parents were consenting to said marriage. The court, in explaining this bill of exceptions, shows that no proof was offered by appellant tending to show that he had given Miss Porter any presents during the month previous to making the affidavit, and that he only offered to prove generally that, pending their engagement, he had given her presents. It does not occur to us that this testimony was material, or that the court erred in excluding the same.

The principal ground of contention on the part of appellant why this case should be reversed is because the deputy clerk, O. L. Bishop, before whom said affidavit was made, was not at the time 21 years of age; that he was at said date only 20 years old. The grounds urged by appellant are: First, because it appeared that O. L. Bishop, the party who administered said oath as deputy county clerk, was at said time a minor, under 21 years of age, and could not act as deputy county clerk, and that the affidavit was therefore void; second, because, said affidavit not being one required to be taken by the county clerk in the discharge of his official duty, the deputy could not take the same for the county clerk. Our statute defining perjury and false swearing requires that the oath shall be taken before an officer authorized to administer oaths, and if a minor, under the laws of this state, can be appointed a deputy county clerk, then it follows that he is such an officer as can administer an oath. Our statutes with reference to county clerks and the appointment of deputies, so far as they bear upon this question, are as follows: Article 1142, Sayles' Civ. St., provides that there shall be a county clerk for each county, who shall be elected at a general election for members of the legislature by the qualified voters of such county, who shall hold his office for two years, and until his successor shall have duly qualified. Article 1144, Id., indicates the form of bond and oath required. Article 1145, Id., authorizes the clerk of the county court to appoint one or more deputies, by written appointment under his hand and seal of court, which appointment shall be recorded in the office of such clerk of the county court, and shall be deposited in the office of the clerk of the district court. Article 1146, Id., is as follows: "Such deputies shall take the oath of office prescribed by the constitution. They shall act in the name of their principal, and may do and perform all such official acts as may be lawfully done and performed by such clerk in person." Article 1149, Id., says that such clerk shall be authorized to issue all marriage licenses, to administer all oaths and affirmations, and to take affidavits and depositions to be used as provided by law in any of the courts. There is no statute defining the qualifications of deputy clerks, or what character of persons may be appointed to said office. Article 2471, Sayles' Civ. St., defines who are minors, making all male persons under 21 years of age minors. Article

3361a et seq., Sayles' Civ. St., regulates the removal of the disabilities of minors, and authorizes the district courts, on petition setting up sufficient grounds, to remove the disabilities of minors over the age of 19 years; and provides that after such adjudication the minor shall be deemed of full age for all legal purposes, except that he shall not have the right to vote. We have examined the decisions of our own courts, but we can find but one bearing upon the subject now under consideration. Stensoff v. State, 80 Tex. 429, 15 S. W. 1100. Looking into the decisions of the courts of other states as to this and kindred subjects, we find the rule stated to be this: If the office is ministerial, such as calls for the exercise of skill and diligence only, minors may legally hold the same, and execute the duties thereof; but if the office is a judicial one, or one which concerns the administration of justice, on account of their inexperience and want of judgment and learning they cannot be appointed to same. In Golding's Case, 57 N. H. 146, which is relied on by counsel for appellant, the rule is stated as above. In that case, however, it was held that a minor could not hold the office of justice of the peace, the same being a judicial office. In the case of U. S. v. Bixby, 9 Fed. 78, the indictment charged that the defendant committed perjury in swearing to the truth of a quarterly report as assignee in bankruptcy, before Auretus W. Hatch, a notary public. The defendant set up that the said Hatch was a minor under 21 years of age, and could not hold the office of notary public, and so the oath taken before him was not before an officer authorized to administer oaths. The court held in that case that there was nothing in the statutes of Indiana inhibiting minors from holding the office of notary public; that, the notarial office being ministerial, and not judicial, the rule at common law would govern. law would govern. The court further says: "Unlike most of the states, Indiana has not declared, in her constitution or statutes, that only those who have attained the age of twenty-one years shall be eligible to any public or civil office. While at common law persons are not admitted to the full enjoyment of political and civil rights until they have attained the age of twenty-one years, yet infants are capable of executing mere powers, and, as agents, of making binding contracts with others. In England they are allowed to hold the offices of park keepers, foresters, jailer, and mayor of a town; and in both England and this country they are capable of holding and discharging the duties of such mere ministerial offices as call for the exercise of skill and diligence only. They are not eligible to the offices which concern the administration of justice, on account of their inexperience and want of judgment and learning,"-referring to Rex v. Dilliston, 3 Mod. 222; Tyler, Inf. § 78. In Wilson v. Genesee Circuit Judge, 87 Mich. 493, 49 N. W. 869, the question was whether a woman could be

appointed to the office of deputy county clerk. The statutes of that state in regard to the qualifications of clerks and deputies are very similar to our own statutes on the subject. The court holds in that case that the office of county clerk is wholly ministerial, and when the law provides that a ministerial officer may appoint a deputy, for whose acts he and his sureties are responsible, and does not limit or restrict him as to whom he appoints, he has authority to appoint whomsoever he pleases. The person appointed acts for him; or, in other words, he acts through his deputy. His choice is not confined to any race, sex, age, or color. In the case of Jeffries v. Harrington, 11 Colo. 191, 17 Pac. 505, cited in the above case, the supreme court of the state of Colorado held that, under a provision of the constitution of said state, which provided that "no person except a qualified elector shall be elected or appointed to any civil or military office in this state," the word "office," as used therein, did not include deputy clerkships of county courts, and women may hold such deputy clerkships. These authorities seem to stand upon correct legal principle. Our own supreme court, in the case of Stensoff v. State, already cited, held that a citizen of the state moving from Harris to Liberty county, within so short a time before the election as not to be a qualified voter at such election in the latter county, still was eligible to election, and could hold the office of tax assessor in Liberty county. In discussing the question the court quotes with approval from Barker v. People, 3 Cow. 703, as follows: "Eligibility to office is not declared as a right or principle by any express terms of the constitution [of New York], but it rests as a just deduction from the express powers and provisions of the system. The basis of the principle is the absolute liberty of the electors and the appointing authorities to choose and appoint any person who is not made ineligible by the constitution. Eligibility to office, therefore, belongs not exclusively or specially to electors enjoying the right of suffrage. It belongs equally It belongs equally to all persons whomsoever not excluded by the constitution." Our supreme court then proceeds to dispose of the question in the following language: "When a constitution has been framed which contains no provision defining in terms who shall be eligible to office, there is strength in the argument that 'the intention was to confide the selection to the untrammeled will of the electors. Experience teaches us that in popular elections those only are elected who are in sympathy with the people, both in thought and aspirations; and that no law is needed to secure the election of those only who reside in the county or district in which their functions are to be performed. The constitution of 1869 contained the provision 'that no person shall be eligible to any office, state, county, or municipal, who is not a registered voter in the state.' Article 3, § 14. The omission of

a similar article in our present constitution is not without significance."

It is to be observed, as before stated, that neither our constitution nor laws on the subject prescribe any qualification such as would render a minor ineligible or disqualified from holding the office of deputy county clerk. As to the clerk himself, there might be some question, as he is required to execute a bond, which might involve the capacity to so contract, but there is no such requirement as to deputy county clerks. The authorities cited establish the doctrine that, if the duties of deputy county clerk, under the provisions of our statute, are ministerial, a minor can receive the appointment, and execute the duties required of said deputy. The duties of county clerks in our state are regulated by statute, and they appear to be purely ministerial; and, in addition to their other functions, as has been seen, they have the general power to administer all oaths and affirmations, and to take affidavits and depositions to be used as provided by law in any of the courts. Sayles' Civ. St. art. 1149. Deputies are authorized to act in the name of their principal, and to do and perform all such official acts as may be legally done and performed by such clerk in person. By virtue of his office the county clerk is empowered to administer oaths and affidavits generally. This power appertains to his office, and belongs to his official duties, and his deputy, in this regard, has such power and authority as he can exercise; and, in our opinion, the appointment of O. L. Bishop, by the clerk of the county court of Johnson county, as his deputy, was a legal and valid appointment.

Appellant, however, contends that the act of said deputy in granting the license in this case was a judicial act, inasmuch as said deputy, if authorized to issue a license for his principal, was thereby authorized to inquire as to the status of the parties desiring to procure a marriage license; that is, whether they were eligible and authorized by law to intermarry. We do not think that his functions in this regard were any more judicial than the registration and recording of a deed, for in such case he would have to pass upon the legality of the acknowledgment, to ascertain and determine whether or not the acknowledgment was such as authorized a registration of the deed. The act itself is only one requiring the exercise of such skill and diligence as appertains to a ministerial office, and we think it clearly comes within the definition given in Rains v. Simpson, 50 Tex. 501, cited by counsel. In our opinion, O. L. Bishop, the officer before whom appellant made the affidavit in question, was authorized to administer the same as the deputy county clerk of Johnson county. Said affidavit was regular in form, and was voluntarily made by the appellant, and the evidence abundantly shows that the same was false, and that he knew it was false when he made it. There being no error in the record, the

judgment and sentence of the lower court is affirmed.

DAVIDSON, J. (dissenting). If a minor can hold the position of deputy to the county clerk (and I am inclined to the opinion that he can), then he can perform all acts and discharge all duties pertaining to the office of county clerk. Rev. St. art. 1146. This authority is conferred by statute upon all deputies of such clerk, without distinction as to age or other qualification, and is coextensive with the authority of the principal as such clerk. If perchance this authority is other than purely ministerial, it is no matter that the deputy is a minor. He can discharge it in the same manner and to the same extent as can his principal. The statute confers no authority upon the principal that is withheld from his deputy. If the deputy cannot exercise authority other than ministerial, it is not by reason of his minority, but because of a want of authority in his principal. The question as to the extent of legislative power conferring authority upon county clerks not purely ministerial is not involved in this case. The judgment is affirmed.

FORD v. STATE.

(Court of Criminal Appeals of Texas. Nov. 27, 1895.)

APPEAL-STATEMENT OF FACTS.

A statement of facts, filed in vacation, without an order of court, does not become a part of the record.

Appeal from district court, Liberty county; L. B. Hightower, Judge.

William Ford was convicted of marking hogs, with intent to defraud, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J. Appellant was convicted of marking hogs, with intent to defraud, and given two years in the penitentiary. The statement of facts was filed in vacation, in the absence of an order entered for that purpose, hence cannot be considered. The only error assigned is predicated on the insufficiency of the evidence to support the judgment. Because the evidence is not before us, the question will not be reviewed. But, if we could entertain the statement of facts incorporated in the record, we think the facts are sufficient to support the verdict and judgment. The judgment is affirmed.

GREEN v. STATE.

(Court of Criminal Appeals of Texas. Nov. 27,

1895.)

LARCENY-INSTRUCTIONS-INTENTION.

An instruction, on a trial for horse theft, that, if the jury had a reasonable doubt as to whether defendant intended to appropriate the horse to his own use when he took it, he was not guilty, sufficiently covered the question of intent at the time of the taking.

Appeal from district court, Harris county: E. D. Cavin, Judge.

Richard Green was convicted of horse theft, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J. This conviction was for horse theft. It is urged, for reversal, that the court failed to charge the jury: "It was their duty to acquit the defendant, unless they believed that the intent to steal the horse in question existed at the very time of the taking of the same, no matter what defendant afterwards did with the horse, and no matter if, after he took the horse, he found such intent." In this connection, the charge given is as follows: "If, from the evidence, you entertain a reasonable doubt whether defendant intended to appropriate the horse to his own use when he took it, if you find he took it, then find him not guilty." This was a pointed, clear, and sufficient charge upon this issue. The evidence is not before us. Hence, we cannot inquire into the sufficiency of the testimony to sustain the conviction. The judgment is affirmed.

GILMORE v. STATE. (Court of Criminal Appeals of Texas. Nov. 27, 1895.)

LARCENY-INSTRUCTIONS.

On a prosecution for theft of a horse, the refusal of an instruction to acquit if defendant, when first accused, gave a reasonable and probably true account of his possession, which was not shown to be false, was not error, where the court directed an acquittal if the jury had a reasonable doubt whether defendant got the horse from the owner to pledge for a loan.

Appeal from district court, Harris county; E. D. Cavin, Judge.

Willie Gilmore was convicted of horse theft, and appeals. Affirmed. Mann Trice, for the State.

HENDERSON, J. The appellant, having been convicted of horse theft, prosecutes an appeal. It is contended that the court erred in failing to instruct the jury "that when the defendant, when first accused of the theft of the horse, gave a statement that was reasonable, and probably true, it was the duty of the state to show that said statement was false, and, unless so shown, it was their duty to acquit." Upon this phase of the case the jury were instructed as follows: "If you entertain a reasonable doubt whether the defendant got the said horse from one John Harris for the purpose of pawning him or borrowing money, and giving the horse as security for its payment, then find him not guilty." This charge submits the law pointedly to the issue made by appellant's ex

culpatory statement, by which he sought to account for his possession of the stolen horse. The evidence amply supports the verdict of the jury, and the judgment is affirmed.

TATE v. STATE.

(Court of Criminal Appeals of Texas. Nov. 27, 1895.)

HOMICIDE

CONTINUANCE-EVIDENCE-INSTRUC-
TIONS-ON SELF-DEFENSE.

1. An indictment was returned in November. In the following March an attachment for a witness was issued, and returned unexecuted; and a second one, issued May 16th for the witness and her husband, was thereafter returned executed as to the husband, but not as to her. Held, that a motion for continuance, made May 28th, for absence of the witness, was properly denied for want of diligence.

2. A continuance of a trial for murder for absence of a witness was properly denied where the affidavit showed that the witness would testify that deceased, who, it was admitted, struck the first blow, struck without provocation, and that he was in the act of drawing a weapon when shot, but did not state what the witness would testify to, or that there were facts to support the conclusion that the blow was struck without provocation, and other witnesses, nearer the parties when the shooting occurred, testified that they could not hear what was said, and an examination made immediately after the killing showed no weapon on deceased, or on the ground near him.

3. On a prosecution for murder, a witness for the state could testify that he believed that he recognized defendant as one of several persons who came to his home to borrow a pistol the night before the murder.

4. On a prosecution for murder, a witness for the state, after testifying to the positions of the deceased and defendant relative to himself and to each other, could state that from his position he could have seen any weapon in deceased's hands, and that he saw none.

5. On a prosecution for murder, a witness for defendant cannot testify as to the cause of the absence of his wife, who was attached as a witness, where her absence was not referred to by the prosecution.

6. On a prosecution for murder, an instruction to find defendant guilty of murder in the second degree if the jury have a reasonable doubt as to the degree, and of manslaughter if they have a reasonable doubt as to whether he is guilty of murder in the second degree, on implied malice, or of manslaughter, was proper.

7. Where, on a prosecution for murder, there is evidence that deceased struck the first blow, but that defendant had a grudge against him, and purposely met him, and that some time elapsed after the meeting before the striking of the blow, during which defendant may have said something not heard by witnesses, to start the difficulty, it is proper to charge that defendant cannot plead self-defense if he provoked the difficulty.

Appeal from district court, Comal county; Eugene Archer, Judge.

Dave E. Tate was convicted of murder in the second degree, and appeals. Affirmed. W. O. Hutchison and J. D. Guinn, for appellant. Mann Trice, for the State.

HENDERSON, J. Appellant was tried in the district court of Comal county on an indictment charging him with murder, was convicted of murder in the second degree, and

his punishment assessed at confinement in the penitentiary for 15 years; and from the judgment and sentence of the lower court he prosecutes this appeal.

Appellant's first bill of exceptions relates to the overruling by the court of his motion for a continuance. Appellant sought to continue the case on account of the absence of one Mrs. W. E. Tucker, alleged to reside in Brazoria county, Tex. As to the question of diligence, we observe that the indictment in this case was presented on the 13th day of November, 1893, and no effort appears to have been exerted to procure the attendance of this witness until the 14th day of March, 1894, when an attachment issued for her to Brazoria county, Tex., at the instance of appellant. This was returned executed as to

some of the witnesses named in said attachment, but no return was made as to Mrs. Tucker. On the 16th day of May, thereafter, another attachment was issued to said Brazoria county for this witness, and also for others. It was executed as to the husband of Mrs. Tucker, but there was no return as to Mrs. Tucker. The case was tried on the 28th day of May. This was not sufficient diligence. If, however, we are permitted to look beyond the motion for a continuance, and the bill of exceptions connected therewith, we find in another portion of the record that appellant proposed to prove before the jury, by the husband of the absent witness, that she was enceinte, and not able to be brought into court. Then the question occurs, is the testimony of this absent witness of such material character as to have authorized a continuance of the case, or to have invoked the action of the court in the granting of a new trial? The bill of exceptions as to the testimony of this witness shows that she would testify that deceased struck the appellant the first blow. This, as we understand it, was not a controverted issue in the case. All of the state's witnesses who spoke on this point testified to the same effect. It is further stated that it is expected to prove by this witness that this blow was struck without provocation on the part of appellant. This statement is rather a conclusion or opinion on the part of the witness, without the statement of any fact within her knowledge as to what was being said or done between the parties at the commencement of the difficulty. The record shows that this witness was at least 75 yards from the parties at the time of the homicide. Others were nearer, and with equal facilities for seeing and hearing, and while they testify that words passed between the parties when they first met, and before the deceased was heard to talk in a loud tone of voice, yet they were unable to relate what was said between the parties; and in the absence of some statement in the application that this witness heard and understood the language used by the parties when they met, or saw and understood all the acts of the parties at that time, we cannot as

sume, under the general allegation that the first blow was struck without provocation, that she saw or heard acts or words not stated in the application, and not testified to by other witnesses, with better opportunities than the absent witness. Appellant also states that he expects to prove by said absent witness that at the time he shot deceased the deceased was in the act of attempting to draw a weapon from his pocket. Much of what was said in regard to the last-mentioned testimony is applicable to this; and, in addition, we believe that, if said witness would testify as stated in the face of the record in this case, such evidence could not be regarded as probably true, as a number of persons went to the scene of the killing immediately, and no weapon was found on his person, nor about there, on the ground. In our opinion, the court correctly overruled the application for a continuance, and did not err in overruling the motion for a new trial on the grounds stated in appellant's motion for a continuance.

Appellant objects to the testimony of state's witness Brice, who stated that, in his judgment and belief, he recognized appellant at his house, with several of the Tate boys, about 11 o'clock, the night before the homicide, who came there to borrow a pistol. This testimony, in our opinion, was admissible; and the fact that the witness could not be absolutely certain in his indentification of appellant only went to the weight of his evidence, and not to its admissibility.

Appellant also insists that the court committed an error in permitting the state's witness Valentine Eberhard to state that he was in a position to see if deceased had anything in his hands during the time of the difficulty with appellant, and that he did not see anything. This witness had already related all that he had seen and heard between the parties at and during the time of the difficulty; had stated his position with reference to them, and their relative positions with reference to each other, together with all the surroundings; and we see no error in the court's permitting him to state that he was in such a position that he could see any weapon that the deceased may have had, and that he saw none. The same view expressed with reference to this testimony holds good to the objection made to the testimony of the witness Albert Satler, who was permitted to state that, if any weapons had been on the ground where the difficulty occurred, he would have seen them.

To our minds, clearly, the testimony offered by appellant to prove before the jury, by Tucker, that his wife was enceinte. and not able to attend court, was inadmissible. So far as we are advised by the record, no comment or criticism was made by the state as to the absence of said witness. No reason is shown why such testimony should have been adduced before the jury.

The appellant contends that the court erred

in its charge on reasonable doubt between murder of the first and second degrees, and urges that the same, by its verbiage, was liable to strip the appellant of his rights under the charge on manslaughter. We have carefully examined the charge of the court in this regard, and it tells the jury, in as plain words as the English language can convey, that if they believe the appellant guilty of murder, and have doubt as to the degree thereof, to find the appellant guilty of murder in the second degree; and then tells the jury that if they have a reasonable doubt as to whether appellant is guilty of murder in the second degree, upon implied malice, or of manslaughter, to find the appellant guilty of manslaughter. In this we fail to see on what grounds the appellant can complain.

The appellant urges that the court committed an error, after charging the jury on selfdefense, in telling them that, if the appellant provoked the difficulty, he cannot avail himself of the right of self-defense. He also complains that the court, in giving certain charges prepared by appellant on the subject of self-defense, limited said charges by the charge on provoking a difficulty by appellant. The court gave in charge to the jury the ordinary charge on self-defense, as applicable to the particular facts of this case, and then, in a subsequent portion of the charge, in a different section, he gave a charge on self-defense, and limited the same by a charge on provoking a difficulty by appellant. Afterwards the court gave two charges on the subject of self-defense asked by appellant, and limited the same by reference to his charge on the provocation of the difficulty, as contained in subdivision 30 of the court's charge. If the facts of this case authorized a charge on provoking a difficulty, then there was no error in the court's giving said charge in the way in which it was given. Thuston v. State, 21 Tex. App. 245, 17 S. W. 474.

The facts of this case show a peculiar condition of things. No witness, save the appellant, who testified in his own behalf, was near enough to hear the conversation immediately preceding the homicide, although this occurred not more than 50 yards from the gin house, near which were several witness

The appellant himself testifies positively as to how the difficulty began. He stated: That he started from the gin house to go to his brother's house, some 200 or 300 yards distant. That at the junction of the two paths, some 50 yards from the gin, he met deceased. He spoke to him by nodding or bowing his head. Deceased said, "Hello, you son of a bitch!" Appellant said, "You ought not to call me a son of a bitch because you are a better man, for it is hard to take." Deceased said, "You will have to take it," and then struck appellant a blow with his fist in the face. Deceased then picked up a rock, and threw it at appellant, who dodged it; and then appellant drew his pistol, and