had
been excluded from their consideration, it being inadmissible.
Because of error in the exclusion of this evidence, the judg-
ment is reversed and the cause remanded.

Beversed and remanded.
Opinion delivered May 22, 1889.

No. 6821.
Leo Cahn v. The State.

1. Practice— Organization op Petit Jury.— The record shows that of
the sixty jurors drawn on the special venire (the trial being for a cap-
ital felony) but fifty were served, and that of the fifty served but
thirty-three were present at the organization of the tjrial jury. The
defendant moved the court that, before he be required to proceed with
the selection of a jury from the thirty-three veniremen present, he be
awarded process to compel the attendance of the absent seventeen
veniremen who had been served. The trial court overruled the motion^
the defendant excepted and moved that he be awarded either compul-
sory process for the said absent veniremen who had been served, or a
IK>8tpoDement of the trial until their presence could be secured. The
thirty-three veniremen who were present were then examined on their
voir dire^ and of their number four were impaneled on the jury, and
the court ordered a special venire for tfdesmen, returnable iustaoter,
to which action of the court the defendant excepted, and again moved
for compulsory process for the seventeen absent veniremen who had
been served, which exception and motion were overruled. The de-
fendant then moved that before requiring him to select a jury from
talesmen, the court should call and tender him the regular panel of
jurors drawn for the week by the jury commissioners; which motion
was also overruled. Held, that in each of the said rulings the trial
court erred.

■2. Dying Dkclarations— Predicate.- As a predicate for the introduc-
tion of the dying declarations of the deceased, the State proved that
when he made the declarations the deceased was sane, was conscious
of impending death, and that he made the said declarations volun

27 7W
S8 185

28 887
»_807

27 709
35 432

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Google

710 27 Texas Couet op Appeals. [Austin

Syllabus.

tarily and not in answer to qaestions caloalated to lead him to make
any particular statement. Held, that the predicate was sufficient.

8. Pbactjck— EviDENOB.—A State's witness testified that he arrested the
defendant on the day of the shooting and near where it occurred, but
was unable to state what length of time had elapsed since the shooting
occurred. The defense, on cross examination, proposed to prove by
the witness the statement made to him by defendant, when arrested,
abou^ the shooting. The proposed proof was excluded as no part of
the res gestae. Held, correct.

4. Same.— The testimony of the defense tends to show that about the time
of the fatal shooting the defendant claimed that the deceased was
indebted to him a sum of money. It also shows that the employment
of the defendant as the business manager, bookkeeper and confidential
agent of the deceased terminated in June, 1887. In rebuttal of the
defendant's claim of money due him by the deceased, the State intro-
duced in evidence, over objection of defendant, a promissory note
executed by the deceased in favor of the defendant, dated June 2, 1887,
which showed by defendant's indorsement to have been paid, and also
a receipt, executed on the same day by the defendant, acknowledging
the payment in full by deceased of all claims then due. Held^ that
the trial court did not err in admitting the said note and receipt in
evidence.

6. Same.— During the progress of the trial the defendant's counsel re-
quested permission of the court to consult a State's witne>s with
reference to the testimony he would give in the case. The court
granted the request, but the witness refused to disclose his testimony
to the counsel, and the latter moved the court to compel the witness
so to do. The court refused the motion, and the defendant excepted.
Held, that the ruling was not error.

6. Malice— Ch A ROB of the Court. — As a general definition of malice,

the trial court instructed the jury as follows: ''Malice means a settled
purpose or intention to seriously injure or destroy another.^* Held^
erroneous.

7. Same. — In view of the evidence, the trial court erred in omitting to

instruct the jury that, if defendant provoked the contest with de-
ceased, but not with the intention of killing or doing him serious bod-
ily injury, he would not, by such provocation, be wholly deprived of
the right o( self defense, but that in such case self defense might be
availed of by him to the extent of reducing the degree of homicide to
a grade less than murder.

8. Same.— See the statement of the case for special instructions which, in

view of the evidence, were erroneously refused by the trial court
a. Practice— Transcripts on Appeal. — See the opinion for suggestions
of this court to trial courts and counsel with regard to the prepiaration
of transcripts for appeal.

Appeal from the District Court of Dallas, Tried below be-
fore the Hon. R. E. Burke.

Digitized by VjOOQIC

Term, 1889.] Oahn v. The State. 711

Btatement of the case.

The indictment in this case was filed on the thirteenth day
of April, 1888. It charged the appellant with the murder of
M. Benedikt, in Dallas county, Texas, on the twenty-second
day of March, 1688. The trial, which was had at the February
term, 188a, of the district court of Dallas county, resulted in
the conviction of the appellant for murder in the second degree,
a term of ten years in the penitentiary being the penalty as-
sessed against him.

Doctor G. E. Peters was the first witness for the State. He
testified, in substance, that on the twenty-third day of March,
1888, he was summoned, in his professional capacity, to the
store of M. Benedikt & Co., on the southwest comer of Elm
and Poydras streets, in the city of Dallas, Texas. Near the
head of the stair case, in the rear room of the second story, the
witness found Mr. Benedikt, whom he had not hitherto known»
lying on the floor, suffering from a gun shot wound in the back
of the neck. The ball struck about one inch to the left of the
medium line of the neck, passed upward and slightly forward,
and struck the posterior portion of th^ bone known as the
"atlas," which is the first bone of the spinal column on which
the skull rests. From the said bone the ball deflected down-
ward and lodged in the soft part of the neck, about an inch
below the * 'atlas." The first effect of such a wound would be
a severe shock and concussion; then, on even a slight motion
of the head, death. Its instantaneous effect, the witnes thought,
would be to knock a man down, and Benedikt, in this instance,
must have fallen as soon as shot. Witness reached Benedikt
within fifteen minutes after he was shot, at which time Bene-
dikt was partially conscious. With the exception of the few
minutes devoted to his dinner, the witness remained through-
out that afternoon with the wounded man. Benedikt recovered
his consciousness after the witness reached him, and awakened
to a full realization of his condition. He said repeatedly that
he was dying — that he was virtually a dead man. He made a
statement about the shooting at various times before his death,
at which times he' was perfectly sane, and realized the mortal
nature of his wounds. His statement so made was voluntary,
and was not made in answer to any questions propounded by
anybody, calculated to lead him to make any particular state-
ment. (Touching the mental condition of the deceased at the
time he made the declarations about to be proved by the State,
this witness, and all others who testified thereto, were sub-

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712 27 Texas Court op Appeals. [Austin

statement of the case.

jected, by the defense, to an exceedingly rigid cross examina-
tion, which, however, in view of the ruling of this court on the
question of predicate, it is not necessary that this report should
follow. And it may be here remarked by the Reporters that
the statement of facts, which covers two hundred and forty-
four pages of the record, is colloquial in form and appears to
be a literal transcript of a stenographic report of the proceed-
ings on the trial. In reducing the testimony of the witnesses
to the narrative form, in order to compress it within reasonable
limits, details must be sacrificed to the succinct statement of
the material facts proved.)

Continuing his testimony, the witness said that the first re-
mark made by Benedikt, after witness reached him— and he
was then lying on the floor — was: "I am a dying man." He
repeated those words at short intervals until he was placed on
;i box, and repeated them several times after he was placed on
the box, and in connection with his repetitions of those words
after he was placed on the box, he several times said: "He
shot me! Cahn shot me! He said: 'I must have money; I
am desperate, and unless you sign these papers I will kill you.
I have come prepared to kill you unless you sign these papers.' ''
These repeated statements were made on Friday afternoon,
being the afternoon of the day on which the shooting occurred,
and they were reiterated, in substance, while witness was
present on Saturday and on Sunday morning. He died about
noon on Sunday. After deceased made the said statement the
first time, on Friday evening, the witness asked him where he
and the deceased were at the time of their conversation pre-
ceding the shooting. He replied: "In the front room."— which
would be the room fronting on Elm Street. The witness then
asked him where he was when he was shot. He replied that
he was running. The wound in the neck of deceased was nec-
essarily a mortal wound, and was the cause of his death.

On his cross examination, the witness said that he had no recol-
lection of being asked by Mr. Clint (of counsel for the defense)
on the examining trial if he, witness, knew anything about the
dying declarations of the deceased. He denied that in reply
to such question he told Mr. Clint that in connection with Doc-
tors Leake and Graham he was attending upon the wounded
man, and was not prepared to say anything about dying decla-
rations. Readmitted that he did testify at some time during
the examining trial that he was not prepared to make any

Digitized by VjOOQIC

Term, 1889,] Cahn v. Thb State. 713

Statement of the case.

statement about a dying declaration, but he did not say or inti-
mate that he did not hear any dying declarations. He denied
positively that, in answer to a question by Mr. Clint, he testi-
fied on the examining trial that his whole attention was directed
to the dying man, and that he paid no attention to what was
said by him, and that others present might possibly be able to
tell him, Clint, what declarations, if any, were made by the
dying man. Witness remembered that Mr. Clint asked him on
the examining trial what the dying man said, but witness re-
frained from answering that question because he did not want
to tell him, Clint, at that time he, Clint, being an attorney in
the case. Witness would not have told any other attorney at
that time what he knew about the said declarations. He did
not want to reveal his knowledge until he was called to tes-
tify on the final trial. The witness could remember the name
of but one person who was present when deceased made the
declarations stated. That man's name was Menczer. Another
person was in the room, but witness could not remember who
he was. Doctor Leake came while witness was bending over
the deceased, and told witness that he, Leake, was deceased's
family physician. Witness at once tendered him the entire
charge of the case. Doctor Leake was in the room during the
larger part of that afternoon, and was in the room at one or
more of the times when the deceased made the statement testi-
fi(^d to by witness.

Deceased, when witness first reached him, was lying on the
floor in the back room up stairs, at the end of the stair railing,
which point was about twenty feet from the head of the stair-
way. There were three rooms up stairs in that building, con-
nected by ordinary doorways. There was no door in one of
those doorways, and witness was not sure that there was one
in the other. Quite a number of Jews, including Emil Kahn,
the son-in law of deceased, were in and out of the room on
Saturday. Doctor Chapman was also in and out of that room
at intervals on Saturday, as he was on Friday after the shooting
occurred. Witness was not acquainted with Philip Brown, nor
did he know that he was acquainted with Freidenburg, and
could not say that either of them was among the persons pres-
ent in the store on Friday. Witness did not know Wallenstien,
and could not say that he saw him with the wounded man on
Friflay. Doctor George F. Lack, Mr. Beck and Mr. Schiffman
were in and out during Friday. The conclusion reached by

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714 27 Texas Court of Appeals. [Austin

Statement of the case.

the attending physicians was that the wound was necessarily
fatal, but witness may have stated to outside parties, imme-
diately after he examined the wound that the result was un-
certain. If he did, it was because he did not care to go on
record at that time. Moreover, at that time the medical con
ferees differed in opinion as to the locality of the ball, and un-
til that point was absolutely settled the witness did not want to
express a positive opinion.

Doctor E. M. Chapman, Rabbi of the Jewish church in Dal-
las, of which the deceased was a member, was the next wit-
ness for the State. He testified that he reached the deceased
soon after he was shot. Deceased was unconscious when the
witness reached him, but recovered his consciousness about two
and a half hours later. A bed was arranged on a goods bo£,
and, about three hours after the wound was inflicted, the de-
ceased was tajcen up from the floor and placed on the bed. He
at that time appeared to realize his condition, and, in the opin-
ion of the witness, was sane of mind, and he was in that con-
dition when, his wife having left him, he made a statement to
witness. The witness asked him no question calculated to lead
to any particular statement, but did ask him: "Have you any-
thing to say to me?" The deceased then made a voluntary
statement, which the witness wrote on a pocket handkerchief.
At this point the witness produced the pocket handkerchief,
and declared that the writing thereon was written by him, wi^
ness, and that he wrote the words as they fell from the lips of
the deceased. This occurred at twenty -five minutes past three
o'clock on the afternoon of Friday, the day of the shooting.
Directed by the court, the witness read the writing on the
handkerchief as follows: **Cahn shot me. He said: *You
must die here or sign these papers. I am desperate without
money.'"

On his cross examination the winess said that he reached the
deceased between twelve and one o'clock, at which time Doc-
tor Peters was in attendance upon the wounded man. No per-
son was immediately present when deceased made the state-
ment written by witness on the handkerchief, but two or
three, whom witness could not recall, were in the room at
the extreme end, twenty or twenty-five feet away. The wit-
ness was with Benedikt on Friday evening, Friday night, and
Saturday, but not Saturday night, and not again until after his
death on Sunday. The writing on the handkerchief was not

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 715

Statement of the ease.

sigpied by deceased. The witness did not think the deceased
was able to sign it, and did not ask him to; and, moreover, did
not regard the signature as necessary. The witness denied
that deceased, at any time after he was shot, said, in his, wit-
ness's, hearing: "I would not have taken Cahn up stairs if my
temper had not got away with me." Before making the
statement reduced to writing on the handkerchief by witness,
the deceased made a substantially similar statement to Doctor
Peters, which Doctor Peters wrote down on a strip of paper.
The statement on the handkerchief embodies every word said
by deceased to witness about the shooting. He at no time told
the witness that if it had not been for his, deceased's, violent
temper, the shooting would not have occurred. Witness was
with deceased throughout Friday night, but had no recol-
lection of seeing either Wallenstien or Phillip Brown on that
night. Two or three young men whose names were unknown
to witness were there on Friday night. Witness could not say
that Mr. Coulton was or was not one of them. Max Ortlieb
was one of the parties who sat up with deceased on Friday
night. What talking was done by deceased after he was shot
was in a feeble, husky voice, and those to whom he talked bent
over him to hear. His words could not be distinguished at any
distance.

Doctor H. K. Leake was the next witness for the State. He
testified that he was called to attend the deceased, and reached
him about an hour after he was shot. He was then lying in a
room in the second story of his store at the corner of Elm and
Poydras streets. He was shot in the back of the neck. The
ball of a large sized pistol entered about an inch to the left of
the spine; passed upward and forward until it struck the first
bone of the spine, which it shattered to fragments. The post
mortem examination of the deceased disclosed several of the
fragments of the bone pressing on the spinal marrow. Such a
wound would infallibly and instantly knock a man down, and
with regard to this case the witness was satisfied that deceased
did not and could not have walked a step after receiving the
shot. The witness and Doctor Peters attended deceased until
his death, which occurred about noon on Sunday — the second
day after the wound was inflicted. Witness was not present
when deceased died, having left him about ten o'clock. De-
ceased was perfectly sane of mind during the entire time that
witness saw him. He was not unconscious at any time that

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716 27 Texas Court op Appeals. [Austin

Statement of the case.

witness saw him, but, although in a state/of collapse, he was
rational and conscious.

S. Schiflfman testified, for the State, that he was the proprietor
of the jewelry store on Elm street in Dallas, immediately oppo-
site the clothing store of M. Benedikt & Co. The shooting of
Benedikt occurred a few minutes after twelve o'clock on the
twenty-third day of March, 1888. Defendant was in the wit-
ness's store about fifteen minutes before the shooting occurred.
He was at the witness's store when the witness left, at exactly
twelve o'clock, to go to dinner and had then been there perhaps
five minutes. He said something about wanting to see Enail
Kahn, the son-in-law of the deceased, — that he was waiting
there to see Eroil Kahn.

Gross examined, the witness said that, at the time of the
shooting, he had known the defendant eighteen months or two
years. Defendant was not then in business, and was in the
habit of calling at the witness's store to chat with witness.
When he came to witness's store at noon on the day of the
shooting, he said something about his intention of going to
Benedikt's store according to an appointment, but witness could
not recall his words. The witness observed nothing peculiar
about the manner or appearance of the defendant. Deceased
and witness had been acquainted about three or three and a
half years, and witness was familiar with the deceased's reputa-
tion for truth and veracity in the neigborhood of his residence,
which reputation was bad. So far as the witness knew, the
reputation of the defendant for peace and quietude was good,
but witness could not say that he had ever heard his character
in that respect discussed. He has heard as many as three
people impugn the character of deceased for truth and veracity.

W. N. Coe testified, for the State, that he was a deputy sheriflE
for Dallas county at the time Benedikt was shot Witness
reached deceased about ten minutes after the shooting. He
found Benedikt in the up-stairs back room of his store, lying
on the floor, groaning, and apparently suffering great pain.
Dr. Leake reached the deceased a short time after the witness
did. The witness found,, on a box in the room up stairs front-
ing on Elm street, a check, a note, a small bottle of Arnold's
ink and a pen. He took the check and note away with him,
and started off with the pen and ink, but, as he has since been
unable to find the said pen and ink, he was unable to say

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 717

Statement of the case.

whether or not he took them away from the store. At this
point the State read the note in evidence as follows:

"♦100

"Dallas, Texas, Mch. 23, 1888.

"Thirty days after date we promise to pay to the order of L.
Cahn one hundred dollars at the bank of Flippen, Adoue &
Lobit, Dallas, Texas, with interest from maturity at the rate
of ten per cent per annum, and ten per cent additional for at-
torney's fees in case of legal proceedings to enforce collection.
For value received.

"No Due

The check referred to by the witness was then read in evi-
dence by the State, as follows:

"No....

"Dallas, Texas, March 23, 1888.
'^Flippin, Adoue dt Lobit, Bankers:

"Pay to L. Cahn or bearer one hundred twenty-two and 5(h
100 dollars.

"♦122 50.

The mqans by which the witness discovered the said docu-
ments were as follows: When he reached deceased, he asked
deceased who shot him, and deceased replied: "He told me if
I didn't sign those papers he would kill me." The witness
went immediately into the room and found the note and check.
They were on a box not more than ten feet from the front of
the building.

On cross examination the defendant's counsel called the at-
tention of the witness to a publication in the Dallas News of
March 24, 18S8, which purported to be a statement made by him
to a reporter of the said newspaper, about the killing. The
witness stated that he presumed he was interviewed by the
reporter of that paper. The counsel then read from the said
paper the following, which purports to be a part of the wit-
ness's said statement to the reporter of the said paper: "I went
into the back room and on a table I found the papers (note and
check) of which you have copies." With reference to this the

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718 27 Texas CouRt of Appeals. [Austm

Statement of the case.

witness stated that he knew it was a box and not a table on
which he found the note and check. According to the Dallas
News report the witness said: **These are the papers I found
on the prisoner." With reference to this, the witness stated
that he remembered making no such statement. According to
his recollection, he told the^News reporter that a policeman ar-
rested defendant. As a matter of fact, witness did not arrest
defendant, and took no papers from his person. He found the
note and check on the box, as stated. Two or three persons
were present when the deceased replied to witness's question,
**who shot you?'' but witness could not say that Doctor Chap-
man was one of them, though he saw Doctor Chapman about
the store while he, witness, was there. Witness remembered
thdt Benedikt's voice was feeble, but did not remember that he,
witness, did or did not stoop oTer to hear what he said.

Henry Waller testified, for the State, that he was on the
Dallas police force at the time Benedikt was killed. He arrested
the defendant on Lamar street, the defendant then going from
the direction of the Texas & Pacific railroad depot. This was
after the shooting, but witness could not tell how long, as he
did not hear the shots fired. About the time witn^gs arrested
defendant. Policeman Beard came up and asked defendant
what he had done with his pistol. Defendant replied that it
was in his pocket, and Beard took it from his pocket. The
witness observed that some of the chambers of the pistol were
empty.

Policeman Dick Beard testified, for the State, that he aided
in the arrest of the defendant, and at the time took from him
the British bulldog pistol now produced by the witness. Some
of the chambers — witnpss did not remember how many— were
empty when he got the pistol from defendant He did not
remember that he examined the pistol to see if it had been
recently discharged.

Cross examined, the witness said that the arrest of defendant
was made by him and Waller about five minutes after the
shooting. Witness did not recollect that, when he arrested
defendant, the defendant said that Benedikt "cursed, abused
and insulted him, struck him with a stick, and turned to get a
box top with which to brain him," and that for that reason he
shot Benedikt. Just as Waller arrested defendant, witness
asked: "What is the trouble?" and either defendant or Waller
replied that it was done "with a pistol," and witness put his

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 719

Statement of the case.

hand in defendant's pocket and p:ot the pistol. Defendant
made no statement whatever to witness at the time of the ar-
rest, beyond the fact that he **did it with a pistol" — and it may
be that that statement was made by Waller and not by him.

H. L. Hancock was the next witness for the State. He testi-
fied that at the time of the shooting of the deceased he was in the
employ of the deceased as a salesman in his, deceased's, clothing
store, which was situated at the southeast comer of Elm and Poy-
dras streets, in Dallas, Texas. The witness was standing just
outside of the front door when the defendant entered that store
a few minutes before the shooting. He did not know fvovp
which direction the defendant came, as he did not see liim
until he was in the act of entering the door. As he went in he
asked witness if Erail Kahn was in, and went on; but when he
reached a point about, ten feet inside of the store he turned
back and again asked witness if Emit Kahn was in. The wit-
ness replied that he did not think he was; that it was his im-
pression that said £ahn had gone to dinner. He then asked
witness if Benedikt was in, and witness replied that he was.
Defendant then walked on toward the rear of the store. Wit-
nesf^ stepped out of the store, and was outside when he heard
the firing of a pistol. He thought at the time that the noise
was made by somebody striking the sidewalk on Poy-
dras street, and accordingly he looked down Poydras ste-eet,
but, seeing nothing, and hearing somebody coming down the
stairs, he went back to the door. He then saw Mr. Engeldow,
a cleric in the store, coming down the stairs. Engeldow called
to witness, and about that time defendant came down the stairs
with a pistol in his right hand. Four or five minutes after that
the witness went up stairs and found Mr. Benedikt lying on the
floor, face down, about twelve feet distant from the head of
the stairway, his head pointing toward the stairway. The wit
ness heard three reports of a pistol. At that time he was
standing about eight feet distant from the point immediately
under the front up stair room. The up stair room, when wit-
ness reached the head of the stair, was filled with smoke that
did not issue from the stove, and that smelled of powder.

Examining Mr. Benedikt, the witness found that he had
been shot behind the burr of the ear. One of the balls passed
through one of the south windows of the room about six feet
from the floor. Defendant said nothing to witness when he
came down stairs, and made no remark that witness heard as

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720 27 Texas Court of Appeals. [Austia

Statement of the case.

he passed out of the store. The witness did not see him put up
his pistol. Mr. Engeldow and witness were the only persons
in the store on the ground floor at the time of the shoot-
ing. Engeldow had not got all the way down stairs when
the witness started after a policeman. The defendant was
in the employ of M. Benedikt & Co. when the witness en-
tered their service in November, 18S6, but was not in their em-
ploy at the time of the shooting. Emil Kahn was in the employ
of M. Benedikt & Co. at the time that defendant was, but he
worked in the Globe Clothing House — another establishment
that belonged to M. Benedikt & Co. After defendant left the
firm, Emil Kahn went to work in the Elm street house. Emil
Kahn usually went to his dinner about half past eleven o'clock.
It was his custom to leave the store by the front door and go
east on Elm street. He could be readily seen leaving the store
by anybody standing in the door of Schiffman's jewelry store
on the opposite side of the street. The shooting occurred about
twenty minutes after twelve o'clock. Emil Kahn got back to
the store from his dinner about fifteen minutes af iter the shoot-
ing. The witness was familiar with the handwriting of the
defendant, and, upon inspection of the note and check in evi-
dence, declared them to be in the handwriting of the defend-
ant. The witness had seen those papers before this trial, but
not on the day of the shooting. He was not in that part of the
building where they were said to have been found until some
time after the shooting. The window through which one of
the balls passed could not be seen by a person standing in any
part of that room — the front room in which the check and note
were said to have been found — unless he stood immediately in
the doorway. The witness had never seen any writing mate-
rial in that room. The business desk of the establishment was.
down stairs at the rear end of the store.

On cross examination the witness said that when he entered
the employ of Benedikt in November, 188G, the defendant was
in the store as bookkeeper and general business manager. He
continued to serve the deceased in that capacity until June,
1887. Emil Kahn's usual time of going home to dinner was
half-past eleven o'clock, but it was at a somewhat later hour
that he left the store to go to dinner on that day. Witness
could not state the exact time he left, but it was near twelve
o'clock, and it was about a quarter past twelve when defendant
entered the store. A person standing at Schiflfman's store

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State.

721

Statement of the case.

would have no difficulty in seeing a person leave Benedikt &
Co/s store on Elm street. The parties who were in Benedikt's
store when defendant went in were Messrs. Lee, Engeldow
Benedikt and Lazarus-the latter being a merchant who re-
sided at Piano. Lazarus sometimes bought goods from Bene-
dikt & Co., but witness could not say what, if any, business he
was transacting on the day of the shooting. Witness did not
know what Lee was then doing in the store. He was not then
m the employ of the house, but was on friendly terms with the
clerks, and, a short while after the killing of Benedikt. entered
the service of the house. He quit working for the house on
January 5, 1889. The witness could not indicate the point in
the store where Engeldow was when defendant entered the
store. If, when he came down stairs after the shooting, the
defendant asked witness where he would find a police officer
to whom he could surrender, the witness did not hear him.
He said nothing whatever at that time that the witness heard^
but witness had been informed since the shooting that, as he
passed out of the store, the defendant said something to Engel-
dow about giving himself up. Menczer's saloon was on Poy-
dras street, in the rear of M. Benedikt & Co.'s store, Hodge &
Hoya's real estate office intervening. After meeting defendant
at the front door, as defendant entered the store, the witness
went to Menczer's saloon and got a glass of beer—taking a hat
off a dummy figure at the corner of the store as he went. He
had just got back to the dummy and replaced the hat when the
first shot was fired. The shooting sounded to witness like the
pounding of the sidewalk on Poydras street at a point near the
barber shop, about one hundred and twenty feet from the cor-
ner. Witness stepped to the corner, looked down the street
and then entered the store at the front door, and met Engeldow
between the cash drawer— which was about forty feet from the
door— and the stairway. Engeldow said that Benedikt had
been shot, and told witness to go after a policeman, and witness
started off to find one. If, as witness was informed, defendant
when Engeldow told witness to go for a policeman, said: ''No'
you need not go. I will give myself up," the witness did not
hear it. It was after this that witness and Menczer— witness
following immediately behind Menczer— went up stairs. Wit-
ness did not remain up stairs at that time, but returned imme-
diately to the ground floor, and afterwards went to the jail to
see the defendant. Witness was not under the influence of

Digitized by VjOOQIC

722 27 Texas Court of Appeals. [Austin

Statement of the case.

liquor at the time of the shooting, and had then taken but one
glass of beer, and, perhaps, a drink before breakfast on that
morning. He drank to some excess on the evening after the
shooting. The witness was still in the employ of M. Benedikt
& Co. Witness saw no weapon of any kind on or near Bene-
dikt's person, nor did he find any after the shooting when he
cleaned the rooms up stairs. He cleaned those rooms about
three o'clock on the day of the shooting. A great many per-
sons had been in and out of those rooms before they were
cleaned.

Mr. Engeldow testified, for the State, that now and at the
time of the shooting, he was in the employ of M. Benedikt
& Company, at their clothing store on the comer of Elm and
Poydras streets in Dallas. The shooting of M. Benedikt oc-
curred between twelve and one o'clock on March 23, 1888. The
witness was in the store when the defendant came in, just be-
fore the shooting. Emil Kahn had gone to dinner. Hancock
at that time was standing just outside of the front door, and,
besides witness and Benedikt, Mr. Lee and Mr. Lazarus of
Piano, were in the store. Defendant said nothing to witness
as he passed through the store going back to where Benedikt
was. Witness did not see the meeting betweenBenedickt and
defendant, and heard nothing they said to each other. He saw
them go up stairs a few minutes later, and about five minutes
after they went up stairs the shooting took place. Three shots
were fired, a rustling noise, like somebody running, intervened
between each of the said shots. The person appeared to be
running from the front toward the rear of the building. The
witness then ran to the head of the sairs and saw Benedikt
lying, face down on the floor, and defendant standing over him
snapping a pistol. He snapped that pistol at Benedikt's pros-
trate body as many as two or three times that witness saw.
Benedikt at that time was doing nothing but lying on his face.
He had no pistol, knife, or other weapon in his hand. Bene-
dikt was never moved from the up stairs of his store until after
his death. Witness attended upon him, dressed his wounds
and visited him at intervals until his death, and never saw a
knife or pistol about him, nor anywhere up stairs.

After discovering defendant and Benedikt in the positions
described, the witness went down stairs, and about the time he
reached the foot of the stairs, defendant appeared at the head
of the stairs, pistol in hand. He came on down and walked

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 723

Btatement of the case.

out of the house at the front door with his pistol still in his
hand, remarking as he passed witness that he would give him*
self up. Some time elapsed before the witness went back up
stairs, at which time there was no smoke visible. Witness
saw but one woimd on Benedikt's person, and that was in the
back of the neck. He saw what he took to be a bullet hole in
one of the south windows. He had never seen that hole be-
fore, though he was frequently up stairs and about that win-
dow. Benedikt, at the time he was shot, had been back from
New York but few days.

On cross examination the witness was asked if he did not
know, as a matter of fact, that what he had testified to be the
snapping of the pistol at Benedikt's prostrate body, by the de-
fendant, was merely the nervous twitching of the defendant's
hands? He replied that he had no such knowledge, and that he
did not see defendant's hand move at all. The witness testified
on the examining trial of the defendant, but did not recollect
whether he then testified about hearing a rustling noise, be-
tween the shots, like a person running from the front to the
rear of the building. Witness spoke to defendant while he
was standing over Benedikt snapping his pistol, but defendant
did not respond. After he came down stairs defendant said
that he was going to give himself up, but f^aid nothing in the
hearing of the witness about having shot Benedikt in self de-
fense. The witness was in the store, five or six feet from the
front door, when defendant entered, and was still at that point
when the defendant and Benedikt went up stairs. Hancock,
a few moments before, was standing outside and in front of the
front door. Witness did not know positively where Lee was,
but thought he was standing by the stove, fifteen or twenty feet
from the foot of the stairs. When defendant and Benedikt
went up stairs, Lee was at the foot of the stairs, blacking his
shoes. Lazarus was somewhere about the stove with Benedikt
when defendant came into the store. Lee entered the service
of the louse as a clerk in April, after the death of Benedikt.

On his redirect examination the witness stated that the firm's
business office was down stairs, and that no writing desk
nor writing material was kept up stairs. After the shooting
the w^itness rode to Benedikt's residence in a buggy, and
back, and then went into a front room up stairs, in which
room, on a box, he saw a small bottle of ink, a pen and some
papers. This was before Coe went into the room. He did not

Digitized by VjOOQIC

724 27 Texas Court op Appeals. [Austin

Statement of the ca^e.

examine the papers, and could not identify them in the check
or note now in evidence. The witness had never seen the bottle
of ink and the pen prior to that time.

Re-cross- examined, the witness said that his duties kept bim
at work both up and down stairs. He had charge of the reserve
stock up stairs and it was a part of his work to keep that stock
arranged. The larger part of his time was spent at work down
stairs. ITo pen and ink was kept up stairs for use in marking
goods. A pencil was generally used in marking goods. When
it was deemed necessary to use a pen and ink for that purpose,
they were taken up stairs from the oflBce, and were taken back to
the office afterwards. The bottle of ink witness saw up stairs on
the day of and after the shooting was of a very common shape,
size and style in general use; but no such a one had ever been
about Benedikt's store that witness was aware of. The wit-
ness did not know when nor by whom the pen and ink were
taken up stairs.

Mr. Lee was the next witness for the State. He testified that
he was in Benedikt & Co.'s store, near the office, in the back
part of the ground floor of the building, when defendant
entered, and he witnessed the meeting between defendant and
Benedikt. Mr. Lazarus, of Piano, came to the office a few min-
utes before defendant did, and entered into conversation with
Mr. Benedikt. Lazarus retired a very few minutes after de-
fendant came to the office. Benedikt, who had been back from
"Xew York but a few days, and defendant shook hands and ex-
changed greeting in an apparently friendly and cordial manner.
Defendant then said that he wanted to see Benedikt on busi-
ness. Benedikt said: "All right." Defendant then said: "Let's
go up stairs." Benedikt said "all right," and they went up
stairs, defendant in advance, and Benedikt following. The
•witness then left the store, and did not hear the shooting.

On his cross examination this witness stated that it was im-
possible for him to state how long it was after he left the store
that the shooting occurred, except that it was not long. On his
way back to town he encountered Emil Kahn, and, referring
to the excited movement of people, asked him: "What is all
this rush about?" Emil Kahn replied: "The old man is shot."

At the time the shooting occurred, the witness was bill clerk
at the Dallas steam laundry, and had been in Dallas since the
twenty-sixth day of the preceding November. He went to
Benedikt's store on the day of the shooting, about noon, to buy

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 725

Statement of the case.

a pair of pants. He bought those pants from Hancock, a very
few minutes after twelve o'clock, put them on, and went to the
foot of the stairs to polish his shoes. He was polishing his
shoes when defendant came to the office, and when he and
Benedikt went up stairs, they passed witness at the foot of the
stairs. Witness got through polishing his shoes about the time
they passed him, and left the store, went to dinner, and was
returning to his work when he was overtaken by Emil Kahn.
who was going towards the store. The defendant and Benedikt
met near the office, not more than ten or fifteen feet distant from
where the witness was. The witness's attention was particu-
larly attracted to the men by the ardor of their greeting— a
peculiarity of the Hebrew race. He stopped blacking his shoes
and looked at them for a few moments, and resumed work on
his shoes about the time they started to go up stairs. Lazarus
left within a very few moments after defendant joined Bene-
dikt. Witness remembered nothing said by Lazarus except
that he asked Benedikt how he enjoyed his trip east and how he
found business in New York. Witness could remember noth-
ing said by defendant or Benedikt before Lazarus left, except
that defendant asked Benedikt about the same questions Laza-
rus did about his trip east. Defendant's counsel asked witness ^
•* When Cahn came in didn't you hear Benedikt say to him:
*Where have you been? I have been hunting all over town for
you.' And did not Cahn reply: 'I have been in town but did
not know you were in town. I only got your word this morn-
ing?' Did not Lazarus about this time say: *I will come in
this evening and see you about getting my goods?' " Witness
answered that he heard no such conversation between the
parties. The witness went to work for M. Benedikt & Com-
pany on April 26, 1888, and remained in their service until Jan-
uary 5, 1889. He was not in the employ of Emil Kahn, but
that of M. Benedikt & Company— the firm name under which
the business continued to be conducted after the death of M.
Benedikt.

The State closed.

Doctor William Lack was the first witness for the defense.
He testified that he lived in the city of Dallas, and by profes-
sion was a 1 arber and chiropodist. He had known the defendant
since 1884, and during the year immediately preceding the
killing of Benedikt he and defendant had boarded at the same
house £md taken their meals at the same table. Defendant was

Digitized by VjOOQIC

726 27 Texas Court of Appeals. [Austin

Statement of the case.

also a regular customer of the witness, having his shaving done
at the witness's shop. The witness was familiar with the de-
fendant's reputation for peace and quietude, and knew it to be
good. The witness was also well acquainted with M. Benedikt,
having known him since his removal to Dallas from Terrell,
about two years before his death. They were fellow members
of the same Jewish lodge, the witness being president and
Benedikt, at the time of his death, vice president of the same.
Witness, as such president, detailed members of the lodge to
attend Benfedikt after he was shot. He detailed Philip Brown
and Sam Coulton on Friday night, and Harry Frees and B.
Freidenburg on Saturday night. Between three and four
o'clock on the afternoon of Thursday — the day preceding the
shooting — Benedikt came into witness's barber shop at the St.
George Hotel, and asked witness if he had recently seen de-
fendant, and if defendant was in town. Witness replied that
defendant was in town, when Benedikt said: "He has been
dunning me for money. I want you to tell him when you see
him that I have been looking for him." When witness went
to his boarding house that evening he met defendant and de-
livered Benedikt's message, but did not repeat to him Benedikt's
statement about defendant dunning him. The witness knew
as a matter of fact that defendant carried a pistol on his person
for some time prior to the killing of Benedikt, and it was com-
monly and generally known that one Heidingsfelder who, at
one time clerked for M. Benedikt & Co., had repeatedly uttered
threats against the life of defendant. Defendant, to witness's
knowledge, knew of those threats. The witness, for one, told
him about them.

On cross examination by the special counsel for the prosecu-
tion, the witness said that as a professional chiropodist he was
a doctor of sore feet, ingrowing nails and corns. The Jewish
lodge, of which the witness and Benedikt were members at the
time of the latter's death, and of which they were respectively
president and vice president, was known as **Brith AbrahauL"
Witness's barber shop and chiropodist office was in the St.
George Hotel. It was reached by passing through the main
office of the said hotel. Witness's shop contained three barber
chairs, but at the time of the killing he had but one tonsorial
assistant, whose name he could not remember. He was a
white man, and, like barbers, a '^roustabout" — ^that is, a man
who often changes his place of work and residence. No per

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 727

Statement of the case.

son was in witness's shop when Benedikt came in and shaved
on the day before he was shot. Mr. Benedikt was a regular
Saturday evening customer. In the conversation on that eve-
ning Benedikt said that he had been to his old *'Globe" clothing
house looking for defendant. If he mentioned any other place
to which he had been, witness did not remember it. He did
not say when he inquired at the "Globe" for defen lant. He
did not say when defendant dunned him for money, but merely
that defendant had been dunning him, and that he had been
looking for defendant. Witness told defendant at the dining
table, at their boarding house, that Benedikt had been to his
shop looking for him, defendant, and had asked him, witness,
to tell him, defendant, that he, Benedikt, was looking for him.
and wanted him to come to the store. Witness could not re-
member that any person other than himself and defendant was
then at the table. Another or others may or may not have
been sitting at the table. Heidingsf elder's threat, uttered in
the hearing of the witness, occurred in this wise: It was gen-
erally known that hard feelings were entertained by Heidings-
felder against defendant, and it was generally discussed by the
several persons at the dining table of the house where^defend-
ant boarded. Meeting Heidingsf elder on Elm street one day,
the witness remarked: **I hear you have been having a little
fun; that you have been let out of the Globe house," He re-
plied: *'Yes, I am going to get square with the son-of-a bitch.''
The witness did not personally repeat to defendant this threat
of Benedikt, but he, defendant, was at the boarding house
where all the boarders were talking about it.

M. Staum testified, for the defense, that he clerked for M.
Benedikt & Co. for the nineteen months preceding February 1,
1888, on which date they sold out the **Globe" clothing house.
During those nineteen months witness worked first at the *'Syn-
dicate" or Elm street house of Benedict & Co., and then at the
*'Globe" house, and continued to work at the latter after the
gSaid sale. Witness saw Benedikt on the morning of and before
the shooting occurred. He came into the Globe about eight
o'clock on that morning and asked witness: "Did you see
your old friend this morning?" Witness asked him: **Who
do you mean?" He replied: **Leo Cahn." Witness said in
reply : **It is yet too early for him. He usually comes here, but
not this early." Benedikt then said to the witness: *If you
see him toll him that I would like to see hini about noon." He

Digitized by VjOOQIC

ras 27 Tbxas Coukt of Appeals. [Austin

— ^ ^ .«-

StAt^ment of the case.

spoke in a somewhat rapid and excited manner. The defend-
ant came to the "Globe" store between ten and eleven o'clock,
and witness told him that Benedikt had said he wanted to see
him about noon. The witness and oue Heidingsfelder were
fellow clerks in the service of M. Benedikt & Co. at one time,
and at that time the defendant was the general manager of M.
Benedikt & Co.'s business, and was also book keeper and ''con-
fidential man." Defendant quit Benedikt & Co. in 1887, and
went to New York for somebody, but witness could not now
say for whom. He owned a pistol at the time he quit the ser-
vice of Benedikt & Co. He had been warned and cautioned
to be at all times prepared to defend himself against Heidings-
felder, who at various times had uttered threats against his
life. During the absence of defendant in 1887, Heidingsfelder
said to witness: **If Cahn ever comes back here from New
York and I see him, I will kill the bastard son of a bitcbl**
The witness communicated that threat to the defendant as soon
as he got back, and warned him to be at all times prepared to
defend himself. Defendant's reputation for peace and quietude
had always been good.

Cross examined, the witness said that the conversation with
Heidingsfelder referred to in the examination in chief occurred
on Elm street in Dallas. The witness could not remember that
Doctor Lack or anybody else was present. In addition to the
threat to kill the '*bastard son of a bitch," etc., Heidingsfelder
said something about defendant having talked about him to
Bt'Uf r!ikt and about having uttered threats against him, Hei-
diiv^sfelder. Emil Kahn was manager of the Globe clothing
house in the winter of 1887, when witness and Heidingsfelder
were clerking there. When defendant came into the Globe
house on the morniDg of the shooting, the witness, after deliv-
ering Benedikt's message to him, advised him not to go to the
store in response to the invitation. Witness thought some of
the clerks in the Globe store heard this conversation, but was
not certain. A man named Michaels, who clerked in the Globe
house at the the time, but who was now supposed to be in San
Antonio, was present when witness told defendant, on his re-
turn from New York, of the threats of Heidingsfelder, and ad-
vised him to be prepared to defend himself. Defendant bought
a pistol in March or April, 1887, which was previous to any
threats by Heidingsfelder that witness had any knowledge of.

S. Lazarus testified, for the defense, that he lived in the town

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 729

Statement of the case.

of Piano, where he was engaged in the mercantile business.
Witness was in Dallas on March 23, 1888, and about noon that
day went to the clothing store of M. Benedikt & Co., corner of
Elm and Poydras streets, to buy a bill of goods if he could get
them on suitable terms. He went to the back part of the
store, near the stove, where he met Benedikt whom he had not
seen since his return, a few days before, from New York.
Within five or ten minutes defendant entered the store, came
to where witness and Benedikt were, saluted both and entered
into a conversation with Benedikt. Benedikt told defendant
that he had been looking or waiting for him for three or four
days: Defendant replied: "I heard you wanted to see me,
but I did not know until last night that you were here."
They continued to talk, but in so low a tone that witness, who
made no attempt to listen, heard nothing they said. He un-
derstood enough to know that they were discussing business
matters, and accordingly he turned to leave the store. Just as
the witness started to leave, Benedikt said to defendant: **I
want to see you up stairs." Witness then left, remarking to
Benedikt that he would return after dinner.

On his cross examination, the witness said that he was ac-
quainted with Lee, the man who entered the service of Bene-
dikt & Co. after the death of Benedikt, but he did not know him
at the time of the shooting. He did not see Lee in Benedikt's
store on the day of the shooting. He did not see anybody but
defendant come into Benedikt's store while he, witness, was
there, and he at no time observed a man at the foot of the
stairs blacking his shoes. The witness was satisfied that, if a
man had been at the foot of the stairs blacking his shoes at the
time defendant joined witness and Benedikt near the stove, he
would have seen him. The witness did not see Benedikt and
defendant go up stairs, but, just as he left the store, he heard
Benedikt propose to defendant to go up stairs. Witness did
not,, on the day previous to this testimony, tell Lee that he,
witness, left the store before Benedikt and defendant went up
stairs. Benedikt did not tell defendant, in the presence of
witness, why or for what he had been looking for defendant.

O. P. S. Fee was next introduced by the defense. He testi-
fied that he had known deceased between twelve and fifteen
years, during which time his reputation for truth and veracity
wap good. At this point defendant asked the witnes^s: **nave
not you stated on the streets forty dozen times that Benedikt's

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730 37 Texas Court of Appeals. [Austin

statement of the case.

reputation for truth was notoriously bad?*' Upon the States
objection the question was ruled out.

Henry Waller, recalled, testified, for the defense, that he ar-
rested defendant on Lamar street, which was beyond Elm
street from the court house. He was then going down the
middle of the said Lamar street towards Main street, from the
direction of the Texas & Pacific railway depot. The point on
Lamar street where the witness arrested defendant was about
five hundred feet distant from M. Benedikt & Co 's store, where
the shooting was said to have occurred. To get to that point
from the said store, the defendant would have traveled west-
ward ly on Elm street to Lamar street, and then north alon^
Lamar street, and in doing so he would have traversed crowded
business thoroughfares. It was between twelve noon and one
o'clock p. m., when the arrest was made. Witness did not
hear the shooting and could not tell how long after the shooting
it was that he arrested defendant. He, witness, was summoned
from Main street, and, as he passed E. M. Kahn's establish-
ment, somebody exclaimed: ** Yonder he is, coming this wayf'
Beard appeared about the time witness arrested defendant, and
Beard secured defendant's pistol, which the witness did not ex-
amine.

William Wallenstien testified, for the defense, that he reached
the deceased about two hours after he received his wound and
spent three or four hours with him that afternoon. He sat up
with 15enedikt on Saturday night, on which night Benedikt
made statements to him in regard to the shooting. He said
the defendant applied to him for money; that he had no money
in the safe when defendant asked him to sign a check, but that,
having no money in bank at that time, he refused; that, if he
had known that defendant was arme4 with a pistol, he would
not have struck defendant with a board; that he was trying to
get a board to strike defendant when he was shot; that he had
known defendant a long time and regarded him as an arrant
coward, and had no idea that he would shoot.

On cross examination the witness said that he remained with
Benedikt from seven o'clock on Saturday evening until seven
o'clock on Sunday morning. It was about eleven o'clock on
Saturday night that Benedikt made the statement detailed by
the .witness on his examination in. chief. Messrs. Friedenburg
and Harry Frees also spent Saturday night with Benedikt, but
witness did not know whether or not they heard the statement

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 731

Statement of the case.

rfade to witness \fy Benedikt. Mr. Benedikt called the witness
to his bed side and made the said statement to him. The sub-
stance of that statement was that defendant first asked him for
money, and then to sign a check; that he struck the defendant,
and then attempted to get a board to strike him again, when
defendant shot him; that he was sorry he struck him; that he
would not have done so had he known that defendant had a
pistol, and that he thought the defendant was too great a coward
to shoot. He talked loud enough for witness to hear him, and
witness would *'guess" that others heard him. The witness did
not remember to whom, if to anybody, he talked about this
matter. In fact he tried to keep his knowledge secret, as he
did not wish to be mixed up in this affair. Benedikt told wit-
ness that he owed the defendant some money, but did not say
how much, nor how long he had owed it.

Mr. Friedenburg testified, for the defense, that he was one of
the parties appointed by the Hebrew lodge to wait upon Bene-
dikt on Saturday night. The gentlemen who served with him
on that night were Mr. Wallenstien and Harry Frees. Bene-
dikt talked to Wallenstien and witness, on Saturday night
about the shooting. He said, in substance, that he very much
regretted the occurrence, and that if he had known defendant
was armed he would not have struck him. He said other things
on that night, but witness did not remember them. On his
cross examination the witness said that he thought he was
alone in the room with Benedikt when the said statement was .
made, Frees and Wallenstien having stepped out of the room
a few moments before. It was quite probable that the witness
had told several parties about Benedikt's said declarations, but
he could not recall the names of any of those parties. As a
matter of fact witness had told several parties about it, but he
could not name one. Witness did not remember that Wallen-
stien had ever told him of a declaration made to him, Wallen-
stien, by the deceased.

Philip Brown testified, for the defense, that he was a mem-
ber of the Brith Abraham lodge, and was detailed to attend
Benedikt on Friday night. Coulton, the other member detailed
with the witness, and the witness went to the room where
Benedikt was between seven and eight o'clock on that night.
During that night deceased said to witness: **If I had not
called Cahn up stairs this would not have happened. I struck
Cahn, and turned around to pick up a piece of box board when

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732 27 Texas Court of Appeals. [Austin

statement of the case.

he shot me." Cross examined, the witness said that Sam Coifl-
ton was in the room when Benedikt made the said statement
to witness. Benedikt made other statements about the shoot-
ing, among them that he would certainly die. Witness could
repeat nothing else. Detailing the statement referred to, wit-
ness said that, waking from a short sleep, deceased exclaimed:
"O, me I If I had not called Cahn up stairs, this would not
have happened." A moment later he continued: " He (Cahn)
told me about the money I owed him, and I got mad and struck
him, and then turned to pick up a board and he shot me." He
did not say how much money he owed defendant, nor did he
say what he struck Cahn with. Witness repeated this state-
ment to several parties, — among them to Dr. Lack. He told
Lack on the next day, or the day after. Witness did not know
whether or not Emil Kahn was present when Benedikt made
the said statements to him. Witness remembered seeing no
other person than those mentioned on that night. Emil Kahn
remained at the store with Benedikt but a short time on the
said Friday night.

Dr. A. C. Graham testified, for the defense, that he reached
Benedikt about two hours after he received the wound on Fri-
day, and remained with him three or four hours' He saw Ben-
edikt again on Saturday, and again on Sunday, a few hours
before he died. The witness at no time heard Benedikt speak
of the shooting. He did not talk about it while witness was
with him.

Albert Hurst testified, for the defense, that Benedikt was a
taller man than defendant, and would weigh thirty or thirty-
five pounds more than defendant. He was a heavy built, and
apparently a strong man. On cross examination, the witness
said that he competed in business with deceased, but denied
that, after the killing, he circulated a petition among the
Hebrews of Dallas to destroy Benedikt's reputation for truth
and veracity. He did not hunt witnesses for the defendant
He talked to Ben Iralson, but only with the view of obtaining
information to satisfy his personal curiosity in the matter.
The witness never heard of a petition for the discovery of wit-
nesses to impeach Benedikt's character for truth and veracity
being circulated.

Three or four other witnesses testified, for the defense, that
deceased was a compactly built, strong man. weighing from

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 733

Statement of the case.

one hundred and sixty-five to one hundred and eighty pounds —
a much heavier man than defendant.

Max Kellar testified that, by employment of Emil Eahn, he
waited upon Benedikt from Saturday morning until his death,
during which time Benedikt made no statement whatever
about the shooting in the hearing of the witness. Witness
firgt saw Benedikt after the shooting, on Friday night.

Messrs. Franks, Starke, Sligh, Record, Meyer, Davis and
Gunter, testifying for the defense, declared that the general
reputation of M. Benedikt for truth and veracity was bad.
Doctor SchiflE testified that Benedikt was generally reputed to
be an irritable, excitable and violent man, while defendant had
always been esteemed as a peaceable man.

Defense closed.

W. H. Flippin was the State's first witness in rebuttal. He
testified that he was the senior member of the firm of Flippin,
Adoue & Lobit, bankers, Dallas, Texas. His attention was
called to the following promissory note:

*'$400. June 2, 1887.

**0n Dec. 15, we promise to pay to the order of L. Cahn four
hundred dollars at Flippen, Adoue & Lobits, bankers, Dallas.
Value received.
'*No. . Due Dec. 18. M. Benedikt & Co."

Endorsed across the face: *Taid 12-17-87." Endorsed on the
back: ''L. Cahn." *Taid 12-17-87. Flippin, Adoue & Lobit, per
W. M. Ferry, collector."

The witness identified the signature 'M. Benedikt & Co.," as
genuine, and as the handwriting of M. Benedikt. He did not
know that Benedikt & Company had money on deposit at the
bank of Flippin, Adoue & Lobit, on March 23, 1888, but the check
of Benedikt & Company for four or five hundred dollars would
have been cashed at said bank at that time. The promissory
note of June 2, 1887— the note in evidence— was discounted at
the witness's bank, and the bank's signature of December 17,
1887, shows that it was paid on that day. At this point the
following receipt was exhibited to witness and put in evidence:

"Dallas, June 2, 1887.
**Received from M. Benedikt & Co., the sum of four hundred
dollars in note, and in book account of L. Cahn, of four hun-

Digitized by VjOOQIC

731 27 Texas Court of Appeals. [Austin

Statement of the case.

dred and ninety-three, which amount is full and complete set-
tlement to date for any demand whatsoever, and for services
rendered to the firm of M. Benedikt & Co,

"Book, $493.

"Note, $400.

"$893. ^ L.Cahn.''

The witness identified the signature as the genuine signature
of the defendant.

On cross examination, this witness stated that, so far as he
knew, the reputation of Benedikt for truth and veracity was
good. It was good with the witness.

M. L. Hancock, recalled by the State, testified, in rebuttal,
that he saw no blood or other evidence of a struggle about the
person of. defendant when the latter came down stairs just
^after the shooting. He did not afterwards find any planks or
box boards, or other boards, up stairs displaced. There were
no boards up stairs accessible that could be used to knock a
man down with. Clothing was piled three feet high on all of
the boxes save one, which was kept under a counter, and there
was no top to that box. The boxes that had tops were nailed
up.

Mr. Engeldow testified for the State, in rebuttal, that he saw
no blood, bruise or other indication of violence on the person
of defendant when he was snapping his pistol at Benedikt, nor
after he came down stairs. Witness at no time saw any box
tops or other kind of plank or boards lying about* the floor or
elsewhere up stairs, at the time nor after he saw defendant
snapping his pistol at Benedikt.

Mr. Coe testified that when he went up stairs, soon after the
shooting, he hunted for weapons but found none, nor did he
see any box tops, plank, boards or scantling.

Officers Waller and Beard testified, for the State, that they
observed no blood, bruises or indications of recent violence on
the person of defendant when they arrested him.

Messrs. Friedlander, Kingdon, Jones and Hynson, testifying
for the State in rebuttal, stated that Benedikt's reputation for
truth and veracity was good.

The State closed.

M. L. Hancock was recalled by the defense, and in reply to
questions propounded to him, said that if defendant vas ever

Digitized by VjQOQlC

Term, 1889.] Cahn v. The State. 735

Statement of the case.

in the employ of Benedikt after June 2, 1887, he, witi^ess, did
not know it; that if the defendant went to New York to transact
business for Benedikt & Co. after June 2, 1887, he, witness, did
not know it; and that if the defendant purchased goods in New
York for Benedikt & Co. he, witness, did not know it. The
several articles of merchandise noted in the note book now ex-
hibited to witness by defendant's counsel, were entered in Ben-
edikt's handwriting, but if such articles were shipped by de-
fendant from New York, and after June 2, 1887, were received
by Benedikt & Co., witness did not know it. The entry in the
note book was unsigned, and appeared to be a memorandum
and not an order for goods.

On cross examination, the witness said that he knew the de-
fendant to be indebted to M. Benedikt & Co. on January 18, 1888.
Benedikt had entrusted^ defendant for sale through the coun-
try a quantity of jewelry, and on the said January 18, asked
him for a settlement. Defendant replied to Benedikt that he
could not settle, as he had sold the goods on credit. Benedikt
then asked him for a partial payment. Defendant replied to
him: **You know damned well that I have sold the goods on
credit and received no moi^ for them." Witness heard no
particular sum of paoney mentioned in that conversation. The
witness knew nothing whatever about Benedikt's estate owing
defendant a debt of two hundred and fifty dollars, secured by
a lien on a house.

The defendant's special instruction number thirteen, referred
to in the eighth head note of this report, reads as follows:
*'The defendant was justified in shooting Benedikt if in so
doing he acted upon reasonable appearances of danger of death
or of serious bodily injury to himself, which reasonable ap-
pearafcces the jury must consider and determine from Cahn's
standpoint. It matters not in such case whether the danger
was real, whether it in fact existed, or whether it was merely
colorable. If from defendant's standpoint, taking into consid-
eration all the circumstances of the case, amongst others the
relative size of the men, it would reasonably appear to him
that he was in danger of death or serious bodily injury from
Benedikt, he had the right to kill him, although in fact such
danger did not exist. Each juror must place himself in the
place of the defendant, and determine from all the facts as
they appeared to him at the time, whether his apprehension or

Digitized by VjOOQIC

736 27 Texas Court op Appeals. [Austin

Opinion of the court.

fear of death or of serious bodily harm was reasonable; and if
so you must acquit him,"

The substance of special instructions fourteen and fifteen,
referred to in the same head note, is stated as follows by the
counsel for the defense: *'The right of self defense having
once accrued, it exists and continues until the danger, or threat-
ened danger, which authorizes its exercise, is past. It must
not be carried beyond the point necessary to secure defendant's
safety, but the jury must place themselves in defendant's place
and judge of the necessity from his standpoint, taking into
consideration all the facts and circumstances and surround-
ings as they appeared to him at the time, and in this connec-
tion the jury may consider the sizes and strength of the two
men. Even if the defendant carried his attack upon the de-
ceased beyond the point necessary to his own safety; if he did
it under the influence of sudden excitement or passion, pro-
duced by the assault against which he was defending himself
and against which he had .a legal right to defend himself, the
killing would not be murder, but manslaughter, and the jury
should so find if they believe that defendant went further than
was necessary for his own defensft^^ and upon this question he
is entitled to the benefit of the reasonable doubt."

C. F, Clint, J. W. Thompson, D. O. Wooten and R. B. Seay,
for the appellant.

W, L. Davidson^ Assistant Attorney General, for the State.

WiLLSON, Judge. With respect to the organization of the
jury, the defendant assigns the following errors, each of which
is presented by proper bill of exception, to wft:

1. The court erred in organizing the jury and in impaneling
the same in the following particulars, to wit: In not granting
appellant's motion to compel, by proper process, the presence
of the seventeen absent jurors who had been drawn to serve
on the regular special venire, and whose names appeared upon
the list of said venire served upon defendant, before proceeding
to form the jury, or compelling the appellant to select a jury
from among the thirty- three special veniremen who alone, out
of the sixty named in the list of the special venire, appeared
and were present to be selected from.

2. The court erred in overruling appellant's motion to com-

Digitized by VjOOQIC

Term, 1889.] Cahn v. The State. 787

Opinion of the ooiirt.

pel, by proper process, the attendance of the aforesaid seven-
teen absent jurors, respectively, as their names were reached
on the list and called, or to postpone the further formation of
the jury until their presence could be secured.

3. The court erred in not granting appellant's mot'on to
compel, by proper process, the attendance and presence of said
seventeen absent jurors, after the thirty-three, who were in
attendance, had been exhausted and only four jurors selected,
before proceeding further with the formation of the jury, and
in not postponing the formation of the jury until the absent
jurors could be procured or their absence accounted for, but in
at once issuing a special venire for talesmen.

4. The court erred in refusing appellant's motion to call in
the regular panel of jurors for the week, who had been regu-
larly drawn by the jury commissioners of the county, after the
special venire had been exhausted, and before issuing a venire
for talesmen, because, under the law relating to the formation
of juries in capital cases, the defendant is entitled to have all
the jurors who have been drawn by the jury commissioners
first placed in the box to be selected from, before ordering a
venire of talesmen from the body of the county; and because
the special venire ordered for the trial of this case was incom-
plete in that only thirty-three of the sixty special veniremen
Were present, though duly summoned to attend, and defend
ant's motions to compel their attendance had been overruled,
and in such case the regular panel for the week should have
been first placed in the box and drawn from before the issuance
of a venire for talesmen.

Each of said assignments of error is fully sustained by the
record, and is fatal to the legality of this conviction. We shall
not consume much time in discussing these errors, as former
decisions and statutory provisions make them manifest. We
call to the attention of the trial judge to Osborne v. The State,
23 Texas Court of Appeal, 431; Weaver v. The State, 19 Texas
Court of Appeal, 547; Thuston v. The State, 18 Texas Court of
Appeals, 26.

As to the dying declaration of the deceased, we do not think
there was error in admitting them. A suflScient predicate for
their admission seems to have been established.

It was not error to refuse to permit the witness Waller to
testify to what defendant said about how and why he killed the

Digitized by VjOOQIC

738 27 Texas Court of Appeals. [Austin

OpioioD of the court.

deceased. These statements of defendant were not made under
circumstances constituting them res gestae^ and were inad-
missible.

It was not error to permit the State to read in evidence the
receipt dated June, 1887, and the note of the same date for four
hundred dollars. These documents were relevant, tending to
throw light upon the business relations of the defendant and
the deceased, and to show that the deceased was not indebted
to the defendant, as claimed by the latter. It was within the
discretion of the court to admit this evidence in rebuttal, and
we think the court properly admitted it when so offered.

There was no error in refusing to require Emil Kahn to dis-
close to the defendant or his counsel what facts he would testify
to. (Withers v. The State, 23 Texas Ct. Ap., 396.)

Numerous exceptions were reserved by the defendant to the
charge of the court, and numerous special instructions were
requested by the defendant, which the court refused to give,
and defendant excepted. We shall not undertake to discuss
each of the objections urged to the charge, but will merely, in
a general way and briefly, state our conclusions.

1. The definition of malice given in the charge is not cor-
rect. There may be *'a settled purpose or intention to seriously
injure or destroy another," and yet no malice may exist in the
mind of the person entertaining such purpose or intent, as in
the case of a sheriff who executes a death warrant, or as in
the case of a person who commits justifiable homicide in self
defense. (Bramlette v. The State, 21 Texas Ct. App., 611;
Harris v. The State, 8 Texas Ct. App., 90; McKinney v. The
State, Id., 626; Pickens v. The State, 13 Texas Ct. App., 353;
Hayes v. The State, 14 Texas Ct. App., 330.)

2. With respect to self defense, the court should, in view of
the evidence, have instructed the jury that if the defendant
provoked the contest with the deceased, but not with the inten-
tion of killing or doing him. serious bodily injury, he would not
by such provocation be wholly deprived of the right of self
defense, but that in such case self defense might be availed of
by him to the extent of reducing the degree of the homicide to
a grade less than murder. (White v. The State, 23 Texas Ct.,
App., 154; Roach v. The State, 21 Texas Ct. App., 249; Thuston
V. The State, Id., 245.)

3. We think the special inslructious numbers thirteen,

Digitized by VjOOQIC

Tenn, 1889.] Cahn v. The State. 739

Opinion of the court

fourteen and fifteen, requested by the defendant, are appli-
cable to and demanded by the evidence, and are correct in
principle. They are a part of the law of the case, and it was
material error to refuse them.

In other respects in which objections are urged to the charge,
and to the refusal to give requested instructions, we hold no
error was committed.

We will here take occasion to make some suggestions in re-
gard to the preparation of cases for appeal. It is very desirable
that a transcript on appeal should contain only such matter as
is essential to an intelligible consideration and determination
of the questions involved in the case, and this essential matter
should not be unnecessarily repeated. Thus, whore an appli-
cation for a continuance has been overruled, and the defend-
ant has excepted to the ruling, it is only necessary that the ap-
plication should be inserted once in the transcript. Where the
bill of exception sets out the application in full, it will be suf-
ficient to insert the bill. So, it is unnecessary to except to the
action of the court in overruling exceptions to an indictment,
or in overruling a motion in arrest of judgment, or for a new
trial, and the transcript should not be encumbered with excep-
tions of this kind. So, in the preparation of a statement of facts
immaterial matter should be excluded. Only the material
facts should be inserted, and as succinctly and clearly as prac-
ticable. Stenographic reports of the evidence, containing ques-
tions and answers, remarks of the reporter, etc., detailing
every word spoken by the witnesses, as well as the remarks of
court and counsel, should not be certified as a statement of
facts.

We are induced to make these suggestions because of the
unnecessary voluminous transcript in this case. It is a tran-
script covering five hundred and thirty-seven pages, when, in
our judgment, if the case had been carefully and properly pre-
pared for appeal, the transcript would not have exceeded one
hundred pages. The statement of facts, furnished we presume
by a stenographer, cover over two hundred pages, when every
material fact proved on the trial could, we think, have been
presented in a statement of thirty pages. Such voluminous,
imwieldy transcripts require of this court much useless labor,
and the consumption of valuable time, and frequently obscure
the merits of the case. A very little care on the part of the coun-

Digitized by VjOOQIC

740 27 Texas Court of Appeals.

, Opiolon of the ooort

sel and the court in the preparation of cases for appeal, would
relieve this court of a vast amount of unnecessary labor, and
enable us to more readily and intelliipbly dispose <^ causes.

Because of errors we have mentioned, the juci^pnent k re-
versed and the cause remanded.

JEtitfirMd atid ramofidftl.

Opinion deUvered May S6, 1888.

Digitized by VjOOQIC

INDEX.

ABANDONMENT.

If a party, intending to commit murder, usee a deadly weapon in
snch a manner as that his intention is apparent or may be fairly in-
erred from the fact, he can not, by abandoning any further attempt
at violence, mitigate the effect of his previoas act or intention; and it
is for the jury to determine, under appropriate instructions upon the
law, whether, by what he did before he abandoned the further execu-
tion of his plans, he really and in fact intended to commit murder.
And if they find that he did so intend to commit murder, and the facts
justify the finding, then this court will not interfere with the verdict.
— Wood V. State, 893.

ACCESSORY.
See PaiisciPAL Offenders.

1 . Under the provisions of article 90 of the Penal Code, the principal
offender, if in arrest, must be tried before his accessory can be tried*
wherefore the motion of the defendant (who was charged as a principal)
that the person charged as his accessory be first put upon trial was
correctly overruled. Williams v. State, 466.

2. Inasmuch as an accessory, whose priocipal is in arrest, can not
be tried and convicted until after the trial and conviction of the ar-
rested principal, it devolves upon the State, in the trial of the acces-
sory, to show the conviction of the principal. And to make such proof
in this case, the court properly permitted the State to introduce in
evidence the verdict and judgment of conviction rendered against the
principal. West v. State, 472.

8. See the statement of the case in Williams v. The State, ante, 466,
for evidence held suflBcient to support the conviction of an accused
charged as an accessory to theft. Id.

ACCOMPLICE.
See Evidence, 14.

1. The second count of the indictment (being the count upon which
this conviction was had) charges that certain persons, to the grand
jurors unknown, and whom the grand jurors are unable to describe
did kill and murder one Elliek Brown, and that defendant, prior to
the commission of said murder by said unknown persons, did unlaw-
fully, wilfully and of his malice aforethought, advise, command and
encourage said unknown persons to commit said murder, sai^ defend-

Digitized by VjOOQIC

742 27 Texas Court of Appeals.

Index.

ACCOMPLICE— continued.

ant not being present at the commission of said murder by said qd-
known persons. It was objected to the indictment that it neither
named nor gave a description of the unknown persons who committed
the murder of Brown. Held, that the objection is not sound, and the
indictment is sufficient, its purpose and effect not being to charge the
unkoown persons as the ^'accused^^ in this case, but to carge the defend-
ant as an accomplice to the murder of Brown. Bugger v. State, 96.

2. The charge of the court in this case should, more explicitly
than it did, have instructed the jury that, to convict, they must find
that the defendant was not present at the commission of the murder,
and that the murder was committed by a person or persons who had
been advised, commanded or encouraged by the defendant to com-
mit it. Id.

3. See the statement of the case for evidence held insufficient to
support a conviction as an accomplice to murder. Id,

4. See the opinion in eztenso for the charging part of an indictment
held to comprehend but a single count, and to be sufficient to charge,
the accused as an accomplice to murder. Crook v. State, 198.

5. In order to authorize the conviction of an accused, as an accom-
plice, it devolves upon the State to establish the guilt of the prindpal
of the offense charged against him; and, to establish that specific issue
(but not that the accused is hu accomplice), any evidence is admissible
that would be competent against the principal if on trial. Under this
rule the trial court did not err in admitting proof of the confession of
the principal; and, in limiting the purpose of such proof to the issue
of the principaPs guilt, the charge of the court was correct. Id.

ACCOMPLICE TO MURDER.
See ACCOMPLICE, 1-6.

Charge of the Court, 24, ^.

ACCOMPLICE TESTIMONY.
See Charge of the Court, 37.

1 . See the statement of the case for evidence Tield insulficient to
support a conviction for murder of the second degree, becaose it resti
upon the testimony of an insufficiently corroborated aooompliee.
Stouard v. State, 1.

2. If the proof tends to raise the question whether or not a Stated
witness is an accomplice in the offense on trial, can the trial ooort in
any state of case, refuse to submit to the jury the question of accom-
plice vel non, together with proper Instructions upon the corrobora-
tion of accomplice testimony? If so, it must not only be because th«
proof that the witness is an accomplice is meagre, but becaase the

other proof in the case tends strongly to show that he is not The
proof in this case farely mooting the complicity of the two Stote's wit-
nesses, the trial court erred in refusing to instruct the jury upon th«
law of accomplice testimony. Hines t?. State, 104.

3. Ownership, like every other material issue on a trial for theft,

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27 Texas Court of Appeals. 743

Index.

ACCOMPLICE TESTIMONY-con^/mied.

must be proved by competent evidence, and if it rests upon the tec<-
timony of an accomplice such proof is insufficient unless legally cor-
roborated. Sanson v. State, 140.

4. The rule that, in rape cases, requires that if the other proof in
the case tends to raise the issue of the female^s consent to the carnal act
she becomes so far an accomplice that, in order to warrant a conviction
based upon her testimony, she must be corroborated, applies to sod-
omy cases; and if the evidence tends to show the consent of the pro8-
ecuting witness to the act of beastiality committed upon him, he must
be corroborated. The proof in this case tends strongly to show the
consent of the alleged injured party, who, upon the main issue, wa
the State's principal witness; and in failing to instruct the jury with
regard to the corroboration of an accomplice, the trial court erred-
Medis & Hill v. State, 194.

5. A conviction based upon the uncorroborated testimony of an ac-
complice can not stand. See the statement of the case for the sub-
stance of evidence Tield insufficient to support a conviction for hog
theft. Smith v. State, 196.

6. See the opinion in extenso for evidence of a State's witness held
insufficient to inculpate the said witness as an accomplice to theft.
Riley v. State, 606.

ADEQUATE CAUSE.
See Charge of the Court, 7.

EVIDBNCB, 8.

ADULTERY.

1 . Adultery is an oflfense which, under the present law of this State,
can be committed in but one of two ways: 1, by the parties (one or both
being legally married to some other person) living together and having
carnal intercourse with each other; and, 2, by the parties having
habitual carnal intercourse with each other without living together.
To convict under the first mode the proof must show a living together
of the parties, but need show no more than a single act of carnal inter-
course, but under the second mode the carnal intercourse must be
shown to have been habitual. Bird v. State, 635.

2. '^Living together," though not defined by the code, means within
the purview of the statute defining adultery, that the parties "dwell
or reside together; abide together in the same habitation as a common
or joint residing place." The conviction in this cate is for adultery
committed by the first mode, but the evidence, failing to show that
the parties lived together, although it proves habitual intercourse, is
insufficient to support the conviction. Id,

AFFIDAVIT.

See County Jud&e.

AGGRAVATED ASSAULT AND SAME AND BATTERY.

1. A husband has the right to defend himself against an assault

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744 27 Texas Court op Appeals.

Index.

AGGRAVATED ASSAULT AND SAME AND BATT^UY— continued.
committed upon him by his wife, and, unless he employs greater force
than is necessary to repel the violenoe of his wife, he can not be held
guilty of an assault and battery. See the opinion for the substance
of evidence Tield insufficient to support a conviction for aggravated
assault and battery by a husband on his wife. Leonard v. State, 186.

2. See the opinion for the substance of evidence held insufficient to
support a conviction for aggravated assault and battery because iosuf*
ficient to support the ground of aggravation alleged in either <^ the
counts of tbe indictment. Stecens v. State, 461.

8. The application for continuance shows that the defendant eaed
out as many as four subpHsnas and one attachment for the absent wl^
ne«8, who was a resident of Dallas county, and alleged that by the absent
witness he would prove that the alleged injured party was the aggressor,
acd that he struck said party cnly in defense. The testimony of the
prosecuting witness was not only contradicted as to material matter by
the witnesses for the defense, but they testified that the prosecuting
witness cursed the defendant, and struck him before defendant struck
the prosecuting witness, and that, when the defendant finally strack
the two blows iuflicted upon the prosecuting witness, he, defendant
was retreating. Held that the diligence being sufficient, and the absent
testimony being, in view of the proof, both material and probably
true, a new trial should have been awarded. Id.

4. The aggravation alleged in the information was that tbe accused
is an adult male and tbe injured party a female, and such ailegati on
iuiposed upon the State the onus of proving that the accused was an
adult male — a male person who had attained the full age of twenty-one
years. But in a case of this character the proof need not; show in
ipsissimis verbis that the defendant was an adult. Sufficient tliat he
is proved to have been a *'man" and a ''railroad hand,'* and that it
was not controverted that he was an adult. Henkel v. State, 510.

5. Charge of the court instructed the jury as follows: "The in-
tended injury may be bodily pain, constraint, a sense of shame or
other disagreeable emotion of the mind. The handling of a woman
without her consent, in order to have undue familiarities with her,
may produce such emotions without inflicting bodily pain or injury.*
Held, correct. Id.

6. See the statement of the case for evidence held to have beai
improperly admitted because hearsay; and for evidence Tield insuffi-
cient to support a conviction for aggravated assault because it shows
that the violence inflicted by the defendant was justified in resisting
a a illegal arrest. Massie v. State, 617.

ALIBI.
See Charob op the Court, 9.

The only inculpatory evidence against the accused was the testf
mony of two witnesses to the effect that, subsequent to the theft
of the property, they saw the same removed from a place of coo.
cealment by three parties, one of . whom they believed, but were

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27 Texas CouaT op Appeals. 745

Index.

ALIBI — continued,

not positive, was the defendant. In antiiopcution of this evidence,
the defendant applied for a continuance to seeure a witness by whom
to estal^ish his presence at another plaoe at the time the property
was removed from ' the place of concealment. Being denied the con-
tinaance, and convicted, the defendant asked for new trial because
of the ruling of the court upon his application for continuance. The
new trial was refused upon the ground (as was the continuance)
that the proposed alibi did not cover the time of the theft of the prop-
erty. Held, that the action of the trial court was error, not only be-
cause of the inherent weakness of the inculpatory proof, bat because
an alibi is available, not merely to meet the main issue in the case, bat
any criminative fact relied upon by the State. Taylor v. State^ 44.

AMENDMENT.

Appeal bond or recognizance for appeal must be entered into at
the trial term, and can not be amended after an appeal has been per-
fected. Koritz V, SttUe, 63.

APPEAL.

1. Appeal bond or recognizance for appeal must be entered into at
the trial term, and can not be amended after an appeal has been per-
fected. Koritz V. State, 68.

3. Being convicted and fined in the recorder's court of Galveston city
for a violation of a penal ordinance of the c.ty, the defendant appealed
to the criminal district court of Galveston county, by which court his ap-
peal was dismissed on the ground that it had no jurisdiction of su^h
municipal offenses, inasmuch as no right of appeal in such cases was
conferred by the special charter of Galveston city, nor by the laws of the
State, and because the offense was not against the laws of the State nor
prosecuted in the name of **The State of Texas." Held that the appeal
was erroneously dismissed. See the opinion in extenso for a colloca-
tion tmd construction of the various statutory provisions relevant to
the question. Bautsch v. State, 342.

3. In all criminal cases tried before mayors and recorders of in-
corporated cities, the general policy and intent of the statutes of
Texas secure to defendants a right of appeal commensurate with
that from convictions in justices' courts. The fact that the special
charter of a city wholly ignores such right of appeal from convic-
tions for violation of the municipal ordinances can not frustrate the
right of ap[>eal from such convictions, notwithstanding the municipal
offense consists in an act which is not penal under the general laws of
the State. Id.

APPEAL BOND.
See Appeal.

ASSAULT AND ASSAULT AND BATTERY.

The act of killing, in this case, necessarily included an assault
and battery, and the charge of the court defining murder sufficiently

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746 27 Texas Coubt of Appeals.

Index.

ASSAULT AND ASSAULT AND B ATT ERY^-continued.

embraced aesanlt and battery, bmt the trial court, in addition, gave
in charge an independent definition of assault and battery, ffdd
material error because excepted to. Moreover it was matter calcalated
only to encumber the charge and confuse the jurv. Crook v. State,
198.

ASSAQLT TO MURDER.

1 . An assaul c aod a specific intent to murder are two elements which
must concur in order to coustitnte the oflfense of assault with intent to
murder. The intent must be established as €ui inference of, fact to the
satisfaction of the jury, but the jury may draw that inference, as they
draw all others, from any fact in evidence which to their minds fairly
proves its existence. Trevinio v, State. 872.

2. If the assault is voluntary, is committed with deliberate design,
and with an instrument capable of producing death, and there are no
extenuating circumstances, it is an assault with intent to murder. And
'^whenever it appears upon a trial for assault with intent to murder that
the oflfense would have been murder had death resulted therefrom, th**
person committing such assault is deemed to have done the same with
that intent." See the statement of the case for evidence held suflQcient
to support a conviction for assault with intent to murder. Id.

8. 8ee the statement of the case for evidence held sufiScient to sop
port a conviction for assault with intent to murder. Wilks v. State,
881.

4. The essential ingredient of the oflfense of assault with intent ta
murder is that the assault was accompanied by the specific intent o^
the accused to murder, and this ingredient must be established to the
satifef action of the jury. Wood v. State, 393.

• 5. The offense of assault with intent to murder is proved when it
is shown that, had death resulted from the assault, the oflfense would
have been murder. Another test is that **if the assault is voluntary,
committed with deliberate design cmd with an instrument capable of
producing death in such manner as evidences an intention to take life,
an 4 there are no extenuating circumstances, it is an assault with intent
to muider." Id.

6. The rule is statutory that ''the intention to commit an offense is
presumed whenever the means used is such as would ordinarily result
in the forbidden act.'' And it is elementary that *a man is always
presumed to intend that which is the necessary or even probable con-
sequence of his acts, unless the contrary appears. '^ Id.

7. If a party intending to commit murder, uses a deadly weapon in
Buch a manner as that his intent is apparent or may be fairly inferred
from the act, he can not, by abandoning any further attempt at vio-
lence, mitigate the effect of his previous act or intention; and it is for
the jury to determine, under appropriate instructions upon the law,
whether, by what he did before he abandoned the further execution of
his plans, he really and in fact intended to commit murder. And if
they find that he did so intend to commit murder, and the facts justify
the finding, then this court will not interfere with the verdict Id*

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27 Texas Court op Appeals. 747

_i_ ^ — ■

Index.

ASSAULT TO MURDER— continued,

8. See the statement of the case for evidence held sufficient to sap.
port a conviction for assault to marder. Id,

ASSAULT TO RAPE.

1 . The indictment in this case charged an lusault to rape by foroe^
and the allegation was supported by the testimony of the prosecutrix.
The proof for the defense, however, not only contradicted her testimony
materially, but tended to prove her consent. Upon this state of evi
dence the defense asked a new trial to produce newly discovered evi-
dence strongly supporting the theory of consent. Held that, under
the factfi in proof, the new trial should have been awarded on the newly
discovered evidence adduced by the defense. Reed v. State, 817.

2 To constitute the offense of assault with intent to rape by
force, the offender must have committed an assault or assault and
battery upon the female with the specific intent to rape by force,
and the force thus intended must be such force as might reasonably
be supposed to overcome resistance, taking into consideration the
relative strength of the parties and the other circumstances in the
ca«e; and on a trial for assault with intent to rape by force the trial
court must to instruct the jury. But see the opinion of Willson, Judge,
dissenting from the ruling of the majority of the court, and holding
that, though to constitute the offense of assault with intent to rape by
force, the assault must be accompanied by the specific intent to rape
by force, the character of the force intended is immaterial, and that it
is not the duty of the trial court, upon a trial for assault ]with intent
to rape by force, to give in charge to the jury the definition of *'force,"
as prescribed by article 529 of the Penal Code. Brown v. State, 330.

ATTEMPT TO PASS FORGED INSTRUMENT.
See Fact Cases, 41.

BAIL BOND.
See RECoa£}izANCB, 1.

BILL OF EXCEPTIONS.
See Continuance, 5.

1. Bill of exception reserved to the charge of the court, if too gen-
eral or indefinite to point out specific objection, will not be consid-
ered on appeal; and, in the absence of a proper bill of exception, this
court will examine the charge of the court below only with reference to
fundamental errors or such as, under all the circumstcuices of the case,
are calculated to prejudice the rights of the accused. Peace v, State^
88.

3. Bill of exception to the admission of evidence must disclose the
ground of objection; otherwise it is not entitled to be considered on
appeal. Hughes v. State, 127.

8. In this case the trial court charged upon an issue depending upon

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748 27 Tbxas Court of Appeals.

Index.

BILL OF EXCEPTIONS-con«entt«(i.

the 6¥ideDoe. The defeodant excepted to the churire beoanse it wai
unwarranted by any evidence in the ease. In his anthentioation of
the bill of exceptions, the trial judge recites that there was no such evi-
dence adduced on the trial, and that the evidence referred to in tke
charge was evidence adduced on the trial of another case. The state-
ment of facts does contain evidence which would warrant the charge
but, Ai the bill of exceptions controls, the charge most be held erro-
oneous as unauthorized by any evidence on the trial. Briscoe v, SUiU^
198.

4. Objection to evidence admitted on the trial will not be consid-
ered by this court when not presented by proper bill of exception.
Wilks V. State, 881.

BURDEN OF PROOF.
See EviDENCB, 1.

When the State has established against the accused a prima facie
ca<>e of guilt, it devolves upon the accused to establish the facts upon
^ hich he relies to excuse or justify the forbidden act. Stilly v. State,
445.

BURGLARY.

1 . Indictment for burglary charged that the house was tut lel with
the intent to commit theft, but fails to charge that the entry was made
with the fraudulent intent to take the property from the possession of
the owner; and the allegation of theft fails to charge that the propeity
was taken from the possession of the owner. Held insufficient to charge
the offense. O'Brien v. State, 448.

2 Two of the articles taken from the burglarized house are described
in the indictment as a ''Canadian quarter of a dollar coin and a Mexi-
can quarter of a dollar coin." Two such coins were produced in evi-
dence by the State, and the court admitted the testimony of an officer
that they looked like coins he got from unknown parties after the arrest
of defendant; that he did not know from whom he got them, and that
he did not get them, nor coins like them, from defendant. Held that
this evidence in no way traced the said coins to th^ ims^jession of de-
fendant, and was erroneously admitted. Mann v. State, 580.

CARRYING PISTOL.

1. Whether the accused was *'a person traveling^^ and therefore
exempt from the operation of the statute denouncing the offeose of
carrying a pistol, is a question of fact for the determioation of the jury*
Shelton v. State, 44H.

2. A fugitive from justice, while fleeing the country, is not "ft
person t raveling, ^^ within the exception of the statute forbidding the
carrying of a pistol. Id.

3. ^'A person traveling'^ is a person exempt from the operation
of the statute defining the offense of unlawfully carrying a pistol

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27 Texas Court of Appeals, 749

Index,

CARTING PISTOL— continued.

It is shown in this case that the defendant, with his family in a
wagon, left his home in the Indian Territory to go to B., in Cooke
county. Texas, via G. i& the same coanty; that he arrived at G.
after night and stopped at a wagon yard, where he left his wagon
and family, to go into town for the declared purpose of hiring a con-
veyance to continue his journey that night, but that he was arrested
in a gambling room on that night with a pistol on bis person. Held^
that while en route from the Indian Territory, and while In the wagon
yard in G., and while on the streets of G. to procure a conveyance, or
for any other lawful purpose connected with his journey, he was **a
person traveling'' within the meaning of the statutory exception, but
such exception can not be held to protect him while frequenting the
gambling room. Stilly v. State, 445.

4. A defense witness testified that, about a month before the all
leged offense, the accusei had a difficulty in the Indian Territory
with one Phelps; that Phelps made an unsuccessful attempt to
obtain a weapon with which to kill the ac >used, and afterwards told
the witness that he, Phelps, was "going to Gainesville and fix him-
self, and that he and Jim Stilly never could live in the game country,''
which threat the witness communicated to the accused. Upon
this proof the defense requested the following charge: **The law
authorizes an individual to carry on his person a pistol, who has a
reasonable ground for fearing an unlawful attack upon his person, and
the danger is so imminent and tlireatening as not to admit of the
arrest of the party about to make such attack, upon legal process. To
justify such apprehension, it is not necessary that the danger should
in fact exist, or that the person threatening should be present, or in
view of the defendant at the time of carrying the pistol, but it is only
necessary that the facts and circumstances should be of such a nature
as to excite a reasonable apprehension of danger so imminent and
threatening as not to admit of the arrest of the party threatening an
attack.'^ Heldihekt the danger contemplated by the statute was not
proved, and the instruction was properly refused. Id.

5. The information charged the a[)peltant with carrying a pistol
only, and the evidence on the trial related to the carrying of a pistol
only; notwithstanding which the trial court charged the jury with refer-
ence to the carrying of a dagger, dirk, slung shot, sword cane, spear,
knuckles, etc. Held, error. Tracey v. State, 496.

6. Article 320 of the Penal Code defines the offense of going into a
ohorch, school room or other place where people are assembled for
amusement, etc., having a pistol about the person. The persons ex-
cepted from the operation of this article by article 321 are peace officers
only, and do not include even the owner of the premises in which the
people are assembled. A school teacher does not come within the excep-
tions provided by the said article 821, and is not authorized to carry a
pifetol about his person in his school room, among his pupils, nor on
the occasion of a public assembly in his school room. Alexander v.
State, 583.

Digitized by VjOOQIC

760 27 Texas Court op Appeals.

Index.

CARRYING FlSTOL-continued.

7. That the accused had reasonable ground for fearing an nnlaw-
f ul attack upon his person is not an available defense to a prosecatkm
for a violation of article 320 of the Penal Code. But see the statement
of the case for evidence Tield iosuf&cient to support such defense even
if available. Id.

CARRYING A PISTOL INTO A PUBLIC ASSEMBLY.

See Carrying Pistol, 6.

CASES APPROVED.

1 . A verdict against joint offenders on a joint trial, to be valid, most
assess a separate penaltv against each offender. Elynn v. The State,
8 Texas Ct. App., 389, and Matlock et aL v. The State, 25 Id., 716, and
Cunningham v. The State, 26 Id., 83, approved. Medis & HiU r>. SlaU,
194.

2. Bnland^s case, 11 Texas Ct. App., 159, approved. Ba^uisch ti
State, 842.

3 . Ormondes case, 24 Texas Ct. App., 496, approved. KeUey v. State,
662.

CHANGE OF VENUE.
See Vknuk, 2, 8.

CHARGE OF THE COURT.
See MURDBR, 25-29. Pbinoipal Offbndbbs, 1.

Penalty, 1. Theft, 28.

1 . It is an established rule of practice in this State that, upon tlie
trial of an offense which comprehends different degrees it becomes
the imperative duty of the trial court to instruct the jury upon the
law applicable to every degree or grade of offense indicated by the
evidence, however feeble such evidence may be; that, if there be a
doubt as to which of two or more grades of the offense the accused
may be guilty, the law as to all of such grades should be charged,
and that the trial court should omit to charge the law of any par-
ticular grade only when it is to no extent whatever raised by the evi-
dence. See the statement of the case for evidence adduced on the
trial for murder, which, though sufficient to establish the exprees
malice essential to constitute murder of the first degree, is not of saeh
character as to absolutely preclude the jury from finding therefrom
a killing upon implied malice, and, therefore, murder in the second
degree; wherefore the omission of the trial court to instruct the jury
upon the law of murder of the second degree was error. Blockers
State, 16.

2. The accused, being on trial for murder, contends that under
the law of this State, it is the duty of the trial judge, in murder cases,
without regard to the evidence adduced, to instract the jury as to the
law of murder of the second degree. But held that, notwithstanding
the apparent plausible construction of the statutes upon which the

Digitized by VjOOQIC

27 Texas Court of Appeals. 761

Index.

CHARGE OF THE COTJ RT-^continued.

proposition is maintaiiied, the dootrine obtains in this State that the
trial court may decline to submit to the jury the issue of murder of
the second degree when the evidence wholly fails to present that
issue. See the opinion in extenso upon the question, and note the
suggestion relative to the charge in trials for murder. Id,

8. To charge the jury, in felony cases, upon the law applicable to
the case, whether as-ked or not, is under our law a duty imposed
imperatively upon the trial judge. It is an express provision of our
statute that '4n trials for perjury no person shall be convicted except
upon the testimony of two credible witnesses, or of one credible wit-
ness corroborated strongly by other evidence, as to the falsity of the
defendant's statements under oath, or upon his own confession in
open court/' The trial being upon the plea of not guilty, and not
upon confession in open court, the omission of the trial court to g^ve
in charge to the jury the substance of the above statutory provisions
was fundamental error. Wilson v, 8tate, 47.

4. It is a rule of practice in this State that special instructions,
whether given or refused by the trial judge, must be authenticated
by his signature, and if the record fails to show that such instructions
were refused, the Appellate Court will presume that they were given.
Smith V. State, 60.

5. Special instructions are properly refused when it appears that
to the extent they were correct they were embodied in the general
charge. Id,

6. Note the approval of Wilson v. The State, ante, to the effect that
without a supporting affidavit an information is not sufficient evidence
of jurisdiction alleged in the indictment, and that the omission of the
trial court, on trial for perjury, to give in charge to the jury the sub-
stance of article 746 of the Code of Criminal Procedure, is fundamental
error. But note that the errors in this respect, committed upon the
trial of Wilson's case, were not committed upon the trial of this case.
Id.

7 Special counsel for the State, in the concluding argument for
the prosecution, stated to the jury that *' the defense of an insult to a
man's wife is set up in two-thirds of the cases in this county;" that,
"when before the grand jury the witness Rose made no such state-
ment as that he picked a pistol up from the ground;" that '' be knew
John Collier well, and that he was an honest and truthful man,"
and that ^' John Collier left a wife and a lot of orphan children, and
in their behalf you should punish the defendant;" with reference to
all of which statements the trial judge instructed the jury that they
were not to be considered, as they rested upon no evidence in the case.
Held that the instruction of the trial court was sufficient to counter-
vail any prejudicial tendency of the said statements. Miller u. JState,
63.

8. Objection that the trial court charged the jury abstractly upon
the issue of manslau'.fhter can not be entertained, inasmuch as it was
not interposed when the charge was given, and no probable injury to

Digitized by VjOOQIC

752 27 Texas Court of Appeals.

Index.

CHARGE OF THE COURT— con«iw»«d.

the aedosed is shown. See the opinion for a diarge npon homicide in
defenee of the person against an unlawful attack, and the statement
of the case for a charge upon adequate cause, Tield sufficient, undo the
facts of the case. And note that the CTidence does not call for a charge
upon *'cooHog time/^ nor upon self defense, wherefore the trial court
did not err in omitting to charge upon *' cooling time" nor refusing
the special charge as to self defense. Id.

9. Bill of exception reserved to the charge of the court, if too gen
eral or indefinite to point out specific objection, will not be considered
on appeal; and, in the absence of a proper bill of exception, this court
will examine the charge of the court below only with reference to fun-
damental errors or such as, under all the circumstances of the case, are
calculated to prejudice the rights of the accused. Peace v. State, 88.

10. The charge of the court in this case should, more explicitly than
it. did, have instructed the jury that, to convict, they must find tba*
the defendant was not present at the commission of the murder, and
that the murder was committed by a person or persons who had been
advised, commanded or encouraged by the defendant to commit it.
Dngger v. State, 95.

11 . If the proof tends to raise the question whether or not a State's
witness is an accomplice in the offense on trial, can the trial court, in
any state of case, refuse to submit to the jury the question of accom-
plice vel non, together with proper instructions ui>on the corroboration
of accomplice testimony? If so. it must not only be because the proof
that the witness is an accomplice is meagre, but l^ecause the other proof
in 'the ca^e tends strongly to show that he is not. The proof in this
case fairly mooting the complicity of the two Staters witnesses, the
trial conrt erred in refusing to instruct the jury upon the law of aceom-
plice tesrimony. Hines v. State, 104.

12. Thie trial court instructed the jury to convict in case they
found that the defendant (within the alleged venue and dates) pur
sued the occupation of selling spirituous, vinous and malt liqaors,
in quantities less than a quart, ^^ without having paid the occupation

. tax of three hundred dollars to the State and one hundred and fifty
dollars to the county of Galveston, and the said taxes were then
due and owing and unpaid to' the State and county respectively;''
and further instructed the jury that the penalty was by a fine of not
less than four hundred and fifty dollars, nor more than nine hundred
dollars. Appellant assails these instructions because they substitnte
the phrase "without having paid the tax " in lien of the phrase "with-
out having obtained a license." Held that the substitution was to ap-
pellant's advantage, and affords him no cause for complaint Faheyv.
State, 146.

lo. It was also objected that the instructions assumed as a fact
that the county of Galveston had levied on the appellant^s oocapatloD
a county tax of one half the tax levied on it by the State. The record,
however, shows that the appellant admitted that fact on the trial, and

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27 Texas Court op Appeals. 753

Index.

CHARGE OF THE COURT— conWnutftf.

that the State coneequently introduoed no other proof of it. Held,
that the objeotion is not tenable. Id,

14. Cbjection was taken to the penalty as stated in the instcao-
tions, Tiz: a fine of not less than four hundred and fifty dollars no^
more than nine hundred dollars. Held that the instruction was
oorrect, tnasmuch as the State tax was three hundred dollars and the
county tax one hundred and fifty dollars, aggrejirating four hundred
and fifty dollars, which was the minimum and the doable of which
was the maximum of the fine prescribed by the statute. Id.

15. The trial court charged the jury as follows: **Penetration is
necessary to constitute the offeDse, but penetration only is necessary
to constitute the offense." Held, abstractly correct, but insufficient,
because, in addition to penetration, it is essential in a rape case to
show want of the woman^s consent, and that the act was accomplished
by force, threats or fraud. Johnson v. State, 163.

16. The court charged farther as follows: **It is not sufficient, to
secure a conviction, for the State to make out a prima facie cckse, but
the guilt of the defendant must be shown beyond a reasonable doubt;
and the failure or inability of the defendant to show his innocence
does not lend any additional probative force to the incrimioative fa^ts,
if any, shown by the State, or raise any presumption of guilt against
the defendant." This charge, thoogh abstractly correct, was calcu-
lated to lead the jury to believe that, in the opinion of the court, the
defense had failed to show Innocence. A reasonable doubt of guilt,
independent of exculpatory proof, entitles an accused to an acquittal
Id.

17. The court further instructed the jury that "the defendant is
presumed to be innocent until his guilt is proved beyond a reasonable
doubt; and, if upon the whole evidence you have a reasonable doubt
of his guilt, you must acquit him, and not resolve the doubt by a miti-
gation of the punishment" This charge is objectionable in that the
concluding clause may have induced the jury to inflict the greater pen-
alty instead of the milder one provided by the statutes. Note the sucr-
gestion that in charging the reasonable doubt the trial court should fol-
low the language of the statute. (Penal Code, art. 727.) Id.

18. In this case the trial court charged upon an issue depending
upon the evidence. The defendant excepted to the charge because it
was unwarranted by any evidence in the case. In his authentication
of the bill of exceptions, the trial judge recites that there was no such
evidence adduced on the trial, and that the evidence referred to in the
charge was evidence adduced on the trial of another case. The state-
ment of facts does contain evidence which would warrant the charge,
but, as the bill of exceptions controls, the charge must be held errone-
ous as unauthorized by any evidence on the trial. Briscoe v. State, 193.

10. The rule that, in rape cases, requires that, if the other proof in
the case tends to raise the issue of the female^s consent to the carnal
act, she becomes so far an accomplice that, in order to warrant a con-
Tietion based upon her testimony, she must be corroborated, applies to

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754 27 Texas Court of Appeals.

Index.

CHARGE OP THE COURT— continued.

sodomy cases, and if the evidence tends to show the consent of the
prosecuting: witness to the act of bestiality committed upon him^ he
most be corroborated. The proof in this case tends strongly to show
the consent of the alleged injured party, who, upon the main issae,
was the Staters principal witness; and in failing to instruct the jury
with regard to the corroboration of an accomplice, the trial court
erred. Media d: Hill v. State, 194.

20. The act of killing, in this case, necessarily included an assault
and battery, and the charge of the court defining murder sufficiently
embraced assault and battery, but the trial court, in addition, gave in
charge an independent definition of assault and battery. Held mate-
rial error, because excepted to. Moreover, it was matter calculated
only to encumber the charpre and confuse the jury. Crook v. State, 198.

21. A charge of the court in a trial for murder which omits to define
the terms "malice'' and **malice aforethought" — essential elements of
murder— is fundamentally erroneous, and such error is not cured by a
definition of "express malice.'' Id,

22. The charge of the court defined express malice to be "where one
with a calm, sedate and deliberate mind and formed design kills
another," etc. Held, erroneous, because it omits to qualify the act as
BJi unlawful killing. Id,

28. Upon the defense of alibi as applied to the alleged principal*
the charge of the court required the jury to believe that the alleged
principal was not present at the time and place of the killing. Held
error, because the effect of such charge was to eliminate from the de.
fense of alibi the doctrine of reasonable doubt. Id.

24. While not essential, it was proper that the charge of the court
should instruct the jury as to the forms of the verdict they could re-
turn in this case. The form of the verdict, in the event of conviction,
as prescribed by the charge in this case was as follows: " We, the jury,
find the defendant Mack Crook guilty as an accomplice to murder of
the first degree in the killing and murdering of James H. Black, as
charged in the indictment," etc. Held, correct. Id.

25. Accomplice to crime is a distinct offense, especially defined
by our code, and punished in the same manner as the principal of'
fender. JNote that Hurt, Judge, dissents from this ruling, and maic-
tains that being an accomplice to a crime is not a specific offense, and
that the accomplice is guilty of the offense committed by the princi
pal. Id.

26 In a trial for murder the inculpatory evidence tended to prov-
that the defendant and his brother waylaid the deceased, and that
he was fired upon and killed by one or both of them— both being
present and acting together in perpetrating the homicide. According
to the defense, the meeting of the deceased with the defendant and his
brother was accidental, and the first shot was fired by the decesksed at
the defendant's brother, who. in self defense, and with no co-operation
of defendant, fired upon and killed the deceased. The trial court gave
in charge to the jury the law of murder of the first degree, and of jus-

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27 Texas Court of Appeals. 755

Index.

CHARGE OF THE COVRT-^ontinued,

tiflable homicide in self defense, but refused to give in charge the law
of murder of the second degree and of manslaughter. Held, that the
charge covered the only issues in the case, and properly omitted the
law of murder of the second degree and of manslaughter. Green v.
State, 2iL

27. The minimum punishment for pursuing an occupation taxed by
law without having first obtained necessary license, is a fine of not
less than the tax imposed upon such occupation. And as the license
of a retail liquor dealer can not issue for a shorter period than one year,
the minimum punishment for the violation of the said article 110 is a
fine in the full amount of one year's tax upon such occupation. The
charge of the court so defining the penalty, it was correct. Davidson
V. /State, 262.

28. Failing to request instructions to supply omissions in the charge
of the court, the defendant in a misdemeanor case can not be heard
to complain of such omissions, notwithstanding he may have excepted
to the same. Id,

29 . The swindling was alleged to have been committed by means of a
false written instrument and the false declaration of the accused that the
names appearing to the same were genuine si^^natures. The trial court
charged the jury in effect that before they could convict they must find
that the signatures were on the instrument when it was delivered by
the accused, and that he then falsely and fraudulently declared that they
were genuine, and so induced the issuance of the draft. Held, that the
instruction was correct in principle, and applicable to the chargein the
indictment and the facts in evidence. But see the statement of the case
for evidence upon which it is held that the verdict of guilty is contrary
to both the instruction and the proof. Scott v. State, 2G4.

30. On a trial for horse theft the court admitted hearsay evidence of
the contemporaneous theft of a saddle, which evidence, on motion of
the defense, was stricken out. Thereafter evidence for the State was
admitted identifying as the property of one P. a certain saddle found
in the possession of the defendant when he was found in possession of
the horse, and the court's charge limited the application of such evi-
dence to the identification of the transaction and the intent of the de-
fendant, etc. Held, that, in the absence of proof that the saddle was
stolen, the evidence was erroneously admitted, and the charge was
erroneous because not based upon legal proof. Neeley v. State, 315.

31. Rape by force, as defined by article 528 of the Penal Code, is
carnal knowledge of a woman, obthi:ied by force, without her consent
**Force," as used in the said article, is such force as might reasonably be
supposed sufficient to overcome resistance, taking into consideration the
relative strength of the parties and other circumstances of the case
(Penal Code, art. 520), and upon a trial for rape by force it devolves
upon the trial court to give in charge to the jury such statutory defini-
tion of "force." Brown v. State, 330.

82. To constitute the offense of assault with intent to rape by
force, the offender must have committed an assault or assault and

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756 27 Texas Court of Appeals.

Index.

CHARGE OP THE COV RT-^dontinued.

battery upon the female with the specific intent to rape by force,
and the force thns intended must be such force as mi^t reasonably
be supposed to overcome resistaoce, taking into consideration the
relative strength of the parties and the other circumstances in the
ca^e; and on a trial for assault with intent to rape by force the trial
court must to instruct the jury. But see i lie opinion of Wills ju, J udge,
diss'-nUcg from the ruling of the majority of the court, and holding
that, though to constitute the offense of assault with intent to rape by
force, the assault must be accompanied by the specific intent to rape
by force, the character of the force intended is immateriaL and that it
is not the duty of the trial court, upon a trial for assault with intent
to rape by force, to give in charge to the jury the definition of '*force,"
as prescribed by article 529 of the Penal Code. Id.

88. In its preliminary statement to the jury the charge of th^
court designates the offense on trial as "false swearing," but subse-
quently designates it as perjury — the offense charged in the indictment-
The verdict was general, and found the defendant "guilty,'* and as-
sessed his penalty at five years in the penitentiary, the minimum
penalty for perjury, and the maximum penalty for false swearing. The
judgment of the court on the verdict declares the defendant "guilty of
false swearing as found by the jury," but the final judgment and sen-
tencd declare that he has been "adjudged guilty of perjury." The
8tate moves this court to reform the judgment and sentence so as to
conform them to the verdict, maintaining that, as the verdict is general,
It responds to the indictment, which charges perjury. But Tield that
though this court, in cases wherein the verdict is certain, will exercise
its power to conform the judgment or sentence, or both, thereto, it
will not do so in cases wherein, as in this case, there is any uncertainty
about the import of the verdict O' Bryan v. State, 339.

84. The charge of the court on the doctrine of reasonable doubt is
sufficient if it applies the said doctrine to the whole case. Thurmond
«. 8tat€, 347.

85. See the statement of the case for a charge of the court upon the
lawapplicable to the corroboration of accomplice testimony, Jield suflB-
cient. Td.

86. Upon the ground that it was warranted neither by the indict
ment nor the evidence on the trial, the defense excepted to the charge
of the court to the effect that the jury might convict if they believed
that Owens killed the deceased, and that defendant was present and,
knowing the unlawful intent of Owens, aided him by act or eocoar-
aged him by word or gesture in the commission of the act. ffeld that
the legality of such charge can not be made to depend upon a oorree
ponding allegation in the indictment, and that the evidence on the
trial fairly raised the issue; wherefore the charge was correct. Id.

37. The defense requested the following special instruction: "Yoa
are further instructed that, if you believe from the evidence that the
witness Owens was testifying to save himself from punishment or moral
obliquy of guilt, then his testimony can not be convicted upon, unless

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27 Texas Court of Appeals. 757

Index.

CHARGE OF THE COXJBT— continued.

corroborated as the evidence of an acoomplioe.'" Held that the court
did not err in refusing the instruction. Id.

38. It is only under extraordinary or peculiar circumstances that it
ii proper for the trial court to instruct the jury as to the law govern'
Ing impeaching testimony, and the failure of the court to do so in this
case was not error.

89. Upon the ground that, independent of the confession of the
defendant, the State had adduced no proof of the corpus delicti, the
defense requested the trial court to instruct the jury, in effect, that
before they could consider the coufession of the defendant as inculpa*
tory evidence, the proof of the corpus delicti must be absolute and
beyou i a reasonable doubt. One of the grounds upon which the court
refu.^eJ the requested instruction was that the State, under the pecu-
liar c'rciimstances of this case, was entitled to have the confession
con idered by the jury. Held, that the ruling, in view of the other
l-roof in the case, and of the general charge as given by the court,
w; s correct. Willard v. State, 386.

40. Thr laws of the Cherokee Nation being in evidence, the trial
court instructed the jury that, under said laws, certain acts constituted
tbeft, and Jeft it to the jury to determine from the evidence whether
the defendant committed such acts. Held, suflBcient; and that the
court did not err in failing, in its charge to the iury, to define and con-
strue the laws of the said Nation. Clark v State, 405.

41. See the opinion in extenso for a charge of the court upon the ques-
tion of the possession of recently stolen property, etc , held correct and
responsive to the proof. Id,

43. Omission or refusal of the trial court to submit in charge to the
jury the law of murder in the second degree, when the evidence estab-
lishes only the higher grade, is not error. McCoy o. State, 415.

43. The appellate court, in determining the question whether injury
or probable injury resulted to the accused from the giving of an erro-
neous, or the omission of a necessary, instruction, must consider the
charge in its entirety and as applied to the evidence embodied in the
statement of facts. Id.

44. In this case the general charge of the court clearly and concisely
hinged the guilt of the accused upon the question whether he was
present when C. killed the deceased, and, knowing the unlawful intent
of C , aided or encouraged C. in the killing of the deceased; or whether
he advised or agreed to the killing of the deceased by C, and was
present when C. killed the deceased. The defense requested an alter
native charge based upon the theory that O., unaided in any man-
ner by the accused, shot and killed deceased, and that the shooting
of one E., at the same time and place by the accused, was a distinct
and separate transaction from the killing of the deceased by 0. The
trial court gave the requested instruction with the following qualifi-
cation: **The foregoing charge is given in subordination to the general
charge regarding principals." This qualification was not excepted to^
but was urged as cause for new trial, and is relied upon in this court

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758 27 Texas Court of Appeals.

Index.

CHARGE OF THE COTJRT--continued.

for reversal, the defense maintaining that, if the evidence does not
clearly establish its theory, it leaves it in doabt, and that its said the-
ory should have been submitted to the jury affirmatively, subordinate
to no other charge and untrammeled by any qualification whatever.
Held, that abstractly the objection is sound, and if based upon sufficient
evidence or opposed by insufficient inculpatory proof, would require a
reversal of the conviction; but, the evidence not only refuting the
theory, but establishing beyond perad venture the propositions pro-
pounded by the general charge, the qualification appended to the
special charge by the trial judge did not inure to the injury of the
defendant. Id,

45. A defense witness testified that, about a month before the al-
leged offense, the accuse! had a difficulty in the Indian Territory
with one Phelps; that Phelps made an unsuccessful attempt to
obtain a weapon with which to kill the accused, and afterwards told
the witnes§ that he, Phelps, was **going to Gainesville and fix him-
self, and that he and Jim Stilly never could live in the same country,H
which threat the witness communicated to the accused. Upon
this proof the defense requested the following charge: '*The law
authorizes an individual to carry on his person a pistol, who has a
reasonable ground for fearing an unlawful attack upon his person, and
the danger is so imminent and threatening as not to admit of the
arrest of the party about to make such attack, upon legal process. To
justify such apprehension, it is not necessary that the danger should
in fact exist, or that the person threatening should be present, or in
view of the defendant at the time of carrying the pistol, but it is only
necessary that the facts and circumstances should be of such a natare
as to excite a reasonable apprehension of danger so inmiinent and
threateniog as not to admit of the arrest of the party threatening aa
attack.^^ Held that the danger contemplated by the statute was not
proved, and the instruction was properly refused. Stilly v. StcUe, 445.

46. Charge of the court which omits to instruct the jury that they
must expressly find the truth or untruth of a special plea is erroneoDS.
Wright v. State, 447.

47. The factum probandum of theft is the taking of the propfrty.
If that fact is proved merely as a matter of inference from other factsia
evidence, and not by an eye witness, the case rests wholly upon cireom-
stantial evidence; and the failure of the trial court to cLarge the jury
upon the law of circumstantial evidence is material error. Taylor r.
State, 463.

48. Possession of recently stolen property is not positive evidence
of theft, but merely a circumstance tending to prove theft, and is
therefore in its character simply circumstantial evidence; and, when
alone relied upon by the prosecution, demands of the trial court a
charge upon the law of circumstantial evidence. Id.

49. If the inculpatory facts in a theft case consist alone of recent
possession of stolen property, explained by the accused when first
challenged, it imposes upon the court the imperative duty of explain*

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27 Texas Court of Appeals. 759

Index.

CHARGE OF THE COTJB.T— continued.

ing to the jury in its charge the law applicable to such recent jwsses-
sion and explanation. Id.

50. See statement of the case for a special instruction, given in
charge tn the jury, at the instance of the State, held correct. Wil-
Hams V. State, 4GG.

51 . It is the province of the court, in cases involving the construc-
tion of the laws of «notlier State or country, to construe such laws,
and deterniine when such laws have be^n established in evidence.
In this case the charge left that question, — involving the laws of
New Mexico as to theft, —to the jury, whereas it should have ex-
plained to the jury the purport of that law, and instructed them that
it had been proved. The error, however, is not reversible error, as it
was favorable to the defense. Id.

62. The rule has been announced in repeated decisions of this court
that the possession of recently stolen property is not of itself proof
positive of theft, but that the proof of such possession, ^'however
recent, and whether explained or not, is merely a fact or circumstance
to be considered by the jury, in connection with all the other facts sub-
mitted to them, in determining the guilt of the possessor. ^^ The same
rule requires that when the accused, upon being first challeoged, offers
an explanation of his possession, it devolves upon the court to instruct
the jury as to the effect of such explanation;— that is, if the explana-
tion is reasonable, it will prevail as against the naked possession unless
rebutted by the State. The presumption of guilt which attends pos-
session of stolen property is a presumption of fact for the jury, and not
of law. In this casp the charge of the court, otherwise correct, in-
structed the jury that the '^possession of recently stolen property is
presumptive evidence of guilt." Held, error. Lee v. State, 475.

53. There was no contest or dispute as to the ownership of the stolen
ticket, which fact was proved as alleged in the indictment. In this
state of the case, and in the absence of a requested instruction to
supply the omission, the failure of the trial court to instruct the jury
that the ownership must be proved as alleged was error without preju-
dice. Cunningham v. State. 479.

54. Exception to a charge of the court based upon an erroneous state-
ment of a principle of law will necessitate the reversal of a conviction
without inquiry as to the effect of such error on the jury. In this case
the charge misdirected the jury as to the value which determines the
grade of theft. Moreover, all of the proof in the case showathat the
theft, if theft was committed, was a felonious theft, and the court there-
fore erred in charging at all on misdemeanor theft — the rule being that
the court shall charge only upon issues presented by the evideooe. Id.

55. If the accused acquired lawful possession of the stolen prop-
erty, he can not be convicted of theft unless it is shown that he ob-
tained such possession by false pretext, or with intent, at the very
time he obtained such possession, to deprive the owner of its value, and
to appropriate it to bis own use, and further, that he did so appropriate
it. A charge of the court wli'ch authorized conviction upon proof

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760 27 Texas Court of Appeals.

Index.

CHARGE OF THE COUKF— continued.

that the fraudulent intent wcub conceived cffter lawful possession was
acquired was error. Id.

56. The information charged the appellant with carrying a pistol
only, and the eyldence on the trial related to the carrying of a pistol
only; notwithstanding which the trial court charged the jury with infer-
ence to the carrying of a dagger, dirk, slang shot, sword cane, spear,
knuckles, etc. Held, error. Tracey t?. State^ 496.

57. A charge of the court is erroneous which instructs the jury
upon a phase of case not raised by the evidence on the trial. Id.

58. Charge of the court in u perjury case is fandamentally errone-
ous if it omits to instruct the jury upon the provisions of article 746 Of
the Code of Criminal Procedure. Miller v. 8tate^ 497.

59. The charge of the court defining principals was abstractly cor-
rect, but it failed to apply the law to the facte developed on the
trial. To supply this omission the defendant requested the court
to instruct the jury that, **in order to convict the defendant, they
must And from the evidence that the defendant was, as a principal,
aa hereinbefore defined, concerned in the original taking of the mare;
and if they find from the evidence that one Jeff Griifin first took
possession of the mare alleged to be stolen, and delivered the same
or sold the same, for himself or for one J. J Elkins, to defendaDt,
then they should acquit the defendant although they shoald be-
lieve that the original taking of said animal by Griffin was fraada-
lent and that defendant knew it wa^ fraudulent.^* Held, that the
refusal to give such iDStruotion, under the proof in this case, was error.
Knowles v. State, 503.

60. In its motion for rehearing, the State contends that the com-
plicity of the defendant in the offense charged is shown by the testi-
mony of the witness W., to the effect that defendant told him that
*'all the connection Griffin had with the mare was this: that he, de-
fendant, sent said Griffin to get the mare for him and to bring her tc
him'* — the effect of which would be to constitute G., an innocent agent
acting by command of the defendant, and the defendant by reason
thereof (all other elements of theft existing) the sole principal of-
fender. Held, that if said testimony of W imports such a case, then
the charge of the court was fatally erroneous in not submitting that
phase to the jury; wherefore rehearing is refused. Id.

61. Charge of the court iustrocted the jury as follows: 'The in-
tended injury may be bodily pain, constraint, a sense of shame or
other disagreeable emotion of the mind. The handling of a woman
without her consent, in order to have undue familiarities with her,
may produce such emotions without infiioting bodily pain or injury.'*
Held, correct. Henkel v. State, 510.

62. The trial court instructed the jury as follows: '*The defendant is
prfsumc^d by the law to be innocent until his guilt is establisned by
competent evidence to the satisfaction of the jury, beyond a reasonable
doubt; and if you have on your minds arising from the evidence a
reasonable doubt as to the guilt of the defendant, you will And him not

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27 Texas Court of Appeals. 761

Index.

€flARGE OF THE COJJ RT--continued,

gaUtyy Held, sufficient on the doetrine of reasonable doabt, and not
obnoxlons to the objection that it * "requires either the State or the
defendant to introduce afflrmatiTe evidence of the defendant's inno-
oenoe;*' nor to the further objection that it contravenes the rule that a
reasonable donbt may as well arise from a want of evidence as from
evidence intrrduced before a jury. Zwicker v. State, 580.

68. The defense requested the court to charg^e the jury in effect that
if they believed the defendant was so drunk that he did not realize
what he was saying, when he made his confession, such confession
should not be considered as evidence against him. Held^ that the
requested instruction was properly refused because it not only rested
upon no evidence of drunitenness, but that pretense was refuted by
the proof. Id, «

64 The evidence in this case shows conclusively that the conflict was
provoked and brought on by either the defendant or the deceased, and
that the other, in resisting the attack, acted upon real or apparent
necessity. Held^ that such proof excludes the idea of mutual combat,
and in submitting that issue to the jury the charge of the trial court
was erroneous. Kelley t). State^ 562.

65. See the statement of the cafe for evidence held insufficient to sup-
port a conviction for theft, because insufficient to establish a fraudulent
taking of the property; and note the same for a requested iustruction
to the jury, the refusal of which, under the evidence adduced, was
error. Wilson v. State, 577.

66. See the opinion for a charge of the court upon the law of circum-
stantial evidence held erroneous, and in view of the defendant's excep-
tion, cause for reversal. In lieu of the said erroneous charge, the *
accused asked a special charge on the subject, in the usual form, which
the trial court refused. Held, error. Woods v. State, 586.

67. See the statement of the case for a special charge of the court
requested by the defense which, in view of the proof, was erroneously
refused. Id,

68. On the trial the defense requested the court to instruct the jury
as follows: **1. If you believe from the evidence of the witnesses that

J. T. White had leased the farm of Watson for the year 1887, that he
was for the time owner of said premises, and had the right to use the
premises for his own convenience, so that he did not use them to the
injury of another, and in the use of the same he had a right to open
the fence for his own convenience. 2. Gentlemen, if you believe from
the evidence that defendant cut the fence of Watson for his own
eoBvenience, and not maliciously for the purpose of injuring Watson,
you will acquit. If you have a reasonable doubt as to defendant's
gfuilt you will acquit." Held, that, being correct in principle, and
embodying Issues made by the proof, the refusal of the court to give
said instructions was error. White v. State, 638.

69. Charge of the court on a trial for perjury is fundamentally er.
roneous if it fails to instruct the jury that a conviction for perjury
«an not be had except upon the teatimoay of at least two credible

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762 27 Texas Court of Appeals.

Index.

CHARGE OF THE COURT— continued,

witnesses, or of one credible witness stronfi^ly corroborated by other
evidence, or upon the accused's confession in open court, as to the
falsity of the statements under oath. Brookin v. State, 701.

70. On a trial for theft the trial court charged the jury as follows:
**When two or more persons confpire together to commit an offense,
and each carries out the part agreed to be done by him, and such of-
fense is actually committed, then all parties to such an agreemeDt are
equally guilty of such offense; and if the jury believe from the evidence,
beyond a reasonable doubt, that the defendant fraudulently took the
property charged to have been stolen, as given you in charges Nos. 1
and 2, and that defendant and others agreed or conspired, before or
after such taking, to prove a purchase or pretended purchase of said
cattle, either before or after such taking, this would be no defense
to such fraudulent taking." Held that, under the proof on the trial
(for which see the statement of the case), the charge was not erroneous.
Kegans v. State, 703.

71. See the opinion for the substance of proposed testimony for the
defense held, in view of the other proof in the case, to have been
erroneously excluded. Id,

72. As a general definition of malice, the trial court instructed the
jury as follows: '^Malice means a settled purpose or intention to seri-
ously injure or destroy another." Held, erroneous. Cahn v. State, 709.

78. In view of the evidence, the trial court erred in omitting to
instruct the jury that, if defendant provoked the contest with de-
ceased, but not with the intention of killing or doing him serioas bod-
ily injury, he would not, by such provocation, be wholly deprived of
the right of self defense, but that in such case self defense might he
availed of by him to the extent of reducing the degree of homicide to
a grade less than murder. Id.

74. See the statement of the case for special instructions which, in
view of the evidence, were erroneously refused by the trial oourt Id.

COMMITMENT.
See Contempt of Court, 4.

COMPLAINT.

See Informations, 3.
Variance, 2.

CONFESSION.

1 . The proof on a trial for rape was in d irect conflict as to the identity
of the defendant as the person who committed the offense. A defense
witneirs having testified to facts tending to establish in favor of the de-
fendant a case of mistaken identity, the State, over objection of defend-
ant, was permitted to interrogate the witness as to whether or not, sub-
sequent to the alleged offeose, he received from the defendant a letter
confessing his guilt, and making a statement concerning, and askingin-
formation about, the comniis^'ion of the offence. In permittin*,: this man-

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27 Texas Court of Appeals. 763

Index.

CONFESSION— conWnwec?.

oer of examination the court erred, because, f^rst, if, as manifest, the pur-
pose of the State was to prove that the witness received from defend-
ant a letter written by him and confessing his guilt, it should first have
summoned the witness with a subpama duces tecum to produce the
letter in court. Failing then to produce the letter, the witness might
be examined to prove the reception by him of sach a letter, and that
to his knowledge it was written by defendant. But then the contents
of the letter could not be proved by the witness without proof of the
loss or destruction of the same. Second, if the object of the State was
to impeach the witness, then the fact whether or not he had received
a letter from the defendant was the only fact about which the predi*..
cate was allowable, and, the witness having answered that question in
the negative, the limit of the investigation was reached, under the rule
that '^when a witness is cro^s examined on a matter collateral to the
issue, his answer can not be subsequently contradicted by the party
putting the question." This rule was further violated in this case by
permitting the State to contradict the witness by another witness, ad
to the letter. Johnson v. State, 1G3.

2. Under the common law, the confession made by the accused
under his agreement to become State's evidence, can be used against
him in a prosecution instituted because of his violation of his agree-
ment. But, as heretofore held by this court, such confession, to
be admissible, must have been voluntarily and freely made, unin-
fluenced by persuasion or compulsion; not induced by any promise
creating hope of benefit, nor by threats creating fear of punishment.
A promise, such as will render the confession inadmissible, must be
positive, must be made or sanctioned by a person in authority, and
must be of such character as would be likely to influence the party to
speak untruthfully. A* confession induced by the mere fear of legal
punishment is not thereby rendered inadmissible. Neeley v. State. 324.

8. The defendant in this case, being at large and not in cus-
tody, agreed with the county attorney to testify for the State
against his accomplices in this and other thefts, upon the consid-
eration of immunity to himself from prosecution for such offenses.
He, however, repudiated the agreement, although, when he entered
into it he made a confession which, upon his subsequent trial, was
introduced in evidence against him. The proof shows that such con-
fession was not voluntary, and that it was made upon the promise of
exemption from prosecution. Held that, having: violated his agree
ment to testify for the State, the accused was properly placed upon
trial for the offense charged against him, and that the confession,
being an involuntary one, was properly excluded upon that ground
Id.

4. But the trial court admitted the said confession under the pro-
visions of article 750 of the Code of Criminal Procedure, which legal-
izes a confession in duress as evidence, if it states facts afterwards
found to be true, and which conduce to establish the guilt of the ac-
cused. Held that, if verified in the manner prescribed by said article

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764 27 Texas Court of Appeals.

Index.

CONFESSION— conWnt^(i.

750, such confession would be admissible. But in thia caae there is a
total absence of verifying proof; wherefore, the trial court erred in ad-
mitting the coDfession in evidence. Id.

5. A naked confession is not sufficient of itself to support a convie-
tion. Willard v. State, 386.

.6. The defendaDt requested the court to charge the jury in effect
that if they believed the defendant was so drunk that he did not real-
ize what he was saying, when be made his confession, such confession
should not be considered as evidence against him. Held^ that the re-
quested instruction was properly refused, because it not only retted
upon no evidence of drunkenness, but that pretense was refuted by
the proof. Zwicker tj. State, 539.

CONSPIRACY.

On a trial for theft, the trial court charged the jury as follows:
"When two or more persons conspire together to commit an offense,
and each carries out the part agreed to be done by him, and such
offense is actually committed, then all parties to such an agreement
are equally guilty of such offense; and if the jury believe from the evi-
dence, beyond a reasonable doubt, that the defendant fraudulently
took the property alleged to have been stolen, as given you in charges
Nos. 1 and 2, and that defendant and others agreed or conspired, before
or after such taking, to prove a purchase or pretended purchase of said
cattle, either before or after such taking, this would be no defense to
such fraudulent taking. Held that, under the proof on the trial (for
which see the statement of the case), the charge was not erroneous.
Kegans v. State, 703.

CONSTITUTIONAL LAW.
See District Courts. •

1. Under the Acts of March 11, 1881, and April 4.1881, the appellani
was prosecuted for pursuing the occupation of selling liquors in quanti-
ties less than a quart, without paying the tax required by law and with-
out license, etc. He excepted to the indictment on th^ ground that the
said Acts of 1881 are violative of the Constitution of the State in two re-
spects; firsit, because they contain more than one subject, and embrace
subjects not expressed in their titles; and, second, because, as a con-
dition precedent to engaging in such business, the said Acts require
the tax thereon to be paid in advance for the term of a year, but per-
mit the tax on other occupations to be paid quarterly, and require a
license to pursue said bu-iiness, but permit other-s to be pursued with-
out a licensee, and therefore are repugnant to the constitutional require-
ment of equality and uniformity in taxation. But held that neither of
these objections to the said Acts of 1881 is tenable, nor are the said
Acts repugnant to the Fourteenth Amendment of the Constitution of
the United States. See the opinion in extenso for a lucid exposition
of the principles and precedents which maintain the constitutionality
of the said enactments. Fahey v. State, 146.

3. The present Constitution of Texas provides that "No bill (except

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27 Texas Court of Appeals. 765

Index.

CONSTITUTIONAL LA^N -continued,

general appropriation bills, etc.,) i^faall contain more than one subject,
which shall be expressed in its title.*' Held that an Act may, withoat
oontraveninf^ this inhibition, contain or contemplate more objects
than one. Id,

8 . Section 1 of article 8 of the State Constitution expressly empowers
the Legislature to impose occupation taxes, and section 2 of the same
article requires that such taxes shall '*be equal and uniform upon the
same class of subjects within the limits of the authority levyinjc the
tax." These provisions do not necessitate equality and uniformity as
between different classes of occupations, nor require the imposition
upon every class of the same conditions precedent to their lawful
pursuit; and therefore the requirement from retail liquor dealers of
a license and of prepayment of the tax for a year does not contra-
vene iho said constitutional provisions, though these conditions be not
imposed upon other occupations. So, alf o, one county may, without
infringing said provisions, levy a larger county tax upon an occupa-
tion than is levied on the same occupation by other counties. Id,

4. Article 756 of the Penal Code provides that any person is guilty
of an offense who, being engaged in the slaughter and sale of an.
Imals for market, shall fail to report to the commissioners court of
the county in which he transacts his business, at each regular term
thereof, the number, color, age, sex, marks and brands of all ani-
mals slaughtered by him, together with a bill of sale, or written con-
veyanci to him ior every animal slaupjhtered by him. save such as were
raised by himself, etc. Article 754 of the Penal Code provides that
any person is guilty of an offense who, being engaged in the slaughter
of animals, shall kill or cause to be killed any unmarked or unbranded
animal for market, or shall purchase and kill or cause to be killed, any
animal without having taken a bill of sale or written transfer of the
same from the person selling the same. To a prosecution under article
756, the defendant pleaded the unconstitutionality of the said article
upon the ground that to require him to make such report would be to
require him to give evidence that could be used against him in a pros-
ecution under article 754; wherefore the said article 756 is in contraven-
tion of section 10 of the Bill of Rights. Held, that the defense is un-
tenable, and that the said article 756 is constitutional. Aston v, State,
674.

CONTEMPT OF COURT— CIVIL AND CRIMINAL.

1. Criminal contempt of court consists in the doing of an act in
disrespect of the court or its process, or which obstructs the adminis-
tration of justice, or tends to bring the court into disrepute; and such
contempt, if committed in a justice of the peace's court, may be pun-
ished by the justice of the peace by fine not exceeding twenty-five
dollars, and imprisonment not exceeding one day. Civil contempt of
court consists in failure or refusal to perform an act ordered by the
court for the benefit of another party. Ex Parte Robertson, 628.

2. The relator, who is constable of precinct number three, of Travis

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766 27 Texas Court op Appeals.

Index.

CONTEMPT OF COURT— CIVIL AND CRlUlJi^ Ah-continued.

county, was charged with the execution of a writ of sequestratioii
sued out of the justice's court. Failing to execute the same, he
was proceeded against in the said justice's court by the plaintiff
in the writ. Acting under article 4539 of the Revised Statutes, the
justice of the peace adjudged the relator guilty of contemt>t of his
court, fined him in the sum of thirty-nine dollars and nineteen cents,
to inure to the plaintiff in the writ of sequestration, and committed
him to jail until payment of said fine and costs. Held that the failare
and refusal of the relator to execute the writ of sequestration eonsti'
tuted ciTil contempt of the said judtice^s court, and that the jostioe
exercised his legal authority in so adjudging him guilty, and in im-
posing the said fine and committing him pending payment thereof.
Id,

8. A fine imposed for contempt is not '*debt^ within the meaning
of section 18 of the Bill of Rights, which provides that •*no person
shall ever be imprisoned for debt." Id.

4. Judgment and the commitment in this case are both void be*
cauie they omit the esscDtial recital that it was within the power of
the relator, as constable, to execute the writ; and the commitment is
void for the further reason that, upon its face, it commits the relator
on a fine imposed for criminal contempt. Wherefore the relator is dis-
charged without day. Id.

CONTINUANCE.

1. The statute under which one of plural defendants, whether
jointly or separately iudicted, by filing his affidavit to the effect that
he verily believes there is no evidence against his co-defendant, and
that the testimony of his co defeodant is material to his own de-
fense, may require that his co-defendant be first tried, can not, in-
dependent of other sufficient showing, be held to operate a contin-
uance of his case to secure the testimony of his co-defendant. When
arraigned in the district court of Shackelford county, to which the
venue had been changed from Stephens county, the defendant in this
case filed an affidavit setting forth that Jane Stouard was charged by
separate indictment with the same offense; that the indictment against
Jane Stouard was still pending in the district court of Stephens coonty;
that the testimony of the sadi Jane Stouard was material tohisde
fensp, and that he verily believed there was not sufficient evidence to
convict the said Jane Stouard; upon which affidavit he prayed the
court to order that the sedd Jane Stouard be first tried, and that his
trial be continued in order to enable him to secure the testimony of
said Jane Stouard, if acquitted, ffeld^ that the court did not err in re-
fusing to coutinue the case to await the trial of the co-defendant
Stouard v. State, 1.

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27 Texas Court of Appeals. 767

Index.

CONTINUANCE— con^i7itt6<f.

taken no steps to secure the service of process npon him; and that, al-
though, as shown by a previous application for continuance, the de-
fendant knew that the other witness was an incurable invalid, and xai^
likely ever to be able to leave his bed, he had taken no steps to secure
his deposition. Held that the ruling was correct. Id.

3. Even if the absent testimony set out in an application for con-
tinuance be both admissible and probably true, it will not, if immate*
rial, require the award of a new trialbecause of the refusal of the
continuance. Peace v. State, 83.

4. The application for continuance failing to show the exercise of
legal diligence to secure the absent testimony, and the said absent
testimony, viewed in the light of the proof on the trial, appearing not
to be probably true, the refusal of the continuance could not constitute
cause for new trial. Wilks v, State, 381,

5 Refusal of continuance will not be revised unless presented l^
proper bill of exception. Powers v. State, 700.

"COOLING TIME.-'
See Charge op the Court. 7.
Evidence, 8.

CORPUS DELICTI.

1 . The criminal act and the defendant's agency in producing the
act are issues which the State must prove in order to warrant a oon-
viction for crime. But such issues may be established by circumstan-
tial as well as direct evidence, and the legal test of its sufficiency is
whether it satisfies the understanding and conscience of the Jury be-
yond a reasonable doubt. Willard v. State, 886.

2. A naked confession is not sufficient of itself to support a oonvio-
tion. Id.

8. Upon the ground that, independent of the confession of the de-
fendant, the State had adduced no proof of the corpus delicti, the
defense requested the trial court to instruct the jury, in effect, that
before they could consider the confession of the defendant as inculpa-
tory evidence, the proof of the corpus delicti must be absolute and
beyond a reasonable doubt. One of the grounds upon which the court
refused the requested instruction was that the State, under the pecu-
liar circumstances of this case, was entitled to have the confession
considered by the jury. Held, that the roling, in view of the other
proof in the case, and of the general charge as given by the court, was
correct. Id,

CORROBORATION.
See AccoBiPLicE Testimony, 1.
Charqb of the Court, 85

••CRAPS."
See Exhibiting Gaming Table, 2.

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768 27 Texas Court of Apfealb.

lDd«Z.

CREDIBLE WITNESS.

€€€ DBPINmOliS, 1.

CROSS EXAMINATION OP WITNESSES.

1 . Proof on a trial for rape was in direct conflict as to the identity
of the defendant as the person who committed the offense. A defense
witness having testified to facts tending to establish in favor of defend-
ant a case of mistaken identity, the State, over objection of defendant,
was permitted to interrogate the witness as to whether or not, sabee-
quent to the alleged offense, he received from the defendant a letter
confessing his guilt, and making a statement concerning, and asking
information about, the commission of the offense. In permitting this
manner of examination the court erred, because: First, if, as manifest,
the purpose of the State was to prove that the witness received from
defendant a letter written by him and confessing his guilt, it should
first have summoned the witness with a subpoena duces tecum to pro-
duce the letter in court; failing then to produce the letter, the witness
might be examined to prove the reception by him of such a letter, and
that to his knowledge it was written by defendant; but then the con-
tents of the letter could not be proved by the witness without proof of
the loss or destruction of the same. Second, if the object of the State
was to impeach the witness, then the fact whether or not he had
received a letter from the defendant was the only fact about which the
predicate was allowable, and, the witness having answered that ques-
tion in the negative, the limit of the investigation was reached, undei
the rule that, *'when a witness is cross examined on a matter collateral
to the issue, his answer cannot be subsequently contradicted by the
party putting the question." This rule was further violated in this
case by permitting the State to contradict the witness, by another wit-
ness, as to the letter. Johnson v. State, 163.

2. A witness can not avoid answering a question that is material
to the is«iue, upon the ground that it imputes disgrace to himself, un-
less tuch disgrace amounts to crimination. Under this rule the trial
court did not err in refusing to pennit the defense, upon cross exami-
nation, to ask a State's witness if he did not, upon the trial of one W.,
for rape, endeavor to^et the defendant to procure false testimony
against W., such proj)08ed evidence being material to no issue in this
cate. McCoy v. State, 415.

COUNTY JUDGE.

A county judge is an ofBoer authorized to take affidavits in the body

of his county. OB)^an u. State, 889.

DECLARATIONS.

See EviDBNCK, 16.
Practice, 33.

DEFINITIONS.
See Carrtino Pistol, 2. ExTORTioir, L

Contempt op Court, 1. IfsoiiieavGB.

1. A ''credible witness,^' as used in the statute, means **oneidio,

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27 Texas Court op Appeals. 769

Index.

DEFINITIONS— conttnt*«f.

beiDg competent to give evidence, is worthy of belief.^ WUson f>.
State, 47.

2. This prosecution was for removing mortgaged property oat of the
State, as that offense is defined by artioie 797 of the Penal Code. In the
stead of the statutory word '^remove/* the indictment uses the word
**run." Held, that the words are equivalent as the word **remove" is
used in the statute. See the statement of the case for the charging
part of an indifttment held sufficient to cbarare the offense of removing
mortgaged property out of tbe State. Williams v. State, 258.

8. "Any unlawful act done wilfully and purposely to tbe injury of
anotber is as against tbat person malicious ; tbis wroog motive, when
it is shown to exist, coupled with a wrongful act, wilfully done to the
injury of another, constitutes legal malice." Dempsey v. State, 269.

4. Not only must the proof show that the alleged malicious prose-
cution was actuated by legal malice, but it must show a want of prob-
able cause for instituting the alleged maJicious prosecution. By prob-
able cause is meant the existence of sucb facts and circumstances as
would excite belief in a reasonable mind, acting on tbe facts within the
knowledge of the prosecutor, that the person charged was guilty of
the offense for which he was prosecuted. Under this rule a prosecu-
tion, although Instituted with legal malice, would not be a penal
offense if probable cause existed to believe the offense charged was
committed by the party prosecuted. See the opinion on the question;
and note that in this case though legal malice existed, probable cause
also existed. Id,

5. ^'Writing*' or "written," as those terms are used in the statutes
of this State, include ''printing" or 'printed"; and it is not a valid
objection to an indictment that it is partly written and partly printed.
0' Bryan v. State, 889.

6. ''Wilful," in legal parlance, means with evil intent, with legal
malice, without legal justification, and with no reasonable ground to
believe the act legal. Moore v. State, 439.

7. **Living together," though not defined by the code, means within
the purview of tbe statute defining adultery, that tbe parties "dwell
or reside togetbor; abide together in tbe same habitation as a common
or joint residing place.". The conviction in this ca^e is for adultery
committed by tbe first mode, but the evidence, failing to show tbat
the parties Hved together, although it proves habitual intercourse, is
insufficient to support the conviction. Bird v. State, 68*^

DILIGENCE.

Bee CONTINUANOE, 4.

Eyidencb, 47.

Murder, 17.

1 . The application for continuance recited also the absence of two
material witnesses. Overruling the same for the want of diligence, the
trial judge explained that, although confined in the same jail with one
of the absent witnesses for months, the accused had taken no steps to

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770 27 Texas Cdurt of Appeals.

Index.

DILIGENCE— conWnucc?.

secure the service of process upon him; and that although, as shown
by a previous application for continuance, the defendant knew that
the other witness was an incurable invalid, and unlikely ever to be able
to leave his bed, he had taken no steps to-secure his deposition. Held,
that the ruling was correct. JStouard v. State, 1.

2. In order to warrant the conviction of an overseer of a public road
for failure, neglect or refusal to perform the duties of his office, it de-
volves ni>on the State to show that such failure, neglect or refusal on
his part was wilful — that is, with evil intent, with legal malice, without
legal justification, and with no reasonable ground to believe his action
legal. Such overseer is charged only with reasonable diligence and
effort in the discharge of his duty, and can not be held criminally
responsible for failing to keep his road in repair, when it is shown that
to do so with the means available to him is an impossibility. If he
exercised reasonable diligence and effort, no wilful failure, neglect or
refusal to discbarge his duty can be imputed to him. Moore v. State,
489.

DISTINCT AND CONTINUOUS OFFENSES.

To bet at any game played with dice, by whatever name the game
be kiiown, is an offense under the law of this State. And each
separate act of betting at such a game constitutes a distinct offense.
The consecutive throwing of dice from nightfall until day break does
not constitute a continuous game, and the consecutive betting on the
different throws does not constitute a continuous offense. Day v.
State, 143.

DISTRICT AND COUNTY ATTORNEY.

The county attorney of each county in a judicial district, except
the county in which the district attorney resides, is expressly required
by law to attend the terms of the county and other inferior courts of his
county, and therein to represent the State in all criminal cases onder
prosecution or examination . The district attorney is not required toaid
or assist the county attorney in such prosecutions, and the mere fact
that a prosecution carried on by the county attorney may eventuate in
the return of an indictment to the district court which may ultimately
be prosecuted by the district attorney, will not make such district at-
torney counsel in the cft«e before the return of the indictment. In this
case the examining trial of the accused was prosecuted by a county at- .
toruey prior to the election of the Hon. Rufus Hardy to the district judge-
ship, and while he occupied the office of district attorney. The indict-
ment was found subsequent to his election to the district judgeship, and
was presented at a term of court over which he presided. The record
further shows that the district judge, while district attorney had no
connection whatever with the prosecution of the examining trial. Held
that the objection to the qualification of the judge was properly orer-
ruled. Wilks v. IState, 381.

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27 Texas Court of Appeals. 771

Index.

DISTRICT COURTS.

The relator was oonvicted of a felony at a term of the district
court of Karnes county which, under the law of 1885, began on the
eighth day of April, 1889. Seeking by habeas corpus toavoid the
ezecation of the sentence then pronounced against him, he shows that,
by the act of April 2, 1889, to which an emergency clause was appended,
the time of the holding of the terms of the said district court was
chanpred to the fourth Mondny in March:— his contention being that,
by reason of the said enactment of April 2, 1889, he was tried and con-
victed at a time when a legal term of the said district court could not
be held. Held that, notwithstanding the emergency clause appended
to the act of April 2, 1889, the said act did not operate to invalidate the
term of the court which began on April 8. The sa'd act is constitu-
tional, but, the emergency clause to the contrary. notwithstanding, it
did not take effect until such time as would not deprive any county
in the judicial district of its constitutional right to two terms per
annum of the district court. Ex Parte Murphy, 492.

DISTRICT JUDGE.

A judge is disqualified to preside at the trial of a criminal case
wherein he has been of counsel either for the State or the accused*
Wilks V. Sstate, 881.

DISQU ALl PICATION.
See District Judge.
Jury Law, 3-5.

DYING DECLARATIONS.

1 As a necessary predicate for the admission in evidence of dying
d^clarationSfit must be established that the declarant, when he made
them, was under the sense of impending death, and was sane. jCon
^ciousness of approaching death is provable, not merely by the solemn
protestations of the dying person, but by any circumstance which suf-
eiently shows that when he made the declarations he was under the
fCHFe of impending death. See the opinion and the statement of the
case for evidence held sufficient to establish the necessary predicate for
the proof of dying *!eciarations. Miller v. State, 63.

2. See evidence held sufficient to establish the requisite predicate
for I lie admission of dying declarations. Cahn v. State, 709. ^

EQUALITY AND UNIFORMITY OF OCCUPATION TAX.

Section 1 of article 8 of the State Constitution expressly empowers
empowers the Legislature to impose occupation taxes, and section 2 of
the same article requires that such taxes shall "be equal and uniform
upon the same class of subjects within the limits of the authority levy-
ing the tax." These provisions do not necessitate equality and uni-
formity as between different classes of occupations, nor require the

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772 27 Texas Court of Appeals.

Tndex.

EQUALITY AND UNIFORMITY OF OCCUPATION TAX-conUnued.
imposition npon every class of the same conditions precedent to their
lawful parsuit, and therefore the requirement from retail liqnor deal-
ers of a license and of prepayment of the tax for a year does not con-
travene the said constitutional provisions, though these conditions be
not imposed upon other occupations. So, also, one county may, with-
out infrlng^g said provisions, levy a larger county tax upon an ooen-
pation than is levied on the same occupation by other counties. Fahey
fk State, 146.

EVIDENCE.
See Charqs of the Court, 8, 64.
. CoKFsssioirs, 6.
Thbpt, 6.

1 . To support a conviction for offering adulterated food for sale
it devolves upon the State to prove not only that the accused offered
such food for sale, but that, when he did so, he knew that the said
food was adulterated. See the statement of the case for evideooe held
insufficient to support a conviction for offering adulterated food for
sale. Sanchez v, State^ 14.

2. It is essential in a perjury case not only that the indiotment
shall allege that the court before which the judicial proceediog in
which the perjury is charged to have been committed had ja^i8di^
tion of such judicial proceeding, but that fact must be established by
the proof. Wilson v. State, 47.

8 . Under the law of this State, an information is insufficient for aoy
purpose unless founded upon a complaint, filed therewith, charging
an ofTense. The indictment in this case charged that the perjury was
committed on the trial of a judicial proceeding in the county ooort
•*wherein one Bean was duly and legally charged by information," etc
To support the allegation of jurisdiction of the county court, the State
introduced in evidence the information, but not the complaint Htld,
that the proof was insufficient. Id.

4. As a necessary predicate for the admission in evidence of dying
declarations, it must be established that the declarant, when he made
them, was under the sense of impending death, and was sane. Con-
sciousness of approaching death is provable, not merely by the solemn
protestations of the dying person, but by any circumstance which suf-
ficiently shows that when he made the declarations he was under the
sense of impending death. See the opinion and the statement of the
case for evidence held suflQcient to establish the necessary predicate for
the proof of dyinjr declarations. Miller v. State, 68.

5. The defendant having introduced evidence of threats against
his life, uttered by the deceased, [a short time before the homicide,
the State, over defendant's objection, was permitted* to prove that,
about a year before the homicide, the defendant told a witness that the
*' threats of John Collier (deceased) did not amount to any more than
those of an old woman." Held that objection to this proof was prop-
erly overruled. Id.

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27 Texas Court of Appeals. ' 773

Index.

EVIDENCE— con^inwed.

6. Objection that the trial court chare^ed the jury abstractly upon
the issue of manslaughter can not be entertained, inasmuch as it was
not interposed when the charge was given, and no probable injury to
the accused is shown. See the opinion for a charge upon homicide in
defense of the person against an unlawful attack, and the statement
of the case for a charge upon adequate cause, Tt^ld sufficient, under the
facts of the case. And note that the evidence does not call for a charge
upon ^'cooling time, ^* nor upon self defense, wherefore the trial court
did not err in omitting to charge upon ''cooling time "nor refusing
the special charge as to self defense. Id,

7. See the statement of the c^e for evidence held sufficient to sup-
port a conviction for murder of the second degree. Id.

8. Bill of exception to the admission of evidence must disclose the
ground of objection; otherwise it is not entitled to be considered on
appeal. Hughes v. State, 127.

9. The husband or wife is competent to testify for the other in a
criminal prosecution, but not for the State, uhless the prosecution be
for an offense committed by the one against the other. This rule is
not relaxed by a mere separation of the spouses without a legal sever-
ance of the marriage relation. Johnson v. State, 135.

10. O^^ership, like every other material issue on a trial for theft,
must be proved by competent evidence, and if it rests upon the tes-
timony of an accomplice such proof is insufficient unless legally cor-
roborated. Hanson v. State, 140.

11. See the statement of the case for the substance of evidence held
insufficient to support a conviction for theft. Id.

12. A witness, to be incompetent to testify in behalf of a defendant
upon the ground that he was under indictment for the same offense,
must appear to have been indicted for participation in the very same
criminal act for which the defendant is being tried. It will not suffice
to disqualify him that he is indicted for a similar offense. The defense
in this case offered a witness by whom to prove an alibi. The witness
was rejected, upon the Staters motion, upon the ground that he was
charged by a separate indictment with the same offense. The onus
of establishing incompetency by showing that the indictment against
the witness covered the same criminal act for which the defendant
was on trial rested on the State; and, the State failing to establish that
fact in this case, the presumption obtained in favor of the competency
of the witness, and the ruling of the court was error. Day v. State, 143.

13. In order to authorize the conviction of an accused, as an accoml
plice, it devolves upon the State to establish the guilt of the principa.
of the offense charged against him; and, to establish that specific issue
(but not that the accused is hu accomplice), any evidence is admissible
that would be competent against the principal if on trial. Under this
rule the trial court did not err in admitting proof of the confession of
the principal; and, in limiting the purpose of such proof to the issue
of the principars guilt, the charge of the court was correct. Crook «•
State, \%Q.

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774 27 Texas Court of Appeals.

Index.

BVTDENCE— conWnwcd.

14 The Staters witness Holman testified on the trial of the accased
as an accomplice to inarder, to the acts, deelaratioos and statements
of one Harris, and to a conversation between him, the witness. th«
said Harris, and the alleged principal, to all of which the accased ob-
jected upoD the ground that he was not present at any of the times
testified about, and that it had not been shown that a conspiracy to
commit murder existed between him and the said parties. Held that
this proof in this case was clearly hearsay, and was inadmissible except
upon the predicate of the existence of such a conspiracy. Whether the
proof sufficiently established the predicate was, primarily, a question
to be determined by the court; but, the evidence clearly presenting the
sufficiency of the predicate as an issue in the case, the trial court erred
in failing to submit that issue to the jury, with instructions to disre-
gard the evidence admitted unless the prediciate was established by
other proof. In the same connection the court should have instructed
the jury that a conspiracy can not be established by the acts or declar-
ations of a eo-con8pirator, made after the consummation of the of-
fense and in the absence of the defendant. See the opinion for a
special charge on the subject, which, being correct and demanded by
the proof, was erroneously refused. Id.

15. Expressions of the trial judge, in the presence of i;he jury, with
reference to the cogency of the evidence, if prejudicial to the defend'
ant, and exception is promptly reserved, constitute cause for reversal.
Pending the discussion in the presence of the jury, of the admissi-
bility in evidence of the declarations of an alle;2:ed co conspirator, the
trial judge interjected questions to counsel which clearly intimated
that, in his opinion, a conspiracy had been Sufficiently established to
admit the evidence; to which action of the judge the defendant promptly
excepted. Held, material error. The jury should have been retired
pendin:; the dibcussion and the ruling on the question. Id,

16. A prosecuting witne:»s having testified to certain inculpatory
facts, the defense nought to impea';h him by proving that be bad
made statements contradictory of his testimony on the trial. There-
upon, over objection by the defense, the State was permitted to intro-
duce evidence in support of the good general reputation of the witness
for truth and veracity. Held, that the action of the court was correct
especially in view of the showing that the impugned witnees was a
stranger in the county of the trial. Id.

17. As a predicate for the introduction in evidence of thewritteo
testimony of one T., as delivered at the examining trial, it was proved
that the said T. resided in the Indian Territory at the time of the
examining trial and at the time of this trial. Held that the predicate
was sufficiently established. Id.

18. The defense offered to prove by the witness N. the statement
made to him by an one D. to the effect that the gun with which it was
claimed by the State the killing was done was found by D. at a certain
place, which proof, upon objection by the State, was excluded as hear-
say. Held that the ruling was correct. Id,

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27 Texas Court of Appeals. 775

Index.

BYIDE^C^— continued.

19 . The ewindling was allegred to have been committed by means of a
false written instrument and the false declaration of the accused that the
names appearing to the same were trenuine siunatures. The trial court
charged the jury in effect that before they could convict they must find
that the signatures were on the instrument when it was delivered by
theaccused, and that lie then falsely and fraudulently declared that they
were genuine, and so induced the issuance of the draft. Held, that the
instruction was correct in principle, and app'ic<ible to thechargein the '
indictment and the facts in evidence. But see the stateuient of the case
for evidence upon which it is held that the verdict of guilty is contrary
to both the instruction and the proof. Scott v. State, 264.

20. To authorize a conviction for malicious prosecution, the proof
must show that the prosecution alleged to be malicious was actuated
by malice. Dempsey v. State, 269.

21 . *'Any unlawful aet done wilfully and purposely to the injury of
another is as against that person malicious; this wrong motive, when it
is shown to exist, coupled with a wrongful act, wilfully done to the in-
jury of another, constitutes legal malice." Id.

22. Not only must the proof show that the alleged malicious prose-
cution was actuated by legal malice, but it must show a want of
probable cause for instituting the alleged malicious prosecution. By
probable cause is meant the existence of such facts and circumstances
as would excite belief in a reasonable mind, acting on the facts within
the knowledge of the prosecutor, that the person charged was guilty
of the offense for which he was prosecuted. Under this rule a prose-
cution, although instituted with legal malice, would not be a penal
offense if probable cause existed to believe the offense charged was
committed by the party prosecuted. See the opinion on the question;
and note that in this case, though legal malice existed, probable cause
also existed. Id.

23. On the trial, the court below permitted the justice of the peace
before whom the alleged malicious prosecution was had to testify that
he discharged the alleged injured party, because, in his opinion, the
evidence did not support the charge brought against him. Held,
error. Id.

24. The wife of the deceased, who had been previously tried for
complicity in the same offense, and had been acquitted, testified for
the defense on this trial, and, to impeach her testimony, the SState
was permitted to prove contradictory statements previously made
by her. The objection urged to this by the defense was that she
was under arrest at the time she made the said contradictory state
ments, and that the evidence was hearsay. Held, that the objec-
tion was properly overruled. Articles 749 and 750 of the Code of
Criminal Procedure, excluding confessions made in duress, apply only
to the confessions or admissions of a defendant who is on tHal, made
when under arrest, and they can not be extended to parties not on
triaL Whilst hearsay, safar as the defendant was concerned, thesaid
contradictory statements were admissible to impeach the witness, to

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776 27 Texas Ooubt of Appeals.

Index.

EVIDENCE— con«ntted.

wbieh sole purpose they were properly limited by the charge of the
court. Hawkins v. State, 278.

25. In support of the motion for new trial, the defense filed the
aflQdayit of a third person to the effect that after the trial of Sarah
Washington, for the same offense, and before the trial of the de-
fendant, one of the jurors who tried the defendant, said that the
said Sarah WashiDgton should have been awarded the death peoaltj,
and that the testimony on her trial and that on the trial of defendiuit
was essentially the same. The counter affidavit of the impui^ed juror
affirms that he had no recollection of making the statement imputed
to him, and that, if he made it, he made it in jest, and that he tried the
defendant without bias or prejudice, and solely upon the evidence ad-
duced and the law g^ven in charge. Held^ that the motion for new
trial was properly overruled. Id,

26 . See the statement of the case for evidence Tield^ although drcum-
stantial, to be sufficient to support a capital conviction for marder.
Id,

27 See the statement of the case for evidence objected to by a de-
fendant on tried for murder, heldy in view of the other proof in the
case, to have been properly admitted; and note that the evidence as a
whole is held amply sufficient to support a conviction for murder in
the second degree. Moody v. State, 287.

28 . Whether or not the table on which the game was exhibited was
m^de specifically for gaming purposes can not, ordinarily, affect the

issue in a prosecution for exhibiting or keeping a gaming table for the
puipose of gaming, it being '^rather from the character of the playing,
or the game which is played, that it (the table) receives its specific dedg-
nation." Another test is that it is any table on which any game is
played "which in common language is said to be played, dealt, kept or
exh Ibited." The characteristics of a gaming tablo or bank, as correctly
declared in Stearnes^s case, 21 Texas, 693, are: ''1. It is a ganie, 2. It
has a keeper, dealer or exhibitor. 8. It is based on the principleof the
one aprainst the many — the keeper, dealer or exhibitor against the bet-
ter*, directly or indirectly. 4. It must be exhibited for the purpose of
obtaining betters." Chappell v. State, 310.

29. This indictment char fjes that the appellant * • » "did
unlawfully keep for the purpose of gaming a gaming table used
for gaming, to wit: for playing a game with dice, commonly called
**craps.'" It was proved on the trial that **craps is played by one
man taking two dice in his band and throyring them on the table;
aT)d the man who throws bets on seven or eleven to win, and the
other party bets against him. First one and then another will

'throw the dice. The game can be played on any flat snrface.'* The
same witness testified that he did not know that the accused had .
any interest in the saloon in which the game was played or in the
table on which it was played; that he only knew *'the defendant held
the bets and received five cents for each two throws that were thrown."
Held, that the proof does not support the allegation in the indict-

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27 Tbxas Court of Appeals. 777

Index.

EVIDENCE— cowfiwuect

ment. The table was in no way eraential to the game, which could
have been played on any flat surface; the firame included no keeper or
exhibitor, and was played only by the parties who participated in the
throwing of the dice. Id.

80. On a trial f >r horse theft the coart admitted hearsay evidence of
the contemporaneous theft of a saddle, which evidence, on motion of
the defense, was stricken out. Thereafter evidence for the State was
admitted identifying as the property of one P. a certain saddle found
in the possession of the defendant when he was found in possesiiion of
the horse, and the court's charge limited the application of such evi-
dence to the identification of the transaction and the intent of the de-
fendant, etc. Held, that, in the absence of proof that the saddle was
stolen, the evidence was erroneously admitted, and the charge was
erroneous because not based upon legal proof. Neeley v. State, 315.

81 . The State introduced a witness who testified to a confession made
by the accused, and subsequently introdu<^ed witnesses to support the
reputation for truth and veracity of the witness by whom the confession
was proved. Those witnesses testified that for several years preceding
the removal of the said witness (about eighteen months before the trial)
they lived in the same neighborhood with him. The defense objected
that this evidence did not establish the necessary predicate for the sup-
X>orting testimony. But held that the predicate was sufficient Thur-
mand v . State, 347,

32. It is only under extraordinary or peculiar circumstances that it is
proper for the trial court to instruct the jury as to the law governing
impeaching testimony, and the failureof the court to do so in this case
was not error. Id.

33. A witness for the defense testified that he saw the killing; that
one Owens and not defendant shot and killed the deceased, and
that the defendant was not present at the time of the killing. The
State produced several witnesses who testified that the reputation of
the said defense witness for truth and veracity was infamous. To sup-
port the credibility of its said witness, the defense offered to prove
that he testified to the same facts on previous trials involving the same
subject matter. Held that the rejection of the said proposed proof
wlis correct. Id.

34. An assault and a specific intent to murder are two elements which
must concur in order to constitute the offense of assault with intent to
murder. The intent must be established as an inference of fact to the
satisfaction of the jury, but the jury may draw that inference, as they
draw all others, from any fact in evidence which to their minds fairly
proves its existence. Trevinio v. State. 372.

35. If the assault is voluntary, is committed with deliberate desfgn,
and with an instrument capable of producing death, and there are no
extenuating circuuibtances, it is an assault with intent to murder. And
'^whenever it appears upon a trial for assault with Intent to murder that
the ofifen^e would have been murder had death resulted therefrom, the
person committing such assault is deemed to have done the same with

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778 27 Texas Court op Appeals.

Index.

EVIDENCE— con^nwed.

that intent." Bee the statement of the ease for evidence held sufficient
to support a conviction for assault with intent to murder. Id,

36. The criminal act and the defendant's agency in producing the
act are issues which the State must prove in order to warrant a con-
viction for crime. But such issues may be established by circumstan-
tial as well as direct evidence, and the legal test of its sufficiency is
whether it satisfies the understanding and conscience of the jury be
yond a reasonable doubt. Willard t>. State, 886.

37. A naked confession is not sufficient of itself to support a oonvic
tion. Id,

88. Upon the ground that, independent of the confession of the de-
fendant, the State had adduced no proof of the corpus delicti, the
defense requested the trial court to instruct the jury, in effect, that
before they could consider the confession of the defendant a^ inculpa-
tory evidence, the proof of the corpus delicti must be absolute and
beyond a reasonable doubt. One of the grounds upon which thecoart
refused the requested instruction was that the State, under the pecu-
liar circumstances of this case, was entitled to have the coofessiou
coni<idered by the jury. Held^ that the ruling, in view of the other
proof in the case, and of the general charge as given by the court, was
correct. Id,

89. See statement of the case on this and the former appeal (26 Texas
Ct. App., 126), for evidence Ji£ld sufficient to support a conviction for
cattle theft Id.

40. This was a prosecution for theft— the indictment charging the
theft of three hordes in the Cherokee Nation and the bringiug of the
same into this State. The contention of the defense was that, inasmuch
as under an act of the Congress of the United States a white man ran
not be prosecuted to conviction and punished for a theft committed m
the Indian Territory except in the United States courts, he can not be
prosecuted to conviction in this State for the theft of property in the
Indian Territory, as theft is defined by the law of said Territory, and the
bringing of the same into this State; that, as no act can constitute an
offense unless a penalty for the commission thereof is provided, and as,
under the act of Congress, a white man is not amenable to the law of
the Indian Territory for theft, he can not within the purview of that
law commit theft, it follows that he can not be pirosecuted in this State
under articles 798 and 799 of the Penal Code, and therefore the trial
court erred in admitting in evidence the statute of the Cherokee Nation
defining theft of live stock. Held^ that the defense can not be main-
tained. 1 he rule is that if a person commite in another State or Ter-
ritory acts which, if committed in this State, would be theft, and the
said acts constitute theft under the laws of the said State or Territory,
and he subsequently brings the stolen property into. this State, be can
be prosecuted in this State and punished as if the theft had heen eom-
mitted in this State. The statute of the Cherokee Nation, admitted
in evidcLce over objection, excepts no race nor class from its operation

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27 Texas Court of Appeals. 779

Index.

EVIDENCE— conWnttC(/.

and dearly defines the offense of theft with penalty annexed, and it
was properly admitted in evidence . Clark v. State, 406.

41. A State's witness was permitted to testify that, about two or
three weeks before the homicide, the defendant, in the presence of the
witness and others, said that if the deceased ever came to Twohig
he had better come shooting or he would not leave there alive. The
objection urged was that the evidence did not tend to show the com-
plicity of the defendant as a principal actor in the homicide, nor to
establish a conspiracy with C, who was the actual perpetrator, to
kill the deceased. Held, that the proof showing defendant to have
been present at the homicide, the evidence was properly admitted in
corroboration of attending circumstances evidencing not only a con-
spiracy to murder the deceased, but that the defendant and C. acted iu
concert in the perpetration of the murder. McCoy v State. 415.

42. A witness can not avoid answering a question that is material
to the issue, upon the ground that it imputes disgrace to himself, un-
less feuch disgrace amounts to crimination. Under this rule the trial
eourt did not err in refusing to permit the defense, upon cross exami-
nation, to ask a State's witness if he did not, upon the trial of one W.,
for rape, endeavor to get the defendant to procure false testimony
against W., such proposed evidence being material to no issue in this
ea^e. Id.

43. The motion for rehearing shows to the satisfaction of this court
that, by reason of a clerical error in a bill of exceptions, the origlna
opinion states that the witness E. testified that the threats of the de
ceased were to be executed at Cotulla, whereas in fact the said witne-s
testified that Twohig was the place whereat, in the event of the deceased
going there, the threats would be executed. But ?i€ld that, notwith-
standing this showing, the motion for rehearing must be denied, be-
cause, in the light of the evidence on the trial, the absent testimony,
if adduced, could nothave affected the result of the trial. Id.

44. Allegation in an indictment for murder thac the deceased was
killed by a shot fired from a gun will admit proof tliat the fatal shot was
fired from any kind of a fire arm. But in this case the indictment alleged
that the deceased was ^hot and killed by the defendant ''with a weapon
to the grand jurors unknown." To prove the diligence of the grand jury
to ascertain the character of the weapon used, the State asi<ed the fore-
man of the grand jury: *'What effort, if any, did you make to learn the
manner and cause of the deaili of deceased, and what conclusion did
you arrive at?" The witness replied as follows. **We had a great many
witnesses before the grand jury, and we returned this indictment,
which we thought was right." Held that the question was erroneously
allowed, because upon the question ot diligence it was too broad and
eomprehensive, and was calculated to and did elicit an answer at once
incompetent and prejudicial to the rights of the defendant. JfoTik v
State, 450.

45. The indictment having alleged that the dec<>aspd came to his
death by being shot, it devolved upon the State to establish that fact

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780 27 Texas Court of Appbaia

Index.

EVIDENCE— contintied.

by competent evidence. See the opinion for evidence admitted on the
issue Tield incompetent because in part hearsay, and in part the opiDion
of a witness based upon investigation to which the defendant was not
a party. Id,

46. See the statement of the case for evidence held iosofflcient to
support a conviction for murder in the sesoud degree. Id.

47. The indietjnent charged the murder of one C. Spears. The State
proved that subnequent to the disappearance and alleged murder of
Spears the defendant collected from one A. a sum of money due by A.
to one Pierce, Heldy that in view of proof showing the said Pierce
and the said Spear^ to be one and the same person, the evidence was
properly admitted. Jump v. State, 459.

48. The sheriff of Dallas county was permitted, over objection by
defendant, to testify that, subsequent to the alleged murder, he ar-
rested Monk, a party charged by separate indictment with the same
offense, in a distant county. Held, error, because even if the evidence
were t^uffioient to establish a conspiracy between defendant and Monk,
the proof related to matters transpiring after the consummation of
the conspiracy. Id.

49. See the opinion for the substance of evidence held insufficient to
support a conviction for aggravated assault and battery beciuse insuf-
ficient to support the ground of aggravation alleged in either of tbe
counts of the indictment. Stevens v. State, 461.

50. The application for continuance shows that the defendant sued
out as many as four subpoBnas and one attachment for the absent wit-
ness, who was a resident of Dallas county, and alleged that by the absent
witness he would prove that the alleged injured party was the aggressor,
ard that he struck said party only in defense. The testimony of the
prosecuting witness was not only contradicted as to material matter by
the witnesses for the defense, but they testified that the prosecuting
witness cursed the defendant, and struck him before defendant struck
the prosecuting witness, and that, when the defendant finally struck
the two blows ioflicted upon the prosecuting witness, he, defendant
was retreating. Held that the diligence being sufficient, and the absent
testimony being, in view of the proof, both material and probably
true, a new trial should have been awarded. Id,

51. The factum prohandum of theft is the taking of the property.
If that fact is proved merely as a matter of inference from other facts in
evidence, and not by an eye witness, the case rests wholly upon circum-
stantial evidence; and the failure of the trial court to charge the jury
upon the law of circumstantial evidence is material error. Taylor c.
State, 403.

52. Possession of recently stolen property is not positive evidence
of thf ft, but merely a circumstance tending to prove theft, and is
therefore in its character simply circumstantial evidence; and, when
alone relied upon by the prosecution, demands of the trial court a
charge upon the law of circumstantial evidence. Id,

53. If the inculpatory facts in a theft case consist alone of recent

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27 Texas Court of Appeals. 781

Index.

EVIDENCE— con«nw6d.

possession of stolen property, explained by the accused when first
challenged, it imposes upon the coart the imperative duty of explain-
ing to the jury in its charge the law applicable to suah recent posses-
sion and explanation. Id,

54. Over the objection of the defendant the State was permitted to
introduce in evidence a bill of sale, conveyinc the alleged stolen horses
to the defendant, which bill of sale was found in and taken from the
I>osses8ion of the defendant after his arrest. Held, that gaid bill of
sale was properly admitted, in view of the proof showing that it was
fabricated by the defendant. It was no objection to said evidence that
it was taken from the defendant after his arrest and without authority
of law, Williams u. 8tate^ 466.

65. As a standard of comparison whereby to identify the hand
writing: in the bill of Fale as that of the defendant, the State was per-
mitted to introduce in evidence the authenticated signatures of the de-
fendant to applieation for continuance, etc., in this case. Held correct.
Id,

56-. Inasmuch as an accessory, whose principal is in arrest, can not
be tried and convicted until after the trial and conviction of the ar-
rested principal, it devolves upon the State, in the trial of the acces-
sory, to show the conviction of the principal. And to make such proof
in this case, the court properly permitted the State to introduce in
evidence the verdict and judgment of conviction rendered against the
principal. West v. State, 472.

57. The indictment charg:ed the defendant with the theft in Dallas
county, Texas, of a "coupon railroad ticket, which said ticket en-
titled the holder thereof to one ^rst class passage from Caldwell
in Burleson county, Texas, to New York City by way of Purcell,
Kansas City, Quincy, Chicago and Buffalo," the said ticket being
the property of the Gulf, Colorado & Santa Fe Railway, and of the
value of fifty-geven dollars. The State's witness Cade testified that the
value of the ticket, as representing and good for the fare over the said
line from Caldwell to New York, was fifty-seven dollars, and that as
representing the fare from Dallas to New York, deducting the fare
from Caldwell to Dallas, it was fifty two dollars. The State's witness
Hirsch testified that the ticket, as representing the price of a first
class fare from Dallas to New York, was worth in Dallas the sum of
fifty-five dollars; to all of which testimony the defense objected that
the market value of the said ticket in Dallas was the one question at
issue. But held that, in view of Hirsch's further testimony that he
paid the defendant twenty-five dollars for the ticket, the admission of
the evidence, if erroneous, constituted immaterial and harmless error.
Cunningham v. State, 479.

58. The defense oflfered in evidence a letter addressed by the gen-
eral passenger agent of the Gulf, Colorado & Santa Fe Railway to the
conductors on the lines of the said railway, notifyinaj them of the
theft of the said ticket, and directing them to take up the s-^me if of-
fered for fare, cancel the same and return it to the ofQce of the writer.

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782 27 Texas Court of Appeals.

Index.

E VIDENC E— continued

Held, that the letter being relevant to no issue in the case, was properly
exeladed Id.

59. An information for slander by imputing to a female a want of
chastity should allege, at least in substance, the language actually used
by the accused, and to that language the proof should be confined. If
the meaning of the language as charged be obscure, then the informa-
tion should allege its meaning; otherwise proof of its meaning is not
admissible. The meaning of the language charged by the informatioo
in this case is clear and unambiguous, but the language proved is not
only variant from that alleged, but is obscure in meaning. The trial
court permitted a State's witness to testify that he understood the lan-
guage used by the accused to correspond in meaning with that charged
in the information. Held, error. See the opinion for the substance o'
evidence Jield insufficient to support a conviction for slander becanj«
it does not support the allegations in the information. Berry v. 8tate^
483.

60 . If the words * *any art i cle whatever, " as used in [article 470, oonld
when said article is construed in connection with article 471, be held to
include an inferior quality of merchandise of the same kind as that
with which the vessel or package is apparently filled, then, before a
conviction could be had, it would devolve upon the State to prove
that the accused, with respect to ^aid vessel or package, acted with a
guilty knowledge. Lidtke v State, 500.

61 . The aggravation alleged in the information was that the accased
is an adult male and the injured party a female, and such allegati on
imposed upon the State the onus of proving that the accused was an
adult male — a male person who had attained the full age of twenty one
years. But in a case of this character the proof need not show in
ipsissimis verbis that the defendant was an adult. Sufficient that be
is proved to have been a *'man" and a "railroad hand," and that it
was not controverted that he was an adult. Henkel -o. State, 510.

62. Over the objections of the defendant, the State was permit
ted to introduce in evidence a prior indictment against the defend-
ant for demanding, as county judge, fees not allowed by law. Held,
that the evidence was properly admitted as tending to show a knowl-
edge on the part of the defendant that the fees demanded by him
were not lawful, — to which purpose the said evidence was expressly
limited by the charpre. Brackenridge t?. State, 518.

63. Article 8415 of the Revised Statutes provides that *lio officer
Fhall be prosecuted or removed from office for any act he may have
committed prior to his election to office." The proof shows that the
defendant was elected and qualified as county judge of Travis county
in 18HG. That he was re elected on the sixth day of November, 1888;
that the offense was committed on the fifteenth day of November, 1888
and that he did not qualily under his re-election until the twenty-first
day of November, 1888. It is contended that, under this proof, the de
fendant is protected from removal by the said section 3415. because he
had not qualified as his own successor as county judge at the time of

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27 Texas Court of Appeals. 783

Index.

'EYWE^CE— continued,

the alleged ofTeDse. Bat held that the position is not maintainable;
the defendant, at the time of the offense, was county jndfire de facto
and dejure, and by virtue of bis election and qualification in 1886 was
exercising th^ functions of his office, and had the legal right to eseroise
them until his successor should quaUfy; wherefore his official acts on
the fifteenth day of November. 1888, came within the purview of article
8888 of the Revised Statutes, and not of article 8415. Id.

64. Two of the articles taken from the burglarized house are described
in the indictment as a ''Canadian quarter of a dollar coin and a Mexi-
oajn quarter of a dollar coin." Two such coins were produced in evi-
dence by the State, and the court admitted the testimony of an officer
that they looked like coins he got from unknown parties after the arrest
of defendant; that he did not know from whom he got them, and that
he did not get them, nor coins like them, from defendant. Held that
this evidence in no way traced the said coins to the possession of de-
fendant, and was erroneously admitted. Mann v. State, 580.

65. The record in this case failing to show that the venue of the
offense was proved as alleged, the conviction must be set aside. Woods
V. State, 586.

66 See the opinion for a charge of the court upon the law of circum-
stantial evidence held erroneous, and in view of the defendant's excep-
tion, cause for reversal. In lieu of the said erroneous charge, the
accused asked a special charge on the subject, in the usual form, which
the trial court refused. Held, error. Id.

67. See the statement of the case for a special charge of the court
requested by the defense which, in view of the proof, was erroneously
refused. Id.

68. The information charges that the accused, on March 5, 1888,
did play a game of cards in a certain out house, "said out house being
then and there a place where people did then and there resort.*'
To authorize a conviction under this information it was necessary for
the State to show by the evidence that the offense was committed prior
to the presentation of the information, and that at the very time it
was committed the said out house was a place where people resorted.
See the opinion for the substance of evidence held insufficient to sup-
port a conviction for playing cards in a place of public resort. Lynn
V State, 590.

69. Indictment for robbery having unnecessarily described the money
of which the accused robbed the injured party as * lawful money of
the United States of America," it was essential to the validity of the
conviction that the kind of money be proved as alleged. The proof in
this case, falling short of this requirement, does not support the con-
viction, and the accused should have been awarded a new trial. Coffelt
V. State, 608.

70. The indictment alleges that the accused took the money from the
person of F. The proof shows that the accused and t nether presented
pistols at P., and demanded the money, and that P., in fear of his life
or of serious bodily harm, and after being struck, delivered the money.

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784 27 Texas Ooubt of Appeals.

Index.

EYIDEUfCE— continued.

The defense contends that this proof shows a delivery of the money
by F. through fear, and, therefore, that there is a fatal varianoe be-
tween the allegation and the proof. Bat Tield that such a delivery is
a taking within the purview of the statute defining robbery, and
therefore there is no variance. Id,

71. See the statement of the case for evidence held to have been
improperly admitted because hearsay; and for evidence Tield insuffi-
cient to support a conviction for aggravated assault because it shows
that the violence inflicted by the defendant was justified in resisting
an illegal arrest. Massie t). State, 617.

72. See the statement of the case for charges of the court on circum-
stantial evidence and upon the possession of recently stolen property
held erroneous, and see the same for evidence held insufficient to sup-
port a conviction for tbeft Hannah v, State, 628.

73. See evidence improperly admitted, because hearsay. NuekoUs
V. State, 690.

74. When previously arraigned for trial for cattle theft, the accused
applied, under oath, for a continuance for want of two absent wit
nesses, whoee absence, he averred in his application, was not by his
procurement or consent, — ^and this averment in the said applicatioD
is the perjury assigned in this case. On this trial it was proved that
several days before the case for cattle theft was called, the defendant
told the said witnesses that he would not need them on his trial; tbac
they need not attend, and they were excused by him from attendiog
that trial in his behalf. To meet this evidence the defendant offered
to prove by the witness B. tbat^ after he had excused the said witnesses,
and before the theft case was called for trial, he directed the said B. to
countermand his agreement excusing them from attending and testify-
ing in his behalf on the trial, and to require them to be present as
witnesses in his behalf; that, being himself confined in jail, he ooold
not attend to the matter himself, and B. promised but failed to do as
directed by him. This proof was excluded upon objection of the
State. Held, error, ina«>much as it tended to show, and, if true, did
show, a false statement under oath made by mistake. Brookin v. State,
701.

75. Charge of the court on a trial for perjury is fundamentally er-
roneous if it fails to instruct the jury that a conviction forperjary
can not be had except upon the testimony of at least two credible
witnesses, or of one credible witness strongly corroborated by other
evidence, or upon the accused's confession in open court, as to the
falsity of the statements under oath. Id.

76. A State's witness testified that he arrested the defendant oo the
day of the shooting and near where it occurred, but was unable to
state what length of time had elapsed since the shooting occurred.
The defense, on cross examination, proposed to prove by the witoess
the statement made to him by defendant, when arrested, about the
shooting. The proposed proof was excluded as no part of the res
gestge. Held, correct. Cahn tJ. State, 709.

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27 Texas Court of Appeals. 785

Index.

'EYlJyENCE— continued.

77. The testimoDy of the defenpe tends to show that about the time
of the fatal shooting the defendant claimed that the deceased was
indebted to hun a sum of money. It also shows that the employment
of the defendant as the business manager, bookkeeper and confidential
agent of the deceased terminated in June, 1887. In rebuttal of the
defendant's claim of money due him by the deceased, the State intro-
duced in evidence, over objection of defendant, a promissory note
executed by the deceased in favor of the defendant, dated June 2, 1887,
which showed by defendant's indorsement to have been paid, and also
a receipt, executed on the same day by the defendant, acknowledginf^;
the payment in full by deceased of all claims then due. Held^ that
the trial court did not err in admitting the said note and receipt in
evidence. Id.

78. During the progress of the trial the defendant's counsel re-
quested permission of the court to consult a State's witness with
reference to the testimony he would give in the case. The court
granted the request, but the witness refused to disclose his testimony
to the counsel, and the latter moved the court to compel the witness
so to do. The court refused the motion, and the defendant excepted.
Hdd, that the ruling was not error. Id,

E
EXEMPTION.
See CARRYiNa Pistol, 1, 2, 6, 7.

1. *'A person traveling*' is a person exempt from the operation
of the statute defining the offense of unlawfully carrying a pistoL
It is shown in this case that the defendant, with his family in a
wagon, left his home in the Indian Territory to go to B., in Cooke
county, Texas, via G. in the same county; that he arrived at G.
after night and stopped at a wagon yard, where he left his wagon
and family, to go into town for the declared purpose of hiring a con'
veyance to continue his journey that night, but that he was arrested
in a gambling room on that night with a pistol on his person. Held,
that while en route from the Indian Territory, and while in the wagon
yard in G., and while on the streets of &. to procure a conveyance, or
for any other lawful purpose connected with his journey, he was **a
person traveling" within the meaning of the statutory exception, but
such exception can not be held to protect hifia while frequenting the
gambling room. Stilty v. State, 445.

2. When the State has established against the accused a prima facie
ca«e of guilt, it devolves upon the accused to establish the facts upon
which he relies to excuse or justify the forbidden act. Id.

8. A defense witness testified that, about a month before the al-
leged offense, the accusefl had a difficulty in the Indian Territory
with one Phelps; that Phelps made an unsuccessful attempt to
obtain a weapon with which to kill the accused, and afterwards told
the witness that he, Phelps, was **going to Gainesville and fix him-
self, and that he and Jim Stilly r:ever could live in the same couptrj/^

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730 27 Texas Court op Appeals.

Index.

EXEMPTION— cone^nw«d.

which threat the witness oommanieated to the accused. Upon
this proof the defense requested the following charije: "The law
authorizes an individual to carry on his person a pistol, who has a
reasonable ground for fearing an unlawful attack upon his person, and
the danger is so imminent and threatening as not to admit of the
arrest of the party about to make such attack, upon legal process. To
justify such apprehension, it is not necessary that the danger should
in fact exist, or that the person threatening should be present, or in
Tiew of the defendant at the time of carrying the pist'>l, but it is only
necessary that the facts and circumstances should be of such a nature
as to excite a reasonable, apprehension of danger so imminent and
threatening as not to admit of the arrest of the party threatening an
Attack." Held that the danger contemplated by the statute was not
proved, and the instruction was properly refused. Id,

EXHIBITING GAMING TABLE.

1. Whether or not the table on which the game ^as exhibited was
made specifically for gaming purposes can not, ordinarily, affect the
issue in a prosecution for exhibiting or keeping a gaming table for the
purpose of gaming, it being * 'rather from the character of the playing,
or the game which is played, that it (the table) receives its specific desicr-
nation." Another test is that it is any table on which any game is
played ''which in common language is said to be played, dealt, kept or
exhibited.'* The characteristics of a gaming table or bank, as correctly
declared in Stearnes's case, 21 Texas, 693, are: "1. It is a game, 2. It
has a keeper, dealer or exhibitor. 8. It is based on the principle of the
one against the many — the keeper, dealer or exhibitor aarainst the bet-
ters, directly or indirectly. 4. It must be exhibited for the purpose of
obtaining betters. " Chappell v. State ' 310 .

2. This indictment charges that the appellant ♦ ♦ ♦ ''did
unlawfully keep for the purpose of gaming a gaming table used
for gaming, to wit: for playing a game with dice, commonly callM
**craps.'" It was proved on the trial that **craps is played by one
man taking two dice in his hand and throwing them on the tablei
and the man who throw»bets on seven or eleven to win, and the
other party bets against him. First one and then another will
throw the dice. The game can be played on any flat surface." The
same witness testified that he did not know that the accused had
any interc^it in the saloon in which the gaq^e was played or in the
table on which it was played; that he only knew *the defendant held
the bets and received five cents for each two throws that were thrown."
Held, that the proof does not support the allegation in the indict-
ment. The table was in no way ehsential to the game, which coald
have been played on any flat surface; the game included no keeper or
exhibitor, and was played only by the parties who participated in the
throwing of the dice. Id.

EXPRESS MALICE.
Bee CHABe£ of the Court, 21, 2

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27 Tbxas Court of Appeals. 787

Index.

EXTORTION.

In legal parlance, and as used in article 240 of the Penal Code,
defining extortion, the word * ^demand'' means ''a requisition or request
to do a particular thing specified under a claim of right on the p»xt of
the person requesting.'' One of the duties of a county judge is to
present to the county commissioners his certified account for the fees
allowed him by law in criminal cases, and the presentation of such an
account by a county judge to the county commissioners, with the re-
quest that they approve the said account as a claim against the county^
constitutes a ''demand'' within the meaning of the law. Among the
fees which the county judge is entitled to demand and receive from
the county is the sum of three dollars for each criminal action ^'tried
and finally disposed of" before him. A criminal action dismissed is
not a criminal action '''tried and finally disposed of/^ and if the certified
account presented by a county judge to the county commissioners in-
cludes a fee for a criminal action merely dismissed, the presentation of
such an account amounts to a * 'demand" for fees not allowed by law.
See the opinion in extenso for indictment held sufflcieut to charge the
offense of extortion as defined by article 240 of the Penal Code. Brack-
enridge v. State, 518.

EXTRA TERRITORIAL OFFENSES. •

1. This was a prosecution for theft — the indictment charging the
theft of three horses in the Cherokee Nation and the bringing of the
same into this State. The contention of the defense was that, inasmuch
as under an act of the Congress of the United States a white man can
not be prosecuted to conviction and punished for a theft committed in
the Indian Territory except in the United States courts, he can not be
prosecuted to conviction in this State for the theft of property in the
Indian Territory, as theft is defined by the law of said Territory, and the
bringing of the same into this State; that, as no act can constitute an
offense unless a penalty for the commission thereof is provided, and as,
under the act of Congress, a white man is not amenable to the law of
the Indian Territory for theft, he can not within the purview of that
law commit theft, it follows that he can not be prosecuted in this State
under articles 798 and 799 of the Penal Code, and therefore the trial
court erred in admitting in evidence the statute of the Cherokee Nation
defining theft of live stock. Held^ that the defense can not be main-
tained. 1 he rule is that if a person commits in another State or Ter-
ritory acts which, if committed in this State, would be theft, and the
said acts constitute theft under the laws of the gaid State or Territory,
and he subsequently brings the stolen property into this State, he can
be prosecuted in this State and punished as if the theft had been com-
mitted in this State. The statute of the Cherokee Nation, admitted
in evidei ce over objection, excepts no race nor class from its operation
and clearly defines the offence of theft with jTenalty annexed, and it
was properly admitted in evidence. Clark v. State, 405.

2. The laws of the Cherokee Nation being in evidence, the trial
, court instructed the jury that, under said laws, certain acts constituted

theft, and left it to the jury to determine from the evidence whether

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788 27 Texas Court op Appeals.

Index.

EXTRA TERRITORIAL OFFEISSES— continued.

the defendant committed such acts. Held, solBeient; and that the
court did not err in failing, in its charge to the lory, to define and con'
strue the laws of the said Nation . Id.

F
PACT CASES.

I. See the statement of the case for evidence held insulBeient to
support a conviction for murder of the second degree because it rests
upon the testimony of an insufficiently corroborated accomplice.
Btouard v. State, 1.

2 To support a conviction for offermg adulterated food for sale
It devolves upon the State to prove not only that the accused offered
such food for sale, but that, when he did so, he knew that the said
food was adulterated. See the statement of the case for evidence held
insaiflcient to support a conviction for offering adulterated food for
sale. Sanchez v. State, 14.

8. Evidence insufficient to sapport a conviction for theft. Reveal v.
State, 57.

4. Evidence sufficient to support a conviction for murder of the
second degree. Jf tiler v. State, 63.

5. Evidence sufficient to ^pport a conviction for murder of the
first degree. Feace v. State, 83.

6. See the statement of the case for evidence Tield insufficient to
support a conviction as an accomplice to murder. Bugger v. State, 95.

7. See the statement of the case in this, and in the case of ex
parte Smith and Hughes, 26 Texas Court of Appeals, 134, for evi-
dence held sufficient to support a conviction of murder of the first
degree. Hughes v. State. 127.

8. Evidence held insufficient to support a conviction for assault and
battery. Franklin v. State, 136.

9. Evidence insufficient to support a conviction for theft Hanson
tJ, State, 140.

10. Negligence by omission consists in the omission to perform an
act with the performance of which the party is especially charged, and
there can be no criminal negligence in the omission to perform an act
which it is not the express duty of the party to perform. Under this

• rule brakemen on a railway train, whose duty Is shown to pertain in
no degree to the operation of a locomotive, nor to the watching of the
railway track, nor the sounding of the danger signal, can not be held
liab?e for the killing of a person by the locomotive, operated by the
engineer and fireman. Upon whom the duty of operating it exclusively
devolved. See the statement of the case for evidence held insufficient
to support a conviction for negligent homicide. Anderson et al. v.
State, 177.

II. Eviilence insufficient to support a conviction for theft J/c-
Oowanv. Stale, 183.

12. A husband has the right to defend hiinself against an ai^ault
committed upon him by his wife, and, unless he employs greater force

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27 Texas Court op Appeals. 789

Index.

PACT CASES— conWnwccZ.

than i8 necessary to repel the violence of his wife, he can not be held
guilty o^ an assault and battery. Seethe opinion for the substance
of evidence Tield insufficient to support a conviction for aggravated
assault and battery by a husband on bis wife. Leonard v, StcvtSy 186

13. Evidence insufficient to support a conviction for theft. Castillo
V, State, 188.

14. Evidence insufficient to support a conviction for theft. Ellis v.
State, 190

15. A conviction based upon the uncorroborated testimony of an ac-
complice can not stand. See the statement of tbe easo for the sub-
stance of evidence held insufficient to support a conviction for hog
theft. SmitJi v. State, 196.

16. See the statement of the case for evidence held sufficient to sup-
port a conviction for the fraudulent removal of mortgaged property,
Williams v. State, 258.

17. Evidence sufficient to support a capital conviction for murder.
Hawkins V. State, 273.

18. See the statement of the case for evidence objected to by a de
fendaiit on trial for murder, held, in view of the other proof in the
cnsCf to have been properly admitted; and note that the evidence as a
whole is held amply sufficient to support a conviction for murder in
tbe second degree. Moody v. State, 287.

19. Evidence sufficient to support a conviction for assault to murder.
Tremnio v. State, 372.

20. Evidence sufficient to support a conviction for assault to murder.
Wilks V. State, 381.

21. See the statement of the case on this and the former appeal (26
Texas Ct. App., 126) for evidence held sufficient to support a conviction
for cattle theft. Willard v. State, 386.

22. Evidence held sufficient to support a conviction for assault to
murder. Wood v. State, 393.

23. Evidence sufficient to support a capital conviction for murder.
McCoy v..State, 415.

24. Evidence insufficient to support a conviction for murder. Monk
v. State, 450.

25. See the opinion for the substance of evidence held insufficient to
support a conviction for asrgravated assault and battery because insuf-
ficient to support the ground of aggravation aUeged in either of tbe
counts of tbe indictment. Stevens v. State, 461.

26. Evidence sufficient to support a conviction for theft. Williams
t). State, 466.

27. See the statement of tbe case in Williams v. Tbe State, ante, 466»
for evidence held sufficient to support tbe conviction of an accused
charged as an accessory to theft. West v. State, 472.

28. See the statement of tbe case for evidence held insufficient to
support a judgment refusing bail— murder being the offense charged
against the relator. Ex Parte Duncan, 485.

29. The indictment in this case charged the appellant as a principal

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790 27 Texas Court op Appeals.

Index.

EACT CASES— conWnt^ci.

in the theft of a mare, but the evidence wholly fails to connect taim in
any manner with the original taking of the said mare. Hajcf , that such
proof is insaiBcient to support a conviction for theft. Knowles v, State^
508.

80. Evidence insufficient to support a conviction for theft €h-een
t>. State, 570.

81. Evidence insufficient to support a conviction for theft Stone
t>. State, 676,

82. Evidence insufficient to support a conviction for theft Wilson
V. State, 577.

83. Evidence insufficient to support a conviction for playing cards.
Lynn v. State, 590.

84. The relators were charged jointly by indictment with the m urder
of J. D, Munn, in Navarro county, Texas, on the sixth day of Novem-
ber, 1888. They sued out jointly a writ of habeas corpus for allowance
of bail. Upon the hearing of the writ bail was awarded the relator
John Handon in the sum of three thousand dollars, and was denied to
the relator George Hanson. This appeal is jointly prosecuted by the
relator John Hanson to secure reduction of the bail allowed below,
and George Hanson for an allowance of bail. Upon the evidence
adduced on the hearing (for the substance of which, see the statement
of the case), the judgment is affirmed as to John Hanson, and reversed
as to George Hanson with an award of bail in the sum of five thousand
dollars. JSx Parte Hanson, 591.

85. Evidence insufficient to inculpate a witness as accomplice to
theft. Kiley v. State, 606.

86. See the statement of the case for evidence Tield to have been
improperly admitted because hearsay; and for evidence Tield insuffi-
cient to support a conviction for aggravated assault because it shows
that the violence inflicted by the defendant was justified in resisting
an illegal arrest. Maasie t;. State, 617.

87. Evidence insufficient to support a conviction for assault. Baw-
com V. State, 620.

88 . Evidence insufficient to support a conviction for theft Hannah
V. State, 623.

39 . * 'Living together, ^^ though not defined by the code, means within
the purview of the statute defining adultery, that the parties **dwell
or reside together; abide together in the same habitation as a common
or joint residing place." The conviction in this cate is for adultery
committed by the first mode, but the evidence, falling to show thai
the parties lived together^ although it proves habitual intercourse, is
insufficient to support the conviction. Bird v. State, 685.

40. Evidence sufficient to support a conviction for murder in second
degree. McBade v. State, 641.

41 . Evidence insufficient to support a conviction for attempting to
pass a forged instrument. Leeper «. Staie, 694.

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27 Texas Court of Appeals. 791

Index,

FAILURE TO MAKE REPORT, ETC.

Article 756 of the Penal Code provides that any person is guilty
of an offense who, being engaged hi the slaughter and sale of an.
imals for market, shall fail to report to the commissioners court of
the county in which he transacts his business, at each regular term
thereof, the number, color, age, sex, marks and brands of all ani-
mals slaughtered by him, together with a bill of sale, or written con
▼eyance to him for every animal slaughtered by him save snch as were
raised by himself, etc. Article 754 of the Penal Code provides that
any person is guilty of an offense who, being engaged in the slaughter
of animals, shall kill or cause to be killed any unmarked or un branded
animal for market, or shall purchase and kill or cause to be killed, any
animal without having taken a bill of sale or written transfer of the
same from the person selling the game. To a prosecution under article
756. the defendant pleaded the unconstitutionality of the said article
upon the ground that to require him to make such report would be to
require him to give evidence that could be used against him in a pros-
ecution under article 754; wherefore the said article 756 is in contraven-
tion of section 10 of the Bill of Rights. Held^ that the defense is un-
tenable, and that the said article 756 is constitutional. Aston v. State,
574.

FALSE PACKING.

1. Article 470 of the Penal Code denounces as guilty of a criminal
offense any person who with intent to defraud shall put into any vei>sel
or package containing merchandise or other commodity usually sold by
weight, any article whatever of less value than the merchandise with
which said vessel or package is apparently filled, or any person who,
with intent to defraud, shall sell or barter, or give in payment, or ex-
^se to sale, or ship for exportation, any such vessel or package of
merchandise or other commodity with any such article of inferior
value concealed therein. Article 471 of the Penal Code denounces as
guilty of a criminal offense any person who shall, with intent to de-
ceive and defraud, conceal within any vessel or package containing
merchandise or other commodity, any merchandise or commodity of a
quality inferior to that with which such vessel or package is apparently
filled, or any substance of less value, etc. The distinction between the two
offenses, construed in connection with each other, is that, whereas the
latter offense may be committed by concealing in the vessel or package
either like merchandise of inferior quality or any substance of less value,
the former offense can be committed only by putting into the vessel or
package a substance different in character and of less value than that
with which the vessel or package is apparently filled; and whereas, it
is an offense under article 470 to fraudulently offer for sale the falsely
packed vessel or package, the offering for sale under the latter article
is not an offense. The indictment in this case is formulated under ar-
ticle 470, and charges the %,le of four bales of cotton falsely packed
with cotton of inferior quality to that with which they were appar*

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79:i 27 Texas Coubt op Appeals.

Index.

FALSE PACKING— co7i«nwcd.

ently filled. Held^ that the indiotment charges no offense against the
law. Lidtke v. State, 600.

2. If the words ''any article whatever/* as nse(} in article 470, ooold
when said article is construed in connection with article 471, be held to
include an inferior quality of merchandise of the same kind as that
with which the vessel or package is apparently filled, then, before a
conviction could be had, it would devolve upon the State to prove
that the accused, with respect to taid vessel or package, acted with a
guilty knowledge. Id.

FALSE SWEARINa

The affidavit of a public free school teacher io the voucher for his
salary is '^required by law,*^ and therefore, if false, is matter assignable
for perjury, and not for the distinct offense of false swearing. O^Bryan

V. State, 339.

"FORCE."

1. Rape by force, as defined by article 528 of the Penal Code, is
caroal knowledge of a woman, obti-iued by force, without her consent.
''Force," as used in the said article, is such force as might reasonably be
supposed sufficient to overcome resistance, taking into consideration the
relative streiigth of the parties and other circumstances of the case
(.Penal Code, art. 529), and upon a trial for rape by force it devolves
upon the trial court to give in charge to the jury such statutory defini-
tinii of ''force." Brown v. State, 330.

2 To constitute the offense of assault with intent to rape by
for(;e, the offender must have committed an assault or assault and
barrery upon the female with the specific inteiSt to rape by force,
and the force thus interid^-d must be such force as might reasonably
be supposed to overcome resistance, taking into consideration the
relative strength of the parties and the other circumstances in the
ca e; and on a trial for assault with intent to rape by force the trial
coui t must bo instruct the jury. But see the opinioo of Willsan, Judge,
dissenting from the ruling of the majority of the court, and holding
tba^, though to constitute the offens*^ of assault with intent to rape by
fr ice, the assault must be accompanied by the specific intent to rape
by force, the character of the force intended is immaterial, and that it
is not the duty of the trial court, upon a trial for assault with intent
to rape by force, to give in charge to the jury the defiuicion of "force,"
as prescribed by article 529 of the Penal Code. Id.

FORGERY.

If the written instrument declared upon as a forgery is so incom-
plete in form as not to import a legal liability, then, to (sufficiently
charge forgery upon it, the i indictment must allege such facts as will
invent it with legal force and show that, if genuine, it would create a
legal liability. See the opinion for a* indictment held insufficient to
charp:e forgery because, in ttie absence of innuendo averments, the
indictment declared upon is incomplete in form and substance, and
does not import a legal liability. Khiff v. State^ 567.

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27 Texas Court of Appeals. 793

Index.

FORMER ACQUITTAL OR CONVICTION.
See Special Plb4, 1.

The Code of Prooednre, article 558, provides that a former acquit-
tal or oonviotion in a court of competent jurisdiction bars a further
pjoaeeution for the same offfense, ''but shall not bar a prosecution for
any higher g^ade of offense, over which the said court had not jurisdic-
tion, unless such trial andjadgment were had upon indictment or infor-
mation, in which case the prosecution shall be barred for all grades of
the offense." This was a prosecution by information in the county
court for aggravated assault. The appellant pleaded in bar his former
conviction in the justice's court, which appears to have been a prose
cution and conviction under a complaint, and not by informatioo, for
simple assault. Held, that the plea was properly stricken out. Henkel
V. State, 510.

FRAUDULENT DISPOSITION OP MORTGAGED PROPERTY.

1 . Indictment to charge the fraudulent sale or disposition of mort
gaged property must allege the name of the person to whom the same
was sold or disposed of, or, if such be the fact, that the name of such
person was to the grand jurors unknown.* Alexander v. State, 94

2. Indictment, to be sufficient to charg.^ the offense of fraudulently
disposing of mortgaged property, with intent to defraud, etc., must
allege the name of the person to whom the mortgaged property was
disposed or sold, or that the name of such person was to the grand
jury unknown. Armstrong v. State, 462.

FRAUDULENT REMOVAL OF MORTGAGED PROPERTY.

1. This prosecution was for removing mortgaged property out of the
State, as that offense is defined by article 797 of the Penal Code. In the
stead of the statutory word **remove," the indictment uses the word
'"run." Held,^ that the words are equivalent as the word **remove" is
used in the statute. See the statement of the case for the charging
part of an indictment held sufficient lo charge the offense of removing
mortgaged property out of the State. Williamn v. State, 258.

2. Article 205 of the Code of Criminal Procedure provides that
•'prosecutions for offenses committed wholly or in part without,
and made punishable by law within, this State, may be commenced
and carried on in any county in which the offender is found.'' The
mortgage in this case was executed in K. county, where the defendant
had possession of the property. He removed the property from said
county, and, while en route to Louisiana, was arrested in H. county.
Escaping thence, he went into Louisiana with the property. The con-
tention of the defendant is that H., and not K., county, was the
county of the venue. But, held, that the offense on trial being one
that comes within the purview of article 205 of the Code Criminal Pro-
cedure, it was properly prosecuted in K. county. Id.

8. See the statement of the case for evidence held sufficient to sup-
port a conviction for the fraudulent removal of mortgaged property.
Id.

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'?94 27 Texas Coubt of Appeals.

Index.

eAMING.
See ExHiBiTiNa Gamino Tablb.

1 . It is not essential to the sufficiency of an indictment to charg<>
the offense of betting at a game played with dice, that it shall allege
that the accused played the game with another or bet with another
person. Day t>. State, 148.

2 . To bet at any game played with dice, by whatever name the game
be known, is an offense under the law of this State. And each
separate act of betting at such a game constitutes a distinct offense.
The consecutive throwing of dice from nightfall until day break does
not constitute a continuous game, and the consecutive betting on the
different throws does not constitute ^. continuous offense. Id.

8. A witness, to be incompetent to testify in behalf of a defendant
upon the ground that he was under indictment for the same offense,
must appear to have been indicted for participation in the very same
criminal act for which the defendant is being tried. It will not suffice
to disqualify him that he is indicted for a similar offense. The defen^e
in this case offered a witness by whc^ to prove an alibi. The witness
was rejected, upon the date's motion, upon the ground that he was
charged by a separate indictment with the same offense. The onus
of establishing incompetency by showing that the indictment agains*^^
the witness covered the same criminal act for which the defendant
was on trial rested on the State; and, the State failing to establish that
fact in this case, the presumption obtained in favor of the competency
of the witness, and the ruling of the court was error. Id.

GRAND JURY.

The defendant's motion to set aside the indictment was ba«ied upon
the statutory ground that a person not authorized by law was present
when the grand jury deliberated and voted upon the accusation against
him. -It appears by thedefendant's bill of exceptions that the grand jary
for the term was duly organized on December 3, and that it was dis-
charged for the term on December 13; that soon afterward the court took
a recesp, and, upon reconvening after the recess, ordered the sheriff to
reassemble the sixteen persons selected originally by the jury comrais-
sioners at the June term to serve »t the said December term, viz., the
twelve who had been impaneled and the four who had not. Of the six-
teen thus summoned, the twelve who had, and one W., who had not, been
impaueled reassembled, when one of the said twelve was excused by the
court, and the said W. was placed upon the panel in his stead. The con-
tention of the defense is that the trial coui t had no power to excuse the
grand juror after he had been duly impaneled; that the status of the ex-
cused person as a legal grand juror was not affected by the action of
the court, and that the legal effect of impaneling the substituted jaror»
W., was to create an unconstitutional grand jury of thirteen persons;
and that the presence in the grand jury room of the said W. was the
presence of **a person not authorized by law." . Held, that the motion
to set aside the indictment was properly overruled, and that the action

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27 Texas Court of Appeals. 795

iDdez.

GRAND JTJRY— continued.

of the court was correct, as conforminqr to article 891, of the Code of
CrImiDal Proce^Jure, which provides as follows: '*When a grand jury
has been discharged by the court for the term, it may be reassembled
by the court at any time during the term, and in case of failure of one
or more of the members to reassemble, the court may complete the
panel by impaneling other qualified persons in their stead, in accord-
ance with the rules prescribed in this chapter for completing the grand
jury in the first instance/' Trevinio v. State, 373.

H
HABEAS CORPUS.

1. See the statement of the case for evidence held insufficient to
support a judgment refusing bail,— murder being the offense charged
against the relator. Bx Pai'te Duncan, 485.

2. In construing statutory enactments the courts must so interpret
the legislative intent as to harmonize the provisions of th<^ act with
the Constitution, if it can be reasonably done. Ex Parte Murphy, 492.

8. The relator was convicted of a felony at a term of the district
court of Karnes county which, under the law of 18S5, began on the
eighth day of April, 1889. Seeking by habeas corpus toavoid the
execution of the sentence then pronounced against him, he shows that
by the act of April 2, 1889, to which an emergency clause was appended,
the time of the holding of the terms of the said district court was
chan^red to the fourth Monday in March: — his contention being* that,
by reason of the said enactment of April 2, 1889, he was tried and con-
victed at a time when a legal term of the said district court could not
be held. Held that, notwithstanding the emergency clause appended
to the act of April 2, 1889. the said act did not operate to invalidate the
term of the court which began on April 8. The sa'd act is constitu-
tional, but, the emergency clause to the contrary notwithstanding, it
did not take effect until such time as would not deprive any county
in the judicial difetrict of its constitutional right to two terms per
annum of the district court. Id,

4 The relators were charged jointly by indictment with the murder
of J. D. Munn, in Navarro county, Texas, on the sixth dwy of Novem
ber, 1888. They sued out jointly a writ of habeas corpus for allowance
of bail. Upon the hearing of the writ, bail was awarded the relator
John Hanson in the sum of three thousand dollars, and was denied to
the relator George Hanson. This appeal is jointly prosecuted by the
relator John Hanson to secure reduction of the bail allowed below, and
George Hanson for an allowance of bail. Upon the evidence adduced
on the hearing (for the substance of which see the statement of the
case), the judgment is affirmed as to John Hanson, and reversed as to
George Hanson, with an award of bail in the sum of five thousand dol-
lars. Ex Parte Hansons, 591.

5. Criminal contempt of court consists in the doing of an act in
disrespect of the court or its procpss, or which obstructs the adminis-
tration of justice, or tends to bring the court into disrepute; and such

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796 27 Texas Court of Appeals.

Index.

HABEAS CORVJJS— continued

contempt, if committed in a justice of the peace^s court, may be pun-
ished by the justice of the peace by fine not exceeding twenty-five
dollars, and imprisonment not exceeding one day. Civil contempt of
court consists in failure or refusal to perform an act ordered by the
court for the benefit of another party. Bx Parte Robertson, 628.

6. The relator, who is constable of precinct number three, of Travis
county, was charged with the execution of a writ of sequestration
sued out of the justice'3 court. Failing to execute the same, h**
was proceeded against in the said justice's court by the plaintiff
in the writ. Acting under article 4539 of the Revised Statutes, tl •?
justice of the peace adjudged the relator guilty of contempt of b^
court, fined him in the sum of thirty nine dollars and nineteen ceuts,
to inure to the plaintiff in the writ of sequestration, and committed
him to jail until payment of said fine and costs. Held that the failure
and refusal of the relator to execute the writ of sequestration consti-
tuted civil contempt of the said justice^s court, and that the justice
exercised his legal authority in so adjudging him guilty, and in im-
posing the ^aid fine and committing him pending payment thereof.
Id.

7. A fine imposed for contempt is not "debt" within the meaning
of section 18 of the Bill of Rights, which provides that "no perso.i
shall ever be imprisoned for debt." Id.

8. Judgment and the commitment in this case are both void be
cau-e they omit the essential recital that it was within the power ut
the relator, as constable, to execute the writ; and the commitment h
void for the further reason that, upon its face, it commits the relator
on a fine imposed for criminal contempt. Wherefore the relator is dis
charged without day. Id.

I
IDEM SONANS.

In the indictment, in one place, the name of the Injured party
is spelled "Fauntleroy," and in another "Fontleroy." and the validity
of the indictment is attacked upon the ground of variance in stating
the name of the injured party. But held that the names as set oat are
idem sonans. Wilks v. State^ 381.

IMPEACHING TESTIMONY.

The wife of the deceased, who had been previously tried for com-
plicity in the same offense, and had been acquitted, testified for the
defense on this trial, and, to impeach her testimony, the State was
permitted to prove contradictory statements previou**ly made by her.
The objection urged to this by the defense was that she was under ar-
rest at the time she made the said contradictory statements, and
that the evidence was hearsay. Held, that the objection was properly
overruled. Articles 749 and 750 of the Code of Criminal Procedure,
excluding confessions made in iluress. apply only to the confessions or
admissions of a defendant who is on trial, made when under arrest.

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27 Texas Court op Appeals. 797

Index.

IMPEACHING TESTIMONY— contint^tfd.

and they can not be extended to parties not on trial. Whilst hearsay,
so far as the defendant was concerned, the said contradictory state,
ments were admissible to impeach the witness, to which sole purpose
they were properly limited by the charge of the court Hawkins t).

INCOMPETENT WITNESS.

See Witness, 8, 4.

INDICTMENT.
See Extortion.

ROBBBRY, 1.

1. The indictment alleged the name of the owner of the stolen
property to be Burris. The prdof showed it to be Barrows. The con-
viction is assailed upon the gropnd of variance bet^ween the owner-
ship as alleged and proved. But held that, as the proof further
shows that the owner was commonly known as Burris, the variance
i^not material. Taylor u. State, 44.

2. It is essential in a perjury case not only that the indictment
shall allege that the court before which the judicial proceeding in
which the perjury is charged to have been committed had jurij^dic-
tion of such judicial proceeding, but that fact must be established by
the proof. Wihon v. State, 47.

3. Indictment for perjury conforming to No. 123 of Willson's Forms
is sufficient. Smith v. State, 50.

4. In the construction of a statute, the legislative intent, if that in-
tent can be ascertained, must govern even over the literal import of
words, and without regard to gratumatical rules. Thus construed, article
250 of the Penal Code inhibits any officer of a county, city or town from
entering into, on account of himself, any kind of financial transaction
with such corporation. The indictment in this case charged the ac-
cused with the violation of said article, in that he sold a mule to the
county of which he was a county commission^^r Held, that such sale
constituted a violation of said article, and the indictment was suffi-
cient. Rigby V. State, 55.

5. Indictment to charge the fraudulent sale or disposition of mort-
gaged property must allege the name of the person to whom the same
was sold or disposed of, or, if such be the fact, that the name of such
person was to the grand jurors unknown. Alexander v. State, 94.

6. The second count of the indictment (being the count upon which
this conviction was had) charges that certain persons, to the grand
jurors unknown, and whom the grand jurors are unable to describe,
did kill and murder one Ellick Brown, and that defendant, prior to
the commission of said murder by said unknown persons, did unlaw-
fully, wilfully and of his malice aforethought, advise, command and
encourage said unknown persons to commit said murder said defend-
ant not being present at the commission of said murder by said un-
known persons. It was objected to the indictment that it neither

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798 27 Texas Court op Appeals.

Index.

mmCTMENT-continued.

named nor gave a description of the nnknown persons who committed
the murder of Brown. Held, that the objection is not sound, and the
indictment is sufficient, its purpose and effect not being to charge the
nnknown persons as the **accused'* in this case, but to cargo the defend-
ant as an accomplice to the murder of Bro>vn. Dtigger v. State, 95.

7. It is not essential to the sufficiency of an indictment to charge
the offense of betting at a game played with dice, that it shall allege
that the Accused played the game with another or bet with another
person. Day t>. State, 148.

8. See the statement of the case for the substance of an indict-
ment held sufficient to charge the offense of negligent homicide. Ail-
derson at al. tj. State, 177.

9. A person charged, either in the same or another indictment,
with participation in the offense on trial, is not competent to testify
in behalf of the accused. It app>ears in this case that the witness
proposed by the defense was indicted, by an incorrect name, for the
same offense. Held that the proposed witness was properly held in-
competent. Id.

10. See the opinion in ejctenso for the charging part of an indictment
held to comprehend but a single count, and to be sufficient to charge,
the accused as an accomplice to murder. Crook v. State, 198.

11. The indictment charged that "Mack Green, on or about the first
day of May, 1888, in the county and State aforesaid, did, with malice
aforethought, kill Sam Smith by shooting him with a gun; contrary,^*
etc. On motion in arrest of judgment, the indictment is held & good
indictment for murder, and sufficient to' sustain a conviction in the
first degree. Qreen v. State, 244.

18. This prosecution was for removing mortgaged property out of
the State, as that' offense is deffned by article 797 of the Penal Code.
In the stead of the statutory word * 'remove." the indictment uses the
word "run." Held, that the words are equivalent, as the word **re-
move" is used in the statute. See the statement of the case for the
charging part of an indieiment held sufficient to charge the offense of
removing mortgaged property out of the State. Williams v. Stale, 258.

18. See indictment sufficient to charge swindling. ScoU v. State,
264.

14. The common law rule that an indictment for perjury must
allege correctly the day on which the perjury was committed, and
that a variance between the time alleged and that proved would
he fatal, has been so changed by statute in this State, that the in-

* dictment need only allege some time anterior to the presentment of
the same, and not so remote as to be barred by the statute of limita-
tions; with which allegation the proof, to be sufficient, must concur*
Zucas V. State, 322.

15. "Writing' or "written," as those terms are used in the statutes
of this State, include "printing" or "printed"; and it is not a valid
objection to an indictment that it is partly written and partly printed,
O'Bryan v. State, 339.

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27 Texas Court of Appeals. 709

Index.

INDICTMENT— continued.

16. The defendant's motion to set aside the indictment was based
upon the statutory ground that a person not authorized by law was
present when the grand jury deliberated and voted upon the aeousa-
tion against him. It appears by the defendans's bill of exceptions that
the grand jury for the term was duly organized on December 8, and^
that it was discharged for the term on December 18; that toon after-
ward the court took a recess, and, upon reconvening after the recess,
ordered the sheriff to reassemble the sixteen persors a^'lected originally
by the jury commissioners at the June term to serve at the said Decem-
ber term, viz., the twelve who had been impaneled and the four who
had not. Of the sixteen thus summoned, the twelve who had and one
W. who had not been impaneled, reassembled, when one of the said
twelve was excused by the court, and the said W. was placed upon the
panel in his stead. The contention of the defense is that the trial court
had no power to excuse the grand juror after he had been duly impan-
eled; that the status of the excused person as a legal grand juror was
not affected by the action of the court, and that the legal effect of im-
paneling the subbtituted juror W. was to create an unconstitutional
grand jury of thirteen persons; and that the presence in the grand
jury room of the said W. was the presence of * 'a person not authorized
by law." Held, that the motion to set aside the indictment was
properly overruled, and that the action of the court was correct, as
conforming to article 391 of the Code of Criminal Prooednre, which
provides as follows: ''When a grand jury has been discharged by the
court for the term, it may be reassembled by the court at any time
during the term, and in case of failure of one or more of the members
to reassemble, the court may complete the panel by impaneling other
qualified persons in their stead in accordance with the rules prescribed
in this chapter for completing the grand jury in the first instance.*'
Trevinio v. State. 372.

17. In the indictment, in one place, the name of the injured party-
is spelled *'Fauntleroy," and in another "Fontleroy*" and the validity
of the indictment is attacked upon the ground of variance in stating
the name of the injured party. But held that the names as set out
are idem sonans. Wilks d. State, 881.

18. Indictment or information for theft is fatally defective if it fails
to charge directly that the taking was fraudulent. Chance v. States
441.

19. Indictment for burglary charged that the house was entered with
the intent to commit theft, but fails to charge that the entry was made
with the fraudulent intent to take the property from the possession of
the owner; and the allegation of theft fails to charge that the property
was taken from the possession of the owner. Held insufficient to charge
the offense. O'Brien v. State, 448.

20. AUegaticn in an iLdictment for murder that the deceased was
killed by a shot fired from a gun will admit proof that the fatal shot was
fired from any kind of a fire arm. But in this case the indictment alleged
that the deceased was shot and killed by the defendant ' Vith a weapon

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800 27 Texas Court of Appeals.

iDdex.

INDICTMENT— coni/nt^rf.

to the grand jnrors aDknown.^* To prove the dilifireDce of the grand jury
toaseertain the character of the weapon used, the State asked the fore-
man of the grand jury: "What effort, if any, did you make to learn the
manner and cause of the death of deceased, and what conclusion did
you cu*rive at?^* The witness replied as follows. ''We had a great many
witnesses before the grand jury, and we returned this indictment,
which we thought was right." Held that the question was erroneously
allowed, because upon the question of diligence it was too broad and
comprehensive, and was calculated to and did elicit an answer at once
incompetent and prejudicial to the rights of the defendant. Mofik v.
State, 450.

21 . Indictment, to be sufficient to charge the offense of fraudalently
disposing of mortgaged property, with intent to defraud, etc., must
allege the name cf the person to whom the mortgaged property was
disposed or sold, or that the name of sech person was to the grand

* jury unknown. Armstrong v. State, 462.

22. The State abcmdoned all but the last count in the indictment.
The defense maintains that the effect of such abandonment is to
eliminate the caption of the indictment and leave the last count
insufficient to charge an offense because it does not commence, ''In
the name and by the authority of the State of Texas," and does i ot
charge that it was presented by a grand jury of Wilbarger county.
Held, that the proposition is hypercritical, and that the caption and
commencement of an indictment apply to and constitute a part ot
each and every count contained therein. West v. State, 472.

28. Another equally well settled rule is that neither the principal nor
the sureties in a bail bond or recognizance can question the sufficiency
of the indictment in a f>cire facias proceeding to forfeit the same.
Langan et als. v. State, 498.

24. The recognizance in this case binds the principal to appear on
an indictment for assault with intent to rape. The said indict-
ment is insufficient to char^re that offense, but is sufficient to charge
an aggravated as«ault and battery. The defendants^ motion to
quash the recognizance is based upon the ground that it does not obli-
gate the principal to appear and answer the offense charged in the
indictment. But held, that, as the intent of the indictment to charge
a«^ault to rape is manifest, the last rule announced obtains, and the
trial court properly overruled the motion. Id.

. 25 . Article 470 of the Penal Code denounces as guilty of a criminal
offense any person who with intent to defraud shall put into any vessel
or package containing merchandise or other commodity usually sold by
weight, a7iy article whatever of less value than the merchandise with
which said vessel or package is apparently filled, or any person who,
with intent to defraud, shall sell or barter, or give in payment, or ex-
pose to sale, or ship for exportation, any such vessel or package of
merchandise or other commodity wilh any such article of inferior
value concealed therein. Article 471 of the Penal Code denounces as
guilty of a criminal offense any person who shall, with intent to de-

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27 Texas Court of Appeals. 801

Index.

INDICTMENT— con^tnt^d.

oeive and defraad« conceal within any vessel or package containing
merchandise or other commodity, any merchandise or commodity of a
qtiality inferior to that with which such vessel or package is apparently
filled or any substance of less value, etc. The distinction between the
two offenses, construed in connection with each other, is that, whereas
the latter offense may be committed by concealiog in the vessel or
package either like merchandise of inferior quality or any substance of
less value; the former offense can be committed only by pnttinir into
the vessel or package a nubstance differeot in character and of less value
than that with which the vessel or package is apparently filled; and
whereas, it is an offense under article 470 to fraudulently offer for sale
the falsely pticked vessel or package, the offering for sale under the lat-
ter article is not an offense. The indictment in this case is formulated
nnder article 470, and charges the sale of four bales of cotton falsely
packed with cotton of inferior quality to that with which they were
apparently fil led. Held, that the indictment charges no offense against
the law. Lidtke v. State, 500.

26. Indictment or information is not bad for duplicity because it
contains several counts charging different misdemeanors. Alexander
tx /State, 533.

27. It is not required that each and every count in an indictment
shall conclude with the words ^'against the peace and dignity of the
State, ^ it being sufficient if the instrument as a whole so concludes.
Id.

28. If the written instrument declared upon as a forgery is so in-
complete in form as not to import a legal liability, then, to sufficiently
charge forgery upon it, the indictment must allege such facts as will
invest it with legal force and show that, if genuine, it would create a
legal liability. See the opinion for an indictment held insufficient to
charge forgery, because, in* the absence of inuendo averments, the
indictment declared upon is incomplete in form and substance, and
does not import a legal liabihty. King v. State, 567.

29. The purpose of the indictment in this case was to charge the
theft of a horse from the possession of one Henry Wright, but in
drafting the indictment the pleader omitted the word "of* after the
word possession. Held, that the omission is fatal to the conviction
Inasmuch as the omitted word is essential to the accusation. Riley v*
State, 606.

INFORMATION.
See Indictment, 16

1 . See the statement of the case for an information held sufficient
to charge the offense of offering adulterated food for sale. Sanohez v.
State, 14

2. Under the law of this State an information is insufficient for any
puri)ose unless founded upon a complaint, filed therewith, charging
an offense. The indictment in this case charged that the perjury wag
committed on the trial of a judicial proceeding in the county court

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802 27 Texas Court of Appeals.

Index.

INFORMATION— cowiinwcd.

*' wherein one Bean was duly and legrally charged by informatioD/'ete.
To support the allegation of jurisdiction of the county court, the State
introduced in evideuce the information, but not the complaint. Htld^
tliat the proof was iu sufficient. Wihon v. State, 47.

8. .In a criminal action for malicious prosecution under article 273
of the Peual Code, it is not essential that the information shall al-
lege that the prosecution against the injured party had ended before
the information was presented. See the opinion for an information
held sufficient to charge such a malicious prosecution as constitutes
the offense defined in said article 273. Dempsey v. State, 269.

4. Information is insufficient to charge an offence unless it concludes
with the words: "against the peace and dignity of the State." The com-
plaint, however, beiug a good one and sufficient to sustain an informa-
tion, the cause is not dismissed, but is remanded in order that a valid
information may be filed upon the complaint. Wood v. State^ 538.
• 5. A **gin'' is not oue of the places or houses designated by the stat
ute as a ''public jjlace." To charge the offense of playing cards in a
public place, ''to wit, a gin," the information should have charged the
facte which constituted the gin a public place. Bailey v. State, 569.

6. To charge the offense denounced by article 683 of the Penal
Code, the information or indictment must charge such acts of injury
to property as do not come within the descriptioa of any of the
offenses asrainst property otherwise provided for in the Penal Code.
The indictment in this case is formulated under said article 683. and
charges an injury (o a fence — an act which comes within the definition
of two other offenses provided for in the Penal Code. (Arts . 684, 684a.)
Exception that the acts charged constitute the offense defined in article
684 should have been sustained by the court. White v. State, 638.

INJURING A PENCE.
See Malicious Mischief, 3, 4.

INTENT

1. An assault and a specific intent to murder are two elements which
must concur in order to constitute the offense of assault with intent to
murder. The intf nt must be established as an inference of fact to the
satisfaction of the jury, but the jury may draw that inference, as they
draw all others, from any fact in evidence which to their minds fairly
proves its existence . Trevinio v. State, 372.

2. The essential ingredient of the offense of assault with intent to
murder is that the assault was accompanied by the specific intent of
the accused to murder, and this ingredient must be established to the
satisfaction of the jury. Wood v. State, 393.

3. The offense ot assault with intent to murder is proved when it
is shown that, had death resulted from the assault, the offeose would
have been murder. Another test is that **if the assault is voluntas',
committed with deliberate design and with an instrument capable of
producing death in such manner as evidences an intention to takelife^

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27 Texas Court of Appeals. 808

Index.

INTENT— conMnuedL

and there are no eztannatlng cironmstances, it ie an assault ^ith intent
to murder." Id.

4. The rule is statutory that "the intention to commit an offeose is
luresumed whenever the means used is such as would ordinarily result
in the forhidden act." And it is eleuieDtary that '*a man is always
presumed to intend that which is the necessary or even probable con
sequence of his acts, unless the contrary appears." Id,

5. If a party intending to commit murder, uses a deadly weapon in
such a manner as that his intent is apparent or may be fairly inferred
from the act, he can not, by abandoning any further attempt at vio-
lence, mitigate the effect of his previous act or intention; and it is for
the jury to determine, under appropriate instructions upon the law,
whether, by what he did before he abandoned the further execution of
his plans, he really and in fact intended to commit murder. And if
they find that he did so intend to commit murder, and the facts justify
the finding, then this court will not interfere with the verdict. Id,

6. See the statement of the case for evidence held sufficient to sup-
port a conviction for assault to murder. Id,

INTERPRETATION OP THE CODES.
&e$ False PACKiNa.

1. In the construction of a statute, the legislative intent, if that in
tent can be ascertained, must govern even over the literal import of
words, and without regard to grammatical rules. Thus construed, arti
cle 250 of the Penal Code inhibits any officer of a county, city or town
from entering into, on account of himself, any kind of financial transac*
tion with such corporation. The indictment in this case chargred the
accused with the violation of said article, in that he sold a mule to the
county of which he was a county commissioner. Held^ that f^uch sale
constituted a violation of said article, and the indictment was sufficient-
Righy v, iState, 55.

2. In construing statutory enactments the courts must so interpret
the legislative intent as to harmonize the provisions of the act with the
Constitution, if it can be reasonably done. Ex Parte Murphy. 492.

3. Adultery is an offense which, under the present law of this State,
can be committed in but one of two ways: 1, by the parties (one or both
being legally married to some other person) living together and having
carnal intercourse with each other; and, 2, by the parties havi' g
habitual carnal intercourse with each other without living together.
To convict under the first mode the proof mu^t show a living together
of the parties, but need show no more than a single act of carnal inter-
course, but under the second mode the carnal intercourse must be
shown to have l>een habitual. Bird v. iStatt, G35.

J
JOINT OFFENDERS.

A verdict against joint offenders on a joint trial, to be valid, must
assess a separate penalty again .^t each offender. Flynn v. The State,
8 Texas Ct. App., 889, and Matlock et al. v. The State, 25 Id., 716, and

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804 27 Texas Court of Appeals.

Index.

JOINT OFFENDERS— conWnti^d.

CaQDingbam v. The State, 26 Id., 88, approved. Medis A HiU v. State,
194.

JUDGMENT.
8ee Contempt op Court.

JURISDICTION.

1 . Beins: oonvicted and fined In the recorder's oonrt of GulTeeton city
for a violation of a penal ordinance of the city, the defendant appealed
to the criminal district court of Galveston county, j;)7 which court his i^)-
peal was dismissed on the ground that it had no jurisdiction of such
municipal offenses, inasmuch as no right of appeal in such oases was
conferred by the special charter of Galveston city, nor by the laws of the
State, and because the offense was not against the laws of the State nor
prosecuted in the name of ''The State of Texas.'* Held that the appeal
was erroneously dismissed. See the opinion in extenso for a colloca-
tion and construction of the various statutory provisions relevant to
the question. Bautsch v. State, 842.

2. In all criminal cases tried before mayors and recorders of in*
corporated cities, the general policy and intent of the statutes of
Texas secure to defendants a right of appeal commensurate with
that from convictions in Justices' courts. The fact that the special
charter of a city wholly ignores such right of appeal from con vie
tions for violation of the municipal ordinances can not frustrate the
right of appeal from such convictions, notwithstanding the monicipal
offense consists in an act which is not penal under the general laws of
the State. Id.

JURY LAW.

1. In misdemeanor cases a jury may be permitted by the court to
separate, as provided by article 688 of the Code of Criminal Pro-
•dure, but this rule does not authorize the court to reconvene a jury
after it has been finally discharged, in order to remedy an informality
in a verdict rendered by it, or to return another verdict SUis v. States
190.

2. When it is shown that a verdict of guilty was probably influ-
enced by the statement of a juror to his colleagues assailing the credi-
bility of a witness for the defendant, a new trial should be granted.
jMcas V. State, 822.

8. One of the disqualifications of a juror is that he has served as a
juror in the district court for six days during the preceding six months.
ffeld, that service as a juror for but five days is not a disqualiflcation.
Monk V. State, 450.

4. The defendant's motion for new trial sets up that, though on his
voir dire the juror Doss declared his competency to sit as a juror, he
was, in fact, as ascertained by the defendant after the trial, an incom-
petent juror, being neither a resident of Travis county, a householder

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27 Texas Court of Appeals. 805

Index.

JURY hAW^continued.

in said county, nor a freeholder in the State, and that before the trial
he declared his prejudice aRainst the defendant. The district attorney
filed a written denial of the allegations made in the motion for new
trial, but introduced no evidence in support of said denial. In this
state of the case, the juror Doss must be held to have been incompe-
tent, and his service upon the jury entitled the defendajit to a new
trial. Brackenridge v. JStai^e, 513.

5. A brotherio-law of the person alleged in the indictment to be
the person injured by the act of the defendant is not a competent juror
on the trial of the latter. Powers v. StatSi 700.

6. Ifote the case for exceptions to the proceediofj^s had upon the
organization of the petit jury held to have been erroneously overruled.
Cahn V, State, 709.

MALICE.

See Chargk of the Court, 21.
Definitions, 3.

MURDBR, 83.

'^MALICIOUS MISCHIEF."

1 . No such offense as malicious mischief is known, per «e, to the
law of this State, and an appeal from a conviction for unlawfully
breaking and pulling down and injuring the fence of another must be
dismissed when the recognizance for appeal describes the offense as
malicious mischief. Koritz v. State, 63.

2. The proof shows that the defendant was the sole owner of a
dividing fence between his farm and the farm of oneMcN.; that, with'
out notice to McN. in writing, he pulled down the said dividing
fence, exposing McN.'s growing crops to the depredations of stock;
that McN., to protect his crops, again connected his fence to the de-
fendant's fence on the defendant's land, when the defendant again
pulled it down. Held that, although the sole owner of the dividing
fence, the defendant had no right to remove it without having given
McN., his agent or attorney, notice in writing of his intention to do so
for at least six months prior to so doing. McN., in connecting his fence
with that of the defendant, for the purpose of preventing stock depre-
dations on his growing crops, notwithstanding the connecting point
was on the defendant's land, was not a trespasser and violated no law.
(See Laws of 1887, page 30.) Jamison v. State, 442.

3 . To charge the offense denounced by article 688 of the Penal Code,
the information or indictment must charge such acts of injury to prop
erty as do not come within the description of any of the offenses against
property otherwise provided for in the Penal Code. The indictment in
this case is formulated under said article 683, and charges an injury to
a feoce— an act which comes within the definition of two other off tenses
provided for in the Penal Code. (Arts. 684, 684a.) Exception that the

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806 27 Texas Court of Appeals.

Index.

''MALICIOUS MISCHIEF'— con^tnw«d.

acts charged constitute the offense defined in article 684 should have
been sustained by the court. White v. State, 638.

4. On the trial the defense requested the court to instruct the jury
as follows: **1. If you believe from the evidence of the witnesses that
J. T. White had leased the farm of Watson for the year 1887, that he
was for the time owner of said premises, and had the right to use the
premises for his own convenience, so that he did not use them to the
injury of another, and in the use of the same he had a right to open
the fence for his own convenience. 2. Gentlemen, if you believe from
the evidence that defendant cut the fence of Watson for his own
convenience, and not maliciously for the purpose of injuring Watson,
you will acquit. If you have a reasonable dpubt as to defendant's
guilt you will acquit." Held, that, being correct in principle, and
embodying issues made by the proof, the refusal of the court to give
said instructions was error. Id.

MALICIOUS PROSECUTION.

1. In a criminal action for malicious prosecution under article 273 of
the Penal Code, it is not essential that the information shall allege that
the prosecution against the injured party had ended before the infor-
mation was presented. See the opinion for an information held 8uiB-
cietit to charge such a malicious prosecution as const iiutes the offense
defiriedin gaid article 273. Bempsey v. 8tate,2Q9.

2. To authorize a conviction for malicious prosecution, the proof
mu<^t show that the prosecution alleged to be malicious was actuated
by malice. Id.

3. *'Any unlawful act done wilfully and purposely to the injury of
another is as against that person malicious; this wrong motive, when
it is shown to exist, coupled with a wrongful act, wilf ally done to the
injury of another, constitutes legal malice." Id,

4. Not only must the proof show that the alleged malicious prose-
cution was actuated by legal malice, but it must show a want of prob-
able cause for instituting the alleged malicious prosecution. By prob-
able cause is meant the existence of such facts and circumstanoes as
would excite belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of
the oflfense for which he was prosecuted. Under this rule a prosecu-
tiof), although instituted with legal malice, would not be a penal
offeise if probable cause existed to believe the offense charged was
committed by the party prosecuted. See the opinion on the question;
and note that in this case though legal malice existed, probable cause
also existed. Id.

5. On the trial, the court, below permitted the justice of the pea^e
before whom the alleged malicious prosecution was had to testify rl at
he discharged the alleged injured party because, in his opinion, t
evidence did not support the charge brought against him. Held
error. Id.

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27 Texas Court of Appeals. 807

Index.

MANSLAUGHTER.
See Chargb op the Court, 9.

EVIDBNCB, 8.

In a trial for murder the incalpatory evidence tended to prov-
tbat the defendant and his brother waylaid the deoestfed, and that
he was fired apon and killed by one or both of them — both being
present and acting together in perpetrating the liomicide. According
to the defense, the meeting of the deceased with the defendant and his
brother was nccid* ntal, and the first shot was flr€wl by th9 dor»ea«ed at
the defendant's brother, who, in self defense, and with no co-operation
of defendant, fired upon and killed the deceased. The trial court gave
in chnrge to the jury the law of murder of the first degree, and of jus-
tifiable homicide in self defense, but refused to give in charge the law
of murder of the second degree and of manslaughter. Held^ that the
charge covered the only issues in the case, and properly omitted the
law of murder of the second degree and of manslaughter. Shreen v.
State, 244.

MISCONDUCT OP THE JURY.
See Jury Law, 2.

MUNICIPAL COURTS.
See Jurisdiction.

MURDER.

1 . See the statement of the case for evidence held insuflBcient to
support a conviction for murder of the second degree because it rests
upon the testimony of an insuflBciently corroborated accomplice. Stou-
ard V, State, 1.

2. It is an established rule of practice in this State that, upon the
trial of an offense which comprehends different degrees it becomes
the imperative duty of the trial court to instruct the jury upon the
law applicable to every degree or grade of offense indicated by the
evidence, however feeble such evidence may be; that, if there be a
doubt as to which of two or more grades of the offense the accused
may be guilty, the law as to all of such grades should be charged,
and that the trial court should omit to charge the law of any par-
ticular grade only when it is to no extent whatever raised by the evi-
dence. See the statement of the case for evidence adduced on the
trial for murder, which, though sufficient to establish the express
malice essential to constitute murder of the first degree, is not of such
character as to absolutely preclude the jury from finding therefrom
a killing upon implied malice, and, therefore, murder in the second
degree; wherefore the omission of the trial court to instruct the jury
upon the law of murder of the second degree was error. Blocker v.
State, 16.

3. The accused, being on trial for murder, contends that, under
the 'aw <if thU State, it is the duty of the trial jud^^e, in murder cases,
without rej^ard to the evidence adduced, to instruct the jury as to the

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808 27 Texas Court of Appeals.

Index.

MURDER— continued.

law of murder of the second degree. But held that, notwithstanding
the apparent plausible construction of the statutes upon which th^
proposition is maintained, the doctrine obtains in this State that the
trial court may decline to submit to the jury the issue of murder of
the second degree when the evidence wholly fails to present that
issue. See the opinion in extenso upon the question, and note the
suggestion relative to the charge in trials for murder. Id,

4. Evidence euflBcient to support a conviction for murder of the
second degree. Miller v. State, 63.

5. Evidence sufficient to support a conviction for murder of the
first degree. Peace v. Stale, 83.

6. See the statement of the case in this, and in the case of ex parte
Smith and Hughes, 26 Texas Court of Appeals, 134. for evidence held
sufficient to support a conviction of murder of the first degree. Hughes
V, State, 127.

7. The act of killinir, in this case, necessarily included an assault
and battery, and the charge of the court defining murder sufficiently
embraced assault and battery, but the trial court, in addition, gave
in charge an independent definition of assault and battery. Held
material error because excepted to. Moreover it was matter calculated
only to encumber the charge and confuse the jury. Crook v. State,
198.

8. As a predicate for the introduction in evidence of the written
testimony of one T., as delivered at the examining trial, it was proved
that the said T. resided in the Indian Territory at the time of the
examining trial and at the time of this trial. Held that the predicate
was sufficiently established. Id.

9. The defense offered to prove by the witness N. the statement
made to him by an one D. to the effect that the gan with which it was
claimed by the State the killing was done was found by D. at a certain
place, which proof, upon objection by the State, was excluded as hear-
say. Held that the rulfnpf was correct. Id,

10. The indictment charged that "Mack Green, on or about the first
day of May, 1888, in the county and State aforesaid, did, with malice
aforethought, kill Sam Smith by shooting him with a gun; contrary,**
etc. On motion in arrest of judgment, the indictment is held a good
indictment for murder, and sufficient to sustain a conviction in the
first degree. Qreen v. State, 244.

11. In a trial for murder the inculpatory evidence tended to prove
that the defendant and his brother waylaid the deceased, and that he
was fired upon and killed by one or both of them — both being present
and acting together in perpetrating the homicide. According to the
defense, the meeting of the deeceased with the defendant and his
V)rother was accidental, aod the first shot was fired by the deceased at
the defendant's brother, who, in self defense, and with no co-operation
of defendant, fired upon and killed the deceased. The trial court gave
in charge to the jury the law of murder of the first degree, and of
jufetifiable homicide in self defense, but refuse i to give in charge tha

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27 Texas Court of Appbads. 809

Index.

UJJBDlSiR—continiied.

law of murder of the second degree and of manslaughter, ffeldj that
the charge covered the only issues in the case, and properly omitted
the law of murder of the second degree and of manslaughter. Id.

12. Evidence sufficient to support a capital conviction for murder.
Hawkins v. State, 278.

18. See the statement of the case for evidence objected to by a de-
fendant on trial for murder, held, in view of the other proof in the
case, to have been properly admitted; and note that the evidence as a
whole is held amply sufficient to support a conviction for murder in
the second degree. Moody v. State, 287

14. Omission or refusal of the trial court tp submit in charge to the
jury the law of murder in the second degree, when the evidence estab-
lishes only the higher grade, is not error. McCoy v. State, 415.

15. In this case the general charge of the court clearly and concisely
hinged the guilt of the accused upon the question whether he was
present when C. killed the deceased, and, knowing the unlawful intent
of C, aided or encouraged C. in the killing of the deceased; or whether
he advised or agreed to the killing of the deceased by C, and was
present when C. killed the deceased. The defense requested an alter-
native charge based upon the theory that O., unaided in any man-
ner by the accused, shot and killed deceased, and that the shooting
of one £., at the same time and place by the accused, was a distinct
and separate transaction from the killing of the deceased by C. The
trial court gave the requested instiuction with the following qualifi-
cation: ''The foregoing charge is given in subordination to the general
<iharge regarding principals." This qualification was not excepted to^
but was urged as cause for new trial, and is relied upon in this court
for reversal, the defense maintaining that, if the evidence does not
clearly establish its theory, it leaves it in doubt, and that its said the-
ory should have been submitted to the jury affirmatively, subordinate
to no other charge and untrammeled by any qualification whatever.
Held, that abstractly the objection is sound, and if based upon sufficient
evidence or opposed by insufficient inculpatory proof, would require a
reversal of the conviction; but, the evidence not only refuting the
theory, but establishing beyond peradventure the propo$>itions pro-
pounded by the general charge, the qualification appended to the
special charge by the trial judge did not inure to the injury of the
defendant. Id.

16. See the statement of the ca^se for evidence Tield sufficient to
support a capital conviction for murder. Id.

17. Allegation in an indictment for murder that the deceased was
killed by a shot fired from a gun will admit proof that the fatal shot was
fired from any kind of a fire arm. B at in (his case t he indictment allegcl
that the deceased was shot and killed by the defendant "with a weapon
to the grand jurors unknown." To prove the diligence of the grand jury
to ascertain the character of the weapon used, the State asked the fore-
man of the grand jury: "What effort, if any, did you make to learn the
manner and cause of the death of deceased, and what conclusion did

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810 27 Texas Court op Appeals.

Index.

IITJRDER— continued.

you arrive atf ' The witness replied as fallows. "We bad a gre\t maity
witnesses before the grand jury, and we returned this indiotment,
which we thought was right." Held t hat the questioo was erro««>u^]y
allowed, because upon the question or diligence it was too broad and
comprehensive, and was calculated to and did elicit an answer at once
hif?ompetcnt and prejudicial to the rights of the defendant. Monk v.
State, 450.

18. The indictment having alleged that the deceased came to his
dea'h by beiog shot, it devolved upon the State to establish that fact
liy oomf)etent evidence. See the opinion for evidence admitted on the
issue Iield incompetei^t because in part hearsay, and in part the opinion
of a xritness based upon investigation to which the defendant was not
a I arty. Id,

19. See the statement of the case for evidence held insufficient to
support a conviction for murder in the sesond degree Id.

20 . The indictment charged the murder of one C. Spears. The State
p'ovel that subsequent to the disappearance and alleged murder of
Spr ars the defendant collected from one A. a sum of money due by A.
t > one Pierce, Held, that in view of proof showing the said Pierce
and the said Spearj to be one and the same person, the evidence was
properly admitted. Jump v. State, 459.

21. The sheriff of Dallas county was permitted, over objection by
defendant, to testify that, subsequent to the alleged murder, he ar-
rested Mouk, a party charged by separate indictment with the same
oflfMiFe, in a distant county. Held, error, because even if the evidence
were ^ufficieDt to establish a conspiracy between defendant and Monk,
the proof related to matters transpiring after the cons uumationof
the conspiracy. Id.

22 The statute expressly requires that in convictions for murder the
verdict sha'l specify the degree of murder of which the defendant is
fouod guilty. The failure of the verdict to so specify the degree is
catise for reversal. Zioicker v. State, 589.

28. The evidence in this case shows conclusively that the conflict was
provoked and broup:ht on by either the defendant or fhe deceased, and
that the otlir»r, in resisting the attack, acted upon real or apparent
necessity. Held, that such proof excludes the idea of mutual combat,
and in submittiog that issue to the jury the charge of the trial eourt
was erroneous. Kelley v. State, 562. ,

24. Article 572 of the Penal Code provides that **homicide is jnstift
able in the protection of the person or property against aoy other
unlawful and violent attack besides those mentioned in the precedinfir
article (murder, maiming, disfij^ruring or castration), and in such cases
all other means must be resorted to for the prevention of the injury,
and the killing must take place \vhile the person killed is in the very-
act of making such unlawful aud violent attack." In submitting this
law to the jury, under the facts of this case, the trial court erred. Sea
the opinion for a special charge on justifiable homicide, requested \yy
the defense in lieu of the above charge, the refusal of which, in vie^w

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27 Texas Court of Aipeals. 811

Index.

MJJRDER— continued,

of the proof, was error; and note the approval on this subject of Or-
mond's case, 24 Texas Ct App.. 496. Id,

25. The proof shows that aboat one month before the homicide
Involved in this prosecution, the deceased killed one C, a relative
of the defendant, and that the said killing resulted in creating re-
lations of open and avowed enmity between the defendant and cne
B. on the one side, and the deceased on the other; that these rela'
tions became so strained and dangerous that mutual friends finally
intervened and induced the parties to asrree, on the part of def« nd-
ant and S., not to molest the deceased, und on llie part of de-
ceased that, in visiting Hempstead, he would only carry his Win-
ch'^ster rifle in his buggj', or, if on horsfbick, in the tcabbard to
the saddle, and that any other mode of carrying the. said pun was
to be construed by defendant and 8. ns a dtclnr^tioa of hostility
by decea«»ed; and that threats uttered by either party were by the
mutual friends to he reported to the other party. The proof further
shows divers breaches by the decea^^ed of the agreement as to the
carrying of the gun, and frequent threats of a deadly nature uttered
by deceased, some of which were communicated to the defendant and
S. The inculpatory proof shows that, wh-^n shot, the deceased was
sitting on his horse, with his gun across his lap, and his back toward
the place from whence he was shot, and that, so far as was apparent,
he was unconscious of the proximity of any person save those to whom
he was talking, that be fired no shot, and that he made no motion to
seize his gun, at least until immediately before he was fired upon, when
be was warned by a bystander to **10ok out;" that a few minutes prior
to the shooting the defendant and S , from a short di*»taoce, remarked
deceased's presence, and immediately, by a circuitous route, and
through an alleyway, approached to within a few feet of the deceased,
and opened fire.upon him from behind him, with fatal eftecr, and con-
tinued to shoot him while in the death- agony. The defendant pro-
duced testimony to the eflfect that he and S. went to ihe place of the
killing in the manner they did to execute a warrant for the arrest of a
desperate criminal, who was reported to them to be at that place, and
that their coming upon the deceased was sudden and wholly unex-
pected. Upon this state of proof the defendant claims that, by reason
of the recent threats and acts of the deceased, in violation of the agree-
ment, and their sudden and unexpected discovery of hiiu with his gun
carried contrary to the agreement, they were confronted with such
appearance of danger as was calculated to arouse, in men of ordinary
t^'mper, such emotions as would render the mind incapable of cool re-
flection; and upon this theory he demanded of the courr. the submis-
sion to the jury of the issue of manslaughter. Held that the proof did
not present, and the trial court did not err in refusing to submit tc
the jury the i?sue of manslaughter, because the evidence does not es-
tablish ''adequate cause," nor show any purpose on the part of the
deceased, when killed, to execute threats previou«jly made by him.
MeDade v. State. 641.

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«12 27 Texas Court of Appeals.

Index.

MURDEBr-continued.

26. See the statement of the case for a charge of the court on the
issue of self defence, held sufficient under the evidence adduced; and
see the opinion for reques^ted instructions on the same question held
to have been properly refused as unwarranted by any proof in the
case. Id,

27. Upon the doctrine of ^'rea'-onable doubf^ the trial court charged
the Jury as follows: "The de''ejdant ii^ presumed to be inoocent until
his guilt is efetabliiihed by the evidt-nce to the ^atisfactioD of the jury
beyond a reasonable doubt"— omitting the statutory word 'iegal" be-
fore the word "evidence." Held, that the omis^ion was immaterial,
land the instruction in ^ubhtautial com()lance with the statute. Id.

28. In the exauiination of his own witness the defendant proved the
declaration of deceased to the.i^aid witness, that defendant bad uttered
threats against him, deceased. Defendant requested the court to
charge the jury that such declaration of the deceased could not be
considered by them as evidence that 8uch threats were made by the
defendant. Held that, having himself elicited the adverse testimony,
the defendant could not he heard to complain, and the court did not
err in refusing the instruction. Id,

29. See statement of the case for evidence Tield sufficient to support
a convict ion for murder in the 8econd degree. Id,

80. A State's witness testified that he arrested the defendant on the
day of the shooting and near where it occurred, but was unable to
state what length of time had elapsed since the shooting occurtei.
The defense, on cross exaiiiination, proposed to prove by the wltuess
the statement made to him by defendant, when arrested, about the
shooting. The iiroposed proof was excluded as no part of the res
gestae. Held, correct. Cahn v. State, 709.

81 . The testimony of the defence tends to show that about the time
of the fatal shooting the defendant claimed that the deceased was
indebted to him a sum of -money. It also shows that the employment
of the defendant as the businet>s manager, bookkeeper and confidential
agent of the deceased terminated in June, 1887. In rebuttal of the
defendant's claim of money due him by the deceased, the State intro-
duced in evidence, over objection of defendant, a promi-^sory note
executed by the df ceased in favor of the defendant, dated June 8, 1887,
which showed by deleudant's indorsement to have been paid, and also
a receipt, executed ou the same day by the defendant, acknowledging
the payment in full by deceased of all claims then due. Beld^ that
the trial court did not err iu admitting the said note and receipt in
evidence. Id.

32. During the progress of the trial the defendant's counsel re-
quested permission of the court to consult a State's witness with
reference to the testimony he would give in the case. The court
granted the request, tut the witness refused to disclose his testimony
to thecounsf-l, aijd the latter moved the court to compel the witness
so to do. The court refused the motion, and the defendant excepted.
Held, that the rulinj? was not error. Id.

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27 Texas Court op Appeals. si'3

Index.

MURDER— cowWnwed.

88. As a general definition of malice, the trial court instructed the
jury as follows: *'Ma1ice means a settled purpose or intention to seri-
ously injure or destroy another." Held^ erroneous. Id.

84. In view of the evidence, the trial court erred in omitting: to
instruct the jury that, if defendant provoked the contest with de-
ceased, but not with the Intention of killing or doing him serious bod-
ily injury, he would not, by such provocation, be wholly deprived of
the right of self defense, but that in such case self defense might be
availed of by him to the extent of reducing the degree of homicide to
a grade less than murder. Id.

NEGLECT OP OFFICIAL DUTY.

Id order to warrant the conviction of an overseer of a public road
for failure, neglect or refusal to perform the duties of his office, it de-
volves upon the State to show that such faUure, neglect or refusal on
his part was wilful — that is, with evil intent, with legal malice, without
legal justification, and with no reasonable ground to believe his action
legal. Such overseer is charged only with reasonable diligence and
effort in -the discbarge of his duty, and can not be held criminally
responsible for failing to keep his road in repair, when it is shown that
to do so with the means available to him is an impossibility. If he
exercised reasonable diligence and effort, no wilful failure, neglect or
reftt^al to discharge his duty can be imputed to him. Moore f>, JState^
439.

NEGLIGENCE.

Negligence by omission consists in the omission to perform an
act with the performance of which the party is especially charged, and
there can be no criminal negligence in the omission to perform an act
which it is not the express duty of the party to perform. Under this
rule brakemen on a railway train, whose duty Is shown to pertain in
no degree to the operation of a locomotive, nor to the watching of the
railway track, nor the sounding of the danger signal, can not be held
liable for the killing of a person by the locomotive, operated by the
engineer and fireman, upon whom the duty of operating it exclusively
devolved. See the statement of the case for evidence held insufficient
to support a conviction for negligent homicide. Anderson et al. v.
State, 177.

NEGLIGENT HOMICIDE.

1. See the statement of the case for the substance of an indict-
ment held sufficient to charge the offense of negligent homicide. An-
derson et al. V. State, 177.

2. A person charged, either in the same or another indictment,
with participation in the offense on trial, is not competent to te>tify
in behalf of the accused. It appears in this case that the witness

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814 27 Texas Court of Appeals.

Index.

NEGLIGENT HOMICIDE— cowifnwcd.

proposed by the defense was indicted, by an incorrect name, for the
same offense. Held that the proposed witness was proi>erly held in-
competent. Id.

3. Negligeuce by omission consists in the omission to perform an
act with the perforuiaiice of which the party is especiaUy char^^ed, and
there can be no criminal negH^ence in the omission to perform an act
"wliich it is not the express duty of the party to perform. Under this
rule brakemen on a railway train, whose duty is shown to pertain in
no degree to the operation of a locomotive, nor to the watching of the
railway track, nor the sounding of the danger signal, can not be held
liable for the killing of a person by the locomotive, operated by the
engineer and fii^man, upon whom the duty of operating it exclusively
devolved. See tho statement of the case for evidence held insufficient
to support a conviction for negligent homicide. Id.

NEWLY DISCOVERED EVIDENCE.

The indictment in this case charged an assault to rape by force,
and the allegation was supported by the testimony of the prosecutrix.
The proof for the defense, however, not only contradicted her testimony
materially, but tended to prove her convent. Upon this btate of evi-
dence the defense asked a new trial to produce newly discovered evi-
dence strongly supporting the theory of consent. Held that, under
the facts in proof, the new trial should have been awarded on the newly
discovered evidence adduced by the defensa Reed v. State, 817.

NEW TRIAL.
See Robbery, 1.

1 . The only inculpatory evidence against the accused was the teetL
mony of two witnesses to the efifect that, subsequent to the theft
of the property, they saw the same removed from a place of con.
cealment by three parties, one of whom they belieTed, but were
not positive, was the defendant. In antiicpation of this evidenee«
the defendant applied for a continuance to secure a witness by whom
to establish his presence blz another place at the time the property
was removed from the place of concealment. Being denied the con-
tinuance, and convicted, the defendant asked for new trial because
of the ruling of the court upon his application for continuance. The
new trial was refused upon the ground (as was the contiuufgioe)
that the proposed alibi did not cover the time of the theft of the prop-
erty. Held, that the action of the trial court was error, not only be-
cause of the inherent weakness of the inculpatory proof, but because
an alibi i« available, not merely to meet the main issue in the case, but
any criminative fact relied upon by the State. Taylor v. State, 44.

3. Even if the absent testimony set out in an application for con"
tinuance be both admissible and probably true, it will not, if iminate"
rial, require the award of a new trial because of the refusal of the
continuance. Ft ace v. State, 83.

3. In support of the motion for new trial, the defense filed th«

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27 Texas Court of Appeals 815

Index.

NEW TRIAL— continued.

afQdavit of a third person to the effect that after the trial of Sarah
Washington, for the same offense, and before the trial of the de-
fendant, one of the jurors wlio tried the defendant, said that the
eaid Sarah Washington should have been awarded the death penalty,
and that the testimony on her trial and that on the trial of defendant
was essentially the same. The counter affidavit of the impugned juror
affirms that he had no recollection of making the statement imputed
to him, and that, if he mado it, he made it in jest, and that he tried the
defendant without bias or prejudice, and solely upon the evidence ad-
duced and the law given in charge. Held, that the motion for new
trial was properly overruled. Hawkins v. State, 278.

4. The indictment in this case charged an assault to rape by force,
and the allegation was supported by the testimony of the prosecutrix.
The proof for the defense, however, not only contradicted her testimony
materially, but tended to prove her consent. Upon this state of evi-
dence the defense asked a new trial to produce newly discovered evi-
dence strongly supporting the theory of coni>ent. Held that, under
the facts in proof, the new trial i<hould have been awarded on the newly
discovered evidence addeced by the defense. Beed v. State, 817.

5., When it is shown that a verdict of guilty was probably influenced
by the statement of a juror to his colleagues assailing the credibility of
a witness for the defendant, a new trial should be gremted. Lucas v.
State, 332.

6. The application for continuance shows that the defendant sued
out OS many as four subpoBoas and one attachment for the absent wit-
ness, who was a resident of Dallas county, and alleged that by the absent
witness he would prove that the alleged injured party was the aggressor,
aT d that h^ struck said party only in defense. The testimony of the
prosecuting witness was not only contradicted as to material matter by
the witnesses for the defense, but they testified that the prosecuting
witness cursed the defendant, and struck him before defendant struck
the prosecuting witne;<s, and that, when the defendant finally struck
the two blows inflicted upon the prosecuting witness, he, defendant
w^^s retreating. Held that the diligence being sufficient, and the absent
testimony being, in view of the proof, both material and probably
true, a new trial should have been awarded. Stevens v. State, 461.

7. If, after conviction, it appears that the absent testimony (to
secure which the application for continuance discloses due diligence)
was both material, and, in the light of the proof on the trial, probably
true, a new trial should be awarded. Black v. State, 495.

8. The defendant's motion for new trial sets up that, though on his
voir dire the juror Doss declared his competency to sit as a juror, he
wa?, in fact, as ascertained by the defendant after the trial, an in(»x)m-
petent juror, being neither a resident of Travis county, a householder
in eaid county, nor a freeholder in the State, and that before the trial
he declared his prejudice afiainst the defendant. The district attor/iey
filed a written denial of the allegations made in the motion for new
trial, but introduced no evidence in support of said deniaL In this

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816 27 Texas Court op Appeals.

Index.

NEW TRIAL— continued.

state of the case, the Jaror Doss mnst be held to have been inoompe-
tent, and hit service upon the jury entitled the defendant to a new
triaL Brackenridge t>. 8tate^ 518.

OCCUPATION TAX.

1 . Under the Acts of March 11, 1881, and April 4,1881, the appellant
was prosecnted for parsning the occupation of selling liquors in quanti-
ties less than a quart, without paying the tax required by law and with-
out liceuse, etc. He excepted to the indictment on the ground that the
said Acts of 1881 are violative of the Constitution of the State in two re-
spects; first, because they contain more them one subject, and embrace
subjects not expressed in their titles; and, second, because, as a con-
dition precedent to engaging in such business, the said Acts require
the tax thereon to be paid in advance for the term of a year, but per-
mit the tax on other occupations to be paid quarterly, and require a
license to pursue said business, but permit others to be pursued with-
out a license, and therefore are repugoaat to the constitutional require-
ment of equality and uniformity in taxation. But lield that neither of
these objections to the said Acts of 1881 is tenable, nor are the said
Acts repufjnant to the Fourteenth Amendment of the Constitution of
the United States. See the opinion in extenso for a lucid exposition
of the principles and precedents which maintain the constitutionality
of the said enactments. Fahey v. State, 146.

2. The present Constitution of Texas provides that "No bill (except
general appropriation bills, etc.,) shall contain more than one subject,
which shall be expressed in its title. ^^ jETe^ that an Act may, without
contravening this inhibition, contain or contemplate more objects
than one. Id.

3. Section 1 of article 8 of the State Constitution expressly empowers
the Legislature to impose occupation taxes, and section 2 of the same
article requires that such taxes shall *'be equa^l and uniform upon the
same class of subjects within the limits of the authority levying the
tax." These provisions do not necessitate equality and uniformity as
between different classes of occupations, nor require the imp>o8ition
upon every class of the same conditions precedent to their lawful
pursuit; and therefore the requirement from retail liquor dealers of
a license and of prepayment of the tax for a year does not contra-
vene the said coast itutianal provisions, though these conditions be not
imposed upon other occupations. So, aho, one county may, without
infringing said provisions, levy a larger county tax upon an occupa'
tion than is levied on the i^ame occupation by other counties. Id.

4. The trial court instructed the jury to convict in case they
found that the defendant (within the alleged venue and dates) pur-
sued the occupation of selling spirituous, vinous and malt liquors,
in quantities less than a quart, '* without having paid the occupation
tax cf three hundred dollars to the State and one hundred and fifty
dollars to the county of Galveston, and the said taxes were then

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27 Texas Court of Appeals. 81?

Index.

OCCUPATION TAX— continued,

due and owing and unpaid to the State and county respectively;^
and farther instructed the jury that the penalty was by a fine of not
less than four hundred and fifty dollars, nor more than nine hundred
dollars. Appellant assails these instructions because they substitute
the phrase '* without having paid the tax ^^ in lieu of the phrase *' with-
out having obtained a license. ^^ Held that the substitution was to ap
pellant's advantage, and affords him no cause for complaint. Id,

5. It was also objected that the iostructioDs assumed as a fact
that the county of Galve«iton had levied on the appellant^s occupation
a county tax of one half the tax levied on it by the State. The record,
however, shows that the appellant admitted that fact on the trial, and
that the State consequently introduced no other proof of it. t^eld,
that the objection is not tenable. Id.

6. Objection was taken to the penalty as stated in the instruc-
tions, viz: a fine of not less than four hundred and fifty dollars nor
more than nine hundred dollars. Held that the instruction was
correct, inasmuch as the State tax was three hundred dollars and the
county tax one hundred and fifty dollars, aggregating four hundred
and fifty dollars, which was the minimum and the doable of which
was the maximum of the fine prescribed by the statute Id,

7. An employe who follows the occupation of selling inhibited
liquors when the tax imposed by law has not been paid is, equally
with his principal, amenable to article 110 of the Penal Code. DaoUI-
ton V. State, 262.

8. The minimum punishment for pursuing an occupation taxed by
law without having first obtained necessary license, is a fine of not
less than the tax imposed upon such occupation. And as the license
of a retail liquor dealer can not issue for a shorter period than one year,
the minimum punishment for the violation of the said article 110 is a
fine in the full amount of one year's tax upon such occapation. The
charge of the court so defining the penalty, it was correct. Id.

9. Ffdling to request instructions to supply omissions in the charge
of the court, the defendant in a misdemeanor case can not be heard
to complain of sach omissions, notwithstanding he may have excepted
to the same. Id.

OFFERING FOR SALE ADULTERATED FOOD.

1 See the statement of the case for an information held sufficient
to charge the ofltense of offering adulterated food for sale. Sanchez v.
State, 14.

2 To support a conviction for offermg adulterated food for sale
it devolves upon the State to prove not only that the accused offered
such food for sale, but that, when he did so, he knew that the said
food was adulterated. See the statement of the case for evidence Tield
insufficient to support a conviction for offering adulterated food for
sale. Id.

OFFICIAL MISDEMEANOR.
See Ne»lbct op Official Duty.

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818 27 Texas Court of Appeals.

Index.

OFFICIAL MISCONDUCT.
See Extortion.

PBNALTr, 2.

OFFICIAL PECULATION.

In the construction of the statute, the legislative intent, if that
inteut can be aseertaiDed, must govern even over the literal import of
words, and without regard to grammatical rules. Thas construed, ar-
ticle 250 of tbe Penal Code inhibits any officer of a county, city or town
from entering into, on account of himself, any kind of financial trans-
action with such corporation. The indictment in this case charged the
accused with the violation of said article, in that he sold a mule to the
county of which he was a county Commissioner. Reld^ that such sale
constituted a violation of said article, and the indictment was suflioient.
Eigby v. State, 65.

OWNERSHIP.
See Theft, 4.

PENALTY.

1 . Objection was taken to the penalty as stated in the instructions,
y\z: a fine of not less than four hundred and fifty dollars nor more than
nine hundred dollars. Held that the instruction was correct, inasmuch
as tbe State tax was three hundred dollars and the county tax one
hundred and fifty dollars, aggregating four hundred and fifty dollars,
which was the minimum and tbe double of which was the maximum of
the fine prescribed by the statute. Fahey v State, 146.

2 . Article 3388 of the Revised Statutes provides that *'all convictions
by a petit jury of any county officers for any felony, or for any misde-
meanor involving official misconduct, shall work an immediate removal
from office of the officer so convicted, and such judgment of conviction
shall in every iostaiice embody within it an order removing such offi-
cer.^' Demanding fees not allowed by law is '^official misconduct'^
within the purview of the statutes of the Stata Brackenridge v.
State, 513.

PERJURY.

1. It is essential in a perjury case not only that the indictment
shall allege that the court before which the judicial proceeding in
which the perjury is charged to have been committed had juriedio-
tion of such judicial proceeding, but that fact must be established by
the proof. Wilson v. State, 47.

2. Onder the law of this State ah information is insufficient for any
purpose unless founded upon a complaint, filed therewith, charging
an offense. The indictment in this case charged that the perjury was
committed on the trial of a judicial proceeding in the county court
'^wherein one Bean was duly and legally charged by information, "etc-
To support the allegation of jurisdiction of the county court, the State

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27 Texas Court of Appeals. 819

Index.

PERJURY— con^intwcf.

introdaoed in evidence the inform at ion« bat not the complaint. Held,
that the proof was InsufQcient. Id.

8. To charge the jury, in felony cases, upon the law applicable to
the ease, whether asked or not, is under our law a duty imposed
imperatively upon the trial judge. It is an express provision of our
statute that '*ln trials for perjury no person shall be convicted except
upon the testimony of two credible witnesses, or of one credible wit-
ness corroborated strongly by other evidence, as to the falsity of the
defendant's statements under oath, or upon his own confession in
open court/' The trial being upon the plea of not gpiilty, and not
upon confession in open court, the omission of the trial court to give
in charge to the jury the substance of the above statutory provisions
was fundamental error. Id.

4. A "credible witness," as used in the statute, means "one who,
beiug competent to give evidence, is worthy of belief." Id.

5. Note the approval of Wilson v. The ytate, ante, to the effect that
without a supporting affidavit an information is not sufficient evidence
of jurisdiction alleged in the indictment, and that the omission of the
trial court, on trial for perjury, to give in charge to the jury the sub-
stance of article 746 of the Code of Criminal Procedure, is fundamental
error. But note that the errors in this respect, committed upon the
trial of Wilson ^8 case, were not committed upon the trial of this case.
Smith f). State, 50.

6. Indictment which conforms to No. 132 of Willson's Criminal
Forms is sufficient to charge the offense of perjury. Id.

7 The materiality of matter assigned as perjury is a question to
be determined by the court, and not by the j ury. A special instruction
announcing the converse as the rule was properly refused. Id.

8. In his conclnding argument the counsel for the defense stated to
the jury that the State's counsel, in closing the case, would have some-
thing to say about why P. and W. and E (all of whom were shown to
be indicted for the same offense) were not put on the stand by the de-
fense, and that the reason they were not called to the stand was that,
if called, the prosecuting officer would indict them again for perjury.
In reference to this matter the State's counsel, in concluding the argu-
ment, stated that all of the parties named, except W., who had been
convicted, could have been called to testify without danger of indict-
ment if they testified to the truth. Held, that the remarks of the
State's counsel, being responsive to the argument for the defense, were
legitimate. Id.

9. The common law rule that an indictment for perjury must
allege correctly the day on which the perjury was committed, and
that a variance between the time alleged and that proved would
be fatal, has been so changed by statute in this State, that the in-
dictment need only allege some time anterior to the presentment of
the same, and not so remote as to be barred by the statute of limita-
tions; with which allegation the proof, to be sufficient, must concur,
Lucas V. State, 823.

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820 27 Texas Court of Appeals.

Index.

PERJURT— con^nued.

10. The affidavit of a pablio free school teacher to the ronoher for his
salary is **reqaired by law," and therefore, if false, is matter asslfrnable
for perjury, and not for the distioot offense of false swearing^. O^Bryan
V, State, 839.

11. Charge of the court in a perjury case must instruct the jury
upon the provisions of article 746 of the Code of Criminal Procjdare.
Miller V, State, 497.

12. A false statement under oath, to constitute perjury, must have
been deliberately and wilfully made, the accused at the time know
log it to be false. A false statement under oath, if made through
mistake, is not perjury. Bronkin v. State, 701.

13 . When previously arraigned for trial for cattle theft, the accused
applied, under oath, for a continuance for want of two absent wit*
nesFfs, whose absence, he averred in his application, was not by his
procurement or consent. — and this averment in the said application
is the perjury assigned in this case. On this trial it was proved that,
several days before the case for cattle theft was called, the defendant
told the said witnesses that he would not need them on his trial; that
they need not attend, and they were excused by him from attending
that trial in his behalf. To meet this evidence the defendant offered
to prove by the witness B. that, after he had excused the said witoej^ses,
and before the theft case was called for trial, he directed the said B. to
countermand his agreement excusing them from attending and testify-
ing in his behalf on the trial, and to require them to be present as
witnesses in his behalf; that, being himself confined in jail, he could
not attend to the matter himself, and B. promised but failed to do as
directed by him. This proof was excluded upon objection of the
State. Held, error, inasmuch as it tended to show, and, if true, did
8how, a false statement under oath made by mistake. Id.

14 Charge of the court on a trial for perjury is fundamentally er-
roneous if it falls to instruct the jury that a conviction for perjury
cnn not be had except u[>on the testimony of at least two credible
witne-sps, or of one credible witness strongly corroborated by other
evidence, or upon the accused^s confession in open court, as to the
falsity of the statements under oath. Id.

PLAYING CARDS, ETC.

1. A *'gin^* is not one of the places or houses designated by the
statute as a ^'public place." To charge the offense of playing cards in
a public place, "to wit, a gin," the information should have charged
the facts which constituted the gin a public place. Bailey v. State, 569.

2. The information charged that the accused played the cards in
StBrkey^s gin. The proof was that he played cards in a fence comec,
in a pasture and in a room near Starkey's gin, but not at the gin.
Meld, insufficient to support a conviction. Id.

8. The information charges that the accused, on March 5, 1888.
did play a game of cards in a certain out house, ^^said out house being
then and there a place where people did then and there resort.*^

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27 Texas Court of Appeals. 821

Index.

PLAYING CARDS, ETC.— continued.

To anthorize a conviction under this information it was necessary for
the State to show by the evidence that the offense was committed prior
to the presentation of the information, and that at the very time it
was committed the said ont house was a place wher(3 people resorted.
See the opinion for the substance of evidence Theld insufficient to sup-
port a conviction for playing cards in a place of public resort. Lynn
' V. State, 590.

PLEADING.

1. Indictment to charge the fraudulent sale or disposition of mort-
gaged property must allege the name of the person to whom the same
was sold or disposed of, or, if such be the fact, that the name of such
person was to the grand jurors unknown. Alexander v. State, 04

2. The second count of the indictment (being the count upon which
this conviction was had) charges that certain persons, to the g^and
jurors unknown, and whom the grand jurors are unable to describe,
did kill and murder one Ellick Brown, and that defendant, prior to
the commission of said murder by said unknown per^oas, did unlaw-
fully, wilfully and of his malice aforethought, advise, command and
encourage said unknown persons to commit said murder said defend-
ant not being present at the commission of said murder by said un-
known persons. It was objected to the indictment that it neither
named nor gave a description of the unknown persons who committ* d
the murder of Brown. Held, that the objection is not sound, and the
indictment is sufficient, its purpose and effect not being to charge the
unknown persons as the "accused" in this case, but to carge the defend-
ant as an accomplice to the murder of Brown. Dugger v. State, 95.

8. In a criminal action for malicious prosecution under article 273
of the Penal Code, it is not essential that the information shall al-
lege that the prosecution fiigainst the injured party had ended before
the information was presented. See the opinion for an information
held sufficient to charge such a malicious prosecution as constitutes
the offense defined in said article 273. Dempsey v. State. 269.

4. Indictment for burglary charged that the house was entered with
the intent to commit theft, but fails to charge that the entry was made
with the fraudulent intent to take the property from the possession of
the owner; and the allegation of theft fails to charge that the property
was taken from the possession of the owner. Held insufficient to charge
the offense. O'Brien v. State, 448.

5. Indictment, to be sufficient to charge the offense of fraudulently
disposing of mortgaged property, with intent to defraud, etc., must
allege the name of the person to whom the mortgaged property was
disposed or sold, or that the name of sech person was to the grand
jury unknown. Armstrong v. State, 462.

6. Indictment or information is not bad for duplicity because it
contains several counts charging different misdemeanors. Alexander
V. State, 533.

7. It is not required that each ani every count in an indictment

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822 27 Texas Court of Appeals.

Index.

PLEADING— continued.

shall conclude with the words '^against the peace and dignity of the
State, ^ it being sufficient if the instrument as a whole so concludes
Id.

8. Information is insufficient to charge an offense unless it concludes
with the words: ''agaiost the peace and dignity of the State." The com-
plaint, however, being a good one and sufficient to sustain an informa-
tion, the cause is not dismissed, but is remanded in order that a valid
information may be filed upon the complaint. Wood v. State, 538.

POSSESSION OP RECENTLY STOLEN PROPERTY.
Bee EviDBKCB, 16, 17.
Theet, 28.

1. See the opinion in extenso for a charge of the court upon the ques-
tion of the possession of recently stolen property, etc , lield correct and
responsive to the proof. Clark v. State, 405.

2. The rule has been announced in repeated decisions of this court
that the possession of recently stolen property is not of itself proof
positive of thelt, but that the proof of such po£ses»ion, "'however
recent, and whether explained or not, is merely a fact or circumstance
to be considered by the jury, in connection with all the other facts
submitted to them, in determining the guilt of the possessor.'* The
same rule requires that when the accused, upon being first challenged,
offers an explanation of his possession, it devolves upon the court to
instruct the jury as to the effect of such explanation— that is, if the
explanation is reasonable, it will prevail as against the naked posses-
sion, unless rebutted by the State. The presumption of guilt which
attends possession of stolen property is a presumption of fact for the
jury, and not of law. In this case the charge of the court, otherwise
correct, instructed the jury that the '"jK^ssession of recently stolen
property is presumptive evidence of guilt." Held error. Lee v. State^
475.

PRACTICE.
See Alibi, 1. New Trial, I, 4, 7.

Charge of the Court, 80-32, Slander.

55. Special Plea, 1.

Continuance, 5. Swindling.

Evidence, 2, 4, 21, 47, 48. Theft, 1, 2. 10.

Indictment, 2, 21, 22. Variance, 1.

Information, 2. Venue, 2.

Newly Discovered Evidence, 1. Verdict, 4.

1. The statute under which one of plural defendants, whether
jointly or separately indicted, by filing his affidavit to the effect that
he verily believes there is no evidence against his co-defendant, and
that the testimony of his co defendant is material to his own de-
fense, may require that his co-defendant be first tried, can not, in-
dependent of other sufficient showing, be held to operate a contin-
uance of his case to secure the testimony of his co-defendant. Wbea

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27 Texas Court of Appeals. 823

Index.

PRACTICE— con«ww6c2.

arraigned in the district court of Shackelford county, to which the
venue had been changed from Stephens county, the defendant in this
case filed an affidavi|; setting forth that Jane Stouard was charged by
separate indictment with the same offense; that the iodictment against
Jane Stouard was still pending in the district court of Stephens county;
that the testimony of the sadi Jane Stouard was material to his de-
fense, and that he vei'v believed there was not sufBcient evidence to
convict the said Jane Stouard; npon which afHdavit he prayed the
court to order that the said Jane Stouard be firnt tried, and that his
trial be continued in order to enable him to secure the testimony of
said Jane Stouarl, if acquitted. Held^ that the court did not err in re-
fusing to continue the case to await the trial of the codefendaut.
Stouard u. State, 1.

2. The application for continuance recited also the absence of
two material witnesses. Overruling the same for the want of dili-
gence, the trial judge explained that, although confined in the same
jail with one of the absent witnesses for months, the accused had
taken no steps to secure the service of process upon him; and that, al-
though, as shown by a previous application for continuance, the de-
fendant knew that the other witness was an incurable invalid, and un-
likely ever to be able to leave his bed, he had taken no steps to secure
his deposition. Held that the ruling was correct. Id,

3. It is an established rule of practice in this State that, upon the
trial of an offense which comprehends different degrees it becomes
the imperative duty of the trial court to instruct the jury upon the
law applicable to every degree or grade of offense indicated by the
evidence, however feeble such evidence may be; that, if there be a
doubt as to which of two or more grades of the offense the accused
may be guilty, the law as to all of such grades should be charged,
and that the trial court should omit to charge the law of any par-
ticular grade only when it is to no extent whatever raised by the evi-
dence. See the statement of the case for evidence adduced on the
trial for murder, which, though sufficient to establish the express
malice essential to constitute murder of the first degree, is not of such
character as to absolutely preclude the jury from finding therefrom
a killing upon implied malice, and, therefore, murder in the second
degree; wherefore the omission of the trial court to instruct the jury
upon the law of murder of the second degree was error. Blocker v.
State, 16.

4. The accused, being on trial for murder, contends that, under
the law of this State, it is the duty of the trial jud^^e, in murder cases,
without regard to the evidence adduced, to instruct the jury as to the
law of murder of the second degree. But held that, notwithstanding
the apparent plausible construction of the statutes upon which the
proposition is maintained, the doctrine obtains in this State that th®
trial court may decline to submit to the jury the issue of murder of
the second degree when the evidence wholly fails to present that
issue. See the opinion in extenso upon the question, and note the
suggestion relative to the charge in trials for murder. Id.

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824 27 Texas Court of Appeals.

Index.

PRACTICE— con^t'nwerf.

5. Note the approval of Wilson ▼. The State, ante, to the effect that
without a supporting affidavit an information is not sufficient evidence
of jurisdiction alleged in the indictment, and that the omission of the
trial court, on trial for perjury, to give in charge to the jury the sub-
stance of article 746 of the Code of Criminal Procedure is fundamental
error. But note that the errors in this respect, committed upon the
trial of Wilson's case, were not committed upon the trial of this case.
Smith V, State, 50.

6. Indictment which conforms to No. 123 of Willson's Criminal
Forms is sufficient to charge the offense of perjury. Id.

7. It is a rule of practice in this State that special instructions^
whether given or refused by the trial judge, must be authenticated by
his signature, and if the record fails to show that such instructions
were refused, the Appellate Court will presume that they were given.
Id,

8. Special instructions are properly refused when it appears that,
to the extent they were correct, they were embodied in the general
charge. Id^

9. The materiality of matter asigoed as perjury is a question to be
determined by the court, and not by the jury. A special iostraction
aunounoing the converse as the rule was properly refused. Id.

10. In his concluding argument the counsel for the defeose stated
. to the jury that the State's counsel, in closing the case, would have

something to say about why P. and W. and E. (all of whom were shown
to be iudicted for the same offense) were not put on the stand by the
defense, and that the reason they were not called to the stand was
that, if called, the prosecuting officer would indict them again for per-
jury. In reference to this matter the Staters counsel, in concluding the
argument, stated that all of the parties named except W., who had
been convicted, could have been called to testify without danger of
indictment if they testified to the truth. Held, that the remarks of
the State's counsel, being rebponsive to the argument for the defense,
were legitimate. Id.

11 . Appeal bond or recognizance for appeal must be entered into at
the trial term, aud can not be amended after an appeal has been per-
fected. Kontz V. State, 53.

12. No such offense as malicious mischief is known, per se^ to the
law of this State, and an appeal from a conviction for unlawfully
breaking and pulling down and injuring the fence of another must be
dismissed when the recognizance for appeal de^jcribes the offense as
malicious mischief. Id.

18. As a necessary predicate for the admission in evidence of dying
declarations, it must be established that the declarant, when he made
them, was under the sense of impending death, and was sane. Con-
sciousness of approaching death is provable, not merely by the solemn
protestations of the dying person, but by any circumstance which suf-
ficiently shows that wheu he made the declarations he was under the
gense of impending death. See the opinion and the statement of the

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27 Texas Court of Appeals. 825

Index.

PRACTICE— conWnwccf.

case for evidence Tield snfBoient to establish the necessary predicate for
the proof of dyins: declarations. Miller v. State, 68.

14. The defendant haviog: introduced evidence of threats against
his life, altered by the deceased, .a short time before the homicide,
the State, over defendant's objection, was permitted to prove that,
about a year before the homicide, the defendant told a witness that the
** threats of John Collier (deceased) did not amount to any more than
those of an old woiuan.^' Held that objection to this proof was prop-
erly overruled. Id,

15 Special counsel for the State, in the concluding^ argument for
the prosecution, ttated to the jury that " the defense of au insult to a
man's wife is set up in two- thirds of the cases in this county;' that,
"when before the grand jury the witness Rose made no such state-
ment as that he picked a pistol up from the ground;'' that '" he knew
John Collier well, and that he was an honest and truthful man,"
and that ** John Collier left a wife and a lot of orphan children, and
in their behalf you should punish the defendant;" with reference to
all of which statements the trial judge instructed the jury that they
were not to be considered, as they rested upon no evidence in the case.
Eeld that the instruction of the trial court was sufficient to counter-
vail any prejudicial tendency of the said statements. Id,

16. Objection that the trial court charged the jury abstractly upon
the issue of manslaughter can not be entertained, inasmuch as it was
not interposed when the charge was given, and no probable fhjury to
the accused is shown. See the opinion for a charge upon nomieide in
defense of the person against an unlawful attack, and the statement
of the case for a charge upon adequate cause, held sufficient, under the
facts of the case. And note that the evidence does not call for a charge
upon ** cooling time," nor upon self defense, wherefore the tibial court
did not err iu omitting to charge upon ''cooling time" nor refusing
the special charge as to self defense. Id,

17. Even if the absent testimony set out in an application for con-
tinuance be both admissible and probably true, it will not, if immate-
rial, require the award of a new trialbecause of the refusal of the
continuance. Peace v. State, 83.

18. Bill of exception reserved to the charge of the court, if too gen
eral or indefinite to point out specific objection, will not be considered
on appeal; and, in the absence of a proper bill of exception, this court
will examine the iharge of the court below only with reference to fun-
damental errors or ^uch as, under all the circumstances of the case, are
calculated to prejudice the ri$>:hts of the accused Id.

19. The charge of the court in this case should, more explicitly than
it did, have instructed the jury that, to convict, they must find that
the defendant was not present at the commission of the murder, and
that the murder was committed by a person or persons who had been
advised, commanded or encouraged by the defendant to commit it.
Dugger v. State, 95.

20. If the proof tends to raise the qupstion whether or not a State's

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27 Texas Court of Appeals.

lodex.

PRACTICE— conWnwccZ.

witness is an accomplice in the offense on triaJ, can the trial court, in
any state of case, refuse to submit to the jury the question of accom-
plice vel noUy together with proper instructions upon the corroboration
of accomplice testimony? If so, it must not only be because the proof
that the witness is an accomplice is meagre, but because the other proof
in the ea^e tends sttongly to show that he is not. The proof in this
case fairly mooting the complicity of the two State's witnesses, the
trial court erred in refusing to instruct the jury upon the law of accom-
plice testimony. Hines v. State, 104. •

21 . Bill of exception to the admission of evidence must disclose the
ground of objection; otherwise it is not entitled to be considered on
appeal. Hughes t>. State, 127.

22. The husband or wife is competent to testify for the other in a
criminal prosecution, but not for the State, unless the prosecution be
for ati offense committed by the one against the other. This rule is
not relaxed by a mere separation of the spouses mthout a legal sever-
ance of the marriage relation. Johnson v. State, 135.

23. It is not essential to the sufficiency of an indictment to charge
the offen&e of betting at a game played with dice, that it shall allege
that the accused played the game with another or bet with another
perFon. Day v. State, 148.

24. To bet at any game played with dice, by whatever name thp gain**
be known, is an offense under the law of this State. And ^ach
sepamte act of betting at such a game constitutes a distinct offense.
The consecutive throwing of dice from nightfall until day break does
not constitute a continuous game, and the consecutive betting on the
different throws does not constitute a continuous offense. Id.

25. A witness, to be incompetent to testify in behalf of a defendant
upon the ground that he was under indictment for the same offense,
must appear to have been indicted for participation in the very same
criminal act for which the defendant is being tried. It will not suffice
to disqualify him that he is indicted for a similar offense. The defense
in this case offered a witness by whom to prove an alibi. The witness
was rejected, upon the Staters motion, upon the ground that he was
charged by a separate indictment with the same offense. The onus
of establishing incompetency by showing that the indictment against
the witness covered the same criminal act for which the defendant
was on trial rebted on the State; and, the State failing to establish that
fact in this case, the presumption obtained in favor of the competency
of the witness, and the ruling of the court was error. Id.

26. The trial court instructed the jury to convict in case they
found that the defendant (within the alleged venue and dates) pur-
sued the occupation of selling spirituous, vinous and malt liquors,
in quantities le&s than a quart, '' without having paid the occupation
tax of three hundred dollars to the State and one hundred and fifty
dollars to the county of Galveston, and the said taxes were then
due and owing and unpaid to the State and county respectively;" and
further instructed the jury thvt the penalty was by a fine of not less

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27 Texas Court op Appeals. 827

Index.

PRACTICE— contintied.

tbaD foar hundred and fifty dollars, nor more than nine hundred dol-
lars. Appellant assails these Instructions because they substitute the
phrase **without havin^i: paid the tax" in lieu of the phrase **without
having obtained a license." Held, that the substitution was to appel-
lant's advantage, and affords him no cause for complaint. Fahey n,
mate, 146.

27. It was also objected that the instructions assumed as a fact that
the county of Galveston had levied on the appellant^s occupation a
county tax of one-half the tax levied on it by the State. The record,
however, shows that the appellant admitted that fact on the trial, and
that the State consequently introduced no other proof of it. Held^
that the objection is not tenable. Id.

28. The proof on a trial for rape was in d irect conflict as to the identity
of the defendant as the person who committed the oiTense. A defense
witness having testified to facts tendincr to establish in favor of the de-
fendant a case of mistaken identity, the State, over objection of defend-
ant, was permitted to interrogate the witness as to whether or not, sub-
sequent to the alleged offense, he received from the defendant a letter
confessing his guilt, and roakiDg a statement concerning, and asking in-
formation about, the commission of the offense. In permitting this man-'
ner of examination the court erred, because, first, if, as manifest, the pur-
pose of the State was to prove that the witness received from defend-
ant a letter written by him and confessing his guilt, it should first have
summoned the witness with a subpoena duces tecum to produce the
letter in court. Failing then to produce the letter, the witness micht
be examined to prove the reception by him of snch a letter, and tUat
to his knowledge it was written by defendant. But then the contents
of the letter could not be proved by the witness without proof of the
loss or destruction of the same. Second, if the object of the State was
to impeach the witness, then the fact whether or not he had received
a letter from the defendant was the only fact about which the predi-
cate was allowable, and, the witness having answered that question in
the negative, the limit of the investigation was reached, under the rule
that *'when a witness is croFS examined on a matter collateral to the
issue, his answer can not be subsequently contradicted by the party
putting the question." This rule was further violated in this case by
permitting the State to contradict the witness by another witness, as
to the letter. Johnson v. ^tate, 163.

29. The trial court charged the jury as follows: **Penetration is
necessary to constitute the offense, but penetration only is necessary
to constitute the offense." Held, abstractly correct, but insufficient,
because, in addition to penetration, it is essential in a rape ease to
show want of the woman's consent, and that the act was accomplished
by force, threats or fraud. Id.

80. The court charged further as follows: "It is not sufficient, to
secure a conviction, for the State to make out a prima facie case, but
the guilt of the defendant must be shown beyond a reasonable doubt;
and the failure or inability of the defendant to show his iunocence

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S28 27 Texas Court op Appeals.

Index.

TRXCTlCE^continued.

does not lend any additional probative force to the incrimi native facts,
if any, shown by the State, or raise any presumption of ^ilt t^ainst
the defendant." This charge, though abstractly correct, was calcu-
lated to lead the jury to believe that, in the opinion of the court, the
defense had failed to show innocence. A reasooable doubt of Ruilt,
independent of eiculpatory proof, entitles an accused to an acquittal.
Id.

81. The court further instructed the jury that *^the defendant is
^presumed to be innocent until his guilt is proved beyond a reasonable

doubt; and, if upon the whole evidence you have a reasonable doubt
of his guilt, you mu&t acquit him, and not resolve the doubt by a miti-
gation of the punishment." This charge, is objectionable in that the
concluding clause may have induced the jury to inflict the greater pen-
alty instead of the milder one provided by the statutes. Note the sujf-
gestion that in charging the reasonable doubt the trial court should fol-
low the language of the statute. Id,

82. In this case the trial court charged upon an issue depending
upon the evidence. The defendant excepted to the charge because it
-was unwarranted by any evidence in the case. In his authentication
of the bill of exceptions, the trial judge recites that there was no such
evidence adduced on the trial, and that the evidence referred to in the
charge was evidence ndduced on the trial of another case. The state-
ment of facts does contain evidence which would warrant the charge,
but, as the bill of exceptions controls, the charge must be held errone-
ous as unauthorized by any evidence on the trial Briscoe v. State, 193.

33 The State'8 witness Holman testified on the trial of the accused
as an accomplice to murder, to the acts, declarations and statements
of one Harri's, and to a conversation between him, the witness, the
said Harris, and the allesred principal, to all of which the accused ob-
jected upon the ground that he was not present at any of the times
testitied about, and that it had not been shown that a conspiracy to
commit murder existed between him and the said parties. Held that
this proof in this case was clearly hearsay, and was inadmissible except
upon the prr dicat^ of the existence of such a conspiracy. Whether the
proof sufficiently established the predicate was, primarily, a question
to be determined by the court; but, the evidence clearly presenting the
sufficiency of the predicate as an issue in the case, the trial court erred
in failing to submit that issue to the jury, with instructions to disre-
gard the evidence admitted unless the predicate was established by
other proof. In the same connection the court should have instructed
the jury that a conspiracy can not be established by. the acts or declar-
ations of a co-con«pirator, made after the consummation of the of-
fense and in the absence of the defendant. See the opinion for a
special charge on the hubject, which, being correct and demanded by
the proof, was er^oneou^ly refused. Crook v. State, 198.

34. Expressions of the trial judge, in the presence of the jury, with
reference to the cogency of the evidence, if prejudicial to the defend-
ant, and exception is promptly reserved, constitute cause for reversal.

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27 Texas Court of Appeals, 82^

Index,

PRACTICE— con^inttcd.

Pendini? the discussion in the presence of the jary, of the admissi-
bility in evidence of the declarations of an alleged co-conspirator, the
trial judge interjected questions to conosel which clearly intimated
that, in his opinion, a conspiracy had been sufficiently established to
admit the evidence; to which action of the judge the defendant promptly
excepted. Held^ material error. The jury should have been retired
pending the discussion and the ruliog on the question. Id.

85. A prosecuting witness haviug testified to certain inculpatory
facts, the defense sought to impeach him by proving that he bad
made statements contradictor y his testimony on the trial. There.
nx>on, over objection by the defense, the State was permitted to intro-
duce evidence in support of the good general reputation of the witness
for truth and veracity. Held, that the action of the court was correct
especially in view of the showing that the impugned witness was a
stranger in the county of the trial. Id.

86. As a predicate for the introduction in evidence of the written
testimony of one T., as delivered at the examining trial, it was proved
that the said T. resided in the Indian Territory at the time of the
examining trial and at the time of this trial. Held that the predicate
was sufficiently established. Id,

37. The defense offered to prove by the witness N. the statement
made to him by and one D. to the effect that the gun with which it was
claimed by the State the killing was done was found by D. at a certain
place, which proof, upon objection by the State, was excluded as hear-
say. Held that the ruling was correct. Id,

38. Article 205 of the Code of Criminal Procedure provides that
"prosecutions for offenses committed wholly or in part without,
and made punishable by law within, this State, may be commenced
and carried on in any county in which the offender is found." The
mortgage in this case was executed in K. county, where the defendant
had possession of the property. He removed the property from said
county, and, while en route to Louisiana, was arrested in H. county.
Escaping thence, he went into Louisiana with the property. The con-
tention of the defendant is that H., and not K., county, was the
county of the venue. But, held, that the offense on trial being one
that comes within the purview of article 205 of the Code Criminal Pro-
cedure, it was properly prosecuted in K. county. Williams ©. State,
258..

39. An employe who follows the occupation of selling inhibited
liquors when the tax Imposed by law has not been paid is, equally with
his principal, amenable to article 110 of the Penal Code. . Davidson v,
State, 262.

40. The minimum punishment for pursuing an occupation taxed by
law without having first obtained necessary hcense, is a fine of not less
than the tax imposed upon such occupation. And as the license of a
retail liquor dealer can not issue for a shorter period than one year
the minimum punishment for the violation of the said article 110 is a
fine in the full amount of one yeaWs tax upon such occupation. The
charge of the court so defining the penally, it was correct. Id,

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830 27 Texas Court of Appeals.

Index.

PRACTICE— con^inwtfd.

41 . !l?afling to request instructions to supply omissions in the charge
of the court, the defendant in a misdemeanor case can not be heard to
complain of such omissions, notwithstanding he may have excepted to
the same. Id.

42. On the trial, the court below permitted the justice of the peace
before whom the alleged malicious prosecution was had to testify that
he discharged the alleged injured party, because, in his opinion^ the
evidence did not support the charge brought against him. Held,
error. Dempsey v. State, 269.

43. Subdivision 2 of article 730 of the Code of Criminal Proeedore
denounces as incompetent to testify in criminal actions, ''children or
other persons who, after being examined by the court, appear not to
possess sufficient intelligence to relate transactions with respect to
which they are interrogated, or who do not understand the obligation
of an oath." Hawkins t>. 8tate, 378.

44. There is no precise age under which a child is deemed incompe-
tent to testify, but wheu uuder fourteen years of age competency U
determinable by an examination, and the action of the trial court
thereon will not be revised in the absence of a showing that its discre-
tion was abused, and unless an abuse of discretion is apparent. The
objections to the witness in this case are solely as to his youth and ig-
norance. His examination disclosed tbat while he inadequately, if at
aU, understood the obligation of an oath, he knew that it was right to
speak the truth and wrong to speak falsely. He was held competent
and testified, and his narrative of the facts within his knowledge was
not merely clear, concise, positive and intelligent, but was corroborated
by physical facts discovered and detailed by other vritoesses. Held,
that in holding the witness competent, the trial court did not abuse its
dii^cretiou. Id.

45. The wife of the deceased, who had been previously tried for com-
plicity in the same offense, and had been acquitted, testified for the
defense on this trial, and, to Impeach her testimony, the State was
permitted to prove contradictory statements previously made by her.
The objection urged to this by the defense was that she was under ar-
rest at the time she made the said contradictory statements, and
that the evidence was hearsay. Held, that the objection was properly
overruled. Articles 749 and 750 of the Code of Criminal Procedure.
excluding confessions made in duress, apply only to the confessions or
adiuissioDs of a defendant who is on trial, made when under arrest,
and they can not be extended to parties not on trial. Whilst hearsay,
so far as the defendant was concerned, the said contradictory state-
ments were admissible to impeach the witness, to which sole purpose
they were properly limited by the charge of the court. Id.

4(5. In support of the motion for new trial, the defense filed the
affidavit of a third person to the effect that after the trial of Sarah
Washington, for the same offense, and before the trial of the de-
fendant, one of the jurors who tried the defendant, said that the
said Sarah Washington should have been awarded the death penalty.

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27 Tbxas Court of Appeals. 831

Index.

PRAOtlCB— cowWnwed.

and that the testimony on her trial and that on the trial of defendant
was essentially the same. The counter affidavit of the impugned juror
afiSrms that he had no recollection of making the stateiuent imputed
to him, and that, if he made it, he made it in jest, and that he tried the
defendant without bias or prejudice, and solely upon the evidence ad-
duced and the law given in charge. Held^ that the motion for new
trial was properly overruled. Id,

47. The common law rule that an indictment for p«^rjury must al-
lege correctly the day on which the perjury was commirted, and that
a variance between the time alleged and that proved woul be fatal,
has been so changed by statute in this State that the invlic uieut need
only allege some time anterior to the presentment of the >aiue, and not
so remote as to be barred by the statute of limitations; wih which
allegation the proof, to be guffieient. must concur. Lucas v. State, 322.

48. When it is shown that a verdict of guilty was probably influenced
by the statement of a juror to his colleagues assailing the credibility of
a witness for the defendant, a new trial should be granted. Id.

49. A particeps criminis who, for the purpose of securing exemp-
tion from prosecution, agrees to testify in behalf of the State against
his accomplices in crime, but who subsequently violates his ap:r. eraent
by refusing lo testify in good faith fairly and fully to facts wihtin his
knowledge, can not claim the benefit of such agreement, and may be
prosecuted and convicted, regardless thereof. Neeley v. State , 324.

50. Under the common law, the confesj*ion made by the accused
under his agreement to become State's evidence, can be used against
him in a prosecution instituted because of his violation of his agree-
ment. But, as heretofore held by this court, such confession, to
be admissible, must have been voluntarily and freely made, unin-
fluenced by persuasion or compulsion; not induced by any promise
creating hope of benefit, nor by threats creating fear of puuidhment.
A promise, such as will render the confession inadmissible, must be
positive, must be made or sanctioi^ed by a person in authority, acd
must be of such character as would be likely to influence the party to
speak untruthfully. A confession induced by the mere fear of legal
punishment is not thereby rendered inadmissible. Id,

51. The defendant in this case, being at large and not in cus-
tody, agreed with the county attorney to testify for the State
against his accomplices in this and other thefts, upon the consid-
eration of immunity to himself from prosecution for such offenses.
He, however, repudiated the agreement, although, when he entered
into it he made a confession which, upon his subsequent trial, was
introduced in evidence against him. The proof shows that such con-
fession was not voluntary, and that it was made upon the promise of
exemption from prosecution. Held that, having violated his agree-
ment to testify for the State, the accused was properly placed upon
trial for the offense charged against him, and that the confession,
being an involuntary one, was properly excluded upon that ground.
Id.

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832 27 Texas Court of Appeals.

Index.

PRACTICE— coneintt«tt

52. But the trial court admitted the said oonfeBsion under the pro-
visions of article 750 of the Code of Criminal Procedure, which legal-
izes a confession in duress as evidence, if it states facts afterwards
found to be true, and which conduce to establish the guilt of the ac-
cused. Held that, if verified in the manner prescribed by said article
750, such confession would be admissible. But in this case there is a
total absence of verifying proof; wherefore, tbe trial court erred in ad-
mitting the confession in evidence. Id.

53 . Being convicted and fined in the recorder's court of G-alveston city
for a violation of a penal ordinance of the c.ty, the defendant appealed
to the criminal district court of Galveston county, by which court his ap-
peal was dismissed on the ground that it had no juri.» diction of such
municipal offeoses, inasmuch as no right of appeal in such cases was
conferred by the special charter of Galveston city, nor by the laws of the
State, and because the offeose was not against the laws of the State nor
prosecuted in the name of *'The State of Texas. *^ Held that the appeal
was erroneously dismissed. See the opinion in extenso for a colloca-
tioD and construction of the various statutory provisions relevant to
the question. Bautsch v. State, 342.

54. In all criminal cases tried before mayors and recorders of in-
corporated cities, the general policy and intent of the statutes of
Texas secure to defendants a right of appeal commensurate ^th
that from convictions in justices^ courts. The fact that the special
charter of a city wholly ignores such right of appeal from convic-
tions for violation of the municipal ordiuances can not frustrate the
right of appeal from such convictions, notwithstanding the municipal
offeose consists in an act which is not penal under the general laws of
the State. Id,

55. All prosecutions for State offenses must be carried on in the
name of ^The State of Texas," but an incorporated city may ordain
that violations of its penal ordinances may be prosecuted in its munici-
pal name. (Ex parte Boland, 11 Texas Ct. App., 159, approved on this
subject.) Id.

56 . The State introduced a witness who testified to a confession made
by the accused, and subsequently introduced witnesses to support the
reputation for truth and veracity of the witness by whom the confession
was proved. Those witnesses testified that for several years preceding
the removal of the said witness (about eighteen months betore the trial)
they lived in the same neighborhood with him. The defense objected
that this evidence did not establish the necessary predicate for the sup-
porting testimony. But heid that the predicate was suflBcient. Tkur-
mondv. State, 347.

57. It is only under extraordinary or peculiar circumstances that it is
proper for the trial court to instruct the jury as to the law governing
impeaching testimony, and the failureof the court to do so in this case
was not error. Id.

58. A witness for the def<»nse testified that he saw the killing; that
one Owens and not defendant shot and killed the deceased, and

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27 Texas Court of Appeals. 833

Index.

PRACTICE— con«nttfid.

that the defendant was not present at the time of the kflling. The
State prodaced several witnesses who testified that the repntatton of
the said defense witness for truth and veracity was infamous. To sup-
port the credibility of its said witness, the defense offered to prove
that he testified to the same facts on previous trials involving the same
subject matter. Held that the rejeccion of the said proposed proof
was correct. Id,

59. A fugitive from justice, while fleeing the country, is not " a
person traveling,^' within the exception of the statute forbidding the
carrying of a pistol. Shelton v. State. 448.

60. Proof of the venue as alleged is essential to a legal conviction for
crime. Id,

PRACTICE IN THE COURT OP APPEALS.

1. In iU preliminary statement to the jury the charge of the
court designates the offense on trial as * 'false swearing/^ but subse-
qaently designates it as perjury — the offense charged in the indictment.
The verdict was general, and found the defendant "guilty,'* and as-
sessed his penalty at five years in the penitentiary, the minimum
I>enalty for perjury, and the maximum penalty for false swearing. The
judgment of the court on the verdict declares the defendant "guilty of
false swearing as found by the jury,^* but the final judgment and sen-
tence declare that he has been "adjudged guilty of perjury." The
State moves this court to reform the judgment and sentence so as to
conform them to the verdict, maintaining that, as the verdict is general,
it responds to the indictment, which charges perjury. But held that
though this court, in cases wherein the verdict is certain, will exeroiae
its power to conform the judgment or sentence, or both, thereto, it
will not do so in cases wherein, as in this case, there is any uncertainty
about the import of the verdict. G'Bryan id. State, 889.

2. The appellate court, in determining the question whether injury
or probable injury resulted to the accused from the giving of an erro-
neous, or the omission of a necessary, instruction, must consider the
charge in its entirety aod as applied to the evidence embodied in the
statement of facts. McCoy v. State, 415.

PREDICATE.
Bee EviDBNCB, 5.

MURDBR, 8.

Practice, 56.

t . The State introduced a witness who testified to a confession made
by the accused, and subsequently introduced witnesses to support the
reputation for truth and veracity of the witness by whom the eonfes-
slon was proved. Those witnesses testified that for several years pre-
ceding the removal of the said witness (about eighteen months before
the trial) they lived in the same neighborhood with him. The defense
objected that this evidence did not establish the necessary predicate
for the supporting testimony. But heid that the predicate wtts suffi-
cient. Thurmond tJ. State, 347.

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834 27 Texas Court of Appeals.

Index.

PREDICATE— conttntt^d.

2. Note evidenoe held to establish the predicate for the proof of
dyiDg declarationa. Ciifvn 9. State, 700.

PEBSUMPTIONS.

1. If the aasaolt is yolontary, is oommitted with deliberate designi,
and with an iostnunent capable of producing death, and there are no
extenuating circumstances, it is an assault with intent to murder. And
''whenever it appears upon a trial for assault with intent to murder that
the offense would have been murder had death resulted therefrom, the
person committing such assault is deemed to have done the same with
that intent." See the statement of the case for evidence held sufficient
to support a conviction for assault with intent to murder. Trevinio v,
State, 372.

2. The rule is statutory that ''the intention to commit an offense is
presumed whenever the means used is such as would ordinarily result
in the forbidden act.^^ And it is elementary that "a man is always
presumed to intend that which is the necessary or even probable oon-
sequence of his acts, unless the contrary appears." Wood v . State^ 898.

PRESUMPTION OP INNOCENCE.
Bee CHARes of thb Court, 16.

PRINCIPAL OFFENDERS.
Bee AcoBssoRY, 1.

1. In order to authorize the conviction of an accused, as an accom-
plice, it devolves upon the State to establish the guilt of the principa-
of the offense charged against him; and, to establish that specific issne
(but not that the a4)cused is xn accomplice), any evidence is admissible
that would be competent against the principal if on trial. Under this
rule the trial court did not err in admitting proof of the confession of
the principal; and, in limiting the purpose of such proof to the issue
of the principaVs guilt, the charge of the court was correct. Crook v.
State, 198.

2. The indictment in this case charged the appellant as a principal
in the theft of a mare, but the evidence wholly fails to connect him in
any manner with the original taking of the said mare. Held, that such
proof is insufficient to support a conviction for theft. Kru)wle8 f>. State,
608.

8. The charge of the court defining principals was abstractly cor-
rect, but it failed to apply the law to the facts developed on the
trial. To supply this omission the defendant requested the court
to instruct the jury that, "in order to convict the defendant, they
must find from the evidence that the defendant was, as a principal,
as hereinbefore defined, concerned in the original taking of the mare;
and if they find from the evidenoe that one Jeff Griffin first took
possession of the mare alleged to be stolen, and delivered the same
or sold the same, for himself or for one J. J. Elkins, to defendant,
then they should acquit the defendant although they should be-

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27 Texas Coukt of Appeals. 835

Index.

PRINCIPAL OFFENDERS— continued:.

lieve that the origlDal taking of said animal by Griffin was fraudu-
lent and that defendant knew it was fraudulent.^ Held^ that the
refusal to give such instruction, under the proof in this case, was error.
Id.

4 In its motion for rehearing, the State contends that the com-
plicity of the defendant in the offense charged is shown by the testi-
mony of the witness W., to the effect that defendant told him that
" all the connection Griffin had with the mare was this: that he, de-
fendant, sent said Griffin to get the mare for him and to bring her to
him'^— the effect of which would be to constitute G., an innocent agent
acting by command of the defendant, and the defendant by reason
thereof (all other elements of theft existing) the sole principal of-
fender. Held, that if said testimony of W. imports such a case, then
the charge of the court was fatally erroneous in not submitting that
phase to the Jury; wherefore rehearing is refused. Id.

PRIVILEGE OF COUNSEL.
See Charge of the Court, 7.

1. In his concluding argument the counsel for the defense stated to
the jury that the Staters coupsel, in closing the case, would have some-
thing to say about why P. and W. and E. (all of whom were shown to
be indicted for the same offense) were not put on the stand by the de-
fense, and that the reason they were not called to the stand was that,
if called, the prosecuting officer would indict them again for perjury.
In reference to this matter the State's counsel, in concluding the argu-
ment, stated that all of the parties named, except W., who had been
convicted, could have been called to testify without danger of indict-
ment if they testified to the truth. Held, that the remarks of the
Staters counsel, being responsive to the argument for the defense, were
legitimate. Smith v. State, 50.

2. While on the stand the sheriff was asked by the prosecuting
attorney if he did not arrest the defendant several years ago for bur-
glary. The defense objected, and the prosecuting attorney remarked,
in the hearing of the jury, that he proposed to * 'prove by the sheriff
that defendant was arrested two or three years ago for a burglary
committed in Dallas county, at the same time and place as he is now
charged with theft. *' Held, that such proof was not competent, and
the trial court should so have instructed the jury. Taylor v. State, 468.

R
RAPE.

1. The trial court charged the jury as follows: **Penetration it
necessary to constitute the offense, but penetration only is necessary
to constitute the offense." Held, abstractly correct, but insufficient,
becausct in addition to penetration, it is essential in a rape case to
show want of the woman's consent, and that the act was accomplished
by force, threats or fraud. Johnson v. State, 163.

2. Rape by force, as defined by article 528 of the Penal Code, is

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836 27 Texas Couet of Appeals.

Index.

RAPE— con Ww ued.

carnal knowledge of a woman, obtained by force, without her consent*
"Force," as used in the said article, is such force as might reasonably be
8appK>sed safQcient to overcome resistance, taking into consideration the
relative strength of the parties and other circumstances of the case
(Penal Code, art. 529), and upon a trial for rape by force it devolves
upon the trial court to give in charge to the jury such statutory defini-
tion of "force." Brown v. State, 1330.

EBASONABLE DOUBT.

Charge of the Court, 84, 71.
Murder, 27.

1. The court charged further as follows: *lt is not sufficient, to
secure a conviction, for the State to make out a prima facie case, bat
the guilt of the defendant must be shown beyond a reasonable doubt;
and the failure or inability of the defendant to show his innocence
does not lend any additional probative force to the incrlminative facts,
if any, shown by the State, or raise any presumption of guilt against
the defendant. *' This charge, though abstractly correct, was calculated
to lead the jury to believe that, in the opinion of the court, the defense
had failed to show innocence. A reasonable doubt of guilt, indei>end-
ent of exculpatory proof, entitles an accused to an acqutttal. Johnson
V. State, 163.

2. The court further instructed the jury that ^^the defendant i&
presumed to be innocent until his guilt is proved beyond a reasonable
doubt; and, if upon the whole evidence you have a reasonable doubt
of his guilt, you must acquit him, and not resolve the doubt by a miti-
gation of the punishment." This charge is objectionable in that the
concluding clause may have induced the jury to inflict the greater pen-
alty instead of the milder one provi/led by the statutes. Note the sui;-
gestion that in charging the reasonable doubt the trial court should fol-
low the language of the statute. Id,

8 . The trial court instructed the jury as follows: **The defendant is
presumed by the law to be innocent until his guilt is establisned by
competent evidence to the satisfaction of the jury, beyond a reasonable
doubt; and if you have on your minds arising from the evidence a
reasonable doubt as to the guilt of the defendant, you will find him not
guilty.'^ Held, sufficient on the doctrine of reasonable doubt, and not
obnoxious to the objection that it ^'requires either the State or the
defendant to introduce affirmative evidence of the defendant's inno-
cence;'' nor to the further objection that it contravenes the rule that a
reasonable doubt may as well arise from a want of evidence as from
evidence introduced before a jury. Zwicker t). State, 589.

BlIMOVAL FROM OFFICE.
See Penalty, 2.

BOBBERY.

1. Indictment for robbery having unnecessarily described the money
of which the accused robbed the injure party as **lawful money of

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27 Texas Court of Appeals. 837

Index.

ROBBERY— continued.

the United States of America," it was essential to the validity of the
oonviotion that the kind of money be proved as alleged. The proof in
this case, falling short of this requirement, does not support the con-
viction, and the accused should have been awarded a new triaL Coffelt
U State, 608.

2 The indictment alleges that the accused took the money from the
jperson of P. The proof shows that the accused and another presented
pistols at F., and demanded the money, and that F., in fear of his life
or of serious bodily barm, and after being struck, delivered the money.
Tiie defense contends that this proof shows a delivery of the money
by F. through fear,* and, therefore, that there is a fatal variance be-
tween the allegation and the projf. But held that such a delivery is
a taking within the purview of the statute defining robbery, and
therefore there is no variance. Id.

SLANDER.

An information for slander by imputing to a female a want of
chastity should allege, at least in substance, the language actually used
by the accused, and to that language the proof should be confined. If
the meaning of the language as charged be obscure, then the informa-
tion should allege its mearing; otherwise proof of its meaning is not
admissible. The uieanin<; of the language charged by the information
in this case is clear and unambiguous, but the language proved is not
only variant from that alleged, but is obscure in meaning. The trial
court permitted a State's witness to testify that he understood the lan-
guage used by the accused to correspond in meaning with that charged
in the information. Held, error. See the opinion for the substance of
evidence held insufficient to support a conviction for slander because
it does not support the allegations in the information. Berry v, State,
483.

SODOMY.

The rule that, in rape cases, requires that, if the other proof in
the case tends to raise the issue of the female^s consent to the carnal
act, she becomes so far an accomplice that, in order to warrant a con-
viction based upon her testimony, she must be corroborated, applies to
sodomy cases, and if the evidence tends to show the consent of the
prosecuting witness to the act of bestiality committed upon him, he
mpst be corroborated. The proof in this case tends strongly to show
the consent of the alleged injured party, who, upon the main issue,
was the State's principal witness; and in failing to instruct the jury
with regard to the corroboration of an ano-»in 'li»e. the trial court
erred. Medis & hill v. State, 194.

^'SUBJECT" OF LEGISLATIVE ACTS.

The present Constitution of Texas provides that **No bill (except
general appropriation bills, etc.,) shall contain more than one subject

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838 27 Texas Court op Appeals.

Index.

**SDBJBOT" OP LEGISLATIVE ACTa-continued.

which shall be expressed in its title.^^ Held that an Act may, without
contravening this inhibition, contain or contemplate more objects
than one. Fahey v, State^ 146.

•WINDLINe.

The swindling was alleged to have been committed by means of a
false written instrument and the false declaration of the accosed that the
names appearing to the same were genuine signatures. The trial court
charged the jury in effect that before they could convict they must find
that the signatures were on the instrument when it was delivered by
the accused, and that he then falsely and fraudulently declared that they
were genuine, and so induced the issuance of the draft Held^ that tlie
instruction was correct in principle, and applicable to the chargein the
indictment and the facts in evidence. But see the statement of the case
for evidence upon which it is held that the verdict of guilty is contrary
to both the InBtruction and the proof. BooU v. 8tate, 264.

THEFT.
See Principal Offbndbr, 8.

1. The indictment alleged the name of the owner of the stolen
property to be Burrfs. The proof showed it to be Burrows. The cod>
viction is assailed upon the ground of variance between the owner-
ship as alleged and proved. But held that, as the proof further
shows that the owner was commonly known as Burris, the variance
is not material. Taylor 9. State, 44.

2. The only inculpatory evidence against the accused was the testi-
mony of two witnesses to the effect that, subsequent to the theft
of the property, they saw the same removed from a place of con-
cealment by three parties, one of whom they believed, but were
not positive, was the defendant. In antiicpation of this evidence,
the defendant applied for a continuance to secure a witness by whom
to establish his presence at another place at the time the property
was removed from the place of concealment. Being denied the con-
tinuance, and convicted, the defendant asked for new trial because
of the ruling of the court upon his application for continuance. The
new trial was refused upon the ground (as was the continuance)
that the proposed alibi did not cover the time of the theft of the prop-
erty. Held, that the action of the trial court was error, not only be-
cause of the inherent weakness of the inculpatory proof, but because
an alibi is available, not merely to meet the main issue in the case, but
any criminative fact relied upon by the State. Id.

8. Evidence insufficient to support a conviction for theft. Beveai
V. State, 57.

4. Ownership, like every other material issue on a trial for theft,
must be proved by competent evidence, and if it rests upon, the te^
timony of an accomplice such proof is insufficient unless legally ooi^
roborated. Hanson v. State, 140.

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27 Texas Court of Appbaxs. 839

Index.

THEFT— continued,

6. See the statement of the case for the substance of evidence Tuld
insnlBcient to support a conviction for theft. Id,
6. Evidence insafflcient to support a conviction for theft MeChtoan
V. State, 188.

7. . Evidence insufficient 'to support a conviction for theft. CoatUlo
V. State, 188.

8. Evidence insufficient to support a conviction for theft. Ellis v.
StaU, 190.

9. A conviction based upon the uncorroborated testimony of an ac-
complice can not stand. See the statement of the case for the sub-
stance of evidence Tield insufficient to support a conviction for hog
theft Smith V, 8taU, IWi.

10. On a trial for horse theft the court admitted hearsay evidence of
the contemporaneous theft of a saddle, which evidence, on motion of
the defense, was stricken out. Thereafter evidence for the State was
admitted identifying as the property of one P. a certain saddle found
in the possession of the defendant when he was found in possession of
the horse, and the court*s charge limited the application of such evi-
dence to the identification of the transaction and the intent of the de-
fendant, etc. Held^ that, in the absence of proof that the saddle was
stoleii, the evidence was erroneously admitted, and the charge was
erroneous because not based upon legal proof. Neeley v. State, 315.

11 . This was a prosecution for theft — the indictment charging the
theft of three horses in the Cherokee Nation and the bringing of the
same into this State. The contention of the defense was that, inasmuch
as under an act of the Congress of the United States a white man can
not be prosecuted to conviction and punished for a theft committed in
the Indian Territory except in the United States courts, he can not be
prosecuted to conviction in this State for the theft of property in the
Indian Territory, as theft is defined by the law of said Territory, and the
bringing of the same into this State; that, as no act can constitute an
offense unless a penalty for the commission thereof is provided, and as.
under the act of Congress, a white man is not amenable to the law of
the Indian Territory for theft he can not within the purview of that
law commit theft it follows that he can not be prosecuted in this State
under articles 798 and 799 of the Penal Code, and therefore the trial
court erred in admitting in evidence the statute of the Cherokee Nation
defining theft of live stock. Held, that the defense can not be main-
tained. The rule is that if a person commits in another State or Ter-
ritory acts which, if committed in this State, would be theft, and the
said acts constitute theft under the laws of the said State or Territory,
and he subsequently brings the stolen property into this State, he can
be prosecuted in this State and punished as if the theft had been com-
mitted in this State. The statute of the Cherokee Nation, admitted
in evidence over objection, excepts no race nor class from its operation
and clearly defines the offence of theft with penalty annexed, and it
was properly admitted in evidence. Clark d. State, 405.

12. The laws of the Cherokee Nation being in evidence, the trial

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Sio 27 Texas Court of Appeals.

Index.

THEFT— continued,

court Instracted the jury that, under said laws, certain acts constituted
theft, and left it to the jury to determine from the evidence whether
the defendant committed such acts. Held, sufficient; and that the
court did not err in failing, in its charge to the jury, to define and con-
strue the laws of the said Nation. Id.

13. See the opinion in extenso for a charge of the court upon the ques-
tion of the possession of recently stolen property, etc , held correct and
responsive to the proof. Id.

14. Indictment or information for theft is insafflcient if It fail to
charge directly that the taking was fraudulent. Chance v 8 ate, 441.

15. The factum probandum of theft is the taking of the property.
If that fact is proved merely as a matter of inference from other facts in
evidence, and not»by an eye witnef s, the case rests wholly upon circum-
stantial evidence; and the failure of the trial court to charj^e the jury
upon the law of circumstantial evidence is material error. Taylor v.
State, 463.

16. Possession of recently stolen property is not positive evidence
of theft, but merely a circumstance tending to prove theft, and is
therefore in its character simply circumstantial evidence; and, when
alone relied upon by the prosecution, demands of the trial court a
charge upon the law of circumstantial evidence. Id.

17. If the inculpatory facts in a theft case consist alone of recent
possession of stolen property, explained by the accused when first
challenged, it imposes upon the court the imperative duty of explain-
ing to the jury in its charge the law applicable to suDh recent posses-
sion and explanatioD. Id,

18. Over the objection of the defendant the State was permitted to
introduce in evidence a bill of sale, conveying the alleged stolen horses
to the defendant, which bill of sale was found in and taken from the
possession of the defendant after his arrest. Held, that said bill of
sale was properly admitted, in view of the proof showing that it was
fabricated by the defendant. It was no objection to said evidence that
it was taken from the defendant after his arrest and without authority
of law. Williams v. State, 466.

19. As a standard of compa,ri8on whereby to identify the hand
writing in the bill of i^ale as that of the defendant, the State was per-
mitted to introduce in evidence the authenticated signatures of the de-
fendant to application for continuance, etc, in this case. Held correct.

Id.

20. The bringing by the thief into a county of this State of prop-
erty stolen in another State constitutes, under our law, theft in the
county into which the stolen property is brought; and one who gives
aid to the thief in such county, after the stolen property is brought
into it. is «uilty as an accessory to the theft. West v. State, 472.

21 . The indictment char^^ed the defendant with the theft in Dallas
county, Texa?, of a '^coupon railroad ticket, which said ticket en-
titled the holder thereof to one ^rst class passage from Caldwell
in Burleson county, Texas, to New York City by way of Puroell

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27 TBZAa Court of Appsaxs. 841

Indfiz.

THEFT— conWnuetf.

Kansas City, Qninoy, Chicago and Baffalo,^ the said ticket being
the property of the Golf, Colorado & Santa Fe Bailway, and of the
Talue of fifty-seven dollars. The State's witness Cade testified that the
yalae of the ticket, as representing and good for the fare over the said
line from Caldwell to New York, was fifty-seven dollars, and that as
representing the fare from Dallas to New York, dedacting the fare
from Caldwell to Dallas, it was fifty-two dollars. The State's witness
Hirsch testified that the ticket, as representing the price of a first
class fare from Dallas to New York, was worth in Dallas the sam of
fifty-five dollars; to all of which testimony the defense objected that
the market value of the said ticket in Dallas was the one question at
issue. But Tield that, in view of Hlrsch's further testimony that he
paid the defendant twenty-five dollars for the ticket, the admission of
the evidence, if erroneous, constituted inmiaterial and harmless error.
Cunningham v. State, 479.

22. The defense offered in evidence a letter addressed by the gen-
eral passenger agent of the Gulf, Colorado & Santa Fe Railway to the
conductors on the lines of the said railway, notifying them of the
theft of the said ticket, and directing them to take up the same if of-
fered for fare, cancel the same and return it to the office of the writer.
Held, that the letter being relevant to no issue in the case, was properly
excluded. Id.

28. Evidence insufficient to support a conviction for theft. Green
V. JState, 570.

24. Evidence insufficient to support a conviction for theft. Stone v,
State, 576.

25. Evidence insufficient to support a conviction for theft. Wilson
V. State, 577.

26. The purpose of the indictment in this case was to charge the
theft of a horse from the possession of one Henry Wright, but in
drafting the indictment Ithe pleader omitted the word ''of* after the
word possession. Held, that the omission is fatal to the conviction,
inasmuch as the omitted word is essential to the accusation. Riley v.
State, 606.

27. See the opinion in extenso for evidence of a State's witness Tield
insufficient to inculpate the said witness as an accomplice to theft.
Id.

28. See the statement of the case for charges of the court on circum-
stantial evidence and upon the possession of recently stolen property
held erroneous, and see the same for evidence held insufficient to sup-
port a conviction for theft. Hannah v. State, 623.

29. On a trial for theft the trial court charged the jury as follows:
**When two or more persons conspire together to commit an offense,
and each carries out the part agreed to be done by him, and such of-
fense is actually committed, then all parties to such an agreement are
equally guilty of such offense; and if the jury believe from the evidence,
beyond a reasonable doubt, that the defendant fraudulently took the
property charged to have been stolen, as given you in charges Nos. 1

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842 27 Texas Coubt of Appeals.

Index.

THEFT— con^intMd.

and 2, and that defendant and others agreed or conspired, before or
after such taking, to prove a porchase or pretended purchase of said
cattle, either before or after snch taking, this woxdd be no defense
to sach frandnlent taking.** Held that, onder the proof on the trial
(for which see the statement of the case), the charge was not erroneous.
Kegans d. State^ 708.

80. See the opinion for the sabstance of proposed testimony for the
defense held, in view of the other proof in the case, to have been
erroneously excluded. Id.

THREATS.

The defendant having introduced evidence of threats against
his life, uttered by the deceas^, a short time before the homicide,
the State, over defendant's objection, was permitted to prove that,
about a year before the homicide, the defendant told a witness that the
** threats of John Collier (deceased) did not amount to any more than
those of an old woman.** Held that objection to this proof was prop-
erly overruled. MiUer v. State, 68.

UNLAWFULLY BREAKING THE FENCE OF ANOTHER, ETC.

No such offense as malicious mischief is known, per se, to the
law of this State, and an appeal from a conviction for unlawfully
breaking and pulling down and injuring the fence of another must be
dismissed when the recognizance for appeal describes the offense as
malicious mischief. Koritz v. State, 53.

UNLAWFULLY PULLING DOWN FENCE, ETC.

The proof shows that the defendant was the sole owner of a divid-
ing fence between his farm and the farm of one McN.; that, with-
out notice to McN. in writing, he pulled down the said dividing
fence, exposing McN.*8 growing crops to the depredations of stock;
that McN., to protect his crops, again connected his fence to the de-
fendant's fence on the defendant's land, when the defendant again
pulled it down. Held that, although the sole owner of the dividing
fence, the defendant had no right to remove it without having given
McN.» his agent or attorney, notice in writing of his intention to do so
for at least six months prior to so doing. McN., in connecting his fence
with that of the defendant, for the purpose of preventing stock depre-
dations on his growing crops, notwithstanding the connecting point
was on the defendant's land, was not a trespasser and violated no law.
(See Laws of 1887, page 80.) Jamison v. State, 443.

UNLAWFULLY SELLING LIQUORS.
Bee Occupation Tax, 7, 9.

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27 Texas Coubt of Appeals. 843

Index.

V
TAEIANCE.
Mm Etidbnob, 78.

IDBM SONANS, 1.

Indiotmbnt, 15.

1. The indictment alleged the name of the owner of the stolen
property to be Borris. The prnof showed it to be Barrows. The
conviction is assailed upon the ground of variance between the owner-
ship as alleged and proved. But Tield that, as the proof farther shows
that the owner was commonly known as Burris, the variance is not
material. Taylor v. State, 4^

3. The complaint alleges that the offense was committed on the
sixteenth day of January, 1888; the information that it was committed
on the eleventh day of January, 1888. Held, that the variance is imma-
terial Shelton V. State, 443.

8. Verdict reads: "We, the josurys, find the defendant gilty,
etc. Held, that the words incorrectly spelled constitute no material
defect. Id.

4. The complaint impleads John and the information Frederick
Juniper. Held, that the variance is fatal to the information. Juniper
V. State, 478.

VERDICT.
Bee Variance, 8.

1. In misdemeanor cases a jury maybe permitted by the court to
separate, as provided by article 688 of the Code of Crimiual Pro-
edure, but this rule does not authorize the court to reconvene a jury
after it has been finally discharged, in order to remedy an informality
in a verdict rendered by it, or to return another verdict. Ellis v. State,
190.

3. A verdict against joint offenders on a joint trial, to be valid, must
assess a separate penalty against each offender. Flynn v. The State,
8 Texas Ct. App., 889, and Matlock et al. v. The State, 25 Id., 716, and
Cunningham v. The State, 26 Id., 83, approved. Medis & Hill v. State,
194.

8. In its preliminary statement to the jury, the charge of the court
designates the offense on trial as ^^false swearing," but subsequently
designates it as perjury, the offense charged in the indictment. The
verdict was general, and found the defendant **guilty," and assessed
his penalty at five years in the penitentiary, the minimum penalty for
perjury and the maximum penalty for false swearing. The judgment
of the court on the verdict declares the defendant ''guilty of false
swearing as found by the jury," but the final judgment and sentence
declare that he has been **ad judged guilty of perjury." The State
moves this court to reform the judgment and sentence so as to con-
form them to the verdict, maintaining that, as the verdict is general,
it responds to the indictment, which charges perjury. But held, that
though this court, in cases wherein the verdict is certain, will exercise
its power to conform the judgment or sentence, or both, thereto, it

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844 27 Texas Coubt of Appeals.

Index.

VERDICT— conWnufid.

will not do 80 in oases wherein, as in this case, there is any onoertalnty
about the import of the verdict. O'Bryan v. State, 839.

4. The statate expressly requires that in convictions for mnider the
verdict shall specify the degree of murder of which the defendant is
found guilty. The failure of the verdict to so specify the degree is
cause for reversal Zwicker x, State^ 53<^

WITNESS.
See Evidence, 14.

1. The husband or wife is competent to testify for the other in a
criminal prosecution, but not for the State, unless the prosecution be
for an offense committed by the one against the other. This rule is
not relaxed by a mere separation of the spouses without a legal sever-
ance of the marriage relation. Johnson v. State, 135.

2. A person charged, either in the same or another indictment,
with participation in the offense on trial, is not competent to te^tify
in behalf of the accused. It appears in this case that the witness
proposed by the defense was indicted, by an incorrect name, for the
same offense. Held that the proposed witness was properly held in-
competent. Anderson et al. v. State, 177.

3. Subdivision 2 of article 730 of the Code of Criminal Procedure
denounces as incompetent to testify in criminal actions, ''children or
other persons who, after being examined by the court, appear not to
possess sufficient intelligence to relate transactions with respect to
which they are interrogated, or who do not understand the obligation
of an oath." Hawkins v. State, 273.

4. There is no precise age under which a child is deemed incompe-
tent to testify, but when under fourteen years of age competency is
determinable by an examination, and the action of the trial court
thereon will not be revised in the absence of a showing that its discre-
tion was abused, and unless an abuse of discretion is apparent. The
objections to the witness in this case are solely as to his youth and ig-
norance. His examlDation disclosed that while he inadequately, if at
all, understood the obligation of an oath, he knew that it was right to
speak the truth and wrong to speak falsely. He was held competent
and testified, and his narrative of the facts within his knowledge was
not merely clear, concise, positive and intelligent, but was corroborated
by physical facts discovered and detailed by other witnesses. Held,
that in holding the witness competent, the trial court did not abuse its
discretion. Id. f 1

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