began firing at deceased. The fight then continued until appellant fired the third shot, which caused the death of deceased. If this version be correct,-that is, if this was a casual meeting, as appellant's testimony shows, -then the homicide was justifiable, and no charge was called for, except one of pure and simple self-defense, uncontrolled by any charge on provoking the difficulty. But there was other testimony in the case upon this issue; and the fact that it was of a circumstantial character does not alter its effect, as appellant seems to think, if such testimony was sufficient to raise the issue of provok- | ing the difficulty on the part of appellant. Let us review briefly some of the facts bearing upon this proposition, and shedding light upon it. The deceased had assaulted and beat Jack Tate, a younger brother of appellant, on the evening before the homicide. Appellant was informed of this late in the evening of the day on which it occurred. Its effect was to anger and embitter appellant against deceased. On that night, about 11 o'clock, appellant and some of his brothers went to the house of a witness in the vicinity, and endeavored to borrow a pistol, stating that J. Nowatney, the deceased, "had beat up Jack, and they were going down to see about it." They failed to get the pistol. Early the next morning, appellant leaves his father's house (about a mile and a quarter distant), and goes to the gin, where he knows deceased is engaged at work; and the first thing he does is to go into the back room of a store situated close by, and there, without leave or license of the owner, he privately arms himself with a pistol. He then went over to the gin. The deceased had not yet arrived, as it was only about sunup. Then appellant engaged in a conversation with one. Brewer, a witness in the case, and tells him about the deceased mistreating his brother. In a short while the deceased was seen approaching the gin. The deceased was in his shirt sleeves, evidently ready for his day's work. The appellant did not wait for his arrival, but went out in the direction the deceased was coming, and met him about 30 yards from the gin. The witnesses who saw them meet say they talked quietly at first, and they could not distinguish what was said between them, but directly they heard deceased say, "Damn lie!" and "Damn son of a bitch!" and then deceased struck appellant, who then drew his pistol and began firing. Deceased retreated to a live oak tree near by, and appellant pursued him, ran him around the tree several times, firing two more shots at him. The third shot struck deceased in the stomach, and he fell near the tree. Appellant then ran off. Some of the witnesses say that, during the difficulty, deceased threw one or more rocks at appellant. The crucial point in this case, as stated before, is, who began the difficulty? and did

the testimony justify the court in submitting to the jury, in connection with the charge on self-defense, a charge limiting appellant's right of self-defense, in case they should believe that he provoked the difficulty; and in this connection the circumstances preceding the difficulty, above summarized, serve to illustrate and characterize the acts of appellant at the very time of the meeting, in the path, between him and deceased. Appellant says deceased called him a "damn son of a bitch" as soon as they met. Some of the witnesses heard this expression, but two at least say that for a little while prior thereto the parties talked together quietly, and they then heard the expressions, "Damn lie!" "Damn son of a bitch!" The inquiry suggests itself, what brought this about? What caused these expressions of deceased? In order to solve this question, we can appeal to the antecedent acts and conduct of the parties. The appellant had a grudge against the deceased. So far as we know, the deceased had none. The appellant was armed and prepared for the conflict. The deceased was not, and, being in his shirt sleeves, appellant I could almost be assured of this fact. Deceased was at his place of business. Appellant had gone there on the morning in question under a very thin and shallow pretext. Prudence would have suggested, if he was apprehensive of a difficulty with deceased, to have remained at the gin; but instead, as soon as the deceased is seen approaching, he goes out to meet him. Who, under the circumstances, was most likely to have accosted the other, and to have then done some act calculated to provoke a difficulty? Is it not the most reasonable conclusion that appellant, when he met deceased, demanded of him redress for the assault made on his brother on the day before? He was seeking him on the night of the assault with that object in view, and what evidence is there in the record that he had relinquished his purpose? Absolutely none. On the contrary, all the evidence indicates that his intent in that direction was leading him on with added momentum. And on what hypothesis can the language of deceased, first heard by the witnesses, be accounted for, except that appellant, when he first met the deceased and engaged him in a conversation, and when the witnesses say they were talking quietly, denounced the deceased for abusing his brother, who in turn called him a "damn liar"? Such, in our opinion, from the evidence in this case, was the origin of the difficulty. This was the phase of the case for the state, as presented in the evidence, and the court did not err in submitting the same to the jury, in connection with the charge on self-defense; and, the jury having found a verdict based on this theory of the case, we see no reason to disturb it. The judgment is accordingly affirmed.

WAGNER v. STATE.

in the charge of the court, and we recommend this form of charge under such a state

1895.)

REVIEW ON APPEAL ASSAULT WITH INTENT TO MURDER-INSTRUCTIONS.

1. Rulings on the admission of testimony cannot be reviewed, in the absence of a bill of exceptions.

2. Where, on a trial for an assault with intent to murder, it appeared that defendant and the prosecutrix were alone in a room at the time of the shooting, defendant testifying that such shooting was accidental, a charge that, if the jury had a reasonable doubt as to whether the pistol was discharged accidentally, they should acquit, affords no ground for complaint.

3. A charge that, if defendant intentional

ly and unlawfully, with malice aforethought, shot the prosecutrix with a pistol, with intent to kill her, he would be guilty of an assault with intent to murder, embraces every element of an assault, and is correct.

were in a few feet of each other. The prosecutrix was shot. The question of ability to commit a battery was not in this case. The appellant could not have shot his wife with intent to kill, with malice aforethought, without intending a battery, and committing a battery. The violence was unlawful. Hence, as we have said above, all the elements of an assault and an assault and battery were included in the charge. The evidence is amply sufficient to show that this shooting was.

intentional, and no accident. The judgment

is affirmed.

SUMMERS v. STATE.

Colonel Wagner was convicted of an assault with intent to murder, and appeals. Affirmed.

Thompson & Carter, for appellant. Mann Trice, for the State.

DAVIDSON, J. Appellant was convicted of an assault with intent to murder, and his punishment assessed at two years' confinement in the penitentiary. From the judgment and sentence of the lower court he prosecutes this appeal. The indictment in this case is in the usual form, charging appellant

with an assault with intent to kill and murder, and is sufficient. The supposed errors of the court in regard to the admission and rejection of testimony cannot be revised, because no bills of exception were reserved to the rulings of the court. Appellant was the husband of the prosecutrix, the woman who was shot. She and her husband were in the room together, no other person being present. Witnesses went to the scene of the shooting immediately afterwards, and found them there, and the woman wounded. Appellant contends, and so testified, that the shooting was accidental, and complains of the court's charge in regard to this matter. The court instructed the jury that, if they had a reasonable doubt as to whether the pistol was discharged accidentally, they should acquit the appellant. The court's charge was correct, and a direct application of the law to this phase of the case. It is also contended that the charge is defective because it does not define an assault. The court charged the jury that, if appellant intentionally and unlawfully, with malice aforethought, shot Hattie Wagner with a pistol, with intent to kill her, he would be guilty of an assault with intent to murder. It cannot be questioned that, if this be the case, appellant would be guilty of an assault with intent to murder. There was no necessity, under the facts of this case, of defining an assault. Every element of an assault was embraced

1895.)

CONTINUANCE-ABSENT WITNESSES-ASSAULT WITH INTENT TO MURDER-INSTRUCTIONS.

1. A second application for continuance was properly refused, it appearing that the absent witnesses were present at the preceding term, but that no process had been issued for them since, and no reason assigned for the neglect.

2. On a trial for assault with intent to murder, the fact that the prosecutor used insulting language to defendant does not warrant an instruction on a hypothetical case of manslaughter and aggravated assault; the offense charged not having been committed at the time the words were spoken.

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

Ed. Summers was convicted of an assault with intent to murder, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J. Appellant was convicted of an assault with intent to murder, and his punishment assessed at three years' confinement in the penitentiary. From the judgment and sentence of the lower court he prosecutes this appeal. Appellant moved to postpone the case in order to procure the testimony of two witnesses, viz. Dreyer and Oneal. This is a second application. Court began on the 3d day of June, 1895. The case was called for trial on the 7th day of June, 1895. The application alleges that the witnesses were present at the last term of court in obedience to subpoena, and there was no process issued for these witnesses after that, and no reason given why attachments were not issued. This diligence is not sufficient, under the facts of this case. It was the duty of appellant to ascertain whether or not his witnesses were present before the day on which the cause was called for trial. Again, on the first application, this cause was continued for want of the testimony of Levill Russell, by whom the appellant stated that he expected to prove the same facts set forth in the last application. Russell was placed on the stand, and swore to some

facts proved by the state, but did not swear that the prosecutor was in the act of making an assault upon appellant at the time he shot him, or was doing anything tending to show an intent to assault him. When considered in the light of the testimony of the witnesses who were present, and that appellant was confident of proving by Russell the facts sought to be proved by the absent witnesses, and failed to do so, we are of the opinion that the absent witnesses would not have sworn to the facts set forth in the application, and, if they had, there is no probability that their testimony would be true. There was no error in overruling the motion to postpone the case.

Appellant requested the court to instruct the jury on a hypothetical case of manslaughter and aggravated assault, death not ensuing. The facts do not raise the question of aggravated assault and battery in this case. If it be that the prosecutor used insulting language about the mother of defendant, he should have acted at the time, the language having been used in his presence, and to him. There was nothing else in the case presenting manslaughter, and therefore no aggravated assault and battery. The judgment is affirmed.

McDADE v. STATE.

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

AGGRAVATED ASSAULT AND BATTERY-SUFFICIENCY OF EVIDENCE.

Evidence that defendant went to the residence of a woman, and, after talking awhile, commenced to flourish a pistol; that, on her fleeing, he pursued, and said, "Stop, or I will fill your house with smoke"; and that, as she entered her kitchen and was closing the door, he fired, the ball passing through the door and entering her thigh,-supports a conviction of aggravated assault and battery.

the door, entered her thigh and broke the bone. The jury were very lenient in their verdict. The judgment is affirmed.

ZAMORA v. STATE:

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

CRIMINAL LAW-APPEAL-STATEMENT OF FACTSPRESUMPTIONS.

1. Absence of a statement of facts in the record is not excused by affidavit that the clerk refused to file it, it appearing that it had not been approved by the trial judge.

2. In the absence of the testimony, it will be presumed that a requested instruction was properly refused, especially where the court certifies that there was no evidence to authorize it. Appeal from district court, Hidalgo county; J. C. Russell, Judge.

Ramon Zamora appeals from a conviction. Affirmed.

L. R. Wren, for appellant. Mann Trice, for the State.

DAVIDSON, J. This conviction was for horse theft. A statement of the facts is not incorporated in the record. Appellant files the affidavit of his counsel here, accounting for the omission. It states, in substance, that court adjourned on the 11th of March; that he prepared and forwarded to the district attorney, then in another county, on the 18th day of March, a statement of facts for his revision and agreement; that said statement was returned to appellant's counsel on the 26th day of the same month, unsigned by the district attorney, and not approved by the trial judge; and that he presented it to the clerk of the court for filing, who declined to do so. It was never presented to the trial judge for his approval. There was an utter want of diligence to secure a statement of facts manifested by this

Jack McDade appeals from a conviction. Affirmed.

Mann Trice, for the State.

DAVIDSON, J. Appellant, under an indictment charging him with assault with intent to murder, was convicted of aggravated assault and battery, and fined in the sum of $200. His only contention on appeal is that the evidence is insufficient to support the verdict of the jury. We do not think so. testimony discloses that he went to the residence of the assaulted woman, and, after talking to her a short while, began flourishing his pistol. The woman, becoming alarmed, fled. He pursued, and said to her, "Stop, or I will fill your house with smoke." Just as the fleeing woman entered her kitchen and was closing the door behind her, appellant tired upon her. The ball, passing through

discussed and decided that we deem it unnecessary to do so here. For such discussion, among others, see the following cases: Hutchins v. State, 33 Tex. Cr. R. 298, 26 S. W. 399; Suit v. State, 30 Tex. App. 319, 17 S. W. 458; George v. State, 25 Tex. App. 229, 8 S. W. 25; Spencer v. State, 25 Tex. App. 585, 8 S. W. 648; Farris v. State, 26 Tex. App. 105, 9 S. W. 487. The action of the clerk was correct, and in strict accord with his legal duty. He had no authority to file the paper as presented. It was not approved by the judge, and was not a paper belonging to the cause.

The record contains neither a motion for a new trial, nor an assignment of errors. In the absence of the testimony, we must presume the action of the court was correct in refusing to give the instruction requested by appellant, especially as the court certifies there was no evidence to authorize it. The judgment is affirmed.

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

INDICTMENT CHARGING SEVERAL OFFENSES CRIMINAL LAW COMPELLING STATE TO ELECT AS TO COUNTS- CONFESSION-TESTIMONY ON PRELIMINARY EXAMINATION - CONSPIRACY - ABANDONMENT.

1. Under Code Cr. Proc. art. 433, providing that an indictment may contain several counts charging the same "offense," a count for burglary and conspiracy to commit the burglary may be joined.

2. Where the evidence shows that only one criminal transaction is involved, the state will not be compelled to elect on which of several counts it will rely.

3. The accused need not be told, on his preliminary examination, that he need not testify unless he chooses to do so, to render his testimony voluntarily given admissible against him.

4. The fact that a person, after entering into an agreement with another to commit a burglary, withdraws from the transaction, does not prevent his conviction for the conspiracy.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Steve Dill was convicted of conspiracy, and appeals. Affirmed.

Mann Trice, Asst. Atty. Gen., for the State.

HURT, P. J. The indictment in this case contains two counts; the first for burglary, the second for conspiracy to commit the same burglary. Appellant was convicted for the conspiracy. After the state had closed its evidence, counsel for appellant moved the court to compel the district attorney to elect upon which count the state would prosecute. This motion was denied, and appellant excepted, reserving a bill. The evidence disclosed that the conspiracy or agreement was to commit the burglary charged in the first count. Now, while it is true that the offense called "conspiracy" was complete when the positive agreement was made between appellant and W. D. Dill to commit the burglary, and it is also true that the burglary and the conspiracy to commit the same are distinct offenses, still they may constitute but one criminal transaction. Our statute (article 433, Code Cr. Proc.) provides that an indictment or information may contain as many counts charging the same offense as the attorney who prepares it may think necessary to insert. If the statute means when it says "the same offense" that the offenses must be technically the same, then theft and swindling cannot be inserted in the same indictment, in separate courts, nor can theft and receiving the stolen property, nor rape and incest, because, technically, they are separate and distinct offenses. We understand the meaning of the word "offense," as used in this statute, to be the same criminal transaction. This being so, the rule is that counts may be joined in the same indictment to meet the various aspects in which the evidence may present itself. And if it appears, after the

case of the state is presented on the trial of the prisoner, that there is no more than one criminal transaction involved, the court will not restrict the prosecution to particular counts. People v. Austin, 1 Parker, Cr. R. 151. Of course, the rule that the court shall give in charge to the jury the law applicable to the case would restrict the court (if there was no evidence tending to support a count or counts) to that count or counts which have support in the evidence.

There was an examination into this crim

inal transaction before a justice of the peace. The appellant was asked if he desired to make a statement. He answered that he did not. After the testimony for the state was in, the justice asked the appellant if he wished to take the stand in his own behalf. "He said he did." He was then sworn, and testified in the case. Over the appellant's objection, the state proved by the justice and others the statements made in his evidence before the examining court. The objections urged to the admission in evidence of the testimony given by appellant before the justice were: "First, because the appellant was in custody, and was not cautioned; second, because his statements were not voluntary, he not being told that he could testify if he wished, but that he did not have to testify unless he desired to do so." To the first objection, if the accused voluntarily testifies for himself, his statements are admissible against him on a subsequent trial, whether he was or was not in arrest or cautioned. If, however, he did not make a statement, or testify voluntarily, neither the statement nor the testimony is evidence against him. We are not aware of any rule requiring the magistrate or the court to inform the prisoner that he could testify if he wished, but that he did not have to testify unless he desired to do so. As to whether appellant became a witness voluntarily, or did so because the magistrate told him to do so, there is some conflict in the testimony. The court, however, submitted this matter to the jury, telling them, in effect, not to use as evidence against the prisoner his testimony given before the magistrate, unless they believed that he voluntarily became a witness for himself.

Counsel for appellant requested the court to give to the jury this charge: "If you believe from the evidence that the defendant, Steve Dill, agreed and conspired with W. D. Dill to burglarize the store of R. J. Waters, but before the defendant or W. D. Dill did any act to carry out said agreement Steve Dill revoked and abandoned his part of the agreement, and told said W. D. Dill that he (Steve Dill) would have nothing to do with said contemplated burglary, then the defendant in that case would not be guilty." If this instruction was intended to be applied to the burglary, then the refusal worked no injury to appellant, because he was acquitted of that offense. If it had reference to the con

of a bill of exceptions.

THOMAS v. STATE.

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

CRIMINAL LAW-APPEAL-REVIEW.

The question as to whether the conviction is contrary to the evidence cannot be reviewed where the record does not contain a statement of the facts proved on the trial.

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

Andrew Thomas was convicted of keeping a disorderly house, and appeals. Affirmed. Mann Trice, Asst. Atty. Gen., for the State.

HURT, P. J. Appellant prosecutes this appeal from a conviction for keeping a disorderly house. It is contended that the conviction is contrary to the evidence. The record before us does not contain a statement of the facts proved on the trial; hence we cannot revise the question presented. The presumption obtains that the testimony was sufficient to support the finding of the jury. The judgment is affirmed.

COUNTEE v. STATE.

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

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CRIMINAL LAW -APPEAL - REVIEW-FORGERY RATIFICATION OF SIGNATURE-INSTRUCTIONS. 1. Action of the court in refusing a continuance cannot be reviewed unless a bill of exceptions is reserved.

2. A defendant may be convicted of forgery, though the person whose name was forged ratified defendant's act.

3. Where the court has already instructed that the law presumes a person innocent until his guilt is proven by legal evidence, beyond a reasonable doubt, to the satisfaction of the jury, and, if the jury have such a doubt of the guilt of appellant, they should acquit him, it is not error to refuse further instructions as to the presumption of innocence and reasonable doubt.

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

R. L. Countee was convicted of forgery, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J. Appellant was convicted of forgery, and his punishment assessed at two years' confinement in the penitentiary.

A motion to continue the cause was made by appellant, which was overruled. No bill of exceptions was reserved to the action of the court in overruling said motion. This

Appellant requested the court to instruct the jury, in substance, that if Alfred Countee, the person whose name was forged to the instrument, did not sign or authorize the same to be signed, yet, if he ratified the action of the person who did sign it, to acquit the appellant. This requested instruction is not law, and the court did not err in refusing to give it in charge to the jury. The second instruction is to the same import. The third has reference to the intent to defraud. The court's charge was amply sufficient on this element of the crime.

Appellant requested the court to instruct the jury on the presumption of innocence, and reasonable doubt as to his guilt. This was refused, evidently because the court had already instructed the jury "that the law presumes every person accused of crime to be innocent until his guilt is established by legal evidence, beyond a reasonable doubt, to the satisfaction of the jury, and, if the jury have such a doubt of the guilt of appellant, they should acquit him." This is a very clear case of forgery, and no error was comImitted which would authorize us to disturb the verdict of the jury. The judgment is affirmed.

INTERNATIONAL & G. N. R. CO. v. HALL. (Court of Civil Appeals of Texas. Dec. 11, 1895.)

RAILROADS-NEGLIGENCE-INSTRUCTIONS-JUDGMENT-REVERSAL.

1. In an action for the killing of a jack, there was evidence that it was struck and carried on the pilot of the engine 100 yards or more, and testimony of the engineer that the accident occurred about 8:40 p. m.; that he first saw the animal, when 50 yards from it. when the train was running 30 miles an hour; that he applied the air brakes; that the fact that the animal was close to the end of a bridge rendered it impossible to see it until close upon it, though the headlight was burning brightly. Held error to submit the evidence to the jury.

2. A judgment on a general verdict for plaintiff, in an action against a railroad for death of stock, must be reversed where plaintiff based his right to recover on the ground of negligence of defendant's employés, and also defendant's failure to maintain a sufficient fence, and the issue of negligence of employés was improperly submitted to the jury, though the evidence supports the verdict on the other issue.

3. It is error to submit an issue to the jury on evidence on which a verdict, if found, would have to be set aside.

Appeal from Hays county court; Ed R. Kone, Judge.

Suit by Zack R. Hall against the International & Great Northern Railroad Company, for damages for the killing of his jack by negligently running defendant's passenger locomotive over him. Trial by jury. Verdict and judgment for plaintiff for $800, with 6 per cent. interest from the 16th day of De