shall and Tom Cline that evening until I went to the Arbor. Tom and myself were on our way to Wesley Chapel, and Marshall was going to his sister's, Henrietta French. Lee and Will Monroe were not there. The next morning Tom and myself started to Waelder. Marshall was arrested that night, but we met the constable. I don't know what Tom Cline wanted to go home for before we went to Wesley Chapel. He did not say. Tom and Marshall started home, but they did not go. I do not know what they did with their horse when they came back. Don't know why they were going to walk to Wesley Chapel. I have been to the penitentiary for shooting a man. Had not been back but seven or eight days when the shooting took place. I am older than Tom or Marshall. It was about 2 miles from the Arbor to Wesley Chapel. My father lives about 21⁄2 miles from the Arbor."

Wyatt, deputy sheriff, recalled by the state, says: "I was present on the morning after the shooting, when Dave Cunningham was examined by Judge Harrison. Dave was in bed, and in a bad condition. He was bleeding at the mouth, and could hardly talk. It was almost impossible to understand what he said on account of the wound. He seemed to suffer very much. The doctor was there with him."

HURT, P. J. This is a conviction of murder in the second degree. The punishment was assessed at confinement in the penitentiary for 10 years. The state's theory is that this homicide was committed in pursuance of a conspiracy between Marshall, Tom, and Dan Cline; that one of them killed deceased and all were present. The testimony for the state makes Marshall the aggressor, and, after the first shot, Tom and Dan took part in the shooting. It is not known which inflicted the mortal wound. The state introduced in evidence preparation and threats made by Marshall. To this appellant objected, contending that no conspiracy had been shown. We are of opinion that a conspiracy at least existed between Marshall and Tom, and there are strong circumstances tending to show that appellant entered into the conspiracy before the killing. Concede that the evidence does not present a prima facie case of conspiracy, still the preparation and threats of Marshall are most evidently competent upon another ground. The jury may not have believed that, if there was a conspiracy, appellant belonged to it, but may have believed that Marshall was the aggressor and that those present knew it, and with this knowledge took a part in the shooting which resulted in the death of the deceased. Appellant contends that the deceased or his brother, who was riding with him in his buggy, was the aggressor, and began the shooting. Now, in support of the state's theory that Marshall was the aggressor,-that he began the fight,

-his preparation to kill the Cunningham brothers (deceased included) and his threats to do so were competent evidence upon this issue.

The most important witness for the stateLee Monroe's testimony coming as it does in such doubtful shape-was Dave Cunningham. He not only swears that Marshall stopped the horses to the buggy, and that he fired a pistol, but he places Tom and appellant near by, armed, and, in fact, swears that they all fired, making a clear case against appellant independent of a conspiracy. When this witness testified before the examining court, he made no such case against appellant. He then swore that Marshall shot and killed his brother, that Tom and Dan were with him, and that he did not know whether they shot or not. This testimony, given before the justice of the peace, was introduced by appellant for the purpose of impeaching Dave Cunningham. Upon this matter the court instructed the jury: “A witness may be impeached by showing that the witness has made and sworn to other and different statements at another time and place from those made on the trial. The object of this class of evidence is not to prove what the witness swears to in the trial is untrue, but to show his unworthiness of belief, and it goes to you, like all other evidence, to be considered by you in arriving at a verdict." If the object of such evidence is not for the purpose of convincing the jury that what the witness swears on the trial is untrue, then to permit a man to be so impeached is a judicial farce. Why impeach him at all? Simply for the fun of doing it? A witness who will make conflicting statements under oath regarding important facts may not tell the truth, and a jury would be justified in taking his testimony on the trial as absolutely false. The only purpose which such evidence (impeaching) can possibly serve is to warrant the jury in rejecting the testimony of the witness because not probably true. But we can add nothing to what was said on this subject by Presiding Judge White in Howard v. State, 25 Tex. App. 686, 8 S. W. 929. The judgment is reversed, and the cause remanded.

CHILDERS v. STATE.

(Court of Criminal Appeals of Texas. June 23, 1894.)

HOMICIDE-MANSLAUGHTER-ADEQUATE CAUSE.

Pen. Code, art. 595, relating to manslaughter, defines "adequate causes" to be such as would prevent cool reflection in a man of ordinary temper; while article 596 excepts from these mere insults, or assaults so slight as to show no intent to injure. Defendant, having been in dispute with a crippled hackman about the fare due, cursed and gave him the lie. whereupon he was threateningly accosted and approached by deceased, another hackman, whom he did not know personally, but by hearsay knew him to be dangerous and his own

superior in strength. He retreated some distance till, the attack being evidently formidable, he fired and killed deceased. Held, that he was not guilty of more than manslaughter.

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

H. H. Childers, convicted of murder in the second degree, appeals. Reversed.

A. W. Houston and William Aubrey, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

If

SIMKINS, J. Appellant was convicted of murder in the second degree, and his punishment assessed at 12 years. There is but one question in this case, and that is whether the evidence supports a conviction of murder in the second degree. While passion and want of premeditation may characterize both murder in the second degree and manslaughter, yet they are clearly to be distinguished by the causes leading to the homicide. the cause is such as will be reasonably calculated to rouse the passion of a man of ordinary temper, and render him incapable of cool reflection, it is deemed an adequate cause; and, where not so calculated, the cause is deemed inadequate. Homicide committed under the influence of passion springing out of the first cause can never be greater than manslaughter. It is not generally a matter of difficulty to determine when the cause is adequate or inadequate. The Code

has clearly defined the test. Pen. Code, arts. 595, 596. The question generally is as to the existence of the passion at the time of the homicide. Unless the passion exists, it may be murder, even though there be an adequate cause. Where time elapses between the happening of the cause and the homicide, the existence of the passion becomes a natural subject of inquiry; but where the blow follows quickly on the cause, and there is an absence of premeditation or any other motive, then the existence of the passion may be assumed from the homicide itself as a presumption of fact. The record shows that the appellant got into an angry altercation with a hackman, Jesse Rudder, about the fare. It seems that a companion of appellant had hired the hack, and that both had been riding about the city that night. Appellant, when asked for the money, requested the hackman to call in the morning. His companion, according to the state's witness, was absent when the hackman demanded pay. He declined to call in the morning, and insisted on being paid at once, and left the saloon where the altercation took place, stating he "would get his money." It was stated in argument that, in San Antonio,

1 Pen. Code, art. 595, defines "adequate cause" to be such as would commonly produce a degree of rage or terror in a person of ordinary temper sufficient to make him incapable of cool reflection. Id. art. 596, excepts insulting words or gestures, or assault and battery so slight as to show no intention to injure.

Ap

hack drivers can arrest parties who refuse to pay fare, under an ordinance of that city. Appellant followed him out on the sidewalk, and the parties stood facing each other. pellant asked the hackman, "How long did you have me?" and the hackman answered, "From 7:30," and that his bill was four dollars. Appellant replied that he "was a d-n, lying sn of a b-h." As soon as the words were spoken, the deceased, who was standing near by, rushed upon appellant, crying, "That is too much for a cripple to take." Childers backed away along the wall, and fired, and killed the deceased. It is shown that, as deceased rushed upon appellant, he took hold of the lapels of his own coat, as if to throw it off. Deceased was also a hackman. He was superior in strength to appellant, and had been shortly before pointed out to appellant as a dangerous character, who had been in frequent serious difficulties. It is evident that there was no previous ill will between the parties. It does not appear that they had ever spoken to or personally knew each other. It is not shown that, at the time of the difficulty, appellant had any reason to apprehend an attack from the deceased. Nor was the appellant about to attack the crippled hackman, Rudder; but it appears without contradiction that the deceased, roused to sudden indignation at what he regarded as an insult to a crippled man, rushed upon appellant with the purpose of beating him. The attack was a surprise to appellant, who, rapidly retreating backward, fired to prevent the onslaught. The state witness Rudder says, when Draper rushed at him, Childers backed away, but was stopped by the wall; then backed sideways, along the wall, seven or eight feet. Here, then, we have a case showing no premeditation, no previous grudge or animosity against deceased, and a homicide to protect his person when the person killed was in the very act of making an unlawful and violent attack. Now, while it may be true that the attack may not have been of such a character as would justify the homicide (that is to say, it may not have been such as would produce a reasonable expectation of death or serious bodily injury,-Pen. Code, art. 574), still its violence and suddenness, and the surrounding circumstances, in our judgment, present an adequate cause. Concede that appellant was wrong in cursing the cripple, Jesse Rudder; he was not therefore bound to submit to be beaten and bruised by an enraged antagonist, his superior in strength, voluntarily interfering in the quarrel, not to protect a weaker man from injury, but to chastise another for insulting him. The Code declares that an assault and battery by deceased, causing pain or bloodshed, is an adequate cause (Id. art. 597); and there is no question that, had the blow been actually given, it would have been adequate cause, under the words of the Code. Adequate cause is not limited to the grounds stated. It is not al

ways necessary that the blow be actually struck; and as was said in Williams' Case, 15 Tex. App. 617, bodily pain is not absolutely essential to adequate cause in manslaughter, but any circumstance or condition which is capable of creating, and does create, sudden passion, as anger, sudden resentment, or terror, rendering the mind incapable of cool reflection, whether accompanied by bodily pain or not, is adequate cause. Pen. Code, art. 594; Wadlington's Case, 19 Tex. App. 274. And in the case at bar the suddenness and fierceness of the attack by such a man as deceased is shown to be, and appellant's hasty retreat to the wall, and then sideways along the wall, in avoiding the attack, strongly suggest, not only a want of premeditation and cool reflection, but that the homicide was the result of an effort to protect himself from injury. Garello v. State, 31 Tex. Cr. R. 56, 20 S. W. 179. The evidence shows that the nature of the attack was such that a bystander in the front door of the hotel, watching the quarrel, when the rush took place, moved backward out of the range and sight of the parties, and not on account of appellant, for his back was towards the witness; and this fact was earnestly pressed upon our consideration by counsel in oral argument. Again, the testimony for the defense (which seems to be corroborated by the evidence of state's witness Rudder, given in the first trial), shows that in fact the quarrel between appellant and Rudder had been settled for the night, and both parties had turned away from each other, and appellant had started to go into the hotel, when deceased became suddenly angry and excited, and ran upon the defendant, saying, "If you want to fight a man, fight me, you son of a bitch;" that a bystander tried to stop him, warning him appellant had a gun, but he was unable to hold the deceased. Under the facts and law of the case, we are of the opinion that there was a provocation; that appellant acted immediately upon the provocation, and upon no other motive, and is guilty of no higher degree of culpable homicide than manslaughter. Judgment reversed and cause remanded.

ELLIS v. STATE.

(Court of Criminal Appeals of Texas. June 23,

1894.)

CRIMINAL LAW-NEW TRIAL-MISCONDUCT OF

JURY.

In a prosecution for rape, a juror deposed: That at first the jury stood ten to two for acquittal; that, after discussing defendant's character, they were six to six; that then, with their approval, deponent told them what he knew of defendant's character, viz. that three years before a neighbor had found defendant with his wife, in her bedroom; that deponent heard said neighbor warn defendant to leave the country; that defendant did leave the neighborhood. That the next ballot was unanimous for conviction. Held ground for a

new trial, for that the jury had "received other testimony" after retiring. Code Cr. Proc. art. 777, subd. 7.

Appeal from district court, Frio county; M. T. Lowe, Judge.

Allen Ellis, convicted of rape, appeals. Reversed.

I. N. Spann and John T. Bivens, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of rape, and his punishment was assessed at five years. In his motion for a new trial, appellant says that, after the jury had retired to consider of their verdict, they received other testimony from one W. T. Cude, a juror, which operated injuriously to appellant's rights. It appears by the voluntary affidavit of said Cude: That on the first ballot the jury stood ten for acquittal, and two for conviction. That after discussing the character of defendant the jury stood six and six. That thereupon he (the juror) asked whether it would be right to state what he personally knew of defendant's character, and, being assured there was nothing wrong in stating it, he informed the jury that, three years before, defendant went into the bedroom of one of his neighbors, where his wife was, and he (the juror) heard her husband tell defendant, if he did not leave the country, he would kill him; that defendant left the neighborhood. After this statement, with further discussion, the whole 12 voted for conviction. This affidavit is in no way traversed or denied. It needs no comment to show its importance and prejudicial tendency, and therefore comes clearly within the seventh subdivision of article 777, Code Cr. Proc., defining the grounds upon which a new trial shall be granted. Judgment reversed, and cause remanded.

BENNETT v. STATE.

(Court of Criminal Appeals of Texas. June 27, 1894.)

ROBBERY-EXCESSIVE Verdict.

Where defendant after inducing the prosecuting witness to accompany him, placed a knife at his throat, and robbed him, a verdict for 12 years' imprisonment will not be set aside as excessive.

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

John Bennett was convicted of robbery, and appeals. Affirmed.

DAVIDSON, J. This is a conviction of robbery. The contention of appellant is that the verdict is contrary to the law, against the evidence, and is harsh and excessive. The verdict is for 12 years. It could have been for life, under the law. Viewed in the light of the testimony, we cannot say that

either position is well taken. If it is true, as shown by the state, that appellant induced the prosecuting witness to accompany him to the place indicated, and there, with his drawn knife placed to the throat of his victim, robbed him of his money, the testimony amply sustains the verdict of the jury. The judgment is affirmed.

SWARTZ v. STATE.

(Court of Criminal Appeals of Texas. June 23, 1894.)

THEFT FROM PERSON-INDICTMENT-VARIANCE IN

INSTRUCTION.

Where, in a prosecution for theft from the person, the indictment alleged that the property was taken "so suddenly as not to allow time to make resistance before said property was carried away," and the prosecuting witness testified that he was awakened by some one putting his hands in his pocket, but did not know that the money was taken until the person had gone, an instruction that the jury should find defendant guilty, not only if he took the property "so suddenly," etc., but also if he took it "without the knowledge" of the owner, is ground for reversal, though no exception was taken thereto.

Appeal from district court, Mitchell county; William Kennedy, Judge.

Will Swartz was convicted of theft from the person, and appeals. Reversed.

Smallwood & Smith and R. A. Jeffress, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J. This is a conviction for theft from the person. The indictment alleges that the property was taken "so suddenly as not to allow time to make resistance before said property was carried away." There is no allegation that the property was taken "without the knowledge" of the owner. Tarver, the prosecuting witness, testifies: "I was waked up by some one feeling in my pocket where I had put my money. I did not know who it was. I said, 'Please let my money alone.' The party dropped two silver dollars, and went off. After he had gone, I again counted my money, and found but the two dollars he had dropped, which fell by my side as the party was standing over * I did not know my money had been taken until the party who had his hand in my pocket had gone. The money was taken so suddenly as not to allow time to make resistance before it was carried away." Bloomfield testified: "I was wakened by hearing Tarver say to some one, 'Please put my money back.' The light was burning. I saw defendant standing over Tarver. Then Tarver said, 'Please put my money back.' Swartz said, 'I only got one dollar,' and went off." Under the charge of the court the jury were authorized to convict if the money was taken from the person of Tarver, either "without his knowledge" or "so suddenly as not to allow time to make

me.

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resistance." As the indictment did not allege that the taking was without the knowledge of the owner, the charge was erroneous, under the decision in McLin v. State, 29 Tex. App. 172, 15 S. W. 600. In that case the indictment alleged that the property was taken "without the knowledge" of the owner. It was held to be error, exception being taken at the time, to charge that the offense would be proved if the property was taken without the knowledge of the owner, "or so suddenly as not to allow time to make resistance." In the case now before the court no exceptions were reserved to the charge of the court. The question is, was the error such as to require a reversal? If the facts in evidence made it certain that the taking was with the knowledge of the owner, but so suddenly as not to allow him time to resist, then we would hold the error harmless. But we have no such case. It is true that the prosecuting witness states that the taking was so sudden as not to allow time to resist, but in fact he did not know of the taking until after the taker had left the scene. The witness felt some one in his pocket, but did not know that his money was gone until after the party taking it had left. This unquestionably shows a taking without the knowledge of the owner, and under the charge of the court the jury were warranted in convicting, if they so found. Such a finding was not warranted by the allegations of the indictment. Other objections to the charge are without merit. The judgment is reversed, and cause remanded.

GEBHARDT v. STATE.

(Court of Criminal Appeals of Texas. June 23, 1894.)

EMBEZZLEMENT-INDICTMENT.

1. An indictment under Pen. Code, art. 742a, for theft of a bicycle, which alleges that the property was in the possession of defendant by virtue of a contract of hiring, is sufficient.

2. In the absence of a statement of facts. the sufficiency of the evidence to support the verdict will not be considered.

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

H. F. Gebhardt was convicted of theft, and appeals. Affirmed.

Lovejoy & Sampson and Spencer & Kincaid, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J. This is a conviction under article 742a, Pen. Code, for theft of a bicycle, the property of Joseph Labadie. A motion in arrest was presented and overruled. The indictment alleges directly that appellant was in possession of the bicycle by virtue of a contract of hiring. The motion in arrest was properly overruled. This is the only question presented in the brief. There being no statement of facts, we cannot of

course pass upon the sufficiency of the evidence or determine whether the proof showed that the bicycle belonged jointly to Joseph Labadie and sons, or was the property of Joseph Labadie only. The judgment is affirmed.

STREY et al. v. STATE.

(Court of Criminal Appeals of Texas. June 27, 1894.)

BAIL-DEFENSES.

Where, on scire facias on a forfeited bail bond, the defense of sickness of principal is pleaded and proved without contradiction, it is a good defense, under Code Cr. Proc. art. 452.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Scire facias on bail bond against Ludwig Strey and others. From a judgment against defendants, they appeal. Reversed.

Jay Minter and J. B. Dibrell, for appellants. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J. The appeal herein is prosecuted from a judgment entered against appellants upon a forfeited bail bond. To defeat the state's case, sickness of the principal was pleaded and proved, without contradiction. The defense was brought strictly within the statutory grounds, and should have been sustained. Code Cr. Proc. art. 452; Willson, Cr. St. §§ 2031, 2034. The judgment is reversed, and cause remanded.

BROWN v. STATE.

(Court of Criminal Appeals of Texas. June 29,

1894.)

TRANSCRIPT ON APPEAL-VENUE OF BIGAMY. 1. Under Code Cr. Proc. art. 677, requiring the court to deliver a written charge, a conviction will be reversed where the transcript does not contain such charge.

2. The venue of the offense of bigamy is in the county where the marriage occurs. Appeal from district court, Rockwall county; J. E. Dillard, Judge.

G. W. Brown was convicted of bigamy, and appeals. Reversed.

DAVIDSON, J. Appellant was convicted of bigamy. We have examined the record, and fail to find a written charge was given the jury, as required by the statute. For this reason the judgment must be reversed. It is the duty of the court to "deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case." Code Cr. Proc. art. 677. The transcript on appeal must contain this charge. It is not sufficient that the judgment recites that the jury were duly charged, and we are not authorized to assume that a written charge was given.

We deem it unnecessary to discuss the ruling of the court in striking out the plea of

former jeopardy. Dallas county district court was not authorized to assume jurisdiction of the offense, for the marriage occurred in Rockwall county. The venue of the offense was therefore in the county where the marriage occurred. Because there is no written charge, the judgment is reversed, and the cause remanded.

SMITH v. STATE.

(Court of Criminal Appeals of Texas. June 29, 1894.) HOMICIDE-SELF-DEFENSE-INSTRUCTIONS - DUTY TO RETREAT.

1. Defendant having testified that deceased threw his hand behind him, as if to draw a weapon, a charge that if deceased did so, and defendant had reasonable grounds to believeviewed from his standpoint-that he was in danger of his life, or of serious bodily injury, he should be acquitted, though no such danger existed, was sufficient upon the subject of selfdefense, and it was not necessary to instruct that defenda..t need not retreat.

2. Deceased lived about two or three weeks after being wounded, and during that time never left his bed. There was no evidence of any other cause for his death. A surgeon testified that the wounds were dangerous. Held, that an instruction as to the law given in Pen. Code, § 547, limiting homicide to those cases in which the destruction of life is complete, was properly refused.

3. It was not error for the court to recall the jury after they had started to retire, and write on the margin of the charge that, "If malice be fully conceived and formed, it is not material how long it existed."

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

Benny Smith was convicted of murder in the second degree, and appeals. Affirmed.

Lovejoy & Sampson and Spencer & Kincaid, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J. This is a conviction for murder of the second degree, the punishment being fixed at 12 years in the penitentiary. The deceased, John Green, drove up to the house of Ellen Perry, got off his wagon, went to the gate, and knocked on it, and called out, "Hello." Ellen Perry came out, and asked what he wanted, and he told her he wanted to get some beer barrels. She told him he could not have the beer barrels, told him to get away, and called him a dirty tramp. Deceased told her he was no more a tramp than she was herself. Then she called to the defendant, "Benny, do you hear how this nigger is talking to me?" At this, defendant said, "Yes, he heard it," and came from towards the back of the house, went up to deceased, and said to him: "Do you know who that is you are talking to? I don't allow anybody to insult my mother." Deceased replied, "I have not insulted your mother." Defendant said, "I don't allow any damn man to insult my mother," and deceased again said he had not insulted her.