attempted to be shown to appellant by the Smithville, would be immaterial, for wherevattorney's remark.

er he first took them he is substantially and His next bill is in the same style exactly. reasonably shown to have been in possession This bill shows nothing whatever was testi- thereof with others at Smithville, and hence, fied to by the witness Campbell to which he under the law, could be convicted in Bastrop excepted. On cross-examination the appel-county, where he was tried and convicted. lant's attorneys asked him this question: Appellant contends that, as the indictment "Did he tell you who got those tires at the charges that the property was taken from place where you found them? [two additional the possession of Hungate, who was the local tires found in shop at rear of Bexar Hotel]." agent of the company at Smithville in BasThe state's counsel objected. The court sus- trop county, if the property was taken by tained the objection, and the defendant ex- appellant before it reached the possession of cepted. This in no way showed any reversi- Hungate at Smithville, the conviction could ble error. not be sustained, because the theft would not [7] His next and last bill after the style of have been from Hungate. What was said by the cause states:

the court in the original opinion was wholly "At the conclusion of the testimony of Mr. J. unnecessary, and was on the question of the W. Vann, a witness for the state, counsel for de- venue. The question of venue was not raised fendant moved the court to strike out all the testimony given by said witness as to the value in the case, and no bill of exception, which of the tires, because he is not qualified, not an is required by the statute, was taken on that expert, and knows nothing about the value of question at all, so that, whether the statetires. The motion to strike out was overruled, ment by the court in the original opinion was to which ruling of the court defendant excepted correct or incorrect, it has nothing to do This, as it is presented, shows no reversi- with the merits of the case, nor with the ble error. It in no way shows what the tes-question of venue, as that question was not timony of the witness was, or anything other raised, as required by the statute. C. C. P., than as quoted above.

at the time."

[8] The next matter presented in this same said last bill is this:

art. 938.

The motion is overruled.

HAND V. STATE. (No. 3744.) (Court of Criminal Appeals of Texas. Oct. 27, 1915. Rehearing Denied Nov. 17, 1915.) 1. CRIMINAL LAW 478 OPINION EVIDENCE-COMPETENCY OF EXPERTS.

A graduate chemist of several years' experience, who at the time was a city chemist, and who made an analysis of the stomach of a man killed by poison, and found strychnine sulphate therein, was qualified to express an opinproduce the death of a man. ion as to how much strychnine sulphate would

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1065, 1066; Dec. Dig. 478.]

"When the state had rested, counsel for defendant moved the court to strike out all the testimony of the witness Eggleston in regard to the conversation he had with defendant, F. L. Park, and William Terrell, because that conversation was about some Goodrich tires, when all of the state's testimony shows that the tires alleged to be stolen were Federal Rubber Company tires; also moved the court to instruct the jury to return a verdict for defendant, because the state had failed to make out a case. The motions were overruled. Defendant excepted." This, as presented, shows no error; but, if we could look to the record otherwise for the testimony of Eggleston, it would clearly show, in connection with the other testimony in the case, that the conversation appellant and Terrell had with him was unquestion- 2. HOMICIDE 164 - EVIDENCE - ADMISSIably about the stolen tires. Eggleston, after BILITY. detailing in full material testimony, says that, in the conversation with Terrell regarding the tires, "I believe he said they were Goodrich tires." Another witness says that some others called them Goodrich tires, but the testimony of other witnesses shows that they were not Goodrich tires, but Federal Rubber Company tires. Even, if it had been conclusively shown that they were Federal tires, it would not justify the court to strike out his testimony because he said he believed Terrell said they were Goodrich On a trial of a woman for killing a man tires. All that would be a matter of argu- with whom she had been living, where the case ment before the jury. The jury was entitled depended on circumstantial evidence, evidence to the evidence, together with the other rec-witness, she told the witness that deceased was that, when she and deceased rented rooms from a ords, so as to properly pass upon the questions submitted to them.

[9] In the original opinion, we said that, whether the appellant took the tires from the car while it was standing in the yards at Smithville, or from the car before he reached

July 3d, where defendant contended that deOn a trial for poisoning a man who died on ceased was a sickly man, and might have committed suicide on account of despondency caused by ill health, evidence that he had worked for a 25th, when he was excused on leave of absence, witness for nearly a year, extending up to June and that during all of such time he never lost a day on account of sickness or for any other cause, was admissible.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 318; Dec. Dig. 164.] 3. HOMICIDE 166 EVIDENCE - ADMISSI

BILITY.

a millionaire, and that after his death she said he was a pauper, and would have to be buried by the city, at the same time saying that she had that she had no such amount in that or any oth$30,000 in a bank, was admissible, it appearing er bank, but that she then had $2,400 of deceased's money, since, in a case depending solely on

circumstantial evidence, the mind seeks to ex- the analysis of the stomach of the deceased, plore every possible source from which any light, and testified to the finding of six-tenths of a however feeble, may be derived. grain of strychnine sulphate in the body of

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. 166.]

4. CRIMINAL LAW 406-EVIDENCE-STATEMENTS BY DEFENDANT WHILE UNDER ARREST.

the dead man.

[2] One of the contentions made by appellant was that deceased was a sickly man, and therefore may have committed suicide on On a trial of a woman for killing a man account of despondency caused by his ill with whom she had been living, an officer who health. The evidence shows that deceased after deceased's death went to his rooming place to make an investigation testified that he found and appellant became acquainted in June, $2,400 in money shown to have belonged to the and that they lived together from about July deceased; that defendant had some $330 in a 3d until the day of his death. Appellant obpurse which she claimed as hers; that he search-jected to Henry Fink, Jr., being permitted to ed the rooms, and, not finding the remainder of the money, informed defendant that he would take her to the city hall to be searched; that she then admitted that she had the money, reached down into her stocking, and handed the officer $2,100; that she claimed deceased gave her the money, and said she had a will, but that she had left it at another place; but that later she pulled off her shoe and took the will out of the bottom of her shoe. Held that, the money haying been found by reason of her statements made at the time, this testimony was admissible, even though defendant had been under arrest at the time, which was not shown to be the case.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. 406.]

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Sallie Hand, alias Sallie Wheeler, was convicted of murder, and she appeals. Affirmed. L. B. Camp and L. A. Lawhon, both of San Antonio, for appellant. Joe H. H. Graham, Asst. Dist. Atty., of San Antonio, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was convicted of administering strychnine poison to Eugene Savoy in sufficient quantity to cause his death. That Savoy died of strychnine poisoning is shown beyond peradventure of a doubt, but appellant earnestly insists that the evidence is insufficient to show that she administered it to him.

An able presentation of both the theory of the state and defendant is made by the attorney for the defendant and the attorneys After a careful review of the testimony, we are of the opinion the circumstances shown are sufficient to sustain the verdict. The court instructed the jury that it was a case depending on circumstantial evidence in a well-prepared charge. Appellant makes no complaint of the charge, and, viewing the evidence as we do, we will not disturb the verdict.

testify that deceased had been in his employ for nearly a year, extending up to June 25th, when deceased was excused on leave of absence; that during all the months deceased was in his employ he never lost a day on account of sickness or any other cause. The court did not err in admitting this testimony.

[3] Appellant, at the time she and deceased rented rooms from one of the witnesses, told the witness that deceased was a millionaire. After his death she said deceased was a pauper, and would have to be buried by the city, at the same time saying she had $30,000 in the Frost National Bank. The record would clearly show she had no such amount of money in that or any other bank, but did have some $2,400 of deceased's money in her possession at the time she said he was a pauper. This being a case depending on circumstantial evidence, the testimony was admissible, for, as said by this court in Noftsinger v. State, 7 Tex. App. 307, in a case depending wholly upon circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may

be derived.

She

[4] Shortly after the death of Eugene Savoy, Officer Lancaster went to his rooming place to make an investigation. He said he found about $2,400 in money; that appellant had some $330 in a purse, which appellant claimed was hers. He searched the premises, and, not finding the remainder of the money, he informed appellant he would take her to the city hall and have her searched. then admitted she had the money, and reached down in her stocking and handed the officer some $2,100. She claimed that deceased had given her the money. The officer asked her if she had a will, and she said she had, but that it was at a residence near the San Antonio & Arkansas Pass depot. Later she pulled off her shoe and took the will out of the bottom of the shoe. Appellant ob[1] There are several bills of exception in jected to this testimony on the ground that the record; the first complaining that Her- she was under arrest. There is nothing in man Nester was permitted to testify as to the record to show that she was then under his opinion as to how much strychnine sul-arrest, nor that she was arrested on that ocphate would produce the death of a man. casion even after the money was found. The The witness qualified as an expert, being a money was found by reason of her stategraduated chemist of several years' experi- ments made at the time, and this would renence, and at the time he testified being city der the testimony admissible even if she had chemist of the city of San Antonio. He made been under arrest.

There was no error in overruling the mo- [saulted party, and at the very time the oftion requesting the court to instruct the jury fense charged was being committed by them. to return a verdict of not guilty. As herein Branch, Cr. Law, § 339, p. 198. before stated, the facts and circumstances were sufficient to authorize a verdict of guilty.

The judgment is affirmed.

FREEMAN v. STATE. (No. 3690.) (Court of Criminal Appeals of Texas. Oct. 20, 1915. Rehearing Denied Nov. 17, 1915.) 1. CRIMINAL LAW 368-EVIDENCE- RES GESTÆ.

[2] Appellant's able attorney made a forcible and earnest oral argument, when this case was submitted, and, in addition, has filed a lengthy brief, which we have fully considered, ingeniously contending that the evidence was insufficient to show his intention to murder, that the assault was with a deadly weapon, that he participated in the assault, that the injuries of the assaulted party were caused by the assault, or that he was in a position to inflict them. We have carefully On a trial for assault with intent to mur-studied the whole evidence, and think none of der, evidence that, while defendant and another his contentions are tenable. The testimony were assaulting the prosecuting witness, a third on some points is conflicting, but we think person told them not to do it, was admissible as amply sufficient to sustain the verdict. It res gestæ. was sufficient to show, and cause the jury to believe, that Fagg, the assaulted party, in a drunken condition went into the back part of a hotel where appellant, said Stephens, and others were employed and at work; that On a trial for assault with intent to mur- his conduct and language to them was such der, the evidence was sufficient to show that F., as to be considered insulting; that some of in a drunken condition, went where defendant and others were working; that his conduct and them attacked him, and he hastily retreated language to them were such as to be considered out of the hotel through the back premises insulting; that some of them attacked him, and across an alley; that, while they were purhe hastily retreated; that, while they were pursuing him and he running from them they suing him, defendant and another of his assailants threw rocks or bricks at him, one or more of which struck him on the head, felling him to the ground, and breaking or crushing his skull; that he lay there helpless until taken to the hospital by an officer; that it was several days before he recovered consciousness, and much longer before he was able to leave the hospital. Held, that the evidence was sufficient to support a conviction for assault with intent to murder. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. 257.]

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. 368.]

2. HOMICIDE-257-ASSAULT TO MURDERACTS CONSTITUTING.

Appeal from District Court, Bell County; John D. Robinson, Judge.

R. Freeman was convicted of assault with intent to murder, and he appeals. Affirmed.

Clem C. Countess, of Belton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J. Appellant was convicted of assault with intent to murder and assessed the lowest punishment.

[1] He has only one bill of exception. The

each, appellant and Stephens threw rocks or bricks at him, one or more of which struck him in the head felling him to the ground, breaking or crushing his skull; that he lay there helpless and unconscious until later taken by an officer to a hospital; that it was several days before he recovered consciousness, and much longer before he was able to leave the hospital.

The court gave a correct charge to which there is no exception, submitting every issue to the jury requiring them to find every fact essential to his guilt beyond a reasonable doubt, before they could convict. The judgment is affirmed.

ROBISON v. STATE. (No. 3707.) (Court of Criminal Appeals of Texas. Oct. 20, 1915. Rehearing Denied Nov. 17, 1915.) - PRIVILEGED 1. LIBEL AND SLANDER 148

COMMUNICATION.

Where, upon being questioned by the brother concerning statements made by him that he had had sexual intercourse with the sister, dewhen asked if he would make a statement to fendant asserted the truth of the charge, and, that effect, agreed to do so in the presence of some one else as a witness, and under that arrangement went with the brother to a justice ment that he had had such intercourse, the statebefore whom he made and swore to the statement was slander, since it was not a privileged communication.

substance of it in full is: That the state's attorney asked one witness, "State to the jury, what, if anything, Mr. Thrillkill said to Stephens and Freeman at the very time they were throwing at Fagg?" and the witness answered: "He said, 'Ernest, don't do that. Raleigh, don't do that.'" And he asked another witness "Didn't you hear Thrillkill tell Stephens don't do that, and Raleigh don't do that?" and the witness answered, "Yes." His objection to this was it was irrelevant, immaterial, and prejudicial and inadmissible because hearsay. We think it was admissible as res gestæ. It was addressed to appellant, 2. LIBEL AND SLANDER 144-REPETITION— and the other party Stephens, "at the very The repetition of a slander made by the time they were throwing at Fagg," the as-originator thereof at the request of the person

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 407-411; Dec. Dig. 148.]

REQUEST.

slandered and with an assertion of its truth is slander.

averments are contained in the complaint and information. A number of questions are raised in the motion for a new trial, but appellant's counsel, in able oral argument before this court and in the brief filed, discussed but one question, and that is that the affidavit was made under circumstances which made it a privileged communication, or qual

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 403; Dec. Dig. 144.] 3. LIBEL AND SLANDER 156-EVIDENCESUFFICIENCY. In a prosecution for slander, evidence held to show that the slander was uttered maliciously. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 437-441; Dec. Dig.ified privileged communication. However, he 156.]

stated that he did not waive the other ques-
tions raised, and in the event we held against
him on this contention, he asked that we
pass also on all other questions in the rec-
ord. The record before us would disclose
that Joe Martin, in a conversation with
George Smith, had told Smith that Miss
Stephens was pregnant; that Robison (ap-
pellant) had a baby on the road; and Robi-
son had received a letter from Miss Stephens'
father to come and get the girl or take a
shotgun, or words of similar import.
Wolf, learning such a report was in circula-
tion, informed Mr. Stephens of the report,
and that Joe Martin was circulating it. Mr.
Stephens told his son Harrison Stephens,

Mr.

6. WITNESSES 330 SLANDER -MEDICAL and Harrison Stephens went to see appellant EXAMINATION.

In a prosecution for slander in asserting illicit relations with a woman, it was not error to exclude the question on cross-examination of the woman whether she would submit to a medical examination to disclose the truth, since such examination could not show with whom intercourse was had, nor could the witness be legally compelled to undergo such examination.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. 330.]

about the report that Martin was circulating. He says, knowing that appellant (Robison) had been going with his sister, and believing that the report put in circulation by Martin was a slander, he went to see appellant about the matter, and asked him how he considered the character of his sister, and appellant replied that it was bad; that he then asked appellant if he would make a

7. CRIMINAL LAW 801- MISDEMEANOR -statement of what had occurred between TRIAL-READING CHARGE.

him and the girl, and he said he would if some one else was called as a witness. Harrison Stephens and appellant then went to Justice Brooks, when appellant made the

It is not mandatory in misdemeanor cases to read, before argument, the charge to the jury. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1947; Dec. Dig. 801.] 8. CRIMINAL LAW 922-NEW TRIAL-ER- statement recited in the complaint, and swore ROR IN CHARGE-FAILURE TO EXCEPT.

Where, in a prosecution for misdemeanor, defendant does not except to the charge when presented to him, before being read to the jury, he cannot raise the question for the first time on motion for a new trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. 922.1

Appeal from Hamilton County Court; J. L. Lewis, Judge.

J. H. Robison was convicted of slander. and he appeals. Affirmed.

to it.

[1] Appellant contends that these circumstances rendered the statement privileged and no prosecution could be based thereon, and cites us to the cases of Davis v. State, 22 S. W. 979, Hix v. State, 20 S. W. 550, and McDonald v. State, 164 S. W. 831, as sustaining such contentions. We do not think they have any application to a case of this character. In Hix's Case the facts show that Mr. Wilkerson had heard that Hix had slandered his daughter by making certain statements. A meeting was arranged, and at that meeting Hix denied ever having repeated the language he heard, but told Mr. Wilkerson "that his wife had been informed by Allen Glascoe that Dr. Zachary had said that Miss HARPER, J. Appellant was convicted of M. E. Wilkerson had miscarried." Thus it is slander, and prosecutes this appeal. The seen that Hix disclaimed having ever realleged slander is based upon an affidavit peated the statement to any one and gave made by him before E. Brooks, justice of the the source of his information, and merely repeace, in which he stated on oath "that he peated to the father what he had heard in had been going with Miss Elmer Stephens order that the father could discover and on and off for about one year. I had free bring to justice the slanderer. This was intercourse with her as often as I wanted to held privileged, of course, and not the basis during all that time." Proper innuendo for a slander charge against Hix. There

Langford & Chesley, of Hamilton, and Mears & Watkins, of Gatesville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

was no proof that Hix had repeated the phens what Joe Martin was circulating, Steslander, or that he had done more than Mr. Wolf did in this case, and that was, give to the father information by which he could seek out and discover the slanderer, if a slander had been uttered, and no one contends that Mr. Wolf's acts would render him liable to a criminal prosecution.