# Garcia v. State

> Court of Appeals of Texas · June 24, 1887 · 23 Tex. Ct. App. 712

URL: https://www.frixlaw.com/law-library/cases/4907171

## Case

- **Full name:** Emelio Garcia v. State
- **Court:** Court of Appeals of Texas
- **Decided:** June 24, 1887
- **Citations:** 23 Tex. Ct. App. 712; 5 S.W. 186; 1887 Tex. Crim. App. LEXIS 151
- **Precedential status:** Published
- **Opinion:** Opinion of the court by White
- **Judges:** White
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

White, Presiding Judge.
This is an appeal from a judgment of conviction for an assault with intent to murder one Charles Landes.
We are of the opinion that the evidence is entirely insufficient to support the judgment rendered. On the trial the State put in evidence the voluntary statement of defendant, made after due caution. This statement was not only reasonable, but was probably true when viewed in the light of all the facts adduced in. evidence. The most that can be said of this statement is that it showed threats upon the part of the defendant against Landes upon the happening of conditions precedent, which conditions never came to pass as far as shown by the record, and there is not a particle of evidence that Landes was ever assaulted by defendant.
Because the evidence is insufficient, the judgment is reversed and the cause remanded.
Reversed and remanded.
*715 INDEX, A. ACCOMPLICE TESTIMONY. See Charge oe the Court, 3. Exhibiting Gaming Bank, 3. Concealment of knowledge that a felony is to be committed, does not make the party concealing it an accomplice or a partieeps eriminis, and therefore does not necessitate corroboration of his testimony inculpatory of the accused. Smith v. State, 357. ADEQUATE CAUSE. The uttering of insulting words by the deceased about á female relative of the slayer, though they were not uttered in the presence of the slayer, is adequate cause to reduce a homicide to manslaughter, provided the slayer was informed of the utterance of the insulting words, and "slew the deceased upon the first meeting after being so informed. But, before the slayer can prove the utterance of the insulting words in mitigation of the homicide, it devolves upon him to establish a com píete predicate by showing that he was informed of the utterance of the insulting words before he killed the deceased, and that he killed him on the first meeting thereafter. Proof that the insulting words were communicated to the slayer is not enough to establish a predicate; it must go farther and show that the killing occurred upon the first meeting of the parties. Howard v. State, 365. ADULTERY. In the trial of appellant for adultery with one J., in Bosque county, the State was permitted over objection by the defense, to prove certain acts and conduct of J. and appellant in other counties and since the presentment of the indictment; and the trial court, with reference to this evidence, refused to instruct the jury as to the special purpose for which it was competent, and to guard the jury against convicting the accused of adultery in Bosque county by considering such evidence as independent proof thereof. Bills of exception were reserved by the defense to the admission of the proof and to the rejection of the requested instructions. Held, that there was no error in admitting the evidence, in view of the other proof in the case, but it was error to omit and refuse to limit it to its proper purpose, and properly to guard the jury against misapplying it to the prejudice of the accused. Handerberg v. State, 393.
*716 716 23 Texas Court of Appeals. Index. AFFIDAVIT. 1. Variance, as to the date of the alleged offense, between the affidavit or complaint and the information based upon it, is fatal, and a motion to quash the information should prevail. Huff v. State, 391. 2. The affidavit on which the information was based alleged November 16, 1885, to be the date of the effense, but the information laid said date as the sixth of said November. Held that the variance is fatal to the conviction. Baumgartner v. State, 335. AMENDMENT. Nee Special Venire. 1. In the return of a sheriff upon a special venire, he set down in a column the names of twelve of the veniremen, and opposite the first name wrote “not found after diligent search.” Under this and opposite each of the other names he put ditto marks, to indicate the same return as to them. The defense moved to quash the writ because the return did not, as required by the Code of Procedure, Article 614, state the diligence used to summon the said veniremen and the cause of the failure to do so. The trial court permitted the sheriff to amend his return so as to show that each of said twelve veniremen had moved out of the county or was absent from it. The defense excepted to the overruling of the motion to quash, and also to the amendment of the return, and to the sufficiency of the return as amended. Held, that the amendment was properly allowed, and none of the objections are tenable. Powers v. State, 42. 2. In support of a motion to amend the complaint in this case, the county attorney filed his affidavit to the effect that, since the filing of the complaint and information, some unknown person had fraudulently added a figure to the original figure inserted by him in the complaint to indicate the date of the offense, by which fraudulent addition the variance between the complaint and the information was made to appear. Upon the hearing of evidence the trial court sustained the motion to amend, and the trial proceeded. Held, that the proceeding was wholly unauthorized. The date of the offense, both in the complaint and information, being matter of substance and not of form merely, could not be amended, either upon motion or by order of the court. Huffv. State, 291. 3. Matters of form in an indictment or information are amendable before both parties announce ready for trial upon the merits, but not thereafter. Allegations as to the court and term at which the indictment was presented are matters of form, and amendable, subject to the above limitations. Osborne v. State, 431. 4. Over objection by the defense, the trial court permitted the State to substitute, by amendment, the words “fourth Monday” in place of “first Monday,” where the indictment designated the commencement of the term at which the indictment was presented. Prior to the al lowance of the amendment, both the State and the defense had announced ready for trial on .the merits, but the defendant had not been arraigned, nor had he pleaded to the indictment. Held, that the allowance of the amendment, after such announcement by both parties, though before arraignment or plea, was erroneous, because in contraven-
*717 23 Texas Court of Appeals. 717 Index. AMENDMENT—continued. tion of Article 650 of the Code of Criminal Procedure; but, as the defect was in a matter of a mere form, and as no exception therefor was taken to the indictment, the error was cured by the verdict, and is not cause for reversal. Id. APPEAL BOND. If on an appeal from a justice’s court to the county court the" appeal bond conforms substantially to the requirements prescribed therefor by Article 854 of the Code of Criminal Procedure," it is sufficient, whether in literal, compliance with them or not. Gyechawaich v. State, 430. ARREST. 1. A peace officer has no authority beyond the limits of his county, to arrest a party accused of crime. Ledbetter v. State, 217. 2. Warrant of arrest issued by a justice of the peace is wholly without authority in a different county, unless it be indorsed by a judge of the Supreme Court, Court of Appeals, district or county courts (when it may be executed anywhere in the State), or by a magistrate of the county in which the accused was found, when it may be executed in the latter county. If so indorsed, the warrant must be executed by an. officer of the county in which the accused is found. Id. 3. Homicide to prevent illegal arrest amounts, as a general rule, to no higher offense than manslaughter. Id. ARSON. Under the Penal Code of this State the willful burning of any “ house ” is arson, and a house is any building, edifice or structure enclosed with walls and covered, whatever the materials used for building. Though the house be neither destroyed nor seriously injured, the “burning” is complete when the fire has communicated to it, and, if the burning was designed, it is immaterial by what means the fire was communicated. Appellant, while confined in the wooden prison of a county poor farm, set fire to the roof of the prison, burning a hole therein. Being tried for arson, there was no evidence tending to disclose with what intent he set fire to the building. To the charge given by the trial court to the jury the defense objected, in substance, because it did not instruct for an acquittal if the appellant’s intent was to effect an escape, and not to consume or injure the building. Held, on a review of both ele. mentary and adjudicated authority, that the exception to the charge was not well taken. Delaney’s case, 41 Texas, 601 , is overruled on this point. Smith v. State, 357. ASSAULT AND AGGRAVATED ASSAULT AND BATTERY. See Assault to Mubdeb, 1. 1. By an unbroken line of decisions in the Supreme as well as this court it has been as it is now held, that a conviction for aggravated assault may be had under an indictment for assault with intent to mur-
*718 718 23 Texas Court of Appeals. Index. ASSAULT AND AGGRAVATED ASSAULT AND BATTERY—continued, der, notwithstanding no circumstance of aggravation be alleged in the indictment. (Hurt, J., dissents.) Bolding v. State, 173. 3. The law confides to teachers a discretionary power to punish thei) pupils, and exonerates them from responsibility unless the punishment be excessive or malicious. Moderate restraint and correction of a pupil by his teacher is not an offense, but is authorized by law; and it seems that the authority of a teacher is not limited to the time the pupil is at the school room or under the actual control of the teacher. Id. 3. A homicide committed in mutual combat would not be reduced to manslaughter, under the code of this State, unless it was committed under the influence of sudden passion arising from an adequate cause; and therefore, if death did not ensue, the offense would not be mitigated from assault with intent to murder to aggravated assault. Note the distinction taken in the opinion between manslaughter under the code of this State and manslaughter at common law and in some of the other States. Spearman v. State, 334. 4. Reasonable chastisement inflicted by a school teacher upon a pupil for a violation of a rule of the school, even though the violation did not occur at the school house nor during school hours, does not, under the laws of this State, constitute an assault. See the opinion in extenso for the substance of evidence held insufficient to support a conviction for aggravated assault and battery. Hutton t>. State, 386. 6. “Striking and beating with a pistol in a manner calculated to inflict serious bodily pain and injury” does not per se constitute an aggravated assault. If, as used, the pistol was a deadly weapon, or if the assault was made with premeditated design, the assault would be an aggravated one; but, in the absence of both these allegations, the indictment charges a simple assault only. Miles V. State, 410. 6. See the statement of the case for evidence, which, in view of the other facts in proof, should have been admitted on the trial of the accused for an aggravated assault. Burns v. State, 641. ASSAULT TO MURDER. 1. See the opinion of this court for a summary of the evidence upon which the appellant was convicted of an assault with intent to murder and which should have elicited instructions from the trial court to the jury upon certain phases of the law of aggravated assault, of self defense and of manslaughter. Roberts ®. State, 170. 3. Indictment for assault with intent to murder charged that the accused “did then and there make an assault upon Frank Stoker, with the intent to murder him, the said Frank Stoker.” This was excepted to on the ground that it charges a conclusion of law, and not the facts constituting the offense. Held, by a majority of the court, that the indictment was sufficient, and the exception properly overruled. Note the animadversion of Hurt, J., upon the ruling, and upon the precedents and reasoning on which it is maintained. Gordon v. State, 319. 3. A homicide committed in mutual combat would not be reduced to manslaughter, under the code of this State, unless it was committed un-
*719 83 Texas Court of Appeals. 719 Index. ASSAULT TO MURDER—continued. der the influence of sudden passion arising from an adequate cause; and therefore, if death did not ensue, the offense would not be mitigated from assault with intent to murder to aggravated assault. Mote the distinction taken in the opinion between manslaughter under the code of this State and manslaughter at common law and in some of the other States. Spearman State, 224. 4. The trial court instructed the jury in effect that, to constitute justification on the ground of self defense, the act must have been done “ in fact in self defense, and not merely colorably so.” Held erroneous, because subversive of the right of self defense resulting from reasonable expectation or fear of death or serious bodily injury, and because it absolved the jury from their duty to view the circumstances from the standpoint of the defendant at the time. Id. 5. See the statement of the case for evidence held insufficient to support a conviction for assault with intent to murder. Garcia v. State, 712. ASSAULT TO RAPE. 1. See the statement of the case for evidence held insufficient to support a conviction for assault to rape. Pless v. State, 73. 2. Mo testimony should be rejected in a rape case which, in the remotest degree, will tend to aid the jury in reaching the truth. In this case the State offered a medical witness who examined the privates of the alleged injured party, five weeks after 1 he alleged offense, but, upon objection by the defendant, the evidence was rejected. Held, that, though somewhat remote in point of time, the evidence should have been re ceived as tending to throw light upon the transaction. Id. 3. It is not competent to indict for an assault with intent to rape, and convict upon evidence establishing an attempt to rape by fraud. Melton e. State, 204. 4. Assault with intent to rape can only be established by proof of force or attempted force, and not by proof of threats or fraud as the means of accomplishing the offense. But an attempt to commit rape may be committed by means of threats or fraud, and the use of chloroform as the means comes within the meaning of fraud, and can not be construed to be force. Id. ATTEMPT TO RAPE. See Assault to Rape, 3, 4. B. BAIL. 1. The Bill of Rights, section 11 of the Constitution, declares that all prisoners are bailable “unless for capital offenses when the proof is evident.” Ex parte England.'HQ. 2. A mistrial because of disagreement of the jury as to a verdict in a trial for a capital offense does not establish per se that the proof is not evident, and that the accused is entitled to bail. But see the statement of the case for evidence in a habeas copus proceeding for bail, under an indietident for murder, held not to authorize the refusal of bail. Id.
*720 720 23 Texas Court op Appeals. Index. BAIL—continued. 3. In a habeas corpus proceeding for bail after the presentment of an indictment for a capital offense, it is incumbent on the applicant to show that he is entitled to bail. In bis application for the "writ of habeas corpus he must allege under oath that he “is illegally restrained in his liberty,’’ and, as this allegation is an affirmative one, and the applicant the actor or plaintiff, the burden is upon him to maintain it in the proof. He can not rest his right to bail upon the presumption of innocence, inasmuch as the issue of which he has assumed the affirmative is determinable by the proof alone, regardless of the presumption of innocence. In his trial upon the indictment, of course the presumption of innocence obtains in favor of the accused, and, the State being then the actor or plaintiff, and holding the affirmative of the issue of guilty or not guilty, the burden of proof on that issue is upon the State. Note the collocation in the opinion of the court of adjudicated cases maintaining this ruling, and the citations from the Bill of Rights and the Code of Procedure impliedly sanctioning it. (Hurt, J., dissents.) JSso Parte Smith, 100. 4. In this ease the court renounces the ruling in Foster’s case, 5 Texas Court of Appeals, 635, to the effect that bail should be refused in a capital case if the judge would sustain a capital conviction found by a jury upon such evidence as that adduced before him. A better test is that announced in McAnally’s case, 53 Alabama, 495, viz : “If the evidence is clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he will probably be punished capitally if the law be administered, bail is not a matter of right.” Id. 5. From the fact that there is a conflict of evidence in a habeas corpus trial for bail, it does not necessarily follow that the inculpatory evidence fails to make the proof “ evident;” for it is not all exculpatory evidence that will destroy or impair that which is inculpatory, orwhiehwill raise a reasonable doubt of the guilt of the applicant for bail. The evidence is to be considerad in its entirety, and if, when so considered, a reasonable doubt of the applicant’s guilt of a capital offense is not engendered, the “proof is evident,” and bail should be refused. Id. 6. The trial court admitted certain inculpatory evidence which this court considers inadmissible because it was res inter alios acta, but, instead of reversing the judgment on that account, this court excludes the objectionable evidence from consideration, and upon the legal evidence affirms the judgment refusing bail. Id. 7. See the dissenting opinion of Hurt, Judge, controverting the ruling formulated in the first headnote, and maintaining that the general yule favors the right to bail in all cases except capital eases in which the “proof is evident,”—that in cases of this character the State stands on the exception and must establish it,—that the true issue is whether or net the “proof is evident” that the applicant is guilty of a capital offense, and of this issue the State has the affirmative a.nd the burden of proof;—that the indictment, even if its allegations proved anything, can have no bearing upon this issue, inasmuch as it does not allege that the
*721 23 Texas Court of Appeals. 731 Index. BAIL—continued. “ proof is evident” of the capital offense charged;—that the presumption of innocence avails the accused in this as well as on his trial upon the indictment;—and, therefore, that the applicant is entitled to bail unless the State shows, by evident proof, that he is guilty of the capital offense charged against him. Note the dissenting opinion in extenso for an exhaustive discussion of these positions and of those announced in the” opinion rendered by a majority of the court. Id. 8. See the statement of the case for evidence on which it is held that the court below did not err in disallowing bail to an applicant charged by indictment with murder in the first degree. (Hurt, J., dissenting.) Id. 9. See the opinion in extenso for a summary of evidence held insufficient to support a final judgment upon a forfeited bail bond. Baker u State, 657. 10. See the statement of the case for evidence adduced in a proceeding by habeas corpus for bail under a charge of murder, held, insufficient to authorize a refusal of bail Ex Parte McDowell, 679. BILL OF EXCEPTIONS. 1. Refusal of reasonable time for the preparation of a bill of exceptions is not material error when it does not appear that the party was or may have been in any wise prejudiced thereby. His bill of exceptions should show the prejudice or injury. Powers -u. State, 42. 2. Bill of exceptions, to be available on appeal, should set forth the facts relevant to the ruling excepted to. The judge’s authentication of the bill does not establish the validity of its grounds of exception, but merely certifies its presentation and the court’s disposition of it. Hennessy «. State, 340. BILL OF SALE. See Ownership, 3. BURDEN OF PROOF. 1. In a habeas corpus proceeding for bail after the presentment of an indictment for a capital offense, it is incumbent on the applicant to show that he is entitled to bail. In his application for the writ of habeas corpus he must allege under oath that he “is illegally restrained in his liberty,’’ and, as this allegation is an affirmative one, and the applicant the actor or plaintiff, the burden is upon him to maintain it in the proof. He can not rest his right to bail upon the presumption of innocence, inasmuch as the issue of which he has assumed the affirmative is determinable by the proof alone, regardless of the presumption of innocence. In his trial upon the indictment, of course the presumption of innocence obtains in favor of the accused, and, the State being then the actor or plaintiff, and hold'ng the affirmative of the issue of guilty or nob guilty, the burden of proof on that issue is upon the State. Note the collocation in the opinion of the court of adjudicated cases maintaining this ruling, and the citations from the Bill of Rights and the Code of 46 — Tex. App. xxiii.
*722 23 Texas Court of Appeals. 722 Index. JBURDEIS" OB PROOB—continued. Procedure impliedly sanctioning it. (Hurt, J., dissents.) Ex Parte Smith, 100. 2. The appellant in this case was confined in the penitentiary under seven different convictions for horse theft, the penalties aggregating iorty-five years. On August 25, 1886, the Governor issued his full pardon to cover each conviction, and delivered the same to the appellant’s attorney. On the thirtieth day of the same month the said pardon was delivered to a clerk in the office of the superintendentof the penitentiary at Huntsville. On the same day, but before the same had been delivered to the appellant, or recorded in the books of the superintendent’s office, the said superintendent received a telegram from the Governor, directing him to hold the said pardon for further orders. By subsequent telegram the Governor notified the superintendent that the said pardon had been revoked, and ordered its return, and it was returned to the Governor, who then indorsed upon it instructions to the Secretary of State, as fol lows: “ Issue an order revoking this pardon as having been granted upon misinformation. ” Thereafter proceedings by habeas corpus were instituted in the district court of Travis county, and, to support his application for release under the pardon, the appellant produced in evidence the charter of pardon bearing the said indorsement. Held, 1: A pardon procured by fraud upon the pardoning power, whether by suppression of truth or suggestion of falsehood, or by other imposition, is absolutely void. 2. Having relied upon the pardon with its indorsement, the appellant established against himself, prima facie, the procurement of the pardon by fraud, and assumed the onus of proving no fraud; failing to • do which, or to controvert the prima facie case established by himself, the trial court did not err in remanding him to the custody of the superintendent of the penitentiary. Rosson v. State, 287. BURGLARY. 1. Indictment may be sufficient to charge burglary with intent to commit theft, without describing the property intended to be stolen. Pteiderlueh v. State, 38. 2. See the opinion for a state of proof in a trial for burglary held to be insufficient to establish a burglarious entry by fraud; wherefore the trial court having charged the jury upon an entry by fraud, and having confined the jury in the charge to such an entry, it should have awarded the defendant a new trial. Id. 3. In order to convict a domestic servant for the burglary of his master’s house, it must be shown that he, if he acted alone, entered the same by an actual breaking. If, however, the domestic servant is shown to have been one of two or more conspirators to enter and burglarize his master’s house, and, in pursuance of the conspiracy, he admitted his co-conspirators, a constructive breaking, it seems, will authorize his conviction. Independent of this rule, the co-conspirators will be guilty of burglary upon the constructive breaking by the domestic servant. Id. 4. In a trial for burglary and theft of oats from the premises entered, it was in proof that oats were found in the defendants’s crib, and
*723 23 Texas Court or Appeals. 723 Index. BUR GLARY— continued. that he told the searching party that he had bougnt them from one B* In his defense he relied upon his alleged purchase, and adduced evidence in support of it. The trial court properly instructed the jury with regard to opportune explanation of the possession of recently stolen property, but wholly ignored the defense of purchase relied on by the accused. Held, that the charge was insufficient. The defendant denied that the oats found in his crib were stolen, and, on the contrary, claimed to have purchased them; and to this defense the instruction was not directly relevant, as it should have been. Bond v. State. 180. 5. It is the right of a .defendant to have the charge of the court make a distinct and affirmative presentation of his issues to the jury, and to have them determined by the j ury alone. Id. 6. Appellant was tried for burglary and the theft of certain oats which were found in the possession of one Bond, which oats the said Bond, in appellant’s presence, claimed to have purchased; and there was evidence in support of this claim of Bond’s. Held that the trial court, in its charge to the jury, should have affirmatively and pertinently expounded the law both as to opportune explanation of the possession of recently stolen property and as to the defense of purchase of the property, as claimed by Bond, who was jointly indicted with this appellant for the'offense. Shuler v. State, 182. 7. Indictment for burglary need not allege the non consent of the owner or occupant to the entry of the house. Taylor v. State, 689. 8. But to be sufficient, an indictment for burglary must allege the elements of the felony or theft intended to be committed, with the same particularity that is required in charging directly the intended offensa Indictment, to charge theft, and, therefore, to charge burglary to com mit theft, of property belonging to two or more owners, must, to be sufficient, negative the consent of each of the owners, and not merely their conjoint consent, unless a separate possession and ownership of the property in two or more persons is to be charged, as was the case in Smith v. The State, 21 Texas Court of Appeals, 96. The indictment in this ease charged that the intent was to take the property of B. and H,, without their consent, and was bad. 0. CARRYING PISTOL. 1. The proof showed that the accused, when he carried the pistol on his person, was going from his home in Williamson county to the site of said county, intending to return on the following day. Held that such facts did not constitute the accused a traveler within the meaning of that term as it is used in the statute denouncing a penalty for the carrying of a pistol on the person. Darby v. State, 407. 2. See the statement of the case for evidence adduced in a trial for carrying a pistol held insufficient to support the defense that, when he carried the pistol, the accused had reasonable grounds to apprehend an unlawful attack upon his person, etc. Id. 8. Upon his trial for unlawfully carrying a pistol, the accused sought
*724 72é 23 Texas Court of Appeals. Index. CARRYING PISTOL—continued, to exculpate himself under the exception to the statute, that the pistol was carried on his own premises. The proof was that the premises on which the pistol was carried was the joint inheritance of the wife of the accused and one M., but that it was occupied by M., and not by the accused or his wife. Held that the pro'of did not bring the premises within the exception. Brannon v. State, 428. 4. Evidence insufficient to support a conviction for carrying a pistol. Cathey v. State, 492; Sanderson v. State, 520. CASES OVERRULED. 1. Foster’s case, 5 Texas Court of Appeals, 625, overruled. Ex Parte Smith, 100. 2. Delaney’s case, 41 Texas, 601 , overruled. Smith v. State, 357. 3. Hamilton’s case, 2 Texas Court of Appeals, overruled. Pitner v. State, 366. CERTIFICATES. Certificates given to authenticate depositions, or testimony taken at coroner’s inquests or examining trials, are not necessary or even proper matters to be incorporated in a statement of facts. Kirby v. State, 13. CHALLENGE. 1. An exception reserved to the overruling of a challenge for cause is of no avail when it does not appear that the party had exhausted his peremptory challenges, and consequently that an objectionable juror was forced upon him. Powers v. State, 42. 2. While the jury in a capital case was being organized, and during a temporary absence of the defendant from the court room, a talesman was examined as to his qualifications and was peremptorily challenged by the State. The attention of the court being called to the absence of the defendant, further proceedings were stayed and the sheriff was sent to bring back the challenged talesman. After waiting an hour without avail, the court, over defendant’s objection, proceeded with the examination of the remaining talesmen. Held, that there was no material error in the action of the court, in as much as there is nothing to indicate that it either did prejudice, or could have prejudiced, any right of the defendant. Id. CHARGE OF THE COURT. See Assault, 4. Evidence, 23, 49, 52, 61. Fraudulent Disposition of Mortgaged Property. Venue, 4. 1. The first count in the indictment alleged the ownership of the stolen property to be unknown, and the second count alleged it to be in one S. The proof sustained the second count. Held, that a conviction could be had only under the second count, and therefore the trial court should have confined its charge to that count. Boren v. State, 28.
*725 23 Texas Court of Appeals. 725 Index. CHARGE OP THE COURT— continued. 2. See the opinion in extenso for a state of proof in a theft ease under which the trial court should have given in charge to the jury the law of accomplice testimony. Id. 3. See the opinion for a state of proof in a trial for burglary held to be insufficient to establish a burglarious entry by fraud; wherefore the trial court having charged the jury upon an entry by fraud, and having confined the jury in the charge to such an entry, it should have awarded the defendant a new trial. Heiderluck v. State, 38. 4. Charge of the court correctly omits requested instructions when it comprehends within itself all the law of the case. Pless ». State, 73. 5. See the statement of the case for the substance of evidence developed in a trial for murder, which resulted in a conviction for manslaughter, whereunder the trial court, having charged in substance the rule of law laid down in Article 615 of the Penal Code, did not, in view of said evidence, err in omitting to charge upon the rules declared in Articles 612 and 614 of the said Code with regard to an instrument not necessarily a deadly weapon, unless its use and manner of use were accompanied by an intention to kill. Hartwell v. State, 88. 6. A person unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant, when the attack is such as produces a reasonable expectation or fear of death or some serious bodily injury; and in many cases it is the imperative duty of the trial court to so instruct the jury. Such an instruction, however, was unnecessary and would have been irrelevant in this case, inasmuch as the evidence adduced to show self defense affirmed that the defendant was in full retreat when he fired the fatal shot. May v. State, 146. 7. The true rule upon the doctrine of reasonable doubt as applied to murder of the second degree is that the inculpatory proof must show beyond a reasonable doubt the absence of the mitigating, excusing or justifying facts. White ®. State, 156. 8. It is a part of the law of self defense under the code of this State that an assailed party is not bound to retreat in order to make good his right of self defense. Failure to so charge the jury will not of itself necessitate reversal, in the absence of exception, unless under all the facts of the case, the omission to so charge was calculated to injure the rights of the accused. The omission in this case, not having been excepted to, and being in no wise calculated to prejudice the accused, was not reversible error. Id. 9. An established rule upon the right of self defense, when the slayer provoked the occasion for the killing, is as follows: “If he (the slayer) provoke the contest, or produce the occasion, in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he provoked the combat or produced the occasion, without any felonious intent—intending, for instance, an ordinary battery merely—the final killing in self defense will be manslaughter only.” See the opinion in extenso for a charge upon the subject held, in view of the evidence, erroneous. Id.
*726 736 3 Texas Court op Appeals. Index. CHARGE OP THE COURT— continued. 10. It Is an equally well established rule that “no words nor libelous publications, however aggravating, will eompromit a slayer’s right of defense, if in consequence of the same he is attacked; for no words, of whatsoever nature, will justify an assault.’’ Held that, under this rule, and in view of the evidence, the trial court erred in refusing the defendant's requested instruction to the effect that threats made by defendant against deceased did not operate to deprive defendant of his right of self defense. Id. 11. It is an established rule of practice in this State that the charge of the court must make a pertinent application of the law arising out of the evidence, no matter how weak and impotent the evidence may appear to the court. See the opinion in extenso for evidence in a murder ease which, under this rule, demanded of the trial court a charge upon the law of manslaughter. Lisltosshi v. State, 165. 12. There being evidence in this case tending to show an original conflict between the deceased on the one hand, and the accused and one K., acting together, on the other, and that that conflict was abandoned, and that it was renewed between K., acting alone, and the deceased, in which second conflict the fatal injury was inflicted, the trial court, having correctly instructed the jury upon a conflict in which K. and the accused acted together, should have further charged upon the alternative theory of a homicide i'n which K. acted alone. Id. 13. See the opinion of this court for a summary of the evidence upon which the appellant was convicted of an assault with intent to murder, and which should have elicited instructions from the trial court to the jury upon certain phases of the law of aggravated assault, of self defense- and of manslaughter. Roberts v. State, 170. 14. Article 196 of the Penal Code, in defining the offense of “false swearing,” requires that it be done “deliberately and willfully." The trial court properly instructed the jury as to the legal signification of “deliberately” but omitted to define the legal meaning of “ wilifully.’? Held, in view of the facts in pioof, that this omission was reversible error. See the opinion in extenso. Steber v. State, 176. 15. In a trial for burglary and theft of oats from the premises entered, it was in proof that oats were found in the defendant’s crib, and that he told the searching party that he had bought them from one B. In his defense he relied upon his alleged purchase, and adduced evidence in support of it. The trial court properly instructed the jury with regard to opportune explanation of the possession of recently stolen property, but wholly ignored the defense of purchase relied on by the accused. Held, that the charge was insufficient. The defendant denied that the oats found in his crib were stolen, and, on the contrary, claimed to have purchased them; and to this defense the instruction was not directly relevant, as it should have been. Bond v. The State, 180. 16. it is a right of the-defendant to have the charge of the court make a distinct and affirmative presentation of his issues to the jury, and to have them determined by the jury alone. Id. 17. In a trial for horse theft the State introduced evidence tending to prove that, besides the animal in question, other horses were stolen at
*727 23 Texas Court op Appeals, m Index. CHARGE OP THE COURT—continued. the same time and in the same neighborhood; but the trial court omitted to instruct the jury for what purposes the evidence was allowed, and this omission was relied upon in the motion for a new trial. The State’s ease stood upon circumstantial evidence alone. Held that the omission in the charge, though not excepted to nor a proper instruction requested, was calculated to prejudice the rights of the defendant, and is therefore reversible error. Davis v. State, 210. 18. The trial court instructed the jury in effect that, to constitute justification on the ground of self defense, the act must have been den© “in fact in self defense, and not merely colorably so.” Held erroneous, because subversive oí the right of self defense resulting from reasonable expectation or fear of death or serious bodily injury, and becav.se it absolved the jury from their duty to view the circumstances from the standpoint of the defendant at the time. Spearman v. State, 224. 19. In a trial for murder this appellant was convicted of manslaughter upon evidence which showed that the deceased, as appellant knew, had threatened to kill him if he should ever speak to him, and that, the deceased having dropped some coins, the appellant spoke to him and called his attention to one of them; whereupon the deceased, calling appellant a d—d son of a biteh, replied that he had told and sent him word not to speak to him. Appellant, saying “all right,” went out of the back door of the house, and then called to him a relative of the deceased, and in their ensuing conversation said he could “not stand this,” and that he would “kill him.” Deceased, still in the house, commenced whittling, and was apparently listening, and soon, closing his knife and putting it in his pocket, walked towards where appellant was, and when he got about a third of the way, he took his knife out of his pocket and seemed to be opening it. Proceeding to and having passed out of the back door, he was shot and killed by appellant. A pocket knife, partly open, lay close by deceased on the ground, after he was shot. The trial court did not give in charge to the jury the law of self defense, and rejected a requested instruction on that subject. Held, that the evidence fairly raised the issue of self defense, and the defendant was entitled not only to have all relevant circumstances, whether anterior to or contemporaneous with the killing, put in evidence, but also the law of self de fense given in charge to the jury. Wheelis v. State, 238. 20. The failure of the trial court to define the word “willful ” in the charge given to the jury was error, hut not reversible error, inasmuch as, the offense being a misdemeanor, it devolved upon the defendant, to request a special charge to supply the omission, or to reserve exception to the omission. Clark v. State, 260. 21. Special charges are properly refused if they announce incorrect principles of law, or if, being correes, they are substantially embraced in the general charge. Id. 22. In order to raise the issue of manslaughter, it is not essential that the overt act relied upon was sufficient to raise the issue of self defense; but if, in connection with other antecedent facts and circumstances, it excited in the mind of the accused, and was sufficient to excite in the
*728 ns 23 Texas Court of Appeals, Index. CHARGE OF THE COURT—continued:. mind of a person of ordinary temper, such sudden passion as would render it incapable of cool reflection, then adequate cause would be produced sufficient to raise the issue of manslaughter, and the law of manslaughter would be part of the law of the case. See the opinion for a case to which the rule applies, and which demanded of the trial court a charge upon the law of manslaughter; and note the approval of Hobbs’s case, 16 Texas Court of Appeals, 523. Howard v. State, 265. 23. See the statement of the case for evidence held sufficient to support a conviction for murder of the first degree, founded upon the defendant’s plea of guilty; and also for a charge of the trial court, held to be correct, the evidence proving that the homicide was committed in che perpetration of robbery, which the Penal Code, Article 606, makes murder in the first degree per se. Siles r>. State, 281. 24. In order to sustain a prosecution for theft when the taking was originally lawful (Penal Code, art. 727), the proof must show either that the taker obtained the lawful possession of the property by some false pretext, which induced or deceived the owner to surrender the possession of the property to him; or that, at the time he obtained the possession of the property with the consent of the owner, he intended to deprive the owner of the value of the same, and to appropriate it to his own use. See the opinion for a charge of the court on the subject held correct. And see the statement of the ease for evidence held sufficient to support a conviction for theft of money obtained from the owner by false pretext. Porter v. State, 295 25. Local option law, when adopted by the vote of the electors, does not become operative until the order of the commissioners court declaring the result of the election has been published for four successive weeks, and the sale of intoxicating liquors in the community to be affected is not, prior to such publication, a violation of the local option law. The order in this case was published in four successive issues of the newspaper of July 4, 11, 18 and 25, and the trial court charged in substance that the law became operative on the last named date. Held, erroneous. The law contemplates that the order shall be published for four full consecutive weeks, or twenty-eight days from the day of its first publication, and in refusing a special charge to that effect the trial court further erred. Phillips v. State, 304. 26. Charge of the court, in the absence of a statement of facts, can be considered on appeal only with reference to fundamental errors. If it conforms to the indictment it must be presumed that it responded to the evidence adduced on the trial. Wade '0. State, 308. 27. Charge of the court is erroneous if it announces imprisonment in jail to be part of the punishment for keeping or exhibiting a gaming bank, with no discretion in the jury to dispense therewith and impose a fine alone. Article 358 of the Penal Code prescribes the penalty as a fine, but empowers the jury to also assess imprisonment in the county jail for not exceeding thirty days; and this Article is still in full force, notwithstanding the abortive amendatory Act of March 19, 1885, heretofore declared unconstitutional in the case of Hunt v. The State, 22 Texas Court of Appeals, 396. Wright v. State, 313.
*729 23 Texas Court of Appeals. 723 Index. CHARGE OP THE COURT—continued. 28. If the indictment charges that the carnal knowledge was obtained by means of toree, threats, or fraud, it charges a rape, whether perpetrated upon a female under or over the age of ten years, and if the indictment also contains an averment of non-age, the same may be treated as surplusage and eliminated. In this ease the proof showed the female alleged to have been raped to be over the age of ten years, and the defendant requested the trial court to charge the jury, in substance, that, the indictment charging the non-age of the prosecutrix at the time of the offense, the defendant was entitled to an acquittal if the jury believed from the evidence that she was then over ten years old. The trial judge refused the special charge “ because the indictment alleges that the offense was committed by means of ‘force and threats’ on the part of defendant, and the allegation of age of the prosecutrix or injured female is not of that descriptive character which requires corresponding proof, the State having proved force and threats.” Held, that the ruling was correct, and the special charge was properly refused. Nicholas v. State, 317. 29. Although at the time of the alleged commission of this offense it was not per se an offense to stop the running of a train of cars (Murray and Anthony v. The State, 21 Texas Ot. App., 620), it was, nevertheless, under the provisions of Article 279, an offense for two or more persons to meet and co-operate in preventing the conductor of a railway train from pursuing his usual avocation and employment of operating the said train See the opinion for a charge of the court upon the subject held correct. McGee v. State, 330. SO. The record and judgment in the proceeding in which the perjury was alleged to have been committed, while not admissible in evidence to be considered by the jury indiscriminately, was admissible as matter of inducement in the matter assigned as perjury. When admitted for this specific purpose, it became the duty of the trial court to give to the jury an instruction as to the purpose of its admission and the extent to which it could be considered. The omission of such an instruction was material error. Washington v. State, 336. 31 Under the Penal Code of this State the willful burning of any “house” is arson, and a house is any building, edifice or structure enclosed with walls and covered, whatever the materials used for building. Though the house be neither destroyed nor seriously injured, the “burning” is complete when the fire has communicated to it, and, if the burning was designed, it is immaterial by what means the fire was communicated. Appellant, while confined in the wooden prison of a county poor farm, set fire to the roof of the prison, burning a hole therein. Being tried for arson, there was no evidence tending to disclose with what intent he set fire to the building. To the charge given by the trial court to the jury the defense objected, in substance, because it did not instruct for an acquittal if the appellant’s intent was to effect an escape, and not to consume or injure the building. Held, on a review of both elementary and adjudicated authority, that the exception to the charge was not well taken. Delaney’s case, 41 Texas, 601 , is overruled on this point. Smith v. State, 357.
*730 780 23 Texas Court of Appeals. Index. CHARGE OF THE COURT—continued. 32. To invoke instructions on the law controlling accomplice testi-1 mony, there must be evidence to which the instructions would be applicable. Pitner v. State, 366. 33. With regard to the punishment lor cattle theft, the trial court instructed the jury that it was “not less than two nor more than five years,” but failed to instruct that it should be by confinement in the penitentiary. The verdict assessed the punishment at “ confinement in the penitentiary for two years.” The charge of the court was not excepted to. Held that the omission in the charge is not fundamental, nor even reversible, error, inasmuch as it is obvious that it neither misled the jury nor prejudiced the accused. So far as this ruling may conflict with that of this court in Hamilton’s case, 2 Texas Cou ' of Appeals, 494, the latter case is overruled. Id. 34. The accused, upon his trial for the false imprisonment of one Broxton, requested the trial court to charge the jury in substance that, if one Blake was drunk on the street and disturbing the peace, it was the duty of the appellant, who was the city marshal, to arrest the said Blake without warrant, and to confine him in the calaboose, and that Broxton had no right to force or compel defendant to release said Blake on bond, while drunk; and that if, while defendant and his deputies were conveying Blake to jail, Broxton attempted to release Blake by force, then defendant had the right to arrest said Broxton and confine him in jail. Held, that responding to the evidence on the trial, the requested charge was a part of the law, and should have been given. See the statement of the case for a resume of the evidence referred to. Moseley v. State, 409. 35. In the absence of proof showing that the defendant’s husband and co-principal, who fired the fatal shot, heard or was informed of the insulting epithet applied to the defendant by the deceased, the trial court did not err in refusing a special charge upon manslaughter. Gibson v. State, 414. 36. Trial courts are not required to charge the jury in misdemeanor eases, except when requested to do so by one or both sides of the cause; and even then they can be required only to give, with or without modification, or to refuse such charges as are requested in writing. The refusal of a special charge does not impose upon the court the duty of giving an independent charge. Sparks v. State, 447. 37. Special charges which respond to no issue raised by the evidence are correctly refused. Id. 38 Refusal of the trial court in a misdemeanar case to instruct the jury as to the legal meaning of the word “willful,” when that word is used to characterize the offense, and a correct instruction is requested in writing, is error. Id. 39. Upon the joint trial of this appellant and W. F. B., for murder, the State, over the objection of appellant, was permitted to prove threats against the deceased and his family, made by W. F. B. in the absence of appellant—the court promising to limit and control the said evidence in the charge to the jury, which it failed to do. Held, that in this failure the trial court erred. Barron v. State, 462.
*731 23 Texas Court oe Appeals. 731 Index CHARGE OF THE COURT—continued. 40. See the opinion in extenso for a special instruction asked by the defendant, which, in view of the evidence in the case, should have been given. Id. 41. On this, a trial for murder, the State was permitted to prove by a witness that, when he arrived at the place of the homicide, some member of the crowd there congregated pointed to the defendant whom the witness had just met two doors distant from the place of the homicide, and exclaimed: “ There is the man who did the shooting.” The defendant at that time was walking with another man. The rule under which such proof could be admitted may be stated as follows: To entitle the State to introduce in evidence the declaration of a bystander, it must be clearly shown that the defendant understood himself to be accused of the criminal act committed; and, further, the circumstances must have been such as to require of him a response. Even when the requirements of this rule are complied with, and the evidence has been properly admitted, it devolves upon the trial court to instruct the jury as to the legal function of the evidence so admitted, and that it can not be relied upon by the State to establish the defendant’s guilt of the main fact in issue, i. e., that he committed the criminal act. Held that, under the rule stated, the admission of the declaration of the bystander in this case was error. Holder v. State, 477. 43. It is only when the State relies exclusively upon circumstantial evidence that the trial court is required to charge the jury upon the law controlling that character of evidence Jones -u. State, 501 43. The charge in the indictment being that the appellant received the property from one Noon Tucker, knowing that the same was stolen by the said Noon Tucker, the theft of the property by the said Noon Tucker became an essential issue in the case, and, as tending to establish that issue, the court properly permitted a State’s witness to testify that when he saw the said Noon Tucker in possession of the said property, he questioned the said Noon as to his title, and the said Noon replied that he had raised it. The failure of the trial court, in its charge to the jury, to limit and restrict such evidence became immaterial in view of the defendant’s failure to except to such omission, and in view of the fact that the omission could not prejudice his rights., Tuclcer v. State, 513. 44. Before reading his charge in this case to the jury, the trial judge, in the presence of the jury, announced to the counsel for the defense, that he would enforce the rules laid down by the Court of Appeals with reference to exceptions on trial to the charge. Held, that such action was not error. Held, further, that, while the action of the court in requiring the defendant’s counsel to point out specifically his objections to the charge, at the time it was given, was error, it became immaterial in view of the fact that the counsel subsequently obtained complete bills embodying his said exceptions. Id. 45. The record of proceedings on the trial of W. for theft was admis ■ sible against the defendant on his trial for perjury committed on the trial of W., but only as matter of inducement in committing the perjury,
*732 732 23 Texas Court of appeals, Index. CHARGE OF THE COURT—continued. and not to prove the perjury; and, being admitted for that specific purpose, the charge of the trial court, omitting to restrict and limit it accordingly, though not excepted to, was erroneous. Maines v. State, 568. 46. Having admitted proof that other property of like character was driven at the same time and from the same place as the property described in the indictment, the trial court erred in omitting in its charge to limit the jury as to the legitimate purpose for which that proof could be considered. Wheeler v. State, 598. 47. The legal meaning of the word “willful” should, ordinarily, when it enters into the description of the offense, be given in charge to the jury. Such, however, is not the rule when willfulness is '•omprehended in the other concomitants of the forbidden act. Id 48. See statement of the case for evidence held sufficient to establish the issue of value both in the county of the original taking and in the county of the forum. In substance the trial court charged that the measure of value was the value of the property at the time of the taking in the county of the taking, and not in the county of the forum at the time it was brought into that county, Held, that the converse of the charge is the law, the rule being that “where a party is prosecuted in a county other than that in which the theft was committed, a complete offense must be shown in the county where the conviction was had.” See the opinion on the question. Clark v. State, 612, 49. Charge of the court with respect to the seasonable doubt is sufficient if it applies the doctrine to the whole of the case, though not to each and every contested question arising upon the evidence. McCullough D. State, 620 50. An erroneous charge of the court in a misdemeanor ease is not cause for reversal, unless the same was excepted to when it was given. Burns v. State, 641. . 51. Charge of the court should be confined to i._'e issues raised by the evidence. Mayfield v State, 645. 52. The trial court in this case did not err in charging upon murder of the first degree, in view of evidence tending to establish a premeditated killing, and in view of the further fact that such charge was necessary to a complete exposition of the elements of murder of the second degree. Simmons v. State, 653. 53. Special charges of the court unauthorized by any proof on the trial, or which, if authorized and correct, are embodied in the general charge, are properly refused. McVey v State, 659. 54. If, upon a trial for theft, the trial court admits proof of contemporaneous and contiguous thefts of other property, it becomes the imperative duty of the trial judge, in his charge, to limit and restrict such proof to its legitimate purpose, and omission to do so is fundamental error. Cravey v. State, 677. 55. See the opinion for a charge of the court on a trial for cattle theft, held erroneous, inasmuch as it authorized a conviction although the evidence should fail to show that the accused had any connection with the original taking. Curlin v. State, 681.
*733 23 Texas Corar op Arbealsl. ?38¡ Index. CHARGE OF THE COURT—continued. 66. See the statement of the case for a state of proof which demanded of the trial court a charge to the effect that, in order to raise a presumption against the defendant, because of his possession of the stolen animal, his possession must be shown to be recent. Id. 57. In view of the reasonable explanation of his possession given by the accused when his possession was first challenged, the omission of the trial court to instruct the jury as to the legal effect of the explanation was material error. Id. CIRCUMSTANTIAL EVIDENCE. See Evidence, 64. Murder, 32. COMPLAINT. Complaint alleging that the affiant “has good reason to believe and does believe ’’ that the allegations made in the complaint are true is not invalid by reason of that form of averring the charge preferred. Ciarle V. State, 260. COMPULSORY PROCESS. The Constitution of this State (Bill of Rights, see. 10) guarantees to any one accused of crime the right to have compulsory process for1 his witnesses, and of this right it is not in the power of the legislature to deprive him. In so far, therefore, as the act of the Eighteenth legislature “to provide for the payment of attached witnesses in felony cases” deprives a defendant of his right to an attachment for his absent witnesses, that act is unconstitutional and void. Homan v. State, 212. CONFESSIONS. 1. The Code of Criminal Procedure, Article 774, places testimony taken at an inquest in the same category as testimony taken at an examining trial, and the same rules govern the admissibility of both; wherefore the confession of a prisoner to a coroner’s inquest is competent evidence against him if, as provided in Article 750, it was made in his voluntary statement taken in accordance with law, or was made voluntarily after having been cautioned that it could be used against him, etc. Articles 261 and 263 prescribe the mode of taking and authenticating such a voluntary statement “in accordance with law,” and require that it be made before any witness be examined, and be signed but not sworn to by the accused. Kirby v. State, 13. 2. Appellant being on trial for the murder of his jailer, the State was allowed, over objection, to put in evidence his statement to the coroner’s inquest, which statement, as shown by the magistrate’s certificate, was made after due caution that it could be used against him. It does not appear that he was in arrest or under accusation when he made the statement, but it is inferred that he was then suspected by the magistrate, and was therefore cautioned, though treated as a witness and sworn to his statement. Held, that the statement is not “a confession made-in
*734 734 23 Texas Court of Appeals, Index. CONFESSIONS—continued. the voluntary statement of the accused,” and its admissibility depends upon whether it was “made voluntarily after having been first cautioned that it may be used against him.” Id. 3. The Code of Criminal Procedure prescribes no form in which must be given the “ caution ” that a voluntary statement may be used in evidence against the maker. The caution is sufficient if the maker of the statement be warned that so much of it as is inculpatory of himself may be used against him. His silence or refusal to testify could not be used against him as a confession. Id. 4. In view of the ample caution given appellant in this ease, and of his subsequent declaration that he was willing to tell all he knew in regard to the killing, and of his signing and swearing to his statement, the statement must be regarded as clearly a “voluntary statement; ” and the trial court committed no error in admitting it as evidence for the State, Id. 5. If inculpatory declarations of a defendant were res gestee, they are competent evidence against him, notwithstanding they would be incompetent as confessions because he was in arrest when he made them. See the eighth subdivision of the opinion of the court in elucidation of this important distinction. Powers v. State, 43 CONSTITUTIONAL LAW. 1. Section 10 of the Bill of Rights of the Constitution of this State guarantees to a person accused of crime the right to be heard in person and by counsel, etc. That section, however, has reference exclusively to the trial in the nisi prius court, and can not be stretched to confer upon a person convicted of crime, and confined in jail, pending his appeal to this court, the right to be brought personally before this court to be heard in person upon his appeal. Toolce v. State, 10. 2. The local option law is an enactment which comes within the scope of the police powers of this State and does not take, damage nor destroy private property for public use within the meaning of section 1 of the Bill of Rights, and does not infringe upon any other provision of constitutional law. (See Ex parte Lynn, 19 Texas Ct. App., 393.) JEx parte Kennedy, 77. 3. Article 3330 of the Revised Statutes, requiring the county clerk to post copies of the order of election at least twenty days before an election under the local option law, controls Article 3329, which makes it the duty of the court to order the election to take place not less than fifteen nor more than thirty days after the issuance of the order. Id. 4. When a penal law prohibits two or more acts, one valid and constitutional and the other not, it may and will be held valid and constitutional, and can and will be enforced, as to that portion which is valid and constitutional. See the opinion for a case to which the rule applies. Id. 5. It is not a valid objection to the legality of an election under the local option law that two of the five notices required bylaw to be posted in the county were posted in a single precinct. Id. 6. The local option law of this State (Rev. Stat., arts. 3230, 3233),
*735 SB Tesas Court of Appeals. 735 Index. CONSTITUTIONAL LAW—continued. requires that the commissioners court of the county “shall appoint and qualify the proper officers in accordance with the election law,” and that “the officers holding said election shall in all respects not herein specified conform to the existing laws regulating elections.” Articles 1681 and 1682 of the Revised Statutes prescribe the duties of officers under the general election law. Id. 7. Failure on the part of the proper officers to perform duties required, of them in furtherance of an election will, if the election be a special one, render it nugatory and void, if thereby electors sufficient to have changed the result were deprived of the right to vote at said election. See the opinion in extenso upon the question, and for a case to which the rule applies. Id. 8. The Bill of Rights, section 11, of the Constitution, declares that all prisoners are bailable “unless for capital offenses when the proof is evident.” Ex parte England, 90. 9. The Constitution of this State (Bill of Rights, see. 10) guarantees to any one accused of crime the right to have compulsory process for his witnesses, and of this right it is not in the power of the legislature to deprive him. In so far, therefore, as the Act of the Eighteenth Legislature “ to provide for the payment of attached witnesses in felony cases ” deprives a defendant, of his right to an attachment for his absent witnesses, that Act is unconstitutional and void. Roman v. State, 212. 10. In prosecutions for gaming a conviction may be had upon the uncorroborated testimony of an accomplice or joint offender; and Article 367 of the Penal Code, which so provides, is a constitutional enactment. Wright v. State, 313. 11. The judgment offered to disqualify the State’s witness showed upon its face that it was rendered upon an information, and not upon an indictment, and that he had been convicted in Kansas of forgery in the second degree; wherefore the prosecution contends that the said offense must either be a misdemeanor in Kansas, or, if a felony, the judgment of conviction was void because the Constitution of the United States provides that “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” But held that this provision of the United States Constitution is a limitation only upon the the powers of the Federal Government, and does not impair the powers of the States. Therefore it is competent for Kansas or any other State to authorize the prosecution of felonies by information; but, to warrant the use in the courts of Texas of a judgment of conviction rendered on an information in another State for an offense which is felony in this State, it must be proved by the law of the other State that such judgment was valid under its organic and statutory law. Pitner ®. State, 366. 12. Article 730 of the Code of Procedure disables as witnesses “ all persons who have been or may be convicted of felony in this State or in any other jurisdiction," unless, etc. Reid that the expression “other jurisdiction” is not to be limited to the tribunals of the United States exercising their jurisdiction in Texas, for such a construction would be a
*736 736 23 Texas Court or Appeal, Index. CONSTITUTIONAL "LAW—continued. narrow and strained interpretation of the language used, and would not fully accomplish the legislative intent. See the opinion for a clear exposition of this and the antecedent rulings. Id. 17. The unconstitutionality of the Act of March 19, 1885, does not affect the validity of Article 358 of the Penal Code, under which this prosecution should have been maintained. Ford y. State, 530. 14. An Act of the Seventeenth Legislature of the State of Texas imposes upon “every commercial traveler, drummer, salesman or solicitor of trade by sample or otherwise” an annual occupation tax of thirty-five dollars, payable in advance to the State comptroller, and enacts that any such trader who fails or refuses to exhibit the comptroller’s receipt, when demanded by any tax collector or justice of the peace, shall be guilty of a misdemeanor punishable by fine of not less than twenty-five dollars, nor more than one hundred dollars. Held that this enactment, whether considered with reference to citizens of this or of other States, is a valid exercise of the taxing power of the legislature, and in no respect violates or contravenes that provision of the United States Constitution which empowers Congress to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” The contrary doctrine, in so far as citizens of other States are concerned, has been recently held by the Supreme Court of the United States in the case of Bobbins v. The Taxing District, etc., but this court, while conceding that State tribunals are bound by such construction of the United States Constitution as is settled by adjudications of the Supreme Court of the United States, declines to recognize the authority of the said case, inasmuch as it was determined by a mere majority of the sitting justices, and a minority of a full bench, and is in direct conflict with other decisions of the same court, unanimously concurred in. See the opinion of this court for a collocation of elementary authorities, and of adjudications both State and Federal, in support of its ruling. Ex parte Asher, 663. CONTINUANCE. 1. Seven or eight days prior to his trial were allowed by the defendant to elapse after an attachment for his absent witness was returned “not found,” and in that interim he took no steps to procure the attendance of the witness. Held that this failure to sue out further process for the witness shows a want of due diligence, and justifies the refusal of the continuance. Jaclcson v. State, 183. 3. That a continuance was refused because of a want of diligence does not absolve the trial court, on the motion for a new trial, from the duty of considering the materiality and probable truth of the testimony expected from the absent witness in connection with the evidence adduced at the trial. Though an application for a continuance to obtain absent testimony fails to comply with the requirements of the statute, if, in view of the evidence adduced at the trial, the absent testimony appears to be material and true, it should be considered in determining the motion for a new trial. Id.
*737 33 Texas Court of Appeals. 73? Index. CONTINUANCE—continued. 3. A continuance on account of absent witnesses was refused by the trial court, and the refusal is assigned for error. But it appears that one of them appeared and testified at the trial; that the testimony expected from another was fully supplied at the trial, and its truth not disputed; and that the remainder of the expected testimony was immaterial. Held, no error in the refusal of the continuance. Brown v. State, 814. 4. Defendant was indicted on March 17, and his trial was set for the twentieth of the ensuing April. On the eleventh day prior to said day of trial he sued out a writ of attachment for a witness who resided in a distant county, and the return on the writ shows that the witness had removed to the District of Columbia before the writ reached the officer’s hands. No further effort was made to obtain the witness’s attendance or testimony. Held, that these facts fail to show such diligence as entitled the defendant to a continuance, inasmuch as it does not appear that the attendance of the witness could not have been secured by a more prompt procurement of the attachment, nor that his testimony could not have been obtained by deposition. Hennessy v. State, 340. 5. Continuance is properly refused when it is apparent that the desired testimony, if adduced, would be neither relevant nor material to the issue in the ease. Id. 6. Being indicted for forgery by alteration of an authenticated account against the State for postage stamps, etc., furnished to State senators, the accused (who was sergeant at arms) applied for a continuance to obtain the testimony of certain senators that they received the amount of stamps, etc., charged against them by the accused. Held, that such proof had no relevancy to the issue in the case, and would neither be material nor admissible at the trial. Id. 7. Though a continuance was properly refused because diligence was not shown, yet upon the motion for new trial, if the evidence adduced at the trial denotes that the absent testimony was material and probably true, the trial court should grant a new trial. And the action of the trial court in this matter will be revised on appeal if it appears that the defendant may have sustained injury in consequence of the refusal of the continuance. Covey v. State, 388. 8. As cause for reversal on appeal, however, it must not only appear that the defendant suffered prejudice by reason of the refusal of the continuance by the trial court, but it must be reasonably probable that the absent testimony would induce a verdict more favorable to the appellant. See this case in illustration. Id. 9. A third application for continuance was properly refused the defendant in this case, in view of the fact that he adduced upon the trial, from other sources, the substance of the alleged absent testimony. Tucker v. State, 513. 10. This court will not revise the refusal of a continuance by the court below, unless a bill of exceptions thereto appears in the record. Scott v. State, 531. 11. See the statement of the case for evidence set up in an application for continuance, which, considered in connection with the evidence ad-47— Tex. Arr. xxm.
*738 738 23 Texas Court of Appeals. Index. CONTINUANCE—continued. duced on the trial, entitled the accused to a new trial—the continuance having been refused. Mayfield v. State, 645. CONSPIRACY. 1. Appellant and two other prisoners conspired to escape from jail, and arranged that C., who was one of them, should secure and detain the jailer in the corridor while the escape should be effected. No understanding to kill or injure the jailer, otherwise than by his detention, was expressly proved, but the conspirators had obtained and prepared a piece of iron with which the jailer was killed by C., and it had been concealed by the appellant the morning previous to the homicide. C. killed the jailer in the corridor of the jail, and whilst the appellant and the other prisoner were locked up in their cell and thus disabled from assisting C. in the homicide. There was no proof that appellant by word or gesture encouraged C. to kill the jailer. Held that on this state of case the question arises whether the appellant was a principal in the homicide, and the test of that question is whether he and C. acted together, and whether the act was done in pursuance of a common design and purpose wherein their minds had agreed. Kirby v. State, 18. 2. It is contended for appellant that the conspiracy extended no further than the escape, and did not contemplate the killing of the jailer, or the infliction of bodily injury upon him beyond his mere detention, and that the killing was the individual and independent act of 0. alone, perpetrated without appellant’s knowledge or complicity, and without ability on his part to prevent it. But held, in view of the nature and object of the conspiracy, and of the preparation and use of a deadly weapon as a means to execute the common design, that the Homicide was not the independent act of C. alone, but was the act of each and all the conspii ators, because it was directly incident to and grew out of the common design of all. See the opinion in extenso on the amenability of co-conspirators for the acts of each other done in the execution of an unlawful thing. Id. CONTINUOUS OFFENSES. The keeping of a disorderly house is, under the law of this State, a continuous offense, and a conviction bars all further prosecution up to the time of conviction, unless, as in this case, the indictment specifies or “ carves out ” the times of the commission of the offense, and the evidence is confined to the times carved out; when a conviction will not be a bar to prosecutions for like offenses at other times not carved out by the indictment. Huffman v. State, 491. COUNTY CLERKS. County clerks, by virtue of the general power conferred on them by Article 1149 of the Revised Statutes, “to administer all oaths and take depositions,” have authority to take affidavits of the consent of parents to the marriage of their daughter, and such an affidavit, if false, may be assigned as “false swearing,” though not as perjury. (Davidson v. The State. 22 Texas Ct. App., 876, on this subject, cited and approved.) Steber v. State, 176.
*739 23 Texas Court of Appeals. 739 Index. D. DEADLY WEAPON.. See the statement of the ease for the substance of evidence developed in a trial for murder, which resulted in a conviction for manslaughter, whereunder the trial court, having charged in substance the rule of law laid down in Article 615 of the Penal Code, did not, in view of said evidence, err in omitting to charge upon the rules declared in Articles 612 and 614 of the said Coda with regard to an instrument not necessarily a deadly weapon, unless its use and manner of use were accompanied by an intention to kill. Hartwell v. State, 88. DEFACING PUBLIC BUILDING. 1. Complaint and information, otherwise good, which describes the building defaced as a “ public building ” that was “ held for public use by Cooke county ” is sufficient to charge the offense of defacing a public building. Clark v. State, 260. 2. The fact that the title to a school house was vested in the county judge in his official capacity, for the use of the county, could not disqualify him to preside over a trial for defacing the said school house, and hence the motion to transfer this cause to the district court was properly overruled. Id. DEFINITIONS. See Judgment, 4. Voluntary Statement, 3, 4. 1. Article 196 of the Penal Code, in defining the offense of “false swearing,” requires that it be done “deliberately and willfully.” The trial court properly instructed the jury as to the legal signification of “deliberately” but omitted to define the legal meaning of “willfully.” Held, in view of the facts in proof, that this omission was reversible error. Steber v. State, 176. 2. Although the statute (Penal Code, art. 528) contains but one general definition of rape, it embraces two separate offenses: 1. rape when committed upon “a woman,” and, 2, rape when committed upon “a fe male under the age of ten years.” Wieholas v. State, 317. 3. Article 279 of the Penal Code defines an unlawful assembly to be the “meeting of three or more persons with intent to aid each other by violence, or in any other manner, either to commit an offense, or illegally to deprive any person of any right, or to disturb him in the enjoyment thereof.” MeO-ekee v. State, 330. 4. Article 289 of the Penal Code provides that, “if the purpose of the unlawful assembly be to prevent any person from pursuing any labor, occupation or employment, or to intimidate any person from following his dally avocation, or to interfere in any manner with the labor or employment of another, the punishment shall be by fine not exceeding five hundred dollars. Id. 5. Article 295 of the Penal Code provides that “ if the persons unlawfully assembled together do or attempt to do any illegal act, all those engaged in such illegal act are guilty of riot." Id.
*740 740 S3 Texas Court of appeals, Index. DEPOSITIONS. Certificates given to authenticate depositions or testimony taken at coroner’s inquests or examining -feriáis, are not necessary or even proper matters to be incorporated in a statement of facts, Kirby v. State, 13. DILIGENCE. 1. Seven or eight days prior to his trial were allowed by the defendant to elapse after an attachment for his absent witness was returned “not found,” and in that interim he took no steps to procure the attendance of the witness. Held that this failure to sue out further process for the witness shows a want of due diligence, and justifies the refusal of the continuance. Jaelcson v. State, 183. 2. Defendant was indicted on March 17, and his trial was set for the twentieth of the ensuing April. On the eleventh day prior to said day of trial he sued out a writ of attachment for a witness who resided in a distant county, and the return on the writ shows that the witness had removed to the District of Columbia before the writ reached the officer’s hands. No further effort was made to obtain the witness’s attendance or testimony. Held, that these facts fail to show such diligence as entitled the defendant to a continuance, inasmuch as it does not appear that the attendance of the witness could not have been secured by a more prompt procurement of the attachment, nor that his testimony could not have been obtained by deposition. Hennessy 1>. State, 340. DISQUALIFICATION OF JUDGES. The fact that the title to a school house was vested in the county judge in his official capacity, for the use of the county, could not disqualify him to preside over a trial for defacing the said school house, and hence the motion to transfer this cause to the district court was properly overruled. Ciarle v. State, 260. DISORDERLY HOUSE. 1. The keeping of a disorderly house is, under the law of this State, a continuous offense, and a conviction bars all further prosecution up to the time of conviction, unless, as in this ease, the indictment specifies or “carves out” the times of the commission of the offense, and the evidence is confined to the times carved out; when a conviction will not be a bar to prosecutions for like offenses at other times not carved out by the indictment. Huffman v. State, 491. 2. It was agreed in this case that the appellant should be tried upon her bond, and judgment was rendered against both the appellant and her sureties. Held, error as to the sureties, but as to appellant the judgment is affirmed. Id. DRIVING STOCK FROM ACCUSTOMED RANGE. Having admitted proof that other property of like character was driven at the same time and from the same place as the property described in the indictment, the trial court erred in omitting in its charge to limit the jury as to the legitimate purpose for which that proof could be considered. Wheeler v. State, 598.
*741 23 Texas Court of Appeals. 741 Index. DRUMMERS’ TAX. . An Act of the Seventeenth Legislature of the State of Texas imposes upon “every commercial traveler, drummer, salesman or solicitor of trade by sample or otherwise’’ an annual occupation tax of thirty-five dollars, payable in advance to the State comptroller, and enacts that any such trader who fails or refuses to exhibit the comptroller’s receipt, when demanded by any tax collector or justice of the peace, shall be guilty of a misdemeanor punishable by fine of not less than twenty-five dollars, nor more than one hundred dollars. Held that this enactment, whether considered with reference to citizens of this or of other States, is a valid exercise of the taxing power of the legislature, and in no respect violates or contravenes that provision of the United States Constitution which empowers Congress to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The contrary doctrine, in so far as citizens of other States are concerned, has been recently held by the Supreme Court of the United States in the case of Robbins v. The Taxing District, etc., but this court, while conceding that State tribunals are bound by such construction of the United States Constitution as is settled by adjudications of the Supreme Court of the United States, declines to recognize the authority of the said case, inasmuch as it was determined by a mere majority of the sitting justices, and a minority of a full bench, and is in direct conflict with other decisions of the same court, unanimously concurred in. See the opinion of this court for a collocation of elementary authorities, and of adjudications both State and Federal, in support of its ruling. Ex parte Asher, 663. DUPLICITY. See Indictment, 14, 35, DYING DECLARATIONS. 1. As a predicate for the introduction in evidence of a dying declaration, the State must prove, first, that the deceased, when he made it was conscious of approaching death, and believed there was no hope of his recovery; second, that the declaration was voluntarily made, and not through the persuasion of any person; third, that it was not made in answer to interrogatories calculated to lead deceased to make any particular statement; and, fourth, that the deceased was of sane mind at the time of making the declaration. See the opinion of the court for a predicate held insufficient to prove the first of the above requisites; wherefore the dying declaration was erroneously admitted. Ledbetter' V. State, 347. 3. It is competent for a defendant on trial for murder to impeach the dying declarations of the deceased inculpating him as the slayer, by proving statements made by the deceased, contradictory of his dying declarations; and, in excluding such impeaching proof in this case, the trial court erred. See the opinion on the question. Eelder v. State, 477.
*742 23 Texas Court of Appeals. 742 Index. E. ELECTION. 1. The local option law of this State requires that the commissioners court of the county to be affected by the election under the said law shall order the said election at the first session of the said court after the filing of the petition for said election, and this statute is mandatory. An election held under an order issued at any other than the first session of the said court after the filing of the petition is absolutely void. J3x parte Sublett, 309. 2. Under the local option law, as it existed in November, 1876, an election under its provisions could be ordered at a special session of the commissioners court, if such was the first session after the filing of the petition. Id. EMBEZZLEMENT. 1. Embezzlement, like theft, may be prosecuted in any county through or into which the property was transported by the accused, and the fact of transportation may, like any other fact, be proved by circumstantial evidence. See the opinion for circumstantial evidence held sufficient to prove the venue in the county of the forum, which was a different county from that wherein he received the embezzled money. Brown V. State, 214. 2. “ Property,” as defined in Article 782, Penal Code, includes any and every article commonly known and designated as personal property, and money certainly is commonly so known and designated. Money, therefore, is ‘ ‘property” within the meaning of Article 219 of the Code of Procedure, by which the venue of prosecutions for embezzlement is regulated. Id. 3. Appellant’s principal lived in B. county, and was engaged in the business of selling and putting up lightning rods anywhere in Texas. He there employed appellant as a traveling agent to sell and put up rods, furnishing him the rods and outfit. Appellant sold and put up rods in R. county, and there received the money for the same. Thence he returned to B. county, where, in a settlement with his employer, he denied that he had received the money, and thus his employer first discovered that he had embezzled it. Held that, at common law and without reference to our code, the proper court of B. county had jurisdiction of the offense, inasmuch as the code, if it does not provide for such jurisdiction, does not exclude it. Id. EVIDENCE. See Adequate Cause. Assault. Assault to Rape, 4. Conspiracy. Driving Stock prom Range. Exhibiting Gaming Bank. Forgery, 3. Impeaching Testimony. Murder, 15. Receiving Stolen Property. 1. In this State the common law rule in rape cases obtains, that neither the particulars of the injured female’s complaint nor the name of the person she mentioned as the offender can be proved as original evi-
*743 23 Texas Court of Appeals. 74b Index. EVIDEN CE—continued. dence, though they may be brought out by the defendant, if he chooses, upon cross examination. Under this rule the trial court erred in permitting the State to prove the particulars of the complaint made by the prosecutrix and the name she gave as that of the person who assaulted her. Holst v. Slate, 1. 2. Article 730 of the Code of Criminal Procedure provides as follows: “ Children or other persons who, after being examined by the court, appear not to possess sufficient intelligence to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath, are incompetent witnesses.” See the opinion in extenso for circumstances under which it is held that the prosecuting witness was incompetent to testify, because, even if intelligent enough to relate the transaction, she was not sufficiently intelligent to understand the obligation of an oath. Id. 3. As tending to prove guilty knowledge on the part of the defendant, the State relied upon the shape and condition of the brand on the alleged stolen animal. It was proved that the brand of the person from whom the defendant claimed to have acquired the animal was a long horizontal “11,” and that the brand on the stolen animal was a short perpendicular 11. The defense offered to prove by stock men that mistakes in the placing of brands were of frequent occurrence. Held, that in excluding the evidence the trial court erred. Boren v. State, 28. 4. See the opinion for a state of proof in a trial for burglary held to be insufficient to establish a burglarious entry by fraud; wherefore the trial court having charged the jury upon an entry by fraud, and having confined the jury in the charge to,such an entry, it should have awarded the defendant a new trial. Hetderluek v. State, 38. 5. In order to convict a domestic servant for the burglary of his master’s house, it must be shown that he, if he acted alone, entered the same by an actual breaking. If, however, the domestic servant is shown to have been one of two or more conspirators to enter and burglarize his master's house, and, in pursuance of the conspiracy,- he admitted his co-conspirators. a constructive breaking, it seems, will authonze h is conviction. Independent of this rule, the oeonspirators will be guilty of burglary upon the constructive breaking by the domestic servant. Id. 6. When an emotion, such as fear, anger, and the like, was manifested merely by demeanor or appearances not otherwise communicable, the witness may be allowed to describe its effect upon his mind, even though the effect be opinion. In this ease a State’s witness testified that the defendant, about two hours before he killed the deceased, put his foot on the foot of the deceased and kept it there for about half a minute after the deceased remarked to him, “ that’s my foot you are on,” and then the deceased pushed the defendant’s foot off of his. The State, over defendant’s objection, asked the witness whether the defendant-put his foot on the deceased’s in a jocular or an insulting manner, and the witness replied that he regarded the act as an insult. Held, that the question and answer were allowable. Note the sixth subdivision of the opinion of the court for a succinct but lucid exposition of the rules governing this species of testimony. Powers State, 42,
*744 744 23 Texas Court op Appeals. Index. EVIDENCE—continued. 7. A State’s witness being on the stand, the court, over objection of the defense, allowed prosecuting counsel to ask him if he had not had frequent difficulties with the defendant. The objections of the defense were that the question was irrelevant, incompetent, and calculated to moot the character of the defendant, which he had not put in issue. The trial judge, explaining the bill of exceptions, states that the defendant was “boss” on the witness’s ranch, and that the prosecuting counsel announced the object of the question to be to prove that the witness and the defendant had had difficulties, and that the witness had threatened the defendant to discharge him and employ the deceased in his place— thus showing a motive for the homicide, for which purpose alone the question was allowed. Held that the explanation shows sufficient reason for the allowance of the question. Id. 8. If inculpatory declarations of a defendant were res gestee, they are competent evidence against him, notwithstanding they would be incompetent as confessions because he was in arrest when he made them. See the eighth subdivision of the opinion of the court in elucidation of this important distinction. Id. 9. To support a conviction for the offense of knowingly selling intoxicating liquor to a minor the evidence must show that at the time the liquor was sold the seller knew the purchaser to be a minor. Williams ■». State, 70. 10. The indictment in this case charged the appellant with the fraudulent disposition of “four bales of cotton” upon which he had previously executed and delivered a valid mortgage in writing, etc., and was sufficient to charge the offense of fraudulently disposing of mortgaged personal property. The mortgage, however, as it dese-ibed the property mortgaged as a ncrop of cotton to be raised by” defendant “during the year 1886,” was inadmissible in support of the indictment. Honeyeut y. State, 71. 11. Under the Act of the Nineteenth Legislature (General Laws, p. 85), a growing crop may be mortgaged, and a fraudulent disposition of the same when mortgaged is an offense against the laws of this State. See the opinion in extenso for a form of indictment for fraudulently disposing of a growing crop of cotton when mortgaged. Id. . 18. See the statement of the case for evidence held insufficient to support a conviction for assault to rape. Pless v. State, 78. 18. No testimony should be rejected in a rape case which, in the remotest degree, will tend to aid the jury in reaching the truth. In this case the State offered a medical witness who examined the privates of the alleged injured party, five weeks after the alleged offense, but, upon objection by the defendant, the evidence was rejected. Held, that, though . somewhat remote in point of time, the evidence should have been received as tending to throw light upon the transaction. Id. 14. See the opinion and the statement of the ease for evidence held insufficient to support a conviction for theft, because insufficient to support the allegation of ownership. Groom V. State, 83. 16. Bill of sale executed by the general owners of the cattle subsequent
*745 33 Texas Court oe Appeals, 745 Index. E VIDEN CE—continued. to the alleged theft of the same from the special owner, was improperly-admitted, because irrelevant, and because, not being of record at the time of the theft, it was not evidence of ownership. Id. 16. Prom the fact that there is a conflict of evidence in a habeas corpus trial for bail, it does not necessarily follow that the inculpatory evidence fails to make the proof “ evident;” for it is not all exculpatory evidence that will destroy or impair that which is inculpatory, or which will raise a reasonable doubt of the guilt of the applicant for bail. The evidence is to be considered in its entirety, and if, when so considered, a reasonable doubt of the applicant’s guilt of a capital offense is not engendered, the “proof is evident,” and bail should be refused. Em parte Smith, 100. 17. The trial court admitted certain inculpatory evidence which this court considers inadmissible because it was res inter alios acta, but, instead of reversing the judgment on that account, this court excludes the objectionable evidence from consideration, and upon the legal evi.derice affirms the judgment refusing bail. Id. 18. If the defendant elicits from a witness an answer prejudicial to his interest, he is not entitled to have it excluded from the consideration of the jury. May v. State, 146. 19. It is an established rule of practice in"this State that the charge of the court must make a pertinent application of the law arising out of the evidenc'-, no matter how weak and impotent the evidence may appear to the court See the opinion in extenso for evidence in a murder case which, under this rule, demanded of the trial court a charge upon the law of manslaughter. RiskossJci v. State, 165. 20. There being evidence in this case tending to show an original conflict between the deceased on the one hand, and the accused and one K., acting together, on the other, and that that conflict was abandoned, and that it was renewed between K., acting alone, and the deceased, in which second conflict the fatal injury was inflicted, the trial court, having correctly instructed the jury upon a conflict in which K. and the accused acted together, should have further charged upon the alternative theory of a homicide in which K, acted alone. Id. 21. See the opinion of this court for a summary of the evidence upon which the appellant was convicted of an assault with intent to murder, and which should have elicited instructions from the trial court to the jury upon certain phases of the law of aggravated assault, of self defense and of manslaughter. Roberts v. State, 170. 22. Appellant was tried for falsely making oath that the mother of the intended bride was willing for her to marry her affianced husband. It was in proof that the bride’s mother had been dead some two years when the oath was made and the license obtained, and that since her death the bride had lived in the family and at the home of one G., who stood to her in loco parentis. The trial court permitted the State to prove by said G. that he did not give his consent to the marriage. Held that this testimony was inadmissible because wholly irrelevant to the issue, and tended to prejudice the rights of the defendant. Steber v. State, 176, 23. Over objection by the defense, a State’s witness was allowed to
*746 746 23 Texas Court of Appeals. Index. EVIDENCE—continued. testify that, after the commission of the offense, and in the absence of the accused, certain persons came to witness and made overtures for a compromise, inquiring how much money it would take, etc. There was no proof that these overtures were made by the authority or with the knowledge of the accused. Held, that the evidence was hearsay and inadmissible, and was calculated to prejudice the accused. Barbee v. State, 199. 24. A jury in a felony case should always be instructed that they are the exclusive judges of the facts proved, and of the weight to be given to the testimony. Id. 26. That the State, over objection, was allowed, in the cross examination of the defendant’s wife, to elicit testimony not germane to her evidence in chief, is not reversible error unless the objectionable testimony was calculated to prejudice defendant’s rights. Davis v. State, 210. 26. In a trial for theft, the State, for the purpose of rebutting proof of alibi, proved a statement of defendant that he was nob at the wedding of one H., and then, over objection, was permitted to put in evidence the marriage license of H., with the minister’s certificate of its solemnization. Held, that it was error to admit in evidence the marriage license and certificate, because, with relation to the accused, they were res inter alios aeta. The proper evidence of the fact of the marriage and its date would have been the testimony of some one who was present when it was solemnized. Chew v. State, 230. 27. It was not held in the cases of Hunnieut v. The State, 20 Texas Court of Appeals, 632, and Phillips v. The State, 22 Texas Court of Appeals, 139, that the State must in every case introduce all the eye witnesses of the res gestee. As laid down in the latter case, this is a matter within the sound discretion of the trial court, though there may be cases in which the requirement should be made. Wheelis v. State, 238. 28. The State, in this case, before the defendant could interpose an objection, proved the former trial and conviction of the defendant for this same offense, and the trial court refused to entertain a subsequent objection to the proof, and permitted it to go to the jury. Held, error. The statute specially provides that a former conviction shall not operate as a presumption of guilt, and inhibits allusion to it in argument. The evidence being illegitimate, and having been adduced before the defendant could interpose an objection, the court, upon the defendant’s motion, should have withdrawn it from the jury, charging them that the same could not be considered in their deliberations upon their verdict, darle, V. State, 260. 29. Upon a trial for the unlawful sale of liquor to a minor, the point at issue being the defendant’s knowledge of the purchaser’s minority, the State was permitted, over objection, to ask a witness if, at the time of the alleged offense, the purchaser, by reason of his physical appearance, would be taken by a person of ordinary observation to be a minor; and the witness was permitted to answer in the affirmative. Held, error. Koblenschlag v. State, 264. 30. It is a rule of evidence that when an original document can be
*747 23 Texas Court of Appeals. 747 Index. EVIDEN CE—continued. produced in court, oral proof of its contents can not be made. The original instrument in this case being in court on this trial, the court below erred in permitting a witness to testify to. the contents and date of the same. Huff v. State, 291. 31. If the perjury assigned be evidence given by the accused as a witness in a case under judicial investigation, the materiality of his testimony is a question of law and not of fact. But, like any other question of law, it may be so mingled with the facts that the court should submit it to the jury, with proper instructions upon the law. In no event, however, can the materiality of the testimony assigned as perjury be established by the opinions of witnesses. Washington examining trial of W., for cattle theft, he fled the country because of serious threats uttered against him. Held that, in the absence of evidence showing that the threats were uttered by the defendant, or that he had some connection with them, the evidence was incompetent, and its admission was erroneous. Id. 75. Oral testimony of the contents of telegraphic dispatches sent by
*753 33 Texas Court of Appeals, 753 Index. EVIDENCE—continued. or at the instance of an accused is not admissible until the failure to produce the better evidence is satisfactorily accounted for. Chester V. mate, 577. 76 It was error to admit in evidence telegraphic dispatches purporting to be replies to telegrams sent by witnesses (in this case at the instance of defendant), inasmuch as the accused has the constitutional right to be confronted by the witnesses against him;—and especially does this rule obtain in the absence of proof that such dispatches were the acts of the parties purporting to send them. Id. 77. See the statement of the case for evidence held sufficient to qualify a witness as an expert in hand writing. Id. 78. In permitting the written documents used by the expert witness as standards of comparison to go into the hands of the jury, to be by them used as proof of the hand writing on the alleged forged instrument, the trial court erred. Id. 79. See the opinion in extenso for evidence adduced on a trial for receiving stolen property, knowing it to have been stolen, which, being hearsay testimony, should have been excluded. ¡Estes v. State, 600. 80. See the statement of the ease for evidence held insufficient to support a conviction for receiving stolen property, knowing it to be stolen. Id. 81. See the opinion for the substance of evidence held insufficient to support a conviction for unlawfully fencing the land of another. Clark D. State, 618. 82. See the opinion for evidence held inadmissible upon the main issue or as corroborative evidence, because of immateriality, and inadmissible as impeaching testimony because of the want of predicate; and, therefore, to have been properly excluded. McCullough u State, 620. 83. See the statement of the case for evidence held sufficient to support a conviction for murder in the first degree. Id. 84. See the statement of the case for evidence, which, in view of the other facts in proof, should have been admitted on the trial of the accused for an aggravated assault. Burns v. State, 641. 85. See the statement of the case for evidence held insufficient to support a conviction for cattle theft, because insufficient to establish a fraudulent intent in the taking. White v. State, 643. 86. To develop the res gestas, or to establish'by circumstances immediately connected with it the theft charged in the indictment, or to prove the intent with which the accused acted with respect to the property charged in the indictment, it was competent for the State to prove the theft of other like property at the same time and place. But the failure of the charge to properly limit and restrict such proof was material error. Mayfield v. State, 645. 87. See the opinion in extenso for evidence in a theft case held inadmissible as hearsay, and, in view of the remaining proof in the case, to constitute such material error as to necessitate a reversal of the conviction. Montgomery v. State, 650. 88. See the opinion in extenso for a summary of evidence held in-48 — Tex. App. xxiii.
*754 26 Texas Court of Appeaxs. Vo4 Index. EVIDENCE—continued. sufficient to support a final judgment upon a forfeited bail bond. Baker n. State, 657. 89. A killing committed in resisting arrest under an illegal process is not, ordinarily, a higher degree of homicide than manslaughter. A fortiori, it is impossible for a homicide to be of a degree inferior to manslaughter, if the killing is committed by one in the attempt to make an illegal arrest, though the killing may be done upon reasonable apprehension of danger. Note the opinion for the comments of Hurt, J., on the rule, and see the opinion in extenso for evidence held, under the rules stated, to have been properly excluded. Peter v. State, 684. 90. See the statement of the case for evidence on a trial for murder held to present the issue of manslaughter, and, therefore, to have called for a charge upon that grade of homicide. Boss v. State, 689. 91. See the opinion and the statement of the case for evidence held sufficient to establish a conspiracy between the accused and two others to commit the theft, and therefore to have qualified, as evidence, certain statements inculpating the accused, made by the said parties before the consummation of the conspiracy. Bong v. State, 692. 96. See the statement of the case for evidence held insufficient to support a conviction for assault with intent to murder. Garcia v. State, 712. EXCEPTIONS. See Challenge, 4. EXECUTIVE PARDON. 1. The delivery and acceptance of a pardon are complete when the grantor has parted with his entire control or dominion over the instrument, with the intention that it shall pass to the grantee, and the latter assents to it either by himself or agent. In this case the pardoning power having executed and delivered the pardon to the agent of the grantee, who accepted it on his principal’s behalf, the instrument took immediate effect upon delivery. Bosson v. State, 287. 2. A pardon once delivered by the grantor and accepted by the grantee or his agent can not be revoked by the authority which granted it. Id. 3. The appellant in this case was confined in tbs penitentiary under seven different convictions for horse theft, the penalties aggregating forty-five years. On August 25, 1886, the Governor issued his full pardon to cover each conviction, and delivered the same to the appellant’s attorney. On the thirtieth day of the same month the said pardon was delivered to a clerk in the office of the superintendente! the penitentiary at Huntsville. On the same day, but before the same had been delivered to the appellant, or recorded in the books of the superintendent’s office, the said superintendent received a telegram from the Governor, directing him. to hold the said pardon for further orders. By subsequent telegram the Governor notified the superintendent that the said pardon had been revoked, and ordered its return, and it was returned to the Governor, who then indorsed upon it insti notions to the Secretary of State, as fob
*755 23 Texas Court op Appeals. 755 Index. EXECUTIVE PARDON— continued. lows: “ Issue an order revoking this pardon as having been granted upon misinformation.” Thereafter proceedings by habeas corpus were instituted in the district court of Travis county, and, to support his application for release under the pardon, the appellant produced in evidence the charter of pardon bearing the said indorsement. Held, 1: A pardon procured by fraud upon the pardoning power, whether by suppression of truth or suggestion of falsehood, or by other imposition, is absolutely void. 2. Having relied upon the pardon with its indorsement, the appellant established against himself, prima facie, the procurement of the pardon by fraud, and assumed the onus of proving no fraud; failing to do which, or to controvert the prima facie ease established by himself, the trial court did not err in remanding him to the custody of the superintendent of the penitentiary. Id. EXHIBITING GAMING BANK, ETC. 1. Charge of the court is erroneous if it announces imprisonment in jail to be part of the punishment for keeping or exhibiting a gaming bi.nk, with no discretion in the jury to dispense therewith and impose a fine alone. Article 358 of the Penal Code prescribes the penalty as a fine, but empowers the jury to also assess imprisonment in the county jail for not exceeding thirty days; and this Article is still in full force, notwithstanding the abortive amendatory Act of March 19, 1885, heretofore declared unconstitutional in the ease of Hunt v. The State, 23 Texas Court of Appeals, 396. Wright v. State, 313. 2. In prosecutions for gaming a conviction may be had upon the uncorroborated testimony of an accomplice or joint offender; and Article 367 of the Penal Code, which so provides, is a constitutional enactment. Id. 3. Charge of the court on a trial for exhibiting a gaming bank authorized and exacted confinement in jail as part of the penalty to be assessed by a verdict of guilty. Held, that so far as the confinement in jail was concerned, the charge was erroneous. Ford v. State, 520. EXPERT TESTIMONY. See Evidence, 76, 77. EYE WITNESS. See Evidence, 26. FACT CASES. F. 1. Evidence insufficient to support a conviction for assault to rape. Hess v. Stats, 73. 2. A mistrial because of disagreement of the jury as to a verdict in a trial for a capital offense does not establish per se that the proof is not evident, and that the accused is entitled to bail. But see the statement of the case for evidence in a habeas corpus proceeding for bail, under an indictment for murder, held not to authorize the refusal of bail. Fío parte England, 90.
*756 756 23 Texas Court of Appeals. Index. FACT CASES—continued. 3. Sea the statement of the ease for evidence on which it is held that the court below did not err in disallowing bail to an applicant charged by indictment with murder in the first degree. (Hurt, J., dissenting.) Ex parte Smith, 100. 4. See the statement of the case for evidence held sufficient to support a conviction for murder of the first degree, founded upon the defendant’s plea of guilty; and also for a charge of the trial court, held to be correct, the evidence proving that the homicide was committed in the perpetration of robbery, which the Penal Code, Article 606, makes murder in the first degree per se. Giles v. State, 281. . 5. See the statement of the ease for evidence held insufficient to support a conviction for unlawful traffic in county scrip, inasmuch as it fails to establish the official character of the appellant as a county officer at the alleged date of the offense. Huff v. State, 291. 6. Evidence sufficient to support a conviction for theft. Porter v. State, 295. 7. See the statement of the case for evidence held insufficient to support a conviction for murder of the second degree—the deceased being the -wife of the accused. Olivares v. State, 305. 8. Evidence insufficient to support a conviction for rape. Nicholas v. State, 317. 9. Evidence insufficient to support a conviction for obstructing public road. Murphy v. State, 333. 10. if ote evidence held amply to sustain a conviction for the forgery of an account against the State by altering and augmenting the amount for which the account had been approved. Hennessy v. State, 340. 11. Evidence insufficient to support a conviction for aggravated as-salt and battery. Hutton v. State, 386. 12. See the statement of the case for evidence adduced in a trial for carrying a pistol held insufficient to support the defense that, when he carried the pistol, the accused had reasonable grounds to apprehend an unlawful attack upon his person, etc. Darby v. State, 407. 13. Evidence insufficient to support a conviction for murder. Scott v. State, 452. 14. Evidence insufficient to support a conviction for theft. Donohoe V. State, 457. 15. Evidence sufficient to support a conviction for rape. Grate v. State, 458. 16. Evidence insufficient to support a conviction for carrying a pistol. Cathey v. State, 492. 17. See the statement of the case for evidence held sufficient to support a conviction for murder of the first degree, Rodriguez v. State, 503. 18. See the statement of the case for evidence held sufficient to support a conviction for receiving stolen property knowing it to be stolen. Tucker v. State, 512. 19. Evidence insufficient to support a conviction for carrying a pistol. Sanderson v. State, 520. 20. See the statement of this case for a chain of purely circumstantial
*757 23 Texas Court ox Appeals. 75? Index. FACT CASES—continued. evidence held sufficient to establish each and every material issue in a trial for murder—except that of express malice, of which there was direct testimony. Scott v. State, 521. 21. See the statement of the case for evidence in a habeas corpus proceeding for bail under an indictment for murder held insufficient to authorize the refusal of bail. Ex parte Hay, 585. 22. Evidence insufficient to support a conviction for receiving stolen property. Estes v. State, 600. 23. See the statement of the case for evidence held insufficient to support a conviction for cattle theft, because insufficient to establish a fraudulent intent in the taking. White v. State, 648. 24. See the statement of the case for evidence adduced in a proceeding by habeas corpus for bail under a charge of murder, held insufficient to authorize a refusal of bail. Ex parte McDowell, 679. 25. See the statement of the case for evidence held insufficient to support a conviction for assault with intent to murder. Q-arcia v. State, 712. FALSE IMPRISONMENT. The accused, upon his trial for the false imprisonment of one Broxton, requested the trial court to charge the jury in substance that, if one Blake was drunk on the street and disturbing the peace, it was the duty of the appellant, who was the city marshal, to arrest the said Blake without warrant, and to confine him in the calaboose, and that Broxton had no right to force or compel defendant to release said Blake on bond, while drunk; and that if, while defendant and his deputies were conveying Blake to jail, Broxton attempted to release Blake by force, then defendant had the right to arrest said Broxton and confine him in jail. Held, that responding to the evidence on the trial, the requested charge was a part of the law, and should have been given. Moseley v. State, 409. FALSE SWEARING. 1. County clerks, by virtue of the general power conferred on them by Article 1149 of the Revised Statutes, “to administer all oaths and take depositions,” have authority to take affidavits of the consent of parents to the marriage of their daughter, and such an affidavit, if false, may be assigned as “ false swearing,” though not as perjury. (Davidson v. The State, 22 Texas Ct. App., 376, on this subject, cited and approved.) Steber v. State, 176 2. Appellant was tried for falsely making oath that the mother of the intended bride was willing for her to marry her affianced husband. It was in proof that the bride’s mother had been dead some two years when the oath was made and the license obtained, and that since-her death the bride had lived in the family and at the home of one G., who stood to her in loco parentis. The trial court permitted the State to prove by said G. that he did not give his consent to the marriage. Held that this testimony was inadmissible because wholly irrelevant to the issue, and tended to prejudice the rights of the defendant. Id.
*758 768 23 Texas Court op Appeals. Index. FALSE SWEARING—continued. 3. Article 196 of the Penal Code, in defining the offense of “false swearing,” requires that it be done “deliberately and willfully.” The trial court properly instructed the jury as to the legal signification of “deliberately” but omitted to define the legal meaning of “ willfully.” Held, in view of the facts in proof, that this omission was reversible error. Id. FORCE. See Assault to Rape. FOREIGN JUDGMENT. See Judgment, 3, 4. FORMER ACQUITTAL. See Verdict, 6. FORGERY. 1. Mere misplacement of the dot belonging to the letter “i” in setting out a proper name, plainly written, in an indictment for forgery, does not constitute a variance. See the opinion of the court in illustration. Hennessy 'o. State, 340. 3. Indictment for forgery alleged that the account in question was approved by “H. Knittel, chairman on the committee on contingent expenses of the senate.” The instrument was signed “H. Knittel, chairman on Com. Contg. Exp.” Held, that the discrepancy was not a variance, and it was a question of fact whether the signature was an approval of the account, as was alleged by the indictment. Id. 3. An indictment for forgery need not, in setting out the forged instrument, take any notice of writing put upon the instrument subsequent to the forgery. Such writing is no part of the instrument, nor of its description. Id. 4. In a trial for forgery by alteration of an account against the State for postage stamps, etc., the prosecution was permitted, over' objection, to put in evidence certain post office receipts for disbursements made by the defendant for stamps, etc., about the time of the alleged forgery, and was also permitted to adduce evidence that the amounts of said receipts had been altered. The jury were instructed that they could not consider this evidence as any proof that the alleged alteration was made by the defendant, but only with reference to his intent, if in fact the alteration was made by him. Held, that the post office receipts were properly admitted as evidence on the question of intent, and for the purpose expounded to the jury. Id. 5. The prosecution was further allowed to adduce evidence tending to prove that the defendant had not purchased and distributed the quantity of postage stamps, etc., charged in his accounts against the State. Held, competent evidence of a fraudulent intent and a systematic falsification of a number of accounts which comprised the one involved in the charge of forgery on trial. Id.
*759 23 Texas Court op Appeals, W9 Index. FORG ERY—continued. 6. Note evidence held amply to sustain a conviction for the forgery of an account against the State by altering and augmenting the amount for which the account had been approved. Id. 7. It is not essential that an indictment for forgery shall set out the forged instrument both by its purport and its tenor; nor is it necessary that it shall set out the name of the person intended to be defrauded, the allegation of the intent to defraud being sufficient. If, however, the indictment sets out the alleged forged instrument both by its purport and its tenor, any repugnancy between the two allegations is fatal to the indictment. The “purport” clause in the indictment in this case alleges the name of the injured party to be “C. J. Ohapman," whereas the “tenor” clause alleges the name to be “C. J. Chatman.” Held, that ,, the obvious repugnancy between the two is fatal to the indictment. Westbrook v. State, 401. 8. See the opinion in extenso for the substance of an indictment for forgery, and for the contents oí the alleged forged instrument, between which two documents there is held to be no variance, wherefore the forged instrument was properly admitted as evidence. Mee v State, 566. 9. An indictment which charges in separate counts the forgery of a written instrument and the uttering of a forged instrument, knowing it to be forged, is not vulnerable to a motion to quash upon the ground that it is duplicitous and charges two offenses; nor is it obnoxious to the objection that two distinct and separate offense® are charged in the same indictment. Chester t). State, 577. 10. It is correct pleading to insert in an indictment as many counts as will be necessary to provide for every possible contingency in the evidence. Id. 11. Variance and repugnancy between the dates of The instrument, as alleged in the two counts, become immaterial in view of the nolle prosequi entered by the State as to the second count, and the subsequent proceedings upon the trial, which were conducted alone upon the first count. Id. FRAUDULENT DISPOSITION OF MORTGAGED 7'ROPERTY. 1. The indictment in this case charged the appellant with the fraudulent disposition of “four bales of cotton” upon which he had previously e

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4907171. Public record. Not legal advice.