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theft of a chicken, was convicted and his punishment assessed at a fine of $10, and 30 days' confinement in the county jail, from which judgment he prosecutes this appeal. The appellant took a number of bills of exception, but the only question necessary for us to consider is contained in the first and third bills. On the trial of the case, over the objection of the appellant, the state was permitted to prove by two witnesses that each of them, on the night of the alleged theft, was out watching his chicken roost because parties had told them some time prior to that to look out for chicken thieves. The chicken in question was not stolen from either of said witnesses, nor is any connection shown between said facts and the theft of the chicken in question; and said testimony was not material or pertinent, and not admissible under any issue in this case. The effect of it may have been to induce the belief on the part of the jury that the defendant was engaged in the general business of stealing chickens, and the whole neighborhood was on the lookout for him, and was therefore calculated to prejudice him before the jury. Especially does this appear in view of the testimony in this case. The state proved by an accomplice that he and several other boys, the defendant being among the number, on the night in question, stole the "old dominecher hen." This was the only positive testimony, and the state attempted to corroborate the accomplice by circumstantial evidence, and introduced some testimony tending in this direction. Concede, however, the sufficiency of this testimony; the verdict inflicted in this case was considerably above the minimum, the punishment imposed being a fine of $10, and 30 days in the county jail, for the theft of a hen worth only 25 cents. This excessive verdict can only be accounted for on the hypothesis that the improper testimony admitted, indicating that the community was being disturbed at the time by frequent raids on their hen roosts, was calculated to, and did, prejudice the rights of the defendant. For the erroneous admission of this testimony the judgment is reversed, and the cause remanded.

STEWART v. STATE. (Court of Criminal Appeals of Texas. Jan. 29, 1896.)

LOCAL OPTION LAW-VIOLATION-INDICTMENT.

An indictment for violating the local option law should allege that an order for election was duly made and published; that an election adopting the provisions of said law was held, in accordance with the laws of the state, within the district where the alleged offense was committed; and that the result was declared by the commissioners' court.

Appeal from Collin county court; M. G. Abernathy, Judge.

Bill Stewart was convicted for violating the local option law, and appeals. Reversed.

Smith, Evans & Terrell, M. H. Garnett, and J. M. Pearson, for appellant. Mann Trice, for the State.

DAVIDSON, J. The appellant was convicted for violating the local option law. The information charges that the appellant, "on the 7th of October, 1895, and within the following described subdivision of Collin county, to wit [giving a description, by metes and bounds, of a certain portion of Collin county], did then and there unlawfully sell to Charley Wrenn intoxicating liquors; the sale of intoxicating liquors having theretofore, and being then and there, prohibited in said subdivision under and by the laws of said state." This constitutes the entire charging part of the information. A motion to. quash the information was made by the appellant, on the ground that it was insufficient, as it did not charge any offense against the laws of the state of Texas. Before the local option law can be put into operation in a given territory, an election for that purpose must be held in accordance with the laws of this state. It is thus made a part of the description and definition of the offense that the election declaring prohibition shall have been held in accordance with the laws of the state of Texas; and in order, therefore, to convict a person of this offense, it must be alleged and proved that the election was so held. It must further be alleged that the order was made for that purpose, and due publication made as required by the statute. It is just as essential to allege and prove these constituent elements of this offense as it is to allege and prove the sale of the intoxicating liquors. While the act under which local option is authorized to be voted upon is general, yet it is so voted on in localities, and put into operation by special. acts of legislation in the particular localities; and it is a general rule that courts do not take cognizance of such special acts of legislation, and in such cases such special acts must be alleged. In the case before us this was not done. The indictment does not inform us that local option was ever voted on: in the metes and bounds, as alleged, in Collin county, nor that the result was ever declared by the commissioners' court, nor that. the further step or publication was ever made, in order to put it in force. This should have been done, and because it was not done the court below should have quashed the indictment. See Sedberry v. State, 14 Tex. App. 233; Prather v. State, 12 Tex. App. 401. The judgment is reversed, and the prosecu tion ordered dismissed..

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Parker v. State, 13 Tex. App. 213; Webb v. State, 17 Tex. App. 205. The judgment of the lower court is affirmed.

MALLOY v. STATE.

(Court of Criminal Appeals of Texas. Jan. 29 1896.)

CRIMINAL LAW-CERTIFICATE OF TRANSFER-SUFFICIENCY AMENDMENT.

1. Since, under Code Cr. Proc. arts. 415417, it is not necessary to make an entry on the district court minutes of the offense charged, a certificate of transfer need not name the of fense with which defendant is charged.

2. Since, under Code Cr. Proc. arts. 415417, it is not necessary to name the accused on the minutes of the district court, in noting the presentment of an indictment in such court, it is not error to permit a certificate of transfer which does not properly name the accused to be amended so as to properly name him.

Appeal from Dallas county court; T. F. Nash, Judge.

W. J. Malloy was convicted of keeping and exhibiting a gaming table and bank, and appeals. Affirmed.

Oeland & Smith and Martin W. Littleton, for appellant. Mann Trice, for the State.

HURT, P. J. Plea to the jurisdiction of

Appeal from Dallas county court; T. F. the court was urged, because the transfer Nash, Judge.

Pete Tellison was convicted for keeping and exhibiting a certain gaming table and bank for the purpose of gaming, and appeals. Affirmed.

Oeland & Smith and Martin W. Littleton, for appellant. Mann Trice, for the State.

HENDERSON, J. The appellant was tried and convicted under an indictment charging him with unlawfully keeping and exhibiting a certain gaming table and bank for the purpose of gaming. The appellant presented a plea to the jurisdiction of the court, on the ground that the order of transfer was not sufficient, in that it did not show, from the minutes of the district court, the name or nature of the offense charged against the appellant. The court overruled the plea to the jurisdiction. Appellant excepted, and assigns the action of the court as error. As we understand it, the law does not require that, when an indictment is presented into the district court, there shall be put upon the minutes of the said court the nature or name of the offense charged against a defendant. See Code Cr. Proc. arts. 415, 437; Bohannon v. State, 14 Tex. App. 271: Hasley v. State, Id. 217; Tyson v. State, Id. 388: Spear v. State, 16 Tex. App. 98; Steele v. State, 19 Tex. App. 425; De Olles v. State, 20 Tex. App. 145; Rowlett v. State, 23 Tex. App. 191, 4 S. W. 582. The motion to quash the indictment in this case was correctly overruled, and the indictment is not duplicitous, as contended. See Campbell v. State, 2 Tex. App. 187; |

misnamed the accused, and recited the offense to be "gaming," whereas the offense charged was in fact for keeping and exhibiting a gaming table and bank. An amended transfer was then filed, properly naming the accused, but which did not name the offense. A second plea to the jurisdiction was then urged, because of this omission to name the offense with which the accused was charged. It was proper to amend the certificate of transfer. It was unnecessary to name the accused on the minutes of the district court, in noting the presentment of the indictment in that court, and it is not required to make entry on said district court minutes of the offense charged. Code Cr. Proc. arts. 415417; Willson's Cr. Proc. § 1943, for authorities; Tellison v. State (this day decided) ubi supra. It is not controverted that the second transfer correctly transcribes the minutes of the transferring court. The judg ment is affirmed.

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from a judgment of the county court attempts to appeal. Dismissed.

Mann Trice, for the State.

HENDERSON, J. The motion to dismiss the appeal herein must be sustained. This prosecution originated in the justice's court. Appellant, after conviction in said justice's court, prosecuted his appeal to the county court, and was there fined in the sum of $10. From this conviction, appellant has sought to bring an appeal to this court. The judgment in the county court, in a case appealed thence from a justice court, is a finality, unless the fine shall exceed $100, exclusive of costs. The appeal is dismissed.

COLEMAN v. STATE.

(Court of Criminal Appeals of Texas. Feb. 5, 1896.)

CRIMINAL LAW MURDER - PLEA DEFENDANT UNDER LIFE SENTENCE-PLEA OF GUILTY -REQUISITES.

1. The fact that a defendant is under a life sentence for murder is not a defense to a prosecution for the murder of another person.

2. The requirements of Code Cr. Proc. art. 518, that, before accepting a plea of guilty, it must plainly appear to the court that the accused is sane, and is uninfluenced by any consideration of fear, or by any persuasion or delusive hope of pardon, prompting him to confess his guilt, are indispensable to the validity of such plea, and must be shown by the record, to sustain a conviction thereon.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Albert Coleman was convicted of murder in the first degree, and appeals. Reversed.

Mann Trice, for the State.

DAVIDSON, J. The appellant was tried under an indictment charging him with murder. The jury found him guilty of murder in the first degree, and assessed his punishment at death; and from the judgment of the lower court he prosecutes this appeal.

The appellant made a motion to dismiss this case, on the ground that he had previously, at the same term of the court, been tried on an indictment charging him with murder of another person than the one contained in the indictment in this case, was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. He introduced before the court evidence of this conviction, and claimed that he had been punished by a life sentence in another case, and that the court had no jurisdiction to try him for the murder of another person. This matter was also presented in a motion in arrest of judgment. The court overruled said motion, and in this there was no error.

The record in this case shows that the appellant, on the trial, entered a plea of guilty; but the record in the case nowhere shows

that, in connection with such plea, the defendant was admonished by the court of the consequences thereof nor is it anywhere shown that, in making said plea, it plainly appeared to the court that the appellant was sane, and was uninfluenced by any consideration of fear, or by any persuasion or delusive hope of pardon, prompting him to confess his guilt. It is true that the charge of the court states "that the defendant has pleaded guilty, after being by the court fully warned of the consequences of such plea." But, even if it be conceded that this, in contemplation of the statute, constitutes a part of the record of a case, yet this of itself does not show that the appellant was considered by the court as sane, or that he was uninfluenced by any consideration of fear, or by any persuasion or delusive hope of pardon, prompting him to confess his guilt. In our opinion, however, this is a matter which must be presented to the court, and the court must make its findings thereon, and this must be entered of record in connection with the plea of guilty. These prerequisites to the validity of the plea, and the acceptance thereof by the court, are indispensable, and must be made manifest of record. cannot be supplied by inference, intendment, or presumption. See Code Cr. Proc. arts. 518. 519, 538; Saunders v. State, 10 Tex. App. 336; Wallace v. State, Id. 407; Frosh v. State, 11 Tex. App. 280; Sanders v. State, 18 Tex. App. 372.

They

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and presented a charge in writing, but should have taken a bill of exception to the refusal of the court to give said special charge. This was not done by the appellant. However, as we view the facts of this case, no charge on circumstantial evidence was required. If the evidence was not of a positive character, it at least places the defendant in such proximity and juxtaposition to the offense as not to require a charge on circumstantial evidence. See Adams v. State (Tex. Cr. App.) 31 S. W. 372. The appellant also contends that the evidence in this case is not sufficient to support the verdict of the jury. In our opinion, the evidence authorized the verdict of the jury, and the judgment of the lower court is accordingly affirmed.

OTHOLD v. STATE.

(Court of Criminal Appeals of Texas. Feb. 5, 1896.)

CRIMINAL LAW-CONTINUANCE - REMARKS OF COUNSEL-REVIEW.

1. An application for a continuance on the ground of the absence of a witness, a subpoena for whom had been returned "Not found," must show diligence in locating the witness.

2. To enable defendant to avail himself of objectionable remarks by the prosecuting attorney, he must have asked a charge excluding the same from the jury, and, on refusal thereof, reserved his bill of exceptions.

Appeal from district court, Lavaca county; T. H. Spooner, Judge.

Charles Othold was convicted of a murder, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J. The appellant was convicted in the court below of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; and from the judgment and sentence of the lower court he prosecutes this appeal.

Appellant applied for a continuance on account of the absence of Mrs. A. Othold and Henry Othold. The indictment was returned into court on the 8th of August, 1895, and the trial was had on the 27th of said month. A subpoena was issued, on the 8th of August, to Lavaca county for said witnesses, and was returned, on the 27th of August, "Not found in Lavaca county." The application shows that Mrs. Othold was the mother of the appellant, and that Henry Othold was his brother, and that they were all living at the same place in Lavaca county, and that said Mrs. Othold, and Henry Othold were temporarily absent from Lavaca county,-their whereabouts to the defendant being unknown. By said absent witnesses defendant proposed to prove an alibi, to wit: By his mother, that she was at her home (which was several miles from the place of the killing) on the night of the homicide, and that appellant was at home on the said night, and remained there. By Henry Othold it was

proposed to show that he was at a party, several miles from his home, on the night of the homicide, and returned home late at night, and when he arrived his brother (appellant) was at home in bed asleep. The hour when he arrived is not shown, or is the hour of the night when the homicide was committed shown. The court overruled the appellant's motion for a continuance, and he excepted thereto. The same question was brought up on the motion for a new trial, which was overruled, and the appellant also reserved his bill of exception to the action of the court in that regard. The application for a new trial shows that, at that time, Mrs. Othold and Henry Othold were still absent from Lavaca county, and their whereabouts unknown. No diligence is shown, in the application, to ascertain the whereabouts of said witnesses, and, so far as the record discloses, no effort whatever was made in that direction. The appellant's father testified in the case, and, while he testified that he did not know where they were, he did not show that he had used any diligence to find them. It was at least incumbent on the appellant to have made some effort to locate these witnesses; and it appears to us as remarkably strange that the mother and brother of appellant, when they knew that he was to stand trial for his life on a charge of murder, should have so mysteriously disappeared, leaving no trace or track of their whereabouts. We cannot believe, in the absence of some further showing than is here made, that, under the circumstances, they would have purposely absented themselves without the consent and connivance of the appellant. If they absented themselves without his consent, he has not shown sufficient diligence, in this case, in ascertaining their location, in order that the process of the court might reach them. We would further observe, in this connection, that the issuance of process to Lavaca county was not an act of diligence at all. The application itself shows that, at the time when said process of subpoena was issued, said witnesses were absent from Lavaca county; and, if we refer to the testimony of the father of the appellant, they had been so absent for several months before. The diligence which should have been here used and shown was, not the issuance of process to Lavaca county, but efforts to ascertain the whereabouts of said witnesses, which in this case was not done. For this failure to exercise diligence to find and locate said absent witnesses, the appellant in his application suggests no excuse or reason. In regard to the testimony of Henry Othold, the statement is entirely too general. It merely shows that he returned from a party at a neighbor's house to his home, late at night, and found his brother in bed asleep. The hour of his return should have been shown; otherwise, his testimony does not appear to be material. And for aught that appears, the defendant could have committed:

the murder, and returned to his home, and gone to bed, and been asleep, when the witness Henry Othold returned home. As to the testimony of Mrs. Othold, the mother of the appellant: As already stated, it is hardly credible, if she knew any fact that would benefit her son on the trial, that she would have been absent on that occasion; and, under the circumstances of this case, we cannot believe that the testimony imputed to her by the appellant was probably true.

The appellant assigns as error the failure of the court to charge the jury on circumstantial evidence. This was a case of positive testimony, and the charge in question was not required. The appellant also assigns as error the use of the following language by counsel, closing the argument for the state, to wit: "The defendant is guilty in the estimation of every honest man in the county." We are not informed of the connection in which this language was used, and cannot, therefore, determine whether it was objectionable. Conceding, however, that it may have been objectionable, before appellant could avail himself of said remarks as error, he should have asked a charge excluding the same from the consideration of the jury, and on refusal thereof, reserved his bill of exceptions. This was not done. The objection urged by the appellant to the charge of the court on impeaching testimony offered by the defendant, in that it was too restrictive, is not well taken. The evidence in this case was before the jury, and, under the charge of the court, they found appellant guilty of murder in the first degree, and we see no reason to disturb the verdict. The judgment and sentence of the lower court are affirmed.

BARRETT v. STATE.

(Court of Criminal Appeals of Texas. Feb. 13,

1896.)

CRIMINAL LAW-APPEAL.

A conviction of burglary, based on circumstantial evidence, which excluded all reasonable hypotheses except that of defendant's guilt, will not be disturbed.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

Pen Barrett was convicted of burglary, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J. Appellant was convicted of burglary, and given five years in the penitentiary; hence this appeal. The only error assigned for reversal is the supposed insufficiency of the evidence to support the verdict. While the evidence is circumstantial, it is remarkably cogent, and points with unerring certainty to the accused as one of the parties who committed the crime. It excludes every reasonable hypothesis ex

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HURT, P. J. The appellant was tried below on a habeas corpus proceeding for bail. He was granted bail, which was fixed at $7,000, and from the judgment of the lower court he prosecutes this appeal. The appellant insists that the bail fixed in the court below is excessive, and asks that this court reduce the same. We have carefully examined the record in this case, and fail to find any sufficient reason why this court should interfere and reduce the bail granted; the rule being that the fixing of the amount of bail is a matter within the discretion of the court, judge, magistrate, or officer fixing the same, and will not be revised by this court, unless it clearly appears that the discretion of the lower court has been abused and the constitution violated. See McConnell v. State, 13 Tex. App. 390. The judgment of the lower court is affirmed.

WILSON et al. v. AETNA INS. CO. (Court of Civil Appeals of Texas. Feb. 12, 1896.)

INSURANCE-CONDITION AS TO ADDITIONAL INSURANCE-CONSTRUCTION.

A policy providing that it should be void if the insured had or should thereafter procure "any other insurance, whether valid or not," was avoided by afterwards procuring another policy, which, by reason of a similar clause therein, was void, and never attached. Appeal from district court, Robertson county; John N. Henderson, Judge.

Action by Wilson & Moseley against the Aetna Insurance Company on a policy of insurance. From a judgment for defendant, plaintiffs appeal. Affirmed.

This is an action by appellants against appellee on an insurance policy of the latter in favor of the former, in which it is provided that "this entire policy shall be void, unless otherwise provided by agreement indorsed hereon or added hereto, if the insured now

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