There is no murder in the second degree in this case. The theory of the state is supported by a chain of circumstances leading with almost absolute certainty to the conclusion of guilt. The defendant was a wit ness in the case, and his defense depends almost entirely upon his own evidence, which is only very slightly supported by any other. Defendant's version of the facts attending the homicide, condensed, are as follows: "I knew J. M. Farley. He came to my house on the 6th of November, 1893, and picked cotton for me. Farley is now dead. I killed him. That night I bought his horse and buggy and gun and saddle for $55, and I paid him. We then got into a game of cards,-poker. He and I were alone in the house. My wife was over at Rachel's. staying there that night. I had won nearly all of Farley's money that I had give him for his things. On the last hand he put up all the money he had left,-about $8 or $10. When I called, he showed his hand, and he had six cards and a winning hand. I then put my hand on the money, and told him he could not take the money; that he was cheating, and had too many cards. Farley then jerked out a pistol and threw it down on me, in my face. I grabbed at the pistol, and knocked it down, and he shot me in the left leg. The pistol fell on the floor. I had just about gotten up out of my seat when 1 knocked the pistol out of his hand. Just about this time, Farley jumped and grabbed his double-barrel shotgun, which was loaded, and as he was stooping down, to pick it up, I snatched a piece of cottonwood rail and struck him twice on the head and killed him. While on the stand, in corroboration of his testimony, he exhibited his left leg to the court and jury, which contained a scar about four inches above the knee and about two and a half inches apart. The bullet appeared to have gone at an angle of about 30 degrees. On cross-examination, defendant was asked if he had not exhibited that scar to certain parties before the killing. He said, "No"; but that he had shown them a scar on the right leg. The state requested the defendant to submit the wounds on both the right and left legs to an exami nation of a physician. Counsel for defend. ant objected, and the jury were retired. After hearing the objections of counsel for defendant, the court sustained the same, but stated to counsel that he would permit state's counsel, in the presence of the jury, to ask defendant to exhibit his leg, and, if he refused to do so, that his refusal would be permitted to go to the jury in connection with his other testimony,-whereupon defendant, under protest, permitted an inspection and examination by physicians, and the physicians were permitted, over objections of defendant, to testify in regard to same. Defendant, voluntarily assuming the position of a witness, is bound to answer all legal questions, whether germane to the examina

tion in chief or not. Had the state the right to ask him to exhibit the wound on his right leg? Had the defendant, in corroboration of his statement, the right to exhibit the wound on his left leg? We think he had. If so, we think the state had the right to make its request. If the state had no right to make such a request, the fact that the defendant refused to comply could not be used against him. Having the right to make such request, there was nothing wrong in defendant subjecting his legs to an examination of the physicians.

There was a great deal of proof that de fendant killed deceased while he was in bed, asleep, and that it was for the purpose of robbery. The remarks of the district attor ney were not improper. These were his conclusions from the facts, which were very well sustained by the circumstances.

Bill of Exception No. 4: The remarks of the district attorney were proper, and his conclusions were logical. Bill of Exception No. 5: The facts proven, complained of in this bill, were of the first importance under the circumstances of this case. Bill of Exception No. 6: As above stated, there was no murder in the second degree in this case; neither was there manslaughter. It was a cool, deliberate murder, or nothing. Bill of Exception No. 7: The witness Anderson had not been placed under the rule. Notwithstanding this, the court permitted the state to prove by him that he examined the pants of defendant at Kernes, just after his arrest, and that he saw no hole in the leg of his pants caused by a pistol shot. There was no abuse of discretion by the court in re gard to this matter. Bill of Exception No. 8: Defendant had been in Texas but two years. He put his character in evidence. The state, over objections of the defendant, proved by James Bryant that up to about three years ago, in Alabama, he had known the defendant; that he knew his general reputation as a peaceable and law-abiding citizen in Alabama up to about three years ago; and that his reputation was not good. In this there was no error. Bill of Excep tion No. 9: We cannot reverse a judgment because a prosecuting attorney states to the jury that he believes the defendant guilty, and ought to be hanged, though this be im proper. There is cogent testimony in the record that deceased was asleep when killed, and that the murder was for the purpose of at least obtaining his property.

The evidence supports the verdict. If the guilt of a party can be established by cir cumstantial evidence, then this appellant is guilty of a cold, deliberate, premeditated murder for the purpose of obtaining the property of deceased, and in the perpetra tion of robbery. The defense is a sham,an afterthought; shown to be such by the acts and declarations of the appellant and all the attending circumstances. The judgment is affirmed.

1. Disqualification of a juror is not a ground for a new trial.

2. A new trial should not be granted on the ground of newly-discovered evidence which is merely impeaching in its nature.

3. Evidence that witnesses for defendant had been indicted for the same crime, but that the prosecution had been dismissed, is admissible to attack their credibility.

4. The rule that when a defendant takes the stand as a witness, and the state proves other indictments against him, a failure of the court to charge as to the object of such evidence is reversible error, does not apply to proof of a former indictment of a witness who is not a defendant.

Appeal from district court, Waller county; T. S. Reese, Judge.

James Matkins was convicted of murder, and appeals. Affirmed.

A. J. & J. D. Harvey and H. M. Browne, for appellant. R. L. Henry, for the State.

DAVIDSON, J. 1. Motion for new trial, based upon the disqualification of one of the grand jurors, was properly overruled. This does not constitute a cause for new trial. The qualifications of a grand juror can be reached only by challenge, and in no other way. Willson's Cr. St. §§ 1901, 1902, 1936. 2. Impeaching testimony is not such newlydiscovered evidence as authorizes the granting a new trial. The court did not err in refusing the new trial on this ground. Willson's Cr. St. § 2544.

3. Two of the defendant's witnesses had been indicted for the same murder of which appellant was on trial in this case, their prosecutions having been dismissed. These facts were proved. No objections were urged to its introduction, nor was any motion made to withdraw it from the consideration of the jury. Neither point would have been well taken. The testimony was clearly admissi ble.

4. It is urged that the court should have properly charged the jury in regard to such testimony. What charge should have been given is left largely to inference.

The ques

tion should have been clearly stated, so that this court could have fully understood the point intended to be raised. The state did not elicit from the witnesses facts incuipatory of appellant; hence a charge on accomplices' testimony was not required. The fact that they had been indicted for the same murder as appellant was introduced evidently for the purpose of affecting their credibility. Recent decisions of this court have held that when the defendant takes the stand as a witness in his own behalf, and the state proves other indictments or prior convictions against him, the court must instruct the jury as to the object and purpose of such evidence, and

a failure to do so will be reversible error. The reasoning for this ruling is given in those opinions, and it is unnecessary here to repeat it. There was no possibility of convicting the witnesses alluded to in this case for any of fenses; hence the rules laid down as to defendants in the cited cases do not apply. Nor was it possible to convict appellant of any offense, under this indictment, other than some grade of the homicide charged in said indietment, and their testimony had reference only to this case.

5. The charge of the court is correct, and fairly presents the law of the case. The facts do not suggest the issue of manslaughter; hence it should not have been charged upon by the court. Under the state's evidence, appellant was, at the least, guilty of murder in the second degree, and the jury so found. If his witnesses testified truthfu ly, the issue of self-defense was perhaps suggested. However, the issues were properly charged, and the conflicts in the testimony settled by the verdict. We see no reason for disturbing the verdict, and the judgment is affirmed.

BROWN V. STATE.

(Court of Criminal Appeals of Texas. Nov. 28, 1894.) WITNESS-COMPETENCY - EVIDENCE OF PARDONTHEFT-DECLARATIONS OF DECEASED OWNERREMARKS OF PROSECUTING ATTORNEY.

1. A witness cannot prove his competency to testify, notwithstanding a conviction for felony, by parol evidence of a pardon which has been lost, but a certified copy should be produced.

2. On a prosecution for theft, the owner of the property being dead, the fact that he did not consent to the taking may be proved by his acts and declarations.

3. Where, on a prosecution for theft, the prosecuting attorney, in offering the declarations of a deceased witness, states that he was murdered, such remark, if harmful, is cured by the court's immediately reprimanding him, and telling the jury that the manner of the death had nothing to do with the case, and to disregard the remark.

Appeal from district court, Robertson county; John N. Henderson, Judge. Wallace Brown was convicted of theft of cattle, and appeals. Aflirmed.

R. L. Henry, for the State.

HURT, P. J. Bill of Exception No. 1: The remarks of the district attorney were not improper.

Bill of Exception No. 2: Defendant offered John T. Myatt for the purpose of proving that he owned the cattle found in his possession. The state objected to his competency, supporting the objection by a record of conviction for felony. The defendant offered to prove by parol a pardon, first proving its loss. To this the state objected, and the court sustained the objection. In this there was no error. If pardoned, a

certified copy of such pardon could have been obtained from the secretary of state.

Bill of Exception No. 3: McCoy, the owner of the cattle, was dead at the time of the trial. The state had a right to prove by his acts and declarations that he had not consented to the taking of the cattle, and that he was dead, and could not be adduced as a witness. In commenting on these facts, the district attorney remarked that McCoy had been murdered. The court promptly reprimanded him, and told the jury that the manner of the death had nothing to do with this case, and to disregard the remarks of the district attorney in that regard. If there was harm in the remark, it was eliminated from the case by the prompt action of the court.

There is nothing in bill of exception No. 4. The evidence is sufficient, and the judgment is affirmed.

SULLIVAN v. STATE.

(Court of Criminal Appeals of Texas. Dec. 1, 1894.)

CRIMINAL LAW-REVIEW ON APPEAL.

In the absence of a statement of facts or bills of exceptions, the sufficiency of the evidence cannot be reviewed.

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

John Sullivah was convicted of conspiracy to commit robbery, and appeals. Affirmed.

R. L. Henry, for the State.

DAVIDSON, J. Appellant was convicted of the crime of conspiracy to commit robbery. The record is before us without a statement of the facts or bills of exception. The only ground assigned for reversal is the want of sufficient evidence to support the conviction. This question, under the condition of the record, cannot be reviewed. The judgment is affirmed.

FENTON v. STATE.

(Court of Criminal Appeals of Texas. Dec. 1, 1894.)

CRIMINAL LAW-FORMER JEOPARDY.

An acquittal under an indictment for theft, which alleges the owner as unknown, is a bar to a prosecution for the theft of the same article under an indictment alleging the true owner, provided the grand jury in the first case used due diligence to ascertain the name of the owner.

Appeal from district court, Nacogdoches county; James T. Polley, Judge.

Allen Fenton was convicted of theft, and appeals. Reversed.

R. L. Henry, Asst. Atty. Gen., for the State.

indictment in which it was alleged to be the property of an unknown owner. Subsequently, the indictment in this case was presented, charging him with theft of the same animal from Johnson Hill. In bar of this prosecution he pleaded his acquittal under the former indictment. His plea in bar, on demurrer by the state, was stricken out. If appellant could have been convicted under the former indictment, the plea is good, and the demurrer should have been overruled. If the grand jury used proper diligence in trying to discover the owner in the first case, and failed, and this fact was or could have been shown upon the former trial, there would have been no variance; and, in so far as that matter was concerned, the former indictment was good, and a conviction could have been maintained upon it. This is well settled under the authorities. This was a question of fact, and could have been proved, if true, under the plea of former acquittal interposed by appellant. The court erred in sustaining the demurrer. The question should have been submitted to the jury under appropriate instructions. The judgment is reversed, and cause remanded.

SUTTON v. STATE.

(Court of Criminal Appeals of Texas. Dec. 1, 1894.)

CRIMINAL LAW-REVIEW ON APPEAL.

Error in refusing a continuance, or permission to amend an application therefor, will not be reviewed in the absence of a bill of exceptions.

Appeal from district court, Mills county; W. A. Blackburn, Judge.

Theodore Sutton was convicted of theft, and appeals. Affirmed.

R. L. Henry, for the State.

HURT, P. J. This conviction was for theft of four horses and one mule. We will not revise the action of the court overruling application for a continuance, in the absence of a bill of exceptions. This rule is settled. Nor the action of the court refusing to permit an amendment to the said application. These matters must be excepted to, and bill reserved, in order to authorize their revision on appeal. The proof is amply sufficient to show that appellant was a principal in the theft, and supports the conviction. The objections to the charge are not well taken, it being full and fair to appellant in every particular. Judgment affirmed.

MILRAINEY v. STATE. (Court of Criminal Appeals of Texas. Nov. 21, 1894.)

HOMICIDE-SELF-DEFENSE-EVIDENCE.

1. Where, on a prosecution for murder, the only evidence as to the existence of a fact on which defendant's innocence depends is de

fendant's own testimony, it is error to refuse to permit him, after closing his evidence other than that in rebuttal, to question a state's witness on cross-examination in regard to such fact, though it is outside of the witness' direct testimony.

2. The fact that one going in good faith to work on his own land may have reason to believe his presence there will be offensive to another does not prevent him. if he kills such person on being attacked by him, from pleading self-defense.

3. Defendant testified that deceased, who had leased him certain land, and who had for some time tried to compel him to give up the land, came into the field in which he was plowing, and attempted to lead his horses out of the field: that defendant pulled the horses back, and deceased immediately stooped to draw a knife from his boot leg, saying that he would kill defendant; and that defendant then fired one shot white deceased was stooping, and two after he straightened up. Two witnesses, who claimed to have seen the whole occurrence, though 200 yards off, stated that deceased did not stoop, but also stated that only two shots were fired. There were three bullet holes in deceased's body. Held, that a verdict for murder in the second degree was not supported by the evidence.

Appeal from district court, Bell county; W. A. Blackburn, Judge.

Logan Milrainey was convicted of murder, and appeals. Reversed.

Moffatt & Anderson and John B. Durrett, for appellant. R. L. Henry, for the State.

SIMKINS, J. Appellant was convicted of murder in the second degree, and his penalty assessed at 15 years. We think the court erred in refusing to permit the defense to prove by the witness A. B. Harris the facts of the rental contract by which appellant claimed possession of the land in dispute. Appellant's right to the said land was one of the principal grounds of the defense. No witness knew the facts of renting except appellant, Harris, and deceased. The appellant testified to them. Harris was placed on the stand to impeach appellant on a single matter. Appellant sought to corroborate all he had stated about the contract, but the court ruled it out, because the defense had closed except in rebuttal, and also refused to allow its introduction as original evidence. When a matter has been fully investigated, and testimony is again sought to be introduced by one who has closed his side, leave to do so may be refused by the court. Still, the court should even then act cautiously in excluding offered testimony, especially in the graver crimes. But where, as in the case at bar, the only testimony as to the rental contract was the appellant himself, and the court, by its charge, hinged appellant's guilt on his right to the land, it would seem that it was necessary to a due administration of justice to permit appellant to corroborate his own evidence by said witness. Code Cr. Proc. art. 661.

Again, we think the thirteenth assignment is well taken. The twenty-fourth and twen

ty-fifth paragraphs of the court's charge instructed the jury, in effect, that a person's own original act, when unlawful, limited his right of self-defense; and, if he killed another in self-defense while engaged in a felony, it would be murder, but, if engaged in a misdemeanor, it would be manslaughter. If defendant provoked the difficulty with intent to kill Parker, and Parker, in consequence, made a slight assault on defendant, who thereupon killed him, it would be murder. If, however, defendant provoked the difficulty without intention of killing, yet, suddenly and without deliberation, killed Parker, it would be manslaughter. The last proposition is incorrect (Willson's Cr. St. art. 1024); but, conceding it to be law, it is certainly difficult to see what connection either paragraph has with the case at bar. There is no evidence that appellant, at the time of the homicide, was engaged in a felony or misdemeanor, or that he provoked the difficulty either with or without an intent to kill. The uncontradicted testimony clearly shows that appellant was at the time of the difficulty upon his own land. He had rented it, and had made a peaceful entry thereon with his plow and team, and was engaged in working it. The evidence further shows that, armed with a butcher knife, carried concealed in his right boot, the deceased went into the field where appellant was plowing, talking very loudly, and, as appellant states, ordering him to quit the field, or he would kill him, and was within five feet of appellant when he was killed; appellant shooting him three times, the first shot, as appellant states, being fired as the deceased was reaching in his right boot, say. ing: "I'll kill you. God damn you, I'll kill you." We presume the court must have charged the jury upon the theory that appellant's going upon the land was a provocation to the deceased. But, surely, one going in good faith to work upon his own premises could not be said to be provoking a quarrel, or engaged in a misdemeanor or felony, even though he may have had reason to believe that his presence on the land might be offensive to another. There was no evidence that appellant went on the land to taunt or provoke the deceased, for the purpose of killing, or any other purpose, as suggested by the charge; but the evidence clearly shows that the time had come, if ever, for appellant to have asserted his rights and held to his possession, which the deceased, aided by Harris and McCorley, was trying to take from him. The charge was inapplicable and erroneous. Ball's Case, 29 Tex. App. 107, 14 S. W. 1012.

The same objection lies to paragraphs 26 and 27 of the charge. They are predicated upon theories of the court that find no support from the evidence in the case. There is no testimony tending to show that appellant "relinquished, abandoned, and surrendered the land to Harris," who, in turn,

released his right to Parker, who thereby was reinvested as owner with right to eject appellant when he trespassed on the land; nor is there any testimony tending to show that appellant, after renting said land, surrendered his rights in the same, and Parker, being reinvested with the right to re-rent the land, had rented it to McCorley, who was in peaceable possession of the same; nor is there any ground for the suggestion of the court that Parker had reserved the right to enter at will upon the land rented to McCorley. On the contrary, the evidence shows that appellant insisted on his rights; that he never abandoned his claim to Harris, Parker, or any one; but that after making the contract with Harris, with the knowledge and consent of the deceased, who was the owner, and after building a cornerib and moving his corn on the place, and arranging for board with Harris, Parker, the deceased, determined to get rid of appellant. Harris was induced to assist in the effort. The matter between appellant and Harris was then submitted to arbitrators, who decided appellant was entitled to the land. Notwithstanding this, Parker endeavored to dispossess appellant by renting the land in dispute to one McCorley, who knew appellant's rights in the premises. McCorley went upon the land, and began to prepare it for cultivation. When appellant drove his plow and team on the land, and began plowing it, deceased then attempted to eject him. McCorley saw appellant plowing, but did not attempt to interfere or object. He did not witness the shooting, being prevented by an intervening rising ground. The difficulty in giving charges of the character here discussed is that they frequently operate, whether correctly or not, as suggestions to the jury of the views entertained by the court as to the defense in the case, and lead them to accept as true a theory which has no other foundation than judicial incredulity and suspicion. But while the charge of the court was voluminous, and presented issues not raised by the testimony in the case, we think the court erred in not presenting the question of marslaughter in connection with appellant's right to the possession of the land. It was in this connection that he charged fully on self-defense, but he should have gone further, and submitted manslaughter from the same standpoint. Even where it may not justify the taking of human life, an attack on one's property is justly regarded as a great provocation, and constituting adequate cause. The determined conduct of the deceased, in seeking to drive appellant from the land in defiance of right and good faith. was well calculated to arouse the passion and resentment of a person of ordinary courage and spirit. Appellant was certainly entitled to a more specific charge on manslaughter than the statute.

We do not think the evidence supports the verdict. There are but three persons who

witnessed and testify to the shooting, the appellant being one of them. The appellant states that deceased came up to his horses, ordering him to get out in the road, or he would kill him. That he caught the horses by the bits, and pushed them to the road, repeating his threats. That he (appellant) thereupon pulled the horses back, and told deceased to let them alone, and deceased stepped back from the horses' heads, and reached down into his right boot leg, with his left side towards appellant, exclaiming: "I'll kill you. God damn you, I'll kill you." And appellant drew his pistol and fired. That, when appellant fired the last two shots, deceased raised up straight, and threw up his hands, and staggered, etc. Appellant states he fired three shots. On the other hand, Matt James and Andrew McDonald, witnesses for the state, who claim to have witnessed the whole difficulty from different points, 200 yards off, deny that deceased stooped down, but testify he was standing up, facing appellant, when the shots were fired, but that only two shots were fired by appellant, and none were fired after deceased fell. The physical facts tend strongly to corroborate appellant, and contradict or impair the statement of said witnesses that they saw the whole difficulty. The evidence clearly shows there were three bullet holes in the body of deceased, one below the right nipple, one below the left nipple, the third entering just above the left shoulder blade, ranging downward in the body, and towards the backbone. The two last shots were fired in rapid succession, and it is probable that the witnesses saw the last two, and not the first.

For errors indicated, the judgment is reversed, and the cause remanded.

CRIMINAL LAW-REVIEW ON APPEAL.

1. Error in refusing a continuance will not be reviewed, in the absence of a bill of exceptions reserved to the ruling.

2. In the absence of a statement of facts, the sufficiency of the evidence cannot be reviewed.

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

John Sullivan was convicted of a crime, and appeals. Affirmed.

R. L. Henry, for the State.

DAVIDSON, J. Having failed to reserve a bill of exceptions to the refusal of his application for a continuance, defendant is not entitled to a revision of that question on appeal.

The transcript does not contain a statement of the facts; hence, we cannot revise the ruling of the court refusing a new trial because of the supposed insufficiency of the evidence to support the conviction. The judgment is

affirmed.