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theft of a chicken, was convicted and his Appeal from Collin county court; M. G. punishment assessed at a fine of $10, and Abernathy, Judge. 30 days' confinement in the county jail, from Bill Stewart was convicted for violating the which judgment he prosecutes this appeal. local option law, and appeals. Reversed. The appellant took a number of bills of ex

Smith, Evans & Terrell, M. H. Garnett, ception, but the only question necessary for

and J. M. Pearson, for appellant. Mann us to consider is contained in the first and

Trice, for the State. third bills. On the trial of the case, over the objection of the appellant, the state was per

DAVIDSON, J. The appellant was conmitted to prove by two witnesses that each

victed for violating the local option law. of them, on the night of the alleged theft,

The information charges that the appellant, was out watching his chicken roost because

on tlie 7th of October, 1895, and within the parties had told them some time prior to that

following described subdivision of Collin to look out for chicken thieves. The chick

county, to wit [giving a description, by metes en in question was not stolen from either

and bounds, of a certain portion of Collin of said witnesses, nor is any connection

county), did then and there unlawfully sell shown between said facts and the theft of

to Charley Wrenn intoxicating liquors; the the chicken in question; and said testimony

sale of intoxicating liquors having theretowas not material or pertinent, and not ad

fore, and being then and there, prohibited in missible under any issue in this case. The

said subdivision under and by the laws of effect of it may have been to induce the be

said state." This constitutes the entire charlief on the part of the jury that the defend

ging part of the information. A motion to. ant was engaged in the general business of

quash the inforination was made by the apstealing chickens, and the whole neighbor

pellant, on the ground that it was insuffihood was on the lookout for him, and was

cient, as it did not charge any offense against therefore calculated to prejudice him before

the laws of the state of Texas. Before the the jury. Especially does this appear in

local option law can be put into operation in view of the testimony in this case. The

a given territory, an election for that purpose state proved by an accomplice that he and

must be held in accordance with the laws several other boys, the defendant being

of this state. It is thus made a part of the among the number, on the night in question, description and definition of the offense that stole the "old dominecher hen." This was

the election declaring prohibition shall have the only positive testimony, and the state

been held in accordance with the laws of the attempted to corroborate the accomplice by state of Texas; and in order, therefore, to circumstantial evidence, and introduced

convict a person of this offense, it must be some testimony tending in this direction. Con

alleged and proved that the election was so cede, however, the sufficiency of this testi

held. It must further be alleged that the mony; the verdict inflicted in this case was

order was made for that purpose, and due considerably above the minimum, the pun

publication made as required by the statute. ishment imposed being a fine of $10, and It is just as essential to allege and prove 30 days in the county jail, for the theft of a

these constituent elements of this offense as hen worth only 25 cents. This excessive

it is to allege and prove the sale of the inverdict can only be accounted for on the

toxicating liquors. While the act under hypothesis that the improper testimony ad

which local option is authorized to be voted: mitted, indicating that the community was

upon is general, yet it is so voted on in lobeing disturbed at the time by frequent raids

calities, and put into operation by special on their hen roosts, was calculated to, and

acts of legislation in the particular localities; did, prejudice the rights of the defendant.

and it is a general rule that courts do not For the erroneous admission of this testimony

take cognizance of such special acts of legis-' the judgment is reversed, and the cause re

lation, and in such cases such special acts manded.

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 ColSTEWART V. STATE.

lin county, nor that the result was ever de(Court of Criminal Appeals of Texas. Jan. 29, clared by the commissioners' court, nor that 1896.)

the further step or publication was LOCAL OPTION LAW-VIOLATION-INDICTMENT.

made, in order to put it in force. This should An indictment for violating the local

have been done, and because it was not done option law should allege that an order for election was duly made and published; that an

the court below should have quashed the inelection adopting the provisions of said law dictment. See Sedberry v. State, 14 Tex. was held, in accordance with the laws of the

App. 233; Prather v. State, 12 Tex. App. 401. state, within the district where the alleged offense was committed; and that the result

The judgment is reversed, and the prosecuwas declared by the commissioners' court. tion ordered dismissed.

1

Parker v. State, 13 Tex. App. 213; Webb v. BRIGNON v. STATE.

State, 17 Tex. App. 203. The judgment of

the lower court is affirmed. (Court of Criminal Appeals of Texas. Feb. 13,

1896.,
Appeal from Ellis county court; J. C. Smith,
Judge.
Adolphus Brignon was convicted of a crime,

MALLOY Y. STATE.
and appeals. Reversed.
S. H. Russell, for appellant. Mann Trice, for

(Court of Criminal Appeals of Texas. Jan. 29 the State.

1896.)

CRIMINAL LAW--CERTIFICATE OF TRANSFER--SurDAVIDSON, J. Appellant was tried under

FICIENCY---AMENDMENT. an indictment charging him, in one count, with 1. Since, under Code Cr. Proc. arts. 415violating the local option law, and, in the sec- 417, it is not necessary to make an entry on the ond count, with pursuing the occupation of a re- district court minutes of the offense charged, tail liquor dealer. He was convicted under the a certificate of transfer need not name the of first count. The indictment charges the offense fense with which defendant is charged. in the same language as that in the Stewart 2. Since, under Code Cr. Proc. arts. 415– Case (just decided) 33 S. W. 1081. Under the 417, it is not necessary to name the accused on authority of that decision, this judgment is re- the minutes of the district court, in noting the versed, and the prosecution ordered dismissed. 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 en as to properly name him.

Appeal from Dallas county court; T. F. TELLISON V. STATE.

Vash, Judge. (Court of Criminal Appeals of Texas. Jan. 29, W. J. Malloy was convicted of keeping and 1896.)

exhibiting a gaming table and bank, and apINDICTMENT--MINUTES OF COURT.

peals. Affirmed. It is nct required that, when an indict

Oeland & Smith and Martin W. Littletou, ment is preserted into the district court, there shall be put upon the minutes of said court the for appellant. Manu Trice, for the State. nature or name of the offense charged against defendant.

HURT, P. J. Plea to the jurisdiction of Appeal from Dallas county court; T. F. the court was urged, because the transfer Nash, Judge.

misnamed the accused, and recited the ofPete Tellison was convicted for keeping fense to be "gaming," whereas the offense and exhibiting a certain gaming table and charged was in fact for keeping and exhibitbank for the purpose of gaming, and appeals. ing a gaming table and bank. An amended Affirmed.

transfer was then filed, properly naming the

accused, but which did not name the offense. Oeland & Smith and Martin W. Littleton,

A second plea to the jurisdiction was then for appellant. Mann Trice, for the State.

urged, because of this omission to name the

offense with which the accused was charged. HENDERSON, J. The appellant was tried

It was proper to amend the certificate of and convicted under an indictment charging him with unlawfully keeping and exhibiting accused on the minutes of the district court,

transfer. It was unnecessary to name the a certain gaming table and bank for the pur

in noting the presentment of the indictment pose of gaming. The appellant presented a

in that court, and it is not required to make plea to the jurisdiction of the court, on the

entry on said district court minutes of the ground that the order of transfer was not

offense charged. Code Cr. Proc. arts. 415 sutficient, in that it did not show, from the

417; Willson's Cr. Proc. $ 1913, for authoriminutes of the district court, the name or na

ties; Tellison v. State (this day decided) ture of the offense charged against the appel

ubi supra. It is not controverted that the lant. The court overruled the plea to the ju

second transfer correctly transcribes the risdiction. Appellant excepted, and assigns

minutes of the transferring court. The judgthe action of the court as error. As we un

ment is affirmed. derstand 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 (harged against a defendant. See

MOORE v. STATE. Code Cr. Proc. arts. 115, 437; Bohannon v.

(Court of Criminal Appeals of Texas. Feb. 13, State, 14 Tex. App. 271; Hasley v. State, Id.

1896.) 217; Tyson v. State, Id. 388; Spear 1. State,

CRIMINAL LAW-COUNTY COURT--JUDGMENT

APPEAL. 16 Tex. App. 98; Steele v. State, 19 Tex. App.

In a prose ution appealed from a jus425; De Olles v. State, 20 Tex. App. 1-15;

tice's court to the county court there can be Rowlett v. State, 23 Tex. App. 191, 4 S. W. no further appeal, unless the fine there imposed 582. The motion to quash the indictment in

exceed $100, exclusive of costs. this case was correctly overruled, and the Appeal from Grimes county court; J. G. indictment is not duplicitous, as contend- McDonald, Jr., Judge. odl. See Campbell v. State, 2 Tex. App. 187; J. B. Moore was convicted and fined, and from a judgment of the county court at- that, in connection with such plea, the detempts to appeal. Dismissed.

fendant was admonished by the court of the Mann Trice, for the State.

consequences thereof nor is it anywhere

shown that, in making said plea, it plainly HENDERSON, J. The motion to dismiss

appeared to the court that the appellant was the appeal herein must be sustained.

sane, and was uninfluenced by any consid

eration of fear, or by any persuasion or deprosecution originated in the justice's court. Appellant, after conviction in said justice's

lusive hope of pardon, prompting him to conCourt, prosecuted his appeal to the county

fess his guilt. It is true that the charge of

the court states "that the defendant has court, and was there fined in the sum of $10. From this conviction, appellant has sought to pleaded guilty, after being by the court fully

warned of the consequences of such plea." bring an appeal to this court. The judgment

But, even if it be conceded that this, in conin the county court, in a case appealed thence from a justice court, is a finality, unless the

templation of the statute, constitutes a part fine shall exceed $100, exclusive of costs.

of the record of a case, yet this of itself does

not show that the appellant was considered The appeal is dismissed.

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 COLEMAN v. STATE.

opinion, however, this is a matter which (Court of Criminal Appeals of Texas. Feb. 5,

must be presented to the court, and the court 1896.)

must make its findings thereon, and this CRIMINAL LAW -- MURDER — PLEA DeFENDANT

must be entered of record in connection with UNDER LIFE Sentence-Plea or GUILTY the plea of guilty. These prerequisites to --REQCISITES.

the validity of the plea, and the acceptance 1. The fact thai a defendant is under a life thereof by the court, are indispensable, and sentence for murder is not a defense to a prosecution for the murder of another person.

must be made manifest of record. They 2. The requirements of Code Cr. Proc. art. cannot be supplied by inference, intendment, 518, that, before accepting a plea of guilty, it or presumption. See Code Cr. Proc. arts. 518. must plainiy appear to the court that the accused

519, 538; Saunders v. State, 10 Tex. App. is sane, and is uninfluenced by any consideration of fear, or by any persuasion or delusive

336; Wallace v. State, Id. 407; Frosh v. hope of pardon, prompting him to confess his State, 11 Tex. App. 280; Sanders v. State, 18 guilt, are indispensable to the validity of such Tex. App. 372. plea, and must be shown by the record, to sustain a conviction thereon.

For the error of the court in failing to have

the record show, in connection with the plea Appeal from district court, Navarro coun- of guilty, the requirements as provided for in ty; Rufus Hardy, Judge.

article 518, Code Cr. Proc., the judgment is Albert Coleman was convicted of murder in reversed, and the cause remanded, the first degree, and appeals. Reversed.

Mann Trice, for the State.

DAVIDSON, J. The appellant was tried

SHAW v. STATI. under an indictment charging him with mur

(Court of Criminal Appeals of Texas. Feb. 5, der. The jury found him guilty of murder

1896.) in the first degree, and assessed his punish- CRIMINAL LAW-REVIEW-FAILURE TO GIVE ment at death; and from the judgment of

INSTRUCTIONS. the lower court he prosecutes this appeal.

A conviction for misdemeanor will not The appellant made a motion to dismiss

be reversed for failure to give an instruction

unless it was requested, and exceptions to its this case, on the ground that he had pre

refusal preserved by bill of exceptions. viously, at the same term of the court, been

Appeal from Johnson county court; F. E. tried on an indictment charging him with

Adams, Judge. murder of another person than the one contained in the indictment in this case, was

Tobe Shaw was convicted of a violation of convicted of murder in the first degree, and

the local option law, and appeals. Affirmed. his punishment assessed at confinement in Mann Trice, for the State, the penitentiary for life. He introduced before the court evideuce of this conviction, DAVIDSON, J. The appellant in this case and claimed that he had been punished by a was convicted of a violation of the local oplife sentence in another case, and that the tion law, and his punishment assessed at a court had no jurisdiction to try him for the fine of $25 and 20 days' confinement in the murder of another person. This matter was county jail; and from the judgment of the also presented in a motion in arrest of judg- | lower court he prosecutes this appeal. The ment. The court overruled said motion, and appellant complains that the court did not in this there was no error.

give the special charge asked on circumstanThe record in this case shows that the ap- tial evidence. If such a charge was applipellant, on the trial, entered a plea of guilty; cable to this case (it being a misdemeanor), but the record in the case nowhere shows the appellant should not only have prepared

and presented a charge in writing, but should proposed to show that he was at a party, have taken a bill of exception to the refusal several miles from his home, on the night of of the court to give said special charge. This the homicide, and returned home late at was not done by the appellant. However, as night, and when he arrived his brother (apwe view the facts of this case, no charge on pellant) was at home in bed asleep. The hour circumstantial evidence was required. If the when he arrived is not shown, nor is the hour evidence was not of a positive character, it at of the night when the homicide was commitleast places the defendant in such proximity ted shown. The court overruled the appeland juxtaposition to the offense as not to re- lant's motion for a continuance, and he exquire a charge on circumstantial evidence. cepted thereto. The same question was See Adams v. State (Tex. Cr. App.) 31 S. W. brought up on the motion for a new trial, 372. The appellant also contends that the which was overruled, and the appellant also evidence in this case is not sufficient to sup- reserved his bill of exception to the action of port the verdict of the jury. In our opinion, the court in that regard. The application for the evidence authorized the verdict of the a new trial shows that, at that time, Mrs. jury, and the judgment of the lower court is Othold and Henry Othold were still absent accordingly affirmed.

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 disOTHOLD v. STATE.

closes, no effort whatever was made in that (Court of Criminal Appeals of Texas. Feb. 5,

direction. The appellant's father testified in 1896.)

the case, and, while he testified that he did CRIMINAL LAW –CONTINUANCE — REMARKS OF not know where they were, he did not show COUNSEL-REVIEW.

that he had used any diligence to find them. 1. An application for a continuance on the It was at least incumbent on the appellant ground of the absence of a witness, a subpoena

to have made some effort to locate these witfor whom had been returned “Not found,” must show diligence in locating the witness.

nesses; and it appears to us as remarkably 2. To enable defendant to avail himself of strange that the mother and brother of apobjectionable remarks by the prosecuting attor- pellant, when they knew that he was to ney, he must have asked a charge excluding the

stand trial for his life on a charge of murder, same from the jury, and, on refusal thereof, reserved his bill of exceptions.

should have so mysteriously disappeared,

leaving no trace or track of their whereaAppeal from district court, Lavaca county;

bouts. We cannot believe, in the absence of T. H. Spooner, Judge.

some further showing than is here made, Charles Othold was convicted of a murder,

that, under the circumstances, they would and appeals. Affirmed.

have purposely absented themselves without Mann Trice, for the State.

the consent and connivance of the appellant.

If they absented themselves without his conHENDERSON, J. The appellant was con

sent, he has not shown sufficient diligence, victed in the court below of murder in the

in this case, in ascertaining their location, in first degree, and his punishment assessed at

order that the process of the court might confinement in the penitentiary for life; and

reach them. We would further observe, in from the judgment and sentence of the lower

this connection, that the issuance of process court he prosecutes this appeal.

to Lavaca county was not an act of diligence Appellant applied for a continuance on ac

at all. The application itself shows that, at count of the absence of Mrs. A. Othold and the time when said process of subpoena was Henry Othold. The indictment was return- issued, said witnesses were absent from Laed into court on the 8th of August, 1895, and vaca county; and, if we refer to the testithe trial was had on the 27th of said month.

mony of the father of the appellant, they A subpæna was issued, on the 8th of August, had been so absent for several months before. to Lavaca county for said witnesses, and was The diligence which should have been here returned, on the 27th of August, “Not found

used and shown was, not the issuance of in Lavaca county.” The application shows process to Lavaca county, but efforts to asthat Mrs. Othold was the mother of the ap- certain the whereabouts of said witnesses, pellant, and that Henry Othold was his which in this case was not done. For this brother, and that they were all living at the failure to exercise diligence to find and locate same place in Lavaca county, and that said said absent witnesses, the appellant in his Mrs. Othold, and Henry Othold were tem- application suggests no excuse or reason. In porarily absent from Lavaca county,their regard to the testimony of Henry Othold, whereabouts to the defendant being un- the statement is entirely too general. It known. By said absent witnesses defendant merely shows that he returned from a party proposed to prove an alibi, to wit: By his at a neighbor's house to his home, late at mother, that she was at her home (which night, and found his brother in bed asleep. was several miles from the place of the kill- The hour of his return should have been ing) on the night of the homicide, and that shown; otherwise, his testimony does not apappellant was at home on the said night, and pear to be material. And for aught that apremained there. By Henry Othold it was pears, the defendant could have committed the murder, and returned to his home, and cept his guilt. It is unnecessary to review gone to bed, and been asleep, when the wit- and discuss the facts. The judgment is afness Henry Othold returned home. As to firmed. 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

FITZPATRICK v. STATE. have been absent on that occasion; and, un- (Court of Criminal Appeals of Texas. Feb. 5, der the circumstances of this case, we can

1896.) not believe that the testimony imputed to her

CRIMINAL LAW-APPEAL-BAIL. by the appellant was probably true.

The fixing of the amount of bail is within

the discretion of the officer fixing the same, and The appellant assigns as error the failure

will not be disturbed on appeal except for abuse of the court to charge the jury on circumstan

of discretion. tial evidence. This was a case of positive testimony, and the charge in question was

Appeal from district court, Tom Green

county; J. W. Timmins, Judge. not required. The appellant also assigns as error the use of the following language by

Proceedings on a habeas corpus for bail counsel, closing the argument for the state,

by John M. Fitzpatrick, and from the judgto wit: “The defendant is guilty in the esti

ment fixing the amount of bail he appeals.

Affirmed. mation of every honest man in the county.” We are not informed of the connection in C. H. Jenkins, Cochran & Hill, and Mann which this language was used, and cannot, Trice, for the State. therefore, determine whether it was objectionable. Conceding, however, that it may HURT, P. J. The appellant was tried behave been objectionable, before appellant

before appellant low on a habeas corpus proceeding for bail. could avail himself of said remarks as error,

He was granted bail, which was fixed at he should have asked a charge excluding the $7,000, and from the judgment of the lower same from the consideration of the jury, and court he prosecutes this appeal. The appelon refusal thereof, reserved his bill of excep

lant insists that the bail fixed in the court tions. This was not done. The objection

below is excessive, and asks that this court urged by the appellant to the charge of the reduce the same. We have carefully examcourt on impeaching testimony offered by the

ined the record in this case, and fail to find defendant, in that it was too restrictive, is any sufficient reason why this court should not well taken. The evidence in this case interfere and reduce the bail granted; the was before the jury, and, under the charge of

rule being that the fixing of the amount of the court, they found appellant guilty of mur

bail is a matter within the discretion of the der in the first degree, and we see no reason

court, judge, magistrate, or officer fixing the to disturb the verdict. The judgment and same, and will not be revised by this court, sentence of the lower court are affirmed. 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.
BARRETT v. STATE.
(Court of Criminal Appeals of Texas. Feb. 13,

1896.
CRIMINAL LAW-APPEAL.

WILSON et al. v. AETNA INS. CO.
A conviction of burglary, based on cir-

(Court of Civil Appeals of Texas. Feb. 12, cumstantial evidence, which excluded all rea

1896.) sonable hypotheses except that of defendant's INSURANCE-CONDITION AS TO ADDITIONAL INSURguilt, will not be disturbed.

ANCE-CONSTRUCTION.

A policy providing that it should be void Appeal from district court, Dallas county;

if the insured had or should thereafter proCharles F. Clint, Judge.

cure “any other insurance, whether valid or Pen Barrett was convicted of burglary,

not," was avoided by afterwards procuring an

other policy, which, by reason of a similar and appeals. Affirmed.

clause therein, was void, and never attached. Mann Trice, for the State.

Appeal from district court, Robertson coun

ty; John N. Henderson, Judge. DAVIDSON, J. Appellant was convicted Action by Wilson & Moseley against the of burglary, and given five years in the pen- Aetna Insurance Company on a policy of initentiary; hence this appeal. The only er- surance. From a judgment for defendant, ror assigned for reversal is the supposed in- plaintiffs appeal. Affirmed. sufficiency of the evidence to support the This is an action by appellants against apverdict. While the evidence is circumstan- pellee on an insurance policy of the latter in tial, it is remarkably cogent, and points favor of the former, in which it is provided with unerring certainty to the accused as that “this entire policy shall be void, unless one of the parties who committed the crime. otherwise provided by agreement indorsed It excludes every reasonable hypothesis ex- hereon or added hereto, if the insured now

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