cause defendant did not, under his theory of the case, kill deceased to prevent an unlawful or violent attack upon himself other than an attempt to murder, and was not bound to resort to all other means to prevent the threatened danger. He acted for the purpose of preventing murder, and nothing less, if his theory be true. That it was true was a question for the jury. The remaining questions are not of sufficient importance, It is thought, to require discussion. Judgment reversed, and cause remanded.

PER CURIAM. Appellant, being indicted for the murder of A. P. Parks in Eastland County, sued out a writ of habeas corpus before the Honorable T. H. Conner, judge of the Forty-Second judicial district, who, upon hearing, refused bail, and an appeal was taken to this court. We have most carefully examined the testimony in this case, and believe that bail should be granted, and relator held to bail in the sum of $8,000. The judgment is accordingly reversed, and cause remanded.

RODGERS v. STATE.

(Court of Criminal Appeals of Texas. Nov. 24, 1894.)

CRIMINAL LAW-REVIEW ON APPEAL-HOMICIDEINSANITY.

1. Errors in admitting and rejecting testimony will not be reviewed in the absence of a bill of exceptions reserved to the rulings.

2. The fact that defendant, though a matured man, was possessed only of the intelligence of average boys of 13 or 14 years of age, not show that he was an imbecile.

3. Defendant and deceased had been living in the same house, and were engaged to be married. After deceased returned from a visit, she and defendant had a scule about a pistol, in which her hand was hurt. She went out to the yard, and defendant loaded the pistol and called her in, and fired three bullets into her body and one into himself. He gave as a reason that they were to be married next day, and that she wanted to go back on him. Held, that a conviction of murder in the second degree would not be disturbed on appeal.

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

Charles Rodgers was convicted of murder in the second degree, and appeals. Affirmed. R. L. Henry, for the State.

DAVIDSON, J. Errors assigned upon the ruling of the court admitting and rejecting testimony will not be reviewed in the absence of bills of exceptions reserved to such ruling; hence these grounds for reversal are not well

taken. Nor are those urged in regard to the court's failure to give in charge the law applicable to manslaughter, and the imbecility of appellant. The testimony discloses that appellant was dull in intellect, and possessed of about the intelligence of average boys of 13 or 14 years of age, though he was a matured man. This does not constitute imbecility. The record further discloses that appellant and Patsy Coleman, the deceased, had been living in the same house for six months prior to the homicide, very much in love with each other, and engaged to be married; she was seen to sit in his lap; they used many endearing expressions in addressing each other; that he was very lonesome and uncomfortable when separated from her; that on the day of the homicide she had returned to Dallas from a week's visit to Sherman; that they engaged in a scuffle over a pistol, and hurt one of her fingers during the scuffle; that she then left the house, going out into the yard; that he loaded the pistol, and, using a pet name, called her, and she returned to him; that as they went into an adjoining room he caught her around the neck with his left arm, and with his right hand fired three bullets from the pistol into her body, and then the fourth one into his own body. He assigned as a reason for the homicide that "they were to be married next day, and she wanted to go back on him, and was going back to Sherman that day." We have been unable to find any "adequate cause," such as would, under the statute, reduce the killing to manslaughter. The evidence justified the jury in deciding the issue of insanity adversely to appellant, and convicting him of murder in the second degree. The judgment is affirmed.

1. An application for a continuance of a trial for robbery, based on an allegation that defendant expected to prove by an absent witness that at a certain time and place the witness saw defendant and the person robbed engaged in conversation, was properly denied.

2. A bill of exceptions filed after the adjournment of the term at which the case was tried will not be considered on appeal.

3. It is improper to admit in evidence a newspaper containing an account of the commission of the offense.

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

Joe Millirons was convicted of robbery, and appeals. Affirmed.

W. T. Strange, for appellant. R. L. Henry, for the State.

plied for a continuance for the testimony of Tom Lockett, by whom he expected to prove "that a little after 2 o'clock on September 3, 1893, he saw defendant and J. J. Osburne, on Commerce street, engaged in conversation with each other." This is too general and indefinite to be considered. The facts expected to be proved by the absent witness should have been definitely set out in the application. What bearing did the evidence stated have upon any issue in the case? The robbery occurred at night, after 2 o'clock. Did the conversation occur after 2 o'clock at night or in the day? What bearing did the mere fact that a conversation occurred between them have upon any issue in the case? Where is the Commerce street alluded to in the application? Was it in Dallas, and was it the Commerce street referred to by the witnesses in the statement of the facts? But, if true, and properly set forth in the ap plication, the evidence could have no applicable exculpatory bearing on the case, that we can discover. Even where the absent testimony is “material, and probably true, the case should not be continued unless the facts are exculpatory, or tend to discredit or explain the inculpatory facts." McAdams v. State, 24 Tex. App. 101, 5 S. W. 826; Pruitt v. State, 30 Tex. App. 156, 16 S. W. 773. There was no error in this ruling of the court.

2. The remaining bills of exception, having been filed after adjournment of the term of the court, cannot be considered. "The rule is the same where the bill appears only in the statement of facts which is filed and approved after the term, upon a proper order for that purpose." The bills here spoken of were incorporated in the statement of facts, and filed after the end of the term. Lockett v. Schurenberg, 60 Tex. 610; Willis v. Donac, 61 Tex. 588; Tom v. Sayers, 64 Tex. 339; Yoe v. Montgomery, 68 Tex. 338, 4 S. W. 622; Schaub v. Brewing Co., 80 Tex. 634, 16 S. W. 429; Frisby v. State, 26 Tex. App. 180, 9 S. W. 463. The practice in this regard is the same in criminal as in civil causes. Willson's Cr. St. §§ 2364, 2366. One of the bills contained in the statement of facts was reserved to the admission of an article with large headlines, published in the Dallas Morn ing News, a daily paper published in the city of Dallas, where the robbery occurred. This article gave a rather extended detailed statement of the circumstances attending the commission of the offense. Why this was offered or admitted as evidence we are unable to discover, and, had the bill been reserved in such manner as to have entitled it to consideration, would have operated to re verse the judgment. But, as presented, we cannot consider the bill.

3. After a careful revision of the testimony, we do not think the contention of appellant well taken that the evidence does not sup port the conviction. The judgment is affirmed.

MILLIRONS v. STATE. (No. 947.) (Court of Criminal Appeals of Texas. Nov. 24, 1894.)

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

Joe Millirons was convicted of burglary, and appeals. Affirmed.

W. T. Strange, for appellant R. L. Henry. for the State.

DAVIDSON, J. Appellant was convicted for the burglary of J. J. Osburne's house, and, with the exception of the bill of exceptions reserved to the refusal of the continuance, the bills of exception are the same as in cause No. 950 (just decided), 28 S. W. 685, and were reversed in the same manner. and therefore cannot be considered. The robbery in that cause grew out of the burglary in this cause. The testimony is in substance the same as in the former case, and supports the conviction. The judgment is affirmed.

MOORE v. STATE.

(Court of Criminal Appeals of Texas. Dec. 5, 1894.) CRIMINAL LAW-EVIDENCE-ARGUMENTS OF COUNSEL-INSTRUCTIONS.

1. The admission of immaterial testimony is not reversible error.

2. Where the evidence against a defendant on trial for assault is positive, a remark of the county attorney that, if the jury make a mistake, defendant can appeal, called forth by a line of argument opened by defendant's attor ney, is not ground for reversal.

3. On trial for a misdemeanor, errors in the charge will not be reviewed, unless an excep tion was taken at the trial, and embodied in a bill of exceptions.

Appeal from Nacogdoches county court; H. F. Denson, Judge.

Richard Moore was convicted of aggravated assault, and appeals. Affirmed.

Tom R. Jennings, Geo. H. Matthews, and Inghram & Ratcliff, for appellant. R. L Henry, for the State.

SIMKINS, J. Appellant was convicted of an aggravated assault, and his punishment fixed at $50. The record shows the aggravated assault was inflicted with a large stick upon one Gid Crain, a negro, from whom ap pellant was unable to collect a debt.

1. Appellant complains that the court erred in permitting the sheriff, Spradley, to state the conversation which he was holding with Gid Crain when said Crain was called aside by appellant. As the conversation was immaterial, and in no way referred to or concerned appellant, we are at a loss to see how its introduction could in the slightest degree affect the rights of appellant. It was obviously harmless.

2. The remarks of the county attorney were certainly evoked by the argument of

defendant's attorney, and clearly in response thereto. In some cases, where the evidence is purely circumstantial, and is not strong, the remarks of the county attorney to the effect that, if the jury make a mistake, defendant can appeal, is held to be error (Crow Case [Tex. Cr. App.] 26 S. W. 209); but not In a case where the evidence is clean, and the defendant's attorney opens the line of argument to which such a remark is a proper reply.

3. We think the charge under the testimony is sufficient. There was no exception taken to it for any defects. This is a misdemeanor in which, as a general rule, errors in the charge will not be revised, unless it is excepted to at the trial, and presented by a proper bill of exceptions. Willson's Cr. St. 2363.

The judgment is affirmed.

LOCAL OPTION LAW VALIDITY DURING CONTEST -HABEAS CORPUS.

Pending a contest originating in the district civil court as to the validity of a local option law, the court of criminal appeals will not entertain an appeal from an order denying a writ of habeas corpus attempted to be sued out by one charged with a violation thereof.

Appeal from Hill county court; W. P. Cunningham, Judge.

John Hickman was arrested on an information charging him with violating a local option law. On the ground that the operation of the law was stayed pending a contest as to its validity, he applied for a writ of habeas corpus, which was denied, and he appeals. Affirmed.

McKinnon & Carlton, for appellant. R. L. Henry, for the State.

SIMKINS, J. At an election held on the 28th of January, A. D. 1894, local option was adopted in justice precinct No. 1 of Hill county; and on the 12th of February the re turns were opened, and the result duly declared by the commissioners' court, and the order made and published, as required by law. On the 24th of February, thereafter, certain citizens residing in said precinct filed their petition again the county attorney, the county judge, and commissioners of the county, contesting the validity of the election, upon certain grounds therein stated. Relator was not a party to the petition. Defendants filed their answer to the petition, and, on hearing at a regular term of the district court of Hill county, the court, on the 1st day of March, 1894, rendered its judgment in all things finding against the plaintiff, who thereupon gave notice of appeal to the court of civil appeals for the Fifth supreme judicial district of Texas, which appeal was thereafter duly perfected. That, pending said contest, the re

lator was arrested upon information charging that on the 26th of March, 1894, in the county of Hill, in the state of Texas, in justice precinct No. 1 of said county, relator unlawfully sold intoxicating liquor to one Clarke, in violation of the local option law adopted as aforesaid. Relator sued out a writ of hapeas corpus before the county judge of Hill county, alleging that he was illegally confined and restrained of his liberty by the sheriff of Hill county. The prayer of petitioner was refused, and relator appealed.

The question presented for our determination is whether, pending a contest of a local option election after it has been by the commissioners' court declared to be adopted, one may sell intoxicating liquor; in other words, does the contest suspend the law? In the case of Odell v. Wharton, 27 S. W. 123, our supreme court have held that civil courts cannot, in the absence of legislation, entertain cases of contested elections; and it is unnecessary to pass upon the questions raised. If the election is invalid, relator can show it upon the trial of his case. The judgment of the lower court is affirmed.

SHANNON v. STATE.

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

HOMICIDE-SELF-DEFENSE.

The fact that a person arms himself before going to ask an explanation of insulting language spoken of him, and, on such language being repeated without any provocation on his part, replies in terms equally insulting, does not deprive him of the right to take his adversary's life in self-defense.

Appeal from district court, Washington county; Ed R. Sinks, Judge.

Aaron Shannon was convicted of manslaughter, and appeals. Reversed.

Rogers & Herbst, for appellant. R. L. Henry, Asst. Atty. Gen., and Searcy & Garrett, for the State.

SIMKINS, J. Appellant was convicted of manslaughter, and his punishment fixed at two years in the penitentiary. Appellant and deceased were young men, under 19 years of age, living in the town of Independence, both of good character and social position. Deceased was, perhaps, high spirited, had had some previous difficulties, and usually went armed. Appellant was exemplary in his life. This was his first difficulty, and he borrowed the pistol used in the homicide, having none of his own. The issue in the case was whether appellant provoked the difficulty which led to the homicide, and, if so, with what intent. The charge of the court was clear, and instructed the jury that, if appellant provoked the quarrel for the purpose of killing deceased, it would be murder, though done in self-defense; if only for the purpose of inflicting a battery, it would be manslaughter. If the interview was re quested in a friendly spirit, to settle a dif

ficulty or misunderstanding, and appellant killed in defense of his life, it would be justifiable homicide. The jury having found manslaughter, the question arises, do the facts proven to have attended the homicide show an intent or purpose on the part of appellant to provoke a difficulty? If deceased was the aggressor, without provocation on the part of appellant, the latter cannot be held responsible. There is no question that one may speak to another about derogatory charges or statements made or circulated by such other person against him, without intending or even desiring to provoke a dif ficulty; and, knowing such other person is armed, he may also arm himself, not to provoke a difficulty or to produce an occasion for injuring the other, but to act, if necessary, in self-defense. If, then, in an attempt to adjust the trouble or reach an understanding, without any provocation on defendant's part, the insult or charge complained of is not only persisted in, but publicly repeated, and defendant, roused to passion thereby, replies in terms equally insulting, and is immediately attacked, and finally kills, but only in defense of his life, we cannot hold him guilty of any crime. To hold otherwise would be to deny a man the right to notice any insult or interrogate the author of any charge because he would forfeit the right to defend his life if he should be attacked. The tendency of the right to abuse is no answer to the right itself. The fact that one with a grievance arms himself, and seeks an interview with the man who wrongs him, is not necessarily a provocation, nor does it place the injured party necessarily in the wrong. He must also, as said by Judge Hurt in Cartwright's Case, 14 Tex. App. 502, "willingly and knowingly use language or do acts reasonably calculated to lead to an affray or deadly conflict"; and, unless the acts are clearly calculated or intended to have such an effect, the right of self-defense is not compromitted, even though the party armed himself and went there for the purpose of a difficulty. White's Case, 23 Tex. App. 164, 3 S. W. 710. There is nothing in this record that shows appellant was the aggressor, or that he used language or did anything reasonably calculated to provoke a difficulty. He invited deceased to an interview in a quiet and peaceful manner. They spoke in low tones, inaudible to bystanders 15 feet away. Deceased first began the difficulty by loudly stating "that what he had said then he said now." There was no question about what he meant, for appellant instantly replied, "If you say I am a damned coward, you are a damned liar." Again deceased repeated the remark, and appellant replied, and then deceased attempted to ride him down with a large and spirited stallion upon which he was mounted, and was only prevented from doing so by appellant catching the reins near the bit. He then drew his pistol, and held it down by his side. A strug

gle ensued, deceased endeavoring to jerk his reins away and ride over appellant, both parties talking excitedly. Finally, appellant, using his pistol as a bludgeon, struck deceas ed, who thereupon drew his pistol and began firing, when appellant shot and killed him. In the record as presented, the deceased ap pears the aggressor throughout. Enough is shown in the statements of the parties to show that young Shannon had been insulted, and remarks made about him calculated to bring him into contempt among his associ ates, and, when he sought an explanation, he was met with a repetition and public avowal of the charge. When he replied in similar terms to the insult, he was violently attacked by an effort to ride him down. Had he killed deceased then, it would have been in self-defense; but he held the pistol down, and only when the effort was continued to ride over him did he begin to use it as a bludgeon, and finally killed, after deceased had opened fire upon him. Defendant acted on the defensive only. But it is insisted by the state that, after the homicide, appellant remarked to Dr. Benford, who told him to go on home, "that any man who ran a hog over him [appellant] or insulted him in the presence of ladies was left"; and that such a remark was evidence of malice aforethought, and clearly shows that appellant brought on the difficulty for the purpose of killing deceased. It is to be observed that of the 10 bystanders, most of whom testified for the state, but a single state's witness testified to this remark. Dr. Benford said he heard no such remark, and the jury, to whom this issue of murder was fairly presented in the charge of the court, practically say they do not believe appellant brought on the difficulty with the purpose of killing deceased; and we think the evidence clearly sustains the correctness of this finding. But, concede the remark was in fact made, it simply tends to prove that appellant had a grievance which impelled him to seek an ex planation, to wit, that deceased had charac terized him, in the presence of ladies, as a coward. But the vital question in the casewhether the interview was sought for the purpose of provoking a difficulty-must be clearly shown by the facts attending it, and not alone by the remarks of an excited boy amidst the bloody circumstances of his first difficulty. We do not feel satisfied with the verdict, and think a new trial should have been granted. The judgment is reversed, and cause remanded.

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

LARCENY WHAT CONSTITUTES-ABANDONMENT. 1. One who procures the agent of a railroad company to send him property of an other, left on the company's right of way, is guilty of larceny thereof.

2. Two turbine water wheels, left by their owner on a railroad platform for one year, and then removed by him to the right of way, remaining there for nine years, cannot be said to have been abandoned, so as not to be the subject of larceny.

Appeal from district court, Williamson county; F. G. Morris, Judge.

J. J. Sikes was convicted of theft, and appeals. Affirmed.

Glasscock & Strickland, for appellant. R. L Henry, for the State.

HURT, P. J. This is an appeal from a conviction of theft. It appears from the record that J. H. Beveridge owned two Laffel turbine water wheels, which were shipped by him from Arkansas to Round Rock, in Williamson county, Tex., in February, 1881, in connection with a lot of other machinery. The other machinery was placed, by direction of Beveridge, in a warehouse at that place; but the wheels he had unloaded from the cars, and placed on the railroad p'atform. They remained there till the spring of 1882, when he was notified by the railroad agent to remove them from the platform, and he sent his son there from county, where

Beveridge then lived, to do so. The wheels were then placed on the railroad right of way, and there remained until 1891. In the winter of 1891 the appellant, Sikes, wrote to the agent of the railroad at Round Rock, and directed him to ship the wheels to him at Houston. This was done. Appellant, in the meantime, had sold one of the wheels to one

D. P. Sheppard. Appellant was indicted in the district court of Williamson county for the theft of the wheels, and was convicted. There is no evidence in the record that appellant, after the wheels were shipped to him, to Houston, ever had actual possession or control of the wheels.

Counsel for appellant submit three propositions, either of which, if correct, they contend, will require the reversal of this judgment, as follows: (1) That as appellant never had actual possession of the wheels, or either of them, he cannot be guilty of theft; (2) that appellant did not take the wheels, for he was not in Williamson county, when and where they were taken; (3) that, if he did take them, they had been abandoned by their Owner, and were not the subject of theft. A solution of the second of these questions settles the first also. The freight agent at Round Rock, who did take the wheels, was the innocent agent of appellant. He took them under the direction and at the request of appellant. He acted for him, and his possession was the possession of appellant. The agent was innocent of any guilty participation in the taking. The appellant was therefore properly indicted as the principal in the offense. The property was taken by Douglas, as the innocent agent of appellant, in Williamson county, and, as his acts were attributable directly to the appellant, the venue v.28s.w.no.7-44

was properly laid in that county, for in law and in fact appellant took the property in that county. He who acts through another acts himself. Suppose that appellant had sent some one to Round Rock to get the wheels for him, and such person, being innocent in the transaction, had taken the wheels away. Is there any question that appellant would have been guilty as principal, or that the offense would have been committed in Williamson county? We think not, and we can see no difference in principle between such a case and the one here presented. Corbile's Case. Had the owner abandoned the property? The word "abandon" means a giving up; a total desertion; an absolute relinquishment. Abandonment includes both the intention to forsake or abandon and the act by which such intention is carried into effect. Property may be said to be abandoned when the owner "throws it away," or when it is voluntarily left or lost, without any intent or expectation to regain it. The property in this case had not been abandoned. The property was of such a character that it could not be carried with the person of the owner. could be left or placed by him wherever most convenient, without his losing his rights thereto. It appears from the testimony of Beveridge that it was not taken away from the depot because, before he received it. his mill was washed away, and, not being able to rebuild, he had no immediate use for it, and thus came to let it remain at Round Rock.

It

We have carefully examined the instructions given the jury. They are correct, and contain the law applicable to the case made by the evidence in the record. There being no error, the judgment is aflirmed.

Ex parte REED.

(Court of Criminal Appeals of Texas. Dec. 5, 1894.)

COURT OF CRIMINAL APPEALS-JURISDICTIONHABEAS CORPUS.

The court of criminal appeals has no jurisdiction of proceedings for a writ of habeas corpus to recover possession of relator's minor child.

Appeal from Bowie county court; J. J. King, Judge.

Victory Reed filed an application for a writ of habeas corpus in the county court to recover possession of her child, Adar Reed. From an order dismissing the application, relator appeals. Dismissed.

W. W. Woodard, for appellant. R. L. Henry, for the State.

SIMKINS, J. Relator filed her application for a writ of habeas corpus before the Honorable J. J. King, county judge of Bowie county, alleging that her daughter, Adar Reed, a minor under the age of 12 years, was held and illegally restrained of her liberty by