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Full text of "Reports of cases argued and adjudged in the Court of Appeals of Texas"

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^^'^ REPORTS / ^ 



OF 



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 

A 

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 

B 

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 

D 

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 

E 

Ellis V. The State 190 

Ex Parte Duncan , 485 

Ex Parte Hanson 591 

Ex Parte Murphy 492 

Ex Parte Robertson 628 

P 

Pahey T. The State 146 

Pranklin T. The State 186 

Q 

Greeny. The State 244 

Green V. The State 570 

H 

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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Tl 



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 

M 

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 

N 

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 

S 

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 

W 

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. 

A 

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

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

B 

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. 

C 

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. 

D 

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 

F 

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. 

G 

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, 

H 

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. 

K 

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

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

L 

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. 

M 

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. 

N 

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

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

P 

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. 

R 

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. 



IX 



Oases decide! without written opinions. 



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

8 

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. 

W 

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 

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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 

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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- 



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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. 



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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 



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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 



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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. 



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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. 



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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." 



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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- 



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16 27 Texas Court of Appeals. [Galveston 



27 


16 


28 


891 


28 


57B 


20 


840, 


27 


16 


30 


563 


27 


16 


39 


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. 



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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 



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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 



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^ 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 



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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 



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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 



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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 



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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 



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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 

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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 



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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. 



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: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 



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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 



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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. 



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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 



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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- 



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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 



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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 



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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 



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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- 



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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- 



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»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 



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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 



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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.) 



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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., 



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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. 



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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. 



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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 




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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 



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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- 



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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- 



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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. 

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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 



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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. 



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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 



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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. 



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^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- 

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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 



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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. 



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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 



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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 



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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- 



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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« 



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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 



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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 



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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. 



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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 

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72 27 Tbxas Court of Appeals. [Galveston 

1 

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- 



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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 



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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 



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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 



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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 



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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^ 



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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. 



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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* 



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•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^ 



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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- 



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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. 



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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- 



9J 


83 


28 


244 


28 


414 


27 


83 


3t 


1751 


31 


403 



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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. 



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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 



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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 



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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 



I 



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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 

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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 



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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,. 



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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 



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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, 



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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. 



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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 



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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 



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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 



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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. 



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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 

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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. 



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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 



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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. 



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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 



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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 



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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 



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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 



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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 



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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 



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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 



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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 



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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 

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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. 



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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 



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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- 



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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. 

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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 



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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 

m 

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. 

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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 



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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 

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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 



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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. 



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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 



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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- 



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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 

t 



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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 



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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, 



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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,. 



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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« 



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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 

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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. 

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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 



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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 



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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 



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» 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 

10 



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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 



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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 



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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. 



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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 



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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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Google 



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 



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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, 



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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 



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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 



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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 



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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 



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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. : 



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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 



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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* 



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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 



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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. 



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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 



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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 c riminal neglige nce 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, 
An derson 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. 



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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 



y 



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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. 



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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 



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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 



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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. 



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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. 



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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. 



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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 



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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. 



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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, 



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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. 



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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. 

13 



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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 



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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 



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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 



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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 



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-w 


198 


28 


185 


28 


189 


|29 


«w, 


27 


198! 


30 


i:^; 


30 


276 


30 


422 


30 


531 


31 


414, 


27 


198 


83 


B^ 


27 


198 


35 


23U 


86 


215 


37 


607 


39 


228 


39 


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 



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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. ** 



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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 



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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 



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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. 



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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 



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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 



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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. 



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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 



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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 



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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 



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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 



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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 



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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 



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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 



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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 



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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 



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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 



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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 



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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 



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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 

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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 



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**» 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. 



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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 



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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 



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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«^ 



u 



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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. 



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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 



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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 



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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 



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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- 



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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 



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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 



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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 



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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- 



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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 



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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. 



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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 



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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. 



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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 



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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 



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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 



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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- 



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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 



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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 



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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 



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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. 



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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 



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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 



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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 

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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. 



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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 



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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 



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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 



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^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." 



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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 



17 



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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. 



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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 



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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 



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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 



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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. 



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<*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 



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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 



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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. 



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Term, 1889. J Dbmpsby v. The Statb. 869 



Statement of the 



No. 2670. j g gg i 

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. 



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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 

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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 



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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 



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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 



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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. 

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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 



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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. 



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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. 



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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. 



I 



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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- 



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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 



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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. 



\9 



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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 



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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 



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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. 



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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 



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)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 



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^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 



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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. 



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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^ 



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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 



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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- 



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J 



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. 



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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 



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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 



20 



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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- 



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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 

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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 



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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. 

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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 



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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. 

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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. 



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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! 



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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. 



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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 



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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 



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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. 



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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. 



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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. 



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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 



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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, 



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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 



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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 



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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 



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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 



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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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27 


330 


39 


m 


39 


343 


27 


330 


33 


503 


^-Hl 


33 


387 


27 


3:<0 


35 


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. 



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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 



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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 



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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- 



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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. 



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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. 



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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 



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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 



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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. 



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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 



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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. 



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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 



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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 



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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- 



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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* 



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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- 



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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^' 



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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 



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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. 



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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 



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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- 



23 



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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*' 



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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 



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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. 



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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- 



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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. 



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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 



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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 



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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 



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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 



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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. 



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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 



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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 



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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 



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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 



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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 



84 



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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 



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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 



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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 



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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^ 

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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 

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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. 

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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 

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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, 

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^ 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- ^ 

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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. 



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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 



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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 



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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 

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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. 



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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 



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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- 



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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- 



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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, 



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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 



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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- 



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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. 



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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. 



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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. 



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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 



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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 



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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 



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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 



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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 



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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 
a