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and said she would go and tell Mr. Martin- that then the defendant was guilty of a feldale, and see if he could not make him get ony, and if such offense was committed by out of her house. He went in the house, but the defendant in the view or presence of Morin the meantime Ella Mitchell had fled froin ris, then Morris had a right to arrest the dethere, and made her escape. He then went fendant, and, to do so, had the right to use on towards the store, which was deceased's such force as was necessary under the cirplace of business. On the way, he met Lilly cumstances to effect his arrest, but no more; Hill, a witness, who said to defendant that and that, if deceased was seeking to effect he had better not go to the store, that they the arrest of defendant under such circumwould arrest him. To which defendant re- stances, and was using no more force than plied: "I am not going to be arrested by was necessary to effect the arrest of the deno God damned white man, and no God fendant, the defendant in such case, if he damned officer, until I kill Ella Mitchell and shot and killed the deceased, could not be William McLeod. Then they can burn my | justified on the ground of self-defense, but God damned body.” The defendant, it ap- would be guilty of murder or manslaughter, pears, then went to the office of Dr. Herring- | according as the evidence shows," etc. We ton, which was near the store of the deceas- have examined the record carefully, and ed, and told the doctor that he had shot Pas- there is no testimony to show that the asley accidentally,--that he was intending to sault by defendant on McLeod and Pasley kill McLeod and Ella Mitciell. The doctor was made in the view of the deceased, or in and defendant walked out of said office, and his presence and we understand, in this then down the platform, and passed the connection, that "view" means within sight), store of the deceased. The deceased came and, to our minds, the record is also silent as out on the gallery, walked on behind them, to any attempted arrest on the part of the deand called to the doctor to stop. His lan- ceased. The record, indeed, shows that the guage, as testified by several witnesses, was deceased had been informed of the difficulty, as follows: "Oh, Dock," or, "Wait a minute, and had been requested to stop the defendDock," or some such expression as that. The ant from further interfering or attempting to doctor looked around, slightly checked up, kill Will McLeod and Ella Mitchell. The onand Morris, the deceased, still came on. The ly language or action of the said deceased doctor started on again. Defendant, in the that could possibly be construed into an atmeantime, having got a step or two ahead of tempted arrest has already been given, to him, he deceased then said to defendant, wit, that he first called on the doctor to stop "Wait a moment, Jim," or, "Stop a moment, a moment, and then called to deceased to Jim." As deceased said this, the defendant wait. This language and conduct of the turned around, put his hand in his bosom, deceased comports more with the idea that and shoved his hand on down, inside his shirt, he merely called to defendant to stop, in a to the waistband of his pants. He had turn-peaceful manner, to talk with him about the ed, facing deceased, Morris. Morris said, affair, and to request that he desist from fur“Stop, Jim; don't do that,” or “Don't pull ther interference with said parties, than an your pistol, Jim.” The defendant kept work- / attempt on his part to make an arrest of said ing at his pistol, which seemed to have

seemed to have defendant. In our opinion, the charge in hung some way in the waistband of his question was not called for by any evidence pants, and, just about the time he pulled in this case, for the evidence neither shows his pistol, Morris, deceased, jerked his pis- that the previous difficulty occurred within tol, and fired. The defendant then fired. the view and presence of deceased, nor that The shots were almost together, but Morris' he attempted to arrest the defendant on said first,-just enough between the shots to tell account. The inquiry, however, here is, was that there were two shots or reports. Mor- said charge calculated to injure the rights of ris missed the defendant. Defendant's shot the appellant, or did it have that effect? As took effect in Morris' head. Morris fell im- previously stated, the evidence does not dismediately. The defendant then ran up to close an attempted arrest on the part of the him, fired one other shot at him, and then deceased. It does, however, show that, ran away, and made his escape. The testi- when defendant was accosted, and asked mony of the other witnesses as to the oc- simply, in a peaceful manner, to stop a mocurrences immediately attending the homi- ment, he turned upon the deceased, made cide was, in substance, about the same as the first hostile demonstration, drew, or athas been given from the testimony of the tempted to draw, his pistol, and, though askwitness Herrington.

ed by deceased to desist, and not do that, he The only possible error that could be com- continued to draw his weapon, and compelled plained of in the charge of the court is that the deceased to stand on his own defense. given on the subject of arrest by a private The court's charge on self-defense was a person.

This charge follows article 226, proper charge, and covered this phase of the Code Cr. Proc. The court, in effect, charged case, putting it to the jury: If the deceased the jury that if defendant made an unlaw- was the aggressor, and himself made the first ful assault upon William McLeod and Jim hostile demonstration, and attempted to shoot Pasley, or either of them, with a pistol, with the defendant, that the defendant then had a intent to murder them, or either of them, right to act in his own self-defense. But,

concede that the acts of the deceased, and his that he did not intend to be arrested by any language on the occasion, was an attempt on one, but intended to resist such arrest, and his part to arrest the defendant. Up to this to kill any one attempting it, until he had point, he had used no force, and had made no succeeded in his purpose of killing Ella hostile demonstration, his language was quiet Mitchell and Bill McLeod. The killing of and peaceful, and framed merely as a re- the deceased, under these circumstances, is, quest,- when the defendant, taking the ini- to our minds, a killing upon express malice; tiative, himself became the aggressor, and at- and, in the face of the record in this case, tempted to draw his pistol, for the purpose, though there was no evidence to support the unquestionably, of assaulting the deceased. charge given on the subject of arrest, yet it He had declared, beforehand, "that he was was not calculated to mislead or confuse the not going to be arrested by any God damned jury, or to impair or injure the rights of the white man

until he had killed Ella defendant. As stated before, there was no Mitchell and William McLeod.” This, itself, exception to the charge in question, and, as was evidence of express malice on his part said in McMillan v. State (decided at the against any person who should attempt his present term of this court) 33 S. W. 970, "In arrest; and, as we understand the authori- such case, we look to the charge as given, ties, “a defendant would be guilty of murder and the facts of the case, to determine whethin the first degree, if he, anticipating an ar- er an abstract erroneous charge was calcularest, should prepare himself with a deadly ted to injure the rights of the appellant;" and weapon, and deliberately and calmly form the charge in this case not being such as the intent to kill the officer.” See Miers v. could have injured the rights of the appelState (Tex. Cr. App.) 29 S. W. 1074; English lant, as we believe, the evidence establishes v. State (Tex. Cr. App.) 30 S. W. 234; Miller beyond any reasonable doubt a murder upon v. State, 32 Tex. Cr. R. 321, 20 S. W. 1103; express malice, and nothing else. The judgMiller v. State, 31 Tex. Cr. R. 609, 21 S. W. ment of the lower court is affirmed. 925.

Moreover, take another view of this case. While the court charged the jury, under article 226, Code Cr. Proc., if the deceased, as

OLIVER V. STATE. a private person, attempted to arrest the defendant, that he had a right to do so, if the

(Court of Criminal Appeals of Texas. Jan. 29,

1896.) jury should find that the original difficulty

CARRYING WEAPONS-LACK OF EVIDENCE TO in which the defendant attempted to kill MC

SUSTAIN CHARGE. Leod occurred in his view or presence.

This

A conviction for carrying a pistol on the charge conveyed to the jury, also, the idea, person canrot be sustained where the only proof if said original assault did not occur in the

that defendant was off his own premises was

testimony of a declaration made by defendant view or presence of the said deceased, then

himself, and which only showed by inference he would have no right to make said arrest, that he had been 2way. and as there was absolutely no evidence in

Appeal from Hunt county court; W. H. the record showing that the said assault occurred within the view or in the presence of

Ragsdale, Judge. the said deceased, then such charge could

H. B. Oliver was convicted of unlawfully not have operated to the prejudice of the de

carrying a pistol on or about his person, and fendant, because it was tantamount to stat

appeals. Reversed. ing to the jury that, in the absence of such Montrose & Clark, for appellant. Mann testimony showing that the deceased saw Trice, for the State. said previous difficulty, then he had no right to have attempted the arrest of the said de- DAVIDSON, J. The appellant was convictfendant, and such attempt was an assault on ed on a charge of unlawfully carrying a his part. The record in this case shows, be- pistol on and about his person, and his punyond question,-indeed, the proof is all one ishment assessed at a fine of $25, and from way,-that the defendant, in the absence of the judgment of the lower court he proseany known provocation, had deliberately cutes this appeal. When the appellant was formed his intent to kill Bill McLeod and seen with the pistol, he was on his own Ella Mitchell, went and armed himself for premises; and the only proof in this case on that purpose, sought them, and, when he which the state relies for a conyiction is that found McLeod, made a deadly assault upon when the defendant was seen near his store, him; that, after his pistol was rendered use- on lands belonging to him, or over which he less, he went and reloaded it, and then con- had control, he remarked that he had coltinued the search for Ella Mitchell, and, lected rents from one Morris, who was a when notified that he would be arrested, de- renter on a place belonging to appellant, or clared that he would not submit to an arrest. over which he exercised control and manConcede that the acts and language of the agement. No one saw him go to Morris' deceased was an attempt to arrest him, yet, rented premises, or in that direction. Where before any hostile act or demonstration on he collected the rent from Morris is not the part of the said deceased, appellant at- shown; and, in the absence of either positive tempted to slay him. This indicates clearly or circumstantial proof, we cannot presume,

against the defendant, that he went upon the rented premises of the said Morris, and carried his pistol there with him. Besides, the evidence leaves it doubtful whether at that time Morris had not vacated and surrendered his rented premises into the possession of the appellant. The evidence, in our opinion, being insufficient to sustain the conviction in this case, the judgment of the lower court is reversed, and the cause remanded.

the dealer; hence the game was a banking game. Bell v. State, 32 Tex. Cr. R. 187, 22 S. W. 687. He could not, therefore, be convicted for betting at his own banking game. Askey v. State, 20 Tex. App. 443. The judgment is reversed, and the cause remanded.

PATRICK v. STATE. (Court of Criminal Appeals of Texas. Jan. 29,

1896.) CRIMINAL LAW-APPEAL-STATEMENT OF Facts-

IMPROPER REMARKS OF COUNSEI..

1. A statement of facts will not be considered on appeal, unless approved by the trial court.

2. Remarks of a prosecuting attorney to the jury, claimed to have been improper, are not ground for reversal, when they were withdrawn from the consideration of the jury by the trial court.

Appeal from Ellis county court; J. C. Smith, Judge.

J. L. Patrick was convicted of theft, and appeals. Affirmed.

Mann Trice, for the State.

SIMPSON V. STATE.
(Court of Criminal Appeals of Texas.

of Texas. Jan. 29,

1896.)
AGGRAVATED ASSAULT-EVIDENCE,

In a prosecution for aggravated assault, evidence that defendant and prosecutor, shortly before the alleged assault, had a difficulty over defendant's right to take water from a tank in the inclosure of prosecutor, in which defendant was the aggressor; that defendant went to the inclosure armed, and began to tear down the fence; that on the approach of prosecutor, who was also armed, he began shooting at him,-is sufficient to show that defendant went on the ground armed and prepared for a difficulty, and knowing that, if prosecutor saw him pulling down the fence, a difficulty would ensue.

Appeal from Ellis county court; J. C. Smith, Judge.

E. Simpson was convicted of aggravated assault, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J. Appellant was convicted

HENDERSON, J. The appellant was tried of theft, and given one day's imprisonment

under an indictment charging him with an in the county jail, and, in addition, a fine of

aggravated assault, was found guilty of said $20. The statement of facts, not being ap

offense, and his punishment assessed at a proved by the trial judge, cannot be consid

fine of $100, and he prosecutes this appeal. ered. The remarks of the state's attorney, The appellant reserved a bill of exception to if objectionable, were withdrawn from 'the

the charge of the court on mutual combat, consideration of the jury by the court. The

insisting that there was nothing in the testiremaining alleged errors cannot be consid

mony to authorize such a charge. The eviered, in the absence of the evidence, because

dence shows that a difficulty between the they relate to and are incidental thereto.

parties occurred about the right to get water The judgment is affirmed.

in a certain tank, which was in the inclosure of the prosecutor, who, it appears, had fastened up a gate through which the de

fendant was accustomed to bring his animals SHAW v. STATE.

to water; and it also appears that the de(Court of Criminal Appeals of Texas. Jan. 29, fendant, on one occasion, before the difficul1896.)

ty, broke down part of the fencing or gate, GamiXG-BANKING GAME--BETTING.

and, on the day of the difficulty in question, One who stands behind i table and pulled down a part of the panels of wire throws dice, taking the bets of all others there

fencing between his inclosure and that of the on, is "keeping a gaming table or bank," and cannot be convicted of betting at dice.

prosecuting witness. The defendant, from

the testimony, appears to have been the agAppeal from county court, Johnson county;

gressor in a previous difficulty, abused the F. E. Adams, Judge. Tobe Shaw was convicted of betting at dice prosecuting witness, and dared him to come

back where he was and fight. A day or two at a place other than a private residence,

thereafter the defendant, as stated before, and appeals. Reversed.

went upon the ground, which was some little Featherstone & Hall, for appellant. Mann distance from the prosecutor's house, and beTrice, for the State.

gan pulling down the line of fence between

him and the prosecutor, which fencing, it DAVIDSON, J. Appellant was charged appears, belonged to the prosecutor. He was with and convicted of betting at dice at a armed on the occasion. Some of the proseplace other than a private residence. The cutor's family informed him of what was tacts show that he threw the dice, took all going on, and he immediately took his pistol bets, stood behind the table, and was "one and walked down to where the defendant against the many." In other words, he was was engaged in pulling down said line of fence. When the defendant saw the prose- Mann Trice, for the State. cutor coming, he pulled his pistol, crouched down in some bushes, and began firing at HENDERSON, J. The appellant was conhim. After some little time the prosecutor victed in the justice's court of playing at a returned the fire. We think it sufficiently ap- game with cards at a gaming house, and pears that the defendant went on the ground prosecuted an appeal to the county court. on the occasion in question armed and pre- In the county court the appeal from the juspared for the difficulty, knowing that if the tice's court was dismissed, by motion of the prosecutor saw him pulling down said fence,

county attorney, because of alleged defects or was informed thereof, that a difficulty in the appeal bond, and the appellant prosewould ensue. This testimony, we think, jus- | cuted this appeal from the dismissal of said tified the court in giving the charge which it cause in the county court. We have examdid. This résumé of the testimony also dis- ined the bond, and, in our opinion, the apposes of the other bill of exception taken by peal below should not have been dismissed, the appellant. The judgment is affirmed. but the county court acquired jurisdiction,

and should have proceeded with the trial. For the error committed in dismissing said

cause, the judgment of the county court is SMITH v. STATE.

hereby reversed, and the cause remanded for (Court of Criminal Appeals of Texas. Jan. 29,

trial de novo in the county court. See Taylor 1896.)

v. State, 16 Tex. App. 514. CRIMINAL LAW-RECOGNIZANCE,

On appeal from a conviction for receiving stolen goods, under an indictment containing a count for theft and one for receiving

WARTELSKY V. STATIC. stolen goods, a recognizance reciting that appellant was charged with theft is fatally de- (Court of Criminal Appeals of Texas. Jan. 29, fective.

1896.) Appeal from district court, Dallas county;

GAMING-EVIDENCE-SUFFICIENCY. Charles F. Clint, Judge.

1. On the trial on a count for playing cards

at a gaming house, and a count for playing A. G. Smith was convicted of receiving

cards on Sunday, evidence that on the day stolen goods, and appeals. Dismissed.

after the alleged ffense a witness saw a game

of cards played in said house was admissible Mann Trice, for the State.

under either count.

2. A general conviction for playing cards, HENDERSON, J. The appellant in this

at a gaming house, and for playing cards on

Sunday, was sustained by evidence showing case was indicted in two counts,--in one, for

that the room where the parties played was theft of personal property; and the second, used for gaming, though the evidence under for receiving said property knowing the same

the second count was insufficient. had been theretofore acquired by theft. He Appeal from Ellis county court; J. C. was convicted under the second count of said

Smith, Judge. indictment, and his punishment assessed at

Sam Wartelsky was convicted under a a fine of $10, and by iniprisonment in the count for playing cards at a gaming house, county jail for one day. The recognizance for and under another count for playing cards on appeal in this case recites that the said A.

Sunday, and appeals. Afirmed, G. Smith was charged with the offense of

Mann Trice, for the State. theft, but nowhere recites that he was charged, as in the second count, with receiving

HENDERSON, J. The appellant in this stolen property knowing the same to have been so acquired. The recognizance in this

case was tried under an indictment contain

ing two counts. The first count charged regard was fatally defective, and for such

him with playing at a certain game of cards, error the appeal is dismissed.

in a gaming house. The second count charged him with playing cards on Sunday, in the city limits of the city of Ennis. The only

bill of exception is to the action of the court TRIPLETT v. STATE.

in overruling the objection of the defendant (Court of Criminal Appeals of Texas. Jan. 29,

to the introduction of testimony of a witness 1896.)

that on the day after the alleged offense said APPEAL FROM Justice-SUFFICIENCY OF Bond,

witness saw a game of cards played in said A county court, is suficient

, though the appellant house. As stated before, this prosecution signed his name in the middle, instead of at the was conducted under both of said counts, end, thereof, and though the justice failed to and the testimony objected to was clearly adindorse his approval thereon.

missible under the count for playing on SunAppeal from Johnson county court; F. E. day, and, besides, this evidence was admissiAdams, Judge.

ble for the purpose of showing the character One Triplett was convicted of playing cards of the house. The conviction in this proseat a gaming house, and appeals from a judg- cution was general. As to the second count, ment dismissing the cause in the county there was testimony tending to show that detourt. Reversed.

fendant may have played on Sunday. But, concede that the testimony under the sec- upon premises under his control, “then and ond count was not sufficient, yet the evi- there being appurtenances to a publi place, dence is ample to sustain the conviction un- to wit, a house for retailing spirituous liqder the first count,--for playing at a game

It is contended that the omission of with cards, in a gaming house. As to the the letter "c" from the word "public" renfirst count, the evidence shows that the room ders the indictment vicious. We do not where the parties played on Saturday night think so. Omitting the words "a publi place, was used for the purpose of gaming. It was to wit," the indictment is sufficient. It fitted up with a regular poker outfit, and would then read,

66* * then and there there were “take-offs out of each pot," which being appurtenances to a house for retailing were for the benefit of Capt. McCoy, the own- spirituous liquors.” Mayo v. State, 7 Tex. er of the game.

App. 342. The statute makes a house for There being no error in the judgment of retailing spirituous liquors a public house. the lower court, it is affirmed.

Pen. Code, art. 355.

The statement of facts, having been filed out of term time, cannot be considered, be

cause an order was not entered allowing it WILLIAMS v. STATE.

to be so filed. The charge, in the absence

of the evidence, is applicable to a case prova(Court of Criminal Appeals of Texas. Jan. 29, 1896.)

ble under the allegations of the indictment. CRIMINAL LAW-APPEAL-RECORD.

Besides, there are no exceptions reserved to Where the recoil contains neither a

said charge. Loyd v. State, 19 Tex. App. statement of facts nor bill of exceptions, an

321. The judgment is affirmed. assignment of error attacking the sufficiency of the evidence to support the judgment will not be considered. Appeal from Johnson county court; F. E.

WHIPPLE v. STATE. Adams, Judge. Charley Williams was convicted of carrying (Court of Criminal Appeals of Texas. Jan. 29,

1896.) a pistol on and about his person, and appeals. Affirmed.

CRIMINAL LAW-NOTICE OF APPEAL.

The record must show that notice of apMann Trice, for the State.

peal was given and entered of record in the trial court, as a prerequisite to the considera

tion of the case on appeal. HURT, P. J. Appellant was convicted of carrying a pistol on and about his person, Appeal from Ellis county court; J. C. Smith, The record contains neither a statement of Judge. facts nor bill of exceptions. The only er- T. P. Whipple was convicted in the county ror assigned attacks the sufficiency of the court of Ellis county, and appeals.

Disevidence to support the judgment. The missed. judgment is affirmed.

Mann Trice, for the State.

DAVIDSON, J. The record before us does

not show that notice of appeal was given and WILLIAMS v. STATE.

entered of record in the trial court. This is (Court of Crimina. Appeals of Texas. Jan. 29,

a prerequisite to an appeal to this court. The 1896.)

appeal is dismissed. GAMING-INDICTMENT-Public PLACE-STATEMENT

OF FACTS. 1. As Pen. Code, art. 355, makes a house for retailing liquors a public house, an indictment charging defendant with permitting cards

SMITH v. STATE. to be played upon premises under his control, (Court of Criminal Appeals of Texas. Jan. 29, "then and there being appurtenances to a pub

1896.) li place, to wit, a house for retailing spirituous liquors," is not bad, in that it omitted the let

CRIMINAL LAW-EVIDENCE-HARMLESS ERROR. ter "c" from the word “public,” as the words

In a prosecution for stealing a chicken, "a publi place” might have been omitted with it is reversible errur to allow witnesses, from out affecting the indictment.

whom no chickens were stolen, to testify that 2. A statement of facts filed out of term on the night of the alleged theft they were time cannot be considered, unless an order is watching their hen roosts because persons had entered allowing it to be so filed.

told them to watch out for chicken thieves. Appeal from Johnson county court; F. E. Appeal from Hill county court; W. P. Adams, Judge.

Cunningham, Judge. Charles Williams was convicted for permit- Sebe Smith was convicted of theft, and apting cards to be played in a house for retail-peals. Reversed. ing spirituous liquors, and appeals. Affirmed.

Derden & Melson, for appellant. Mann Mann Trice, for the State.

Trice, for the State.

DAVIDSON, J. The indictment charged HENDERSON, J. The appellant was tried that appellant permitted cards to be played | under an information charging him with the

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