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began firing at deceased. The fight then con- the testimony justify the court in submitting tinued until appellant fired the third shot, to the jury, in connection with the charge which caused the death of deceased. If this on self-defense, a charge limiting appellant's version be correct,—that is, if this was a cas- right of self-defense, in case they should beual meeting, as appellant's testimony shows, lieve that he provoked the difficulty; and in --then the homicide was justifiable, and no this connection the circumstances preceding charge was called for, except one of pure the difficulty, above summarized, serve to and simple self-defense, uncontrolled by any illustrate and characterize the acts of appelcharge on provoking the

the difficulty. But lant at the very time of the meeting, in the there was other testimony in the case upon path, between him and deceased. Appellant this issue; and the fact that it was of a cir- says deceased called him a "damn son of a cumstantial character does not alter its effect, bitch” as soon as they met. Some of the as appellant seems to think, if such testimo- witnesses heard this expression, but two at ny was sufficient to raise the issue of provok- least say that for a little while prior thereto ing the difficulty on the part of appellant. the parties talked together quietly, and they Let us review briefly some of the facts bear- then heard the expressions, “Damn lie!" ing upon this proposition, and shedding light “Damn son of a bitch!" The inquiry suggests upon it. The deceased had assaulted and itself, what brought this about? What caused beat Jack Tate, a younger brother of appel- these expressions of deceased? In order to lant, on the evening before the homicide. solve this question, we can appeal to the anAppellant was informed of this late in the tecedent acts and conduct of the parties. evening of the day on which it occurred. The appellant had a grudge against the deIts effect was to anger and embitter appel- ceased. So far as we know, the deceased lant against deceased. On that night, about had none. The appellant was armed and 11 o'clock, appellant and some of his brothers prepared for the conflict. The deceased was went to the house of a witness in the vicini.

not, and, being in his shirt sleeves, appellant ty, and endeavored to borrow a pistol, stat- could almost be assured of this fact. Deing that J. Nowatney, the deceased, "had ceased was at his place of business. Appelbeat up Jack, and they were going down to lant had gone there on the morning in quessee about it." They failed to get the pistol. tion under a very thin and shallow pretext. Early the next morning, appellant leaves his Prudence would have suggested, if he was father's house (about a mile and a quarter apprehensive of a difficulty with deceased, to distant), and goes to the gin, where he knows have remained at the gin; but instead, as deceased is engaged at work; and the first soon as the deceased is seen approaching, he thing he does is to go into the back room of goes out to meet him. Who, under the cira store situated close by, and there, without | cumstances, was most likely to have accosted leave or license of the owner, he privately the other, and to have then done some act arms himself with a pistol. He then went calculated to provoke a difficulty? Is it not over to the gin. The deceased had not yet the most reasonable conclusion that appelarrived, as it was only about sunup. Then | lant, when he met deceased, demanded of appellant engaged in a conversation with one bim redress for the assault made on his Brewer, a witness in the case, and tells him brother on the day before? He was seeking about the deceased mistreating his brother. him on the night of the assault with that obIn a short while the deceased was seen ap- ject in view, and what evidence is there in proaching the gin. The deceased was in his the record that he had relinquished his purshirt sleeves, evidently ready for his day's | pose? Absolutely none. On the contrary, work. The appellant did not wait for his ar- all the evidence indicates that his intent in rival, but went out in the direction the de- that direction was leading him on with added ceased was coming, and met him about 30 momentum. And on what hypothesis can yards from the gin. The witnesses who saw the language of deceased, first heard by the them meet say they talked quietly at first, witnesses, be accounted for, except that apand they could not distinguish what was pellant, when he first met the deceased and said between them, but directly they heard engaged him in a conversation, and when the deceased say, "Damn lie!" and "Damn son witnesses say they were talking quietly, deof a bitch!" and then deceased struck appel- nounced the deceased for abusing his brotuer, lant, who then drew his pistol and began who in turn called him a "damn liar"? Such, firing. Deceased retreated to a live oak tree in our opinion, from the evidence in this case, near by, and appellant pursued him, ran him was the origin of the difficulty. This was around the tree several times, firing two more the phase of the case for the state, as preshots at him. The third shot struck deceased sented in the evidence, and the court did in the stomach, and he fell near the tree. not err in submitting the same to the jury, Appellant then ran off. Some of the wit- in connection with the charge on self-defense; nesses say that, during the difficulty, de- and, the jury having found a verdict based ceased threw one or more rocks at appellant. on this theory of the case, we see no reason The crucial point in this case, as stated be- to disturb it. The judgment is accordingly fore, is, who began the difficulty? and did affirmed.

in the charge of the court, and we recomWAGNER v. STATE.

mend this form of charge under such a stare (Court of Criminal Appeals of Texas. Nov. 27, of facts as this. In this case the parties. 1895.)

were in a few feet of each other. The prosREVIEW ON APPEAL – ASSAULT WITH INTENT TOecutrix was shot. The question of ability to MURDER-INSTRUCTIONS.

commit a battery was not in this case. The 1. Rulings on the admission of testimony appellant could not have shot his wife with cannot be reviewed, in the absence of a bill of intent to kill, with malice aforethought, withexceptions.

2. Where, on a trial for an assault with in- out intending a battery, and committing a. tent to murder, it appeared that defendant and battery. The violence was unlawful. Hence, the prosecutrix were alone in a room at the time as we have said above, all the elements of of the shooting, defendant testifying that such shooting was accidental, a charge that, if the

an assault and an assault and battery were: jury had a reasonable doubt as to whether the included in the charge. The evidence is ampistol was discharged accidentally, they should ply sufficient to show that this shooting was. acquit, affords no ground for complaint.

3. A charge that, if defendant intentional intentional, and no accident. The judgment ly and unlawfully, with malice aforethought, is affirmed. 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.

SUMMERS v. STATE. Appeal from district court, Harris county;

(Court of Criminal Appeals of Texas. Nov. 27, E. D. Cavin, Judge.

1895.) Colonel Wagner was convicted of an as

CONTINUANCE-ABSENT WITNESSES-ASSAULT WITH sault with intent to murder, and appeals.

INTENT TO MURDER-INSTRUCTIONS. Affirmed.

1. A second application for continuance was Thompson & Carter, for appellant. Mann

properly refused, it appearing that the absent

witnesses were present at the preceding term, Trice, for the State.

but that no process had been issued for them

since, and no reason assigned for the neglect. AVIDSON, J. Appellant was convicted

2. On a trial for assault with intent to mur

der, the fact that the prosecutor used insulting of an assault with intent to murder, and his language to defendant does not warrant an inpunishment assessed at two years' confine- struction on a hypothetical case of manslaughment in the penitentiary. From the judg

ter and aggravated assault; the offense charged

not having been committed at the time the ment and sentence of the lower court he pros

words were spoken. ecutes this appeal. The indictment in this case is in the usual form, charging appellant

Appeal from district court, Harris county; with an assault with intent to kill and mur

E. D. Casin, Judge.

Ed. Summers was convicted of an assault der, and is sufficient. The supposed errors

with intent to murder, and appeals. Afof the court in regard to the admission and

firmed. rejection of testimony cannot be revised, because no bills of exception were reserved to Mann Trice, for the State. the rulings of the court. Appellant was the husband of the prosecutrix, the woman who DAVIDSON, J. Appellant was convicted was shot. She and her husband were in the of an assault with intent to murder, and room together, no other person being present. his punishment assessed at three years' conWitnesses went to the scene of the shooting finement in the penitentiary. From

From the immediately afterwards, and found them judgment and sentence of the lower court there, and the woman wounded. Appellant he prosecutes this appeal. Appellant moved contends, and so testified, that the shooting to postpone the case in order to procure the was accidental, and complains of the court's testimony of two witnesses, viz. Dreyer and charge in regard to this matter. The court Oneal. This is a second application. Court instructed the jury that, if they had a rea- began on the 3d day of June, 1895. The case sonable doubt as to whether the pistol was was called for trial on the 7th day of June, discharged accidentally, they should acquit 1895. The application alleges that the witthe appellant. The court's charge was cor- nesses were present at the last term of court rect, and a direct application of the law to in obedience to subpoena, and there was no this phase of the case. It is also contended process issued for these witnesses after that, that the charge is defective because it does and no reason given why attachments were not define an assault. The court charged not issued. This diligence is not sufficient, the jury that, if appellant intentionally and under the facts of this case. It was the unlawfully, with malice aforethought, shot duty of appellant to ascertain whether or Hattie Wagner with a pistol, with intent to not his witnesses were present before the kill her, he would be guilty of an assault day on which the cause was called for trial. with intent to murder. It cannot be ques- Again, on the first application, this cause tioned that, if this be the case, appellant was continued for want of the testimony of would be guilty of an assault with intent to Levill Russell, by whom the appellant statmurder. There was no necessity, under the ed that he expected to prove the same facts facts of this case, of defining an assault. set forth in the last application. Russell Every element of an assault was embraced was placed on the stand, and swore to some facts proved by the state, but did not swear the door, entered her thigh and broke the that the prosecutor was in the act of mak- bone. The jury were very lenient in their ing an assault upon appellant at the time verdict. The judgment is affirmed. 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

ZAMORA V. STATE: appellant was confident of proving by Rus

(Court of Criminal Appeals of Texas. Nov. 27, sell the facts sought to be proved by the ab

1895.) sent witnesses, and failed to do so, we are

CRIMINAL LAW-APPEAL-STATEMENT OF FACTSof the opinion that the absent witnesses

PRESUMPTIONS. would not have sworn to the facts set forth

1. Absence of a statement of facts in the in the application, and, if they had, there is

record is not excused by affidavit that the clerk no probability that their testimony would refused to file it, it appearing that it had not be true. There was no error in overruling

been approved by the trial judge. the motion to postpone the case.

2. In the absence of the testimony, it will

be presumed that a requested instruction was Appellant requested the court to instruct

properly refused, especially where the court certhe jury on a hypothetical case of man- tifies that there was no evidence to authorize it. slaughter and aggravated assault, death not

Appeal from district court, Hidalgo counensuing. The facts do not raise the ques

ty; J. C. Russell, Judge. tion of aggravated assault and battery in

Ramon Zamora appeals from a conviction. this case. If it be that the prosecutor used Affirmed. insulting language about the mother of defendant, he should have acted at the time,

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

for the State. the language having been used in his presence, and to him. There was nothing else in the case presenting manslaughter, and DAVIDSON, J. This conviction was for therefore no aggravated assault and battery. horse theft. A statement of the facts is not The judgment is affirmed.

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 disMcDADE v. STATE.

trict attorney, then in another county, on (Court of Criminal Appeals of Texas. Nov. 27,

the 18th day of March, a statement of facts 1895.)

for his revision and agreement; that said AGGRAVATED ASSAULT AND BATTERY-SUFFICIENCY

statement was returned to appellant's counOF EVIDENCE. Evidence that defendant went to the

sel on the 26th day of the same month, unresidence of a woman, and, after talking awhile,

signed by the district attorney, and not apcommenced to flourish a pistol; that, on her proved by the trial judge; and that he prefleeing, he pursued, and said, “Stop, or I will sented it to the clerk of the court for filing, fill your house with smoke"; and that, as she entered her kitchen and was closing the door,

who declined to do so. It was never prehe fired, the ball passing through the door and

sented to the trial judge for his approval. entering her thigh, --supports a conviction of ag- There was an utter want of diligence to segravated assault and battery.

cure a statement of facts manifested by this Appeal from district court, Harris county; affidavit. This matter has been so often E. D. Cavin, Judge.

discussed and decided that we deem it unJack McDade appeals from a conviction.

necessary to do so here. For such discusAffirmed.

sion, among others, see the following cases:

Hutchins v. State, 33 Tex. Cr. R. 298, 26 S. Mann Trice, for the State.

W. 399; Suit v. State, 30 Tex. App. 319, 17

S. W. 458; George v. State, 25 Tex. App. DAVIDSON, J. Appellant, under an in- 229, 8 S. W. 25; Spencer v. State, 25 Tex. dictment charging him with assault with in- App. 585, 8 S. W. 648; Farris v. State, 26 tent to murder, was convicted of aggravated Tex. App. 105, 9 S. W. 487. The action of the assault and battery, and fined in the sum of clerk was correct, and in strict accord with $200. His only contention on appeal is that his legal duty. He had no authority to file the evidence is insufficient to support the ver- the paper as presented. It was not approved dict of the jury. We do not think so. The by the judge, and was not a paper belongtestimony discloses that he went to the resi- ing to the cause. dence of the assaulted woman, and, after The record contains neither a motion for a tal ng to her a short while, began flourish- new trial, nor an assignment of errors. In ing his pistol. The woman, becoming alarm- the absence of the testimony, we must preed, fled. He pursued, and said to her, “Stop, sume the action of the court was correct in or I will fill your house with smoke.” Just refusing to give the instruction requested by as the fleeing woman entered her kitchen and appellant, especially as the court certifies was closing the door behind her, appellant there was no evidence to authorize it. The tired upon her. The ball, passing through judgment is affirmed.

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

1895.) IXDICTMENT – CHARGING SEVERAL OFFENSES —

CRIMINAL LAW – COMPELLING STATE TO ELECT AS TO COUNTS- CONFESSION–TESTIMONY OX PRELIMINARY EXAMINATION - CONSPIRACY – A BANDONMENT.

1. Under Code Or. 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

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 criminal 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

spiracy, then it did not contain the law, be- matter cannot be considered, in the absence cause, when the appellant and W. D. Dill en- of a bill of exceptions. tered into a positive agreement to commit Appellant requested the court to instruct the burglary, the offense-namely, conspir- the jury, in substance, that if Alfred Counacy-was complete, and a withdrawal there. tee, the person whose name was forged to from is no atonement for the offense con- the instrument, did not sign or authorize the summated. The judgment is affirmed. same to be signed, yet, if he ratified the ac

tion 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 THOMAS V. STATE.

to give it in charge to the jury. The second (Court of Criminal Appeals of Texas. Nov. 27, instruction is to the same import. The third 1895.)

has reference to the intent to defraud. The CRIMINAL LAW-APPEAL-REVIEW.

court's charge was amply sufficient on this The question as to whether the convic- element of the crime. tion is contrary to the evidence cannot be re- Appellant requested the court to instruct viewed where the record does not contain a

the jury on the presumption of innocence, statement of the facts proved on the trial.

and reasonable doubt as to his guilt. This Appeal from district court, Harris county;

was refused, evidently because the court had E. D. Cavin, Judge.

already instructed the jury "that the law Andrew Thomas was convicted of keeping presumes every person accused of crime to a disorderly house, and appeals. Affirmed.

be innocent until his guilt is established by Mann Trice, Asst. Atty. Gen., for the State. legal evidence, beyond a reasonable doubt, to

the satisfaction of the jury, and, if the jury HURT, P. J. Appellant prosecutes this have such a doubt of the guilt of appellant, appeal from a conviction for keeping a dis- they should acquit him.” This is a very orderly house. It is contended that the con- clear case of forgery, and no error was comviction is contrary to the evidence. The rec- mitted which would authorize us to disturb the ord before us does not contain a statement verdict of the jury. The judgment is afof the facts proved on the trial; hence we firmed. cannot revise the question presented. The presumption obtains that the testimony was sufficient to support the finding 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 - JUDGCOUNTEE V. STATE.

MENT- REVERSAL.

1. In an action for the killing of a jack, (Court of Criminal Appeals of Texas. Nov. 27,

there was evidence that it was struck and car1895.)

ried on the pilot of the engine 100 yards or CRIMINAL LAW-APPEAL --- REVIEW - FORGERY

more, and testimony of the engineer that the RATIFICATION OF SIGNATURE-INSTRUCTIONS.

accident occurred about 8:40 p. m.; that he 1. Action of the court in refusing a con

first saw the animal, when 50 yards from it.

when the train was running 30 miles an hour; tinuance cannot be reviewed unless a bill of exceptions is reserved.

that he applied the air brakes; that the fact 2. A defendant may be convicted of for

that the animal was close to the end of a

bridge rendered it impossible to see it until close gery, though the person whose name was forged ratified defendant's act.

upon it, though the headlight was burning

brightly. Held error to submit the evidence to 3. Where the court has already instructed that the law presumes a person innocent until

the jury. his guilt is proven by legal evidence, beyond

2. A judgment on a general verdict for a reasonable doubt, to the satisfaction of the

plaintiff, in an action against a railroad for jury, and, if the jury have such a doubt of the

death of stock, must be reversed where plainguilt of appellant, they should acquit him, it

tiff based his right to recover on the ground of is not error to refuse further instructions as to

negligence of defendant's employés, and also the presumption of innocence and reasonable

defendant's failure to maintain a sufficient doubt.

fence, and the issue of negligence of employés

was improperly submitted to the jury, though Appeal from district court, Colorado coun- the evidence supports the verdict on the other ty; T. H. Spooner, Judge.

issue. R. L. Countee was convicted of forgery,

3. It is error to submit an issue to the jury

on evidence on which a verdict, if found, would and appeals. Affirmed.

have to be set aside. Mann Trice, for the State.

Appeal from Hays county court; Ed R.

Kone, Judge. DAVIDSON, J. Appellant was convicted of Suit by Zack R. Hall against the Interforgery, and his punishment assessed at two national & Great Northern Railroad Comyears' confinement in the penitentiary. pany, for damages for the killing of his jack

A motion to continue the cause was made by negligently running defendant's passenger by appellant, which was overruled. No bill

locomotive over him. Trial by jury. Verof exceptions was reserved to the action of dict and judgment for plaintiff for $800, with the court in overruling said motion. This 6 per cent, interest from the 16th day of De

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