KING V. STATE.

(Court of Criminal Appeals of Texas. Dec. 15,

1894.)

ASSAULT WITH INTENT TO KILL.

Where the evidence does not justify a conviction for assault with intent to kill, an instruction as to aggravated assault should be given.

Appeal from district court, Houston county; A. B. Watkins, Judge.

John King was convicted of an assault with intent to commit murder, and appeals. Reversed.

Crook & Crook and Adams & Adams, for appellant. R. L. Henry, for the State.

DAVIDSON, J. A conviction for assault with intent to murder was the result of appellant's trial before the jury. Without entering into a discussion of the evidence, we are of opinion that it required that a charge upon the law of aggravated assault and battery should have been given the jury. As presented to us, we do not think the evidence justified the conviction for assault with intent to murder. The court submitted only the question of assault to murder, and selfdefense, and this may have induced the conviction obtained. The judgment is reversed, and cause remanded.

SIMKINS, J., absent.

GONZALES v. STATE.

(Court of Criminal Appeals of Texas. Dec. 15,

1894.)

HOMICIDE--APPEALABLE JUDGMENT.

In a murder case, the judgment is not firal and appealable, unless the sentence of the law is pronounced in the trial court.

Appeal from district court, Goliad county; S. F. Grimes, Judge.

Martin Gonzales was convicted of murder, and appeals. Dismissed.

R. L. Henry, for the State.

DAVIDSON, J. Appellant prosecutes his appeal from a conviction of murder, his punishment being fixed at imprisonment for life. This appeal must be dismissed, because sentence of the law was not pronounced in the trial court. This is necessary to make the judgment final in the lower court, and authorized an appeal to this court. Appeal is dismissed.

SIMKINS, J., absent.

PUSTIOFSKY v. STATE. (Court of Criminal Appeals of Texas. Dec. 15, 1894.)

CRIMINAL LAW-APPEAL -ÅBATEMENT BY DEATH. The appellant in a criminal action having died pending appeal, the appeal was abated.

Appeal from district court, Lavaca county; T. H. Spooner, Judge.

Joe Pustiofsky, convicted of assault with intent to murder, appeals, and, pending appeal, dies. Abated.

Arthur P. Bagby & Sons and S. C. Patton, for appellant. R. L. Henry, for the State.

DAVIDSON, J. Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement for two years in the penitentiary. From this conviction appellant prosecuted his appeal to this court. Pending his appeal, and since filing the record in this court, the appellant has departed this life, which fact has been sufficiently made to appear to us. By reason of the facts above set forth the appeal must be abated, and it is so ordered.

SCOTT v. STATE.

(Court of Criminal Appeals of Texas. Dec. 15, 1894.)

PERJURY EVIDENCE.

A person cannot be convicted of perjury, in having given evidence under oath contradicting an affidavit previously executed by him, in the absence of proof that he could read and did read the affidavit, or that it was read to him before he signed it.

Appeal from district court, Houston county; A. B. Watkins, Judge.

William Scott, convicted of perjury, appeals. Reversed.

John I. Moore, for appellant. R. L. Henry, for the State.

HURT, P. J. This is a conviction for perjury. One Berry Daniels was tried before the justice's court for betting at a game of craps. Upon that trial, appellant testified that Daniels had not bet at said game of craps. Upon this testimony, perjury was assigned. The time and place of the game were clearly proved. Upon this trial for perjury, Daniels and several other witnesses, as well as this appellant, swore that Daniels had not played at the alleged game of craps, to wit, that relied upon by the state. Albert Truss testified that Daniels did so play. It appears from the record that Constable Waller arrested appellant and another at an outhouse where a number of negroes had collected for the purpose of gaming, the remainder of the crowd having escaped. Appellant was carried before the county attorney, and there informed that, if he would give the names of those who were present and engaged in the game, he would not be prosecuted. He was cautioned not to name any but those engaged in the game. The county attorney preparedan affidavit which charged Daniels and others with betting at a game of dice known as "craps." This was signed and sworn to by this appellant. This fact of signing and swearing to the affidavit charging Daniels

with the offense is the only fact relied on by the state to corroborate the testimony of the witness Truss. No witness swears that appellant could read, or that the affidavit was read to him, or that he himself read it. When the cause was called for trial before the justice's court, the county attorney consulted with appellant as a witness. Appellant promptly stated that Daniels did not play, and the insertion of his name in the complaint was a mistake, and further stated he was not aware that Daniels' name was incorporated in said complaint. Being satisfied with this explanation, the county attorney dismissed the prosecution as to Daniels. Truss, after his conviction for said offense, made a complaint against Daniels for the same offense; and, upon his trial under this latter charge, perjury is alleged to have been committed by appellant. Appellant testified in this cause, and gave an explanation of the whole matter perfectly consistent with his innocence. explanation was, under the facts, reasonable and natural, and was not questioned by any witness on the trial. He stated that Daniels was present at the time and place of the game. This was true. He was called upon to give the names of all those present and participating in the game. He gave the names of all those present, as well as those participating in said game. The county attorney inserted all the names in the complaint, mentioned by appellant. The complaint not being read over to appellant, he swears he did not know Daniels' name was in the complaint. This is reasonable and natural, and such a mistake as is likely to occur. This being the case, we hold Truss was not corroborated, and the conviction is wrong. Judgment is reversed, and cause remanded.

SIMKINS, J., absent.

RODGERS v. STATE.

His

(Court of Criminal Appeals of Texas. Dec. 15, 1894.)

CRIMINAL LAW-REVIEW ON APPEAL-RECORD. 1. A ruling on a motion for continuance will not be reviewed unless it appears from the record that a motion therefor was presented to the court, overruled, and a bill of exceptions reserved.

2. Original affidavits, to entitle them to be considered on appeal, must be verified by proper certificate of the clerk, and separately from the transcript.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Solomon Rodgers, convicted of attempt to commit burglary with intent to commit rape, appeals. Affirmed.

to commit the crime of rape. Appellant had filed a motion to postpone his trial. This postponement was sought for the purpose of obtaining a witness and services of counsel. It does not appear from the record that the motion was presented to or acted upon by the court, there being no order of the court overruling same. In order to obtain a postponement for either of these purposes, the motion therefor must be presented to the court, and, if overruled, a bill of exceptions reserved, else the ruling of the court will not be revised on appeal.

2. What purport to be original affidavits, sent up in the record, cannot be considered, because not certified by the clerk, nor identified as original papers. "Where original papers are ordered to be sent up with the transcript, they should be forwarded with the transcript, and their identity verified by proper certificate of the clerk, and separately from the transcript." Carroll v. State, 24 Tex. App. 313, 6 S. W. 42; Malton v. State, 29 Tex. App. 527, 16 S. W. 423; Brewer v. State, 32 Tex. Cr. R. 74, 22 S. W. 41; State v. Morris, 43 Tex. 372. The charges given are sufficient, and the evidence supports the conviction. The judgment is affirmed.

EVANS v. STATE.

(Court of Criminal Appeals of Texas. Dec. 15, 1894.)

ASSAULT WITH INTENT TO KILL-EVIDENCE-CONTINUANCE ARGUMENTS OF COUNSEL.

1. Permitting state's counsel to read to the jury a decision in another case, against defendant's objection, is in the discretion of the

court.

2. Refusal of defendant's application for a continuance on account of the absence of a witness is not ground for reversal where defendant testified directly opposite to what the absent witness would have testified to.

3. In a prosecution for assault with intent to murder, the mere fact that defendant was at too great a distance to kill the prosecuting witness when he shot him, does not conclusively prove the absence of intent to kill.

Appeal from district court, Franklin county; John L. Sheppard, Judge.

J. C. Evans was convicted of assault with intent to murder, and appeals. Affirmed. R. E. Davenport, for appellant. R. L. Henry, for the State.

DAVIDSON, J. This appeal is prosecuted from a conviction of assault with intent to murder. During the argument the state's counsel read a certain decision to the jury, and commented on it, to which appellant reserved his bill of exceptions. It is not made to appear that the legal discretion of the court was in any manner abused, or that any in

DAVIDSON, J. 1. This conviction was for attempt to commit burglary with intent

§ 2321.

2. Application for continuance was made by appellant for the testimony of Nedever and Dickerson. Dickerson appeared, and tes

tified on the trial. By Nedever it was expected to be shown that Owens, the prosecutor, shot at appellant first, and as he was walking off from him. Appellant testified in his own behalf, and most positively, as did the other eyewitness, that he, and not Owens, fired the first shot.

3. It is contended that appellant was not guilty of an assault to murder, because the distance between the parties was too great to cause death by means of the shot fired. The question in all such cases is the intent of the accused. Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679. When an assault is made the question is, with what intent was it made? If to kill, the assault being made with malice, it would be an assault with intent to murder. In passing upon the intent with which the assault was made, the weapon used, of course, should be looked at; but it does not follow, because the means used does not produce death or serious bodily injury, that the intent to kill is wanting. This record furnishes ample proof of malice as well as of the intent on the part of appellant to kill Owens when he shot him. The judgment is affirmed.

HOGAN v. STATE.

(Court of Criminal Appeals of Texas Dec. 15, 1894.)

CRIMINAL LAW-NEW TRIAL-MISCONDuct of

JURY.

The fact that a sheriff entered the jury room and spoke to the jurors in regard to the case upon which they were deliberating is, under Code Cr. Proc. art. 690, which provides that no person shall converse with a juror after he has been impaneled, and under article 777, subd. 7, which provides for a new trial in case a juror converses with any person in regard to the case, sufficient ground for a new trial.

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

William Hogan, convicted of murder in the second degree, appeals. Reversed.

Lewis & Smith, for appellant. R. L. Henry, for the State.

HURT, P. J. This conviction was for murder in the second degree. We deem it unnecessary to discuss but one question suggested for reversal. It is made to appear that while the jury were deliberating upon their verdict the sheriff entered the jury room, and informed them he was going off, and would leave a bailiff in charge of them and to attend to their wants. One of the two jurors, who were for acquittal, asked said sheriff if the jury could go before the judge and inform him they could not agree, and was informed by the sheriff that they could not. He stated: "There was no use. This case has been a very tedious, wearisome and expensive case, and has been on

the docket a long time. The judge will not turn you loose until the end of the term, unless you bring in a verdict. A great deal of pains has been taken to get this case properly before the jury. When I started to leave, I said to them, "There is another matter I reckon there is no harm in speaking to you of, and that is, it has been reported to the judge and to the district attorney and to defendant's counsel that there is one man on this jury who said before he got on it that he would hang the jury unless they acquitted the defendant.'" The sheriff was not aware who was hanging the jury. The juror Junge, after stating substantially as did the sheriff, further testified: "I have learned since the jury was discharged that I was the man who was accused of saying this, but I did not know at the time who the sheriff had reference to. I never made a remark of that kind before getting on the jury. I can't say the statements made by the sheriff had any influence in the formation of my verdict, I don't think they did. I was considerably confused at the time, and worried about the condition of my affairs at home. I had been away from home a long time,-ever since I had come to town, and impaneled in the case, and things there needed attention, and I knew there were two more weeks of the court." Matthews and Junge were the two jurors hanging for an acquittal; and Junge, the juror who was reported to have said he would hang the jury if an acquittal was not secured. The statutes provide that no person shall * be impaneled except in the presence and by the permission of the court. * Code Cr. Proc. art. 690. And, "where a juror has conversed with any person in regard to the case," it is made a ground for a new trial by article 777, subd. 7. That these provisions of the statutes have been violated, we think, is evident, and in a manner calculated to influence the verdict of at least one juror. Such conduct on the part of the officer was reprehensible, and should have been punished to the limit prescribed by statute. Code Cr. Proc. art. 691. The judg ment is reversed, and cause remanded.

SIMKINS, J., absent.

*

COLLEY v. STATE.

(Court of Criminal Appeals of Texas. Dec. 18, 1894.)

CRIMINAL LAW-REVIEW ON APPEAL.

A conviction will not be reviewed, in the absence of a statement of the facts adduced on the trial.

Appeal from district court, Titus county; John L. Sheppard, Judge.

Henry Colley was convicted of burglary, Affirmed. and appeals.

R. L. Henry, for the State.

DAVIDSON, J. Conviction for burglary, with an assessed punishment of two years in the penitentiary. In the absence of the statement of the facts adduced on the trial, we are unable to revise the matter complained of in reference to supposed errors in the charge. That appellant was surprised at the evidence of the prosecution, and the theory upon which such prosecution was based, does not constitute ground for new trial, as the same is presented in said motion. There was no motion to withdraw the announcement of "Ready for trial." The judgment is affirmed.

DILL v. STATE.

(Court of Criminal Appeals of Texas. Dec. 15,

1894.)

CRIMINAL LAW-INSTRUCTIONS.

1. Whether a witness is an accomplice is a question of fact, and the court is not required to affirmatively charge that he is an accomplice.

2. The jury are the exclusive judges of the credibility of the witnesses.

Appeal from district court, Jack county; J. W. Patterson, Judge.

John Dill, convicted of murder in the first degree, appeals. Affirmed.

Stark & Stark, for appellant. R. L. Henry, for the State.

DAVIDSON, J. This appellant was convicted of murder in the first degree, his punishment being assessed at life imprisonment. The charge in relation to the weight and necessary corroboration of accomplices' testimony was sufficient. The court is not required to affirmatively charge that a witness is an accomplice. Where he is admitted to be such, or the facts place this beyond dispute, the court may so charge, without invading the rule that charges should not be upon the weight of the evidence. Whether or not a witness is an accomplice is a question of fact, and the charge may be so framed as to submit this as an issue to the jury. It was not necessary in this case to instruct the jury that Anderton was an accomplice, and in submitting this as an issue to be passed upon by the jury the court did not err, although he is clearly shown to be an accomplice. No jury of ordinary intelligence could have failed to find that he was an accomplice. Elizando v. State, 31 Tex. Cr. R. 237, 20 S. W. 560.

2. Nor did the court err in failing to charge that Mrs. Anderton was an accomplice, and in not submitting such issue to the jury. That a "woman's track" was seen going towards the house where the body of deceased was found did not raise or suggest the idea that she made the track, or had any connection with the crime, or was present when it was committed. It was not shown or attempted to be shown that the track was made by Mrs. Anderton. The purse found in

her house is not shown to have been the property of deceased. It resembled the purse owned by him, but this purse was shown to have been purchased by Anderton, in Tarrant county, long prior to the killing. But if it was not Anderton's, and he took it from the trunk at the time of or after the murder, and carried it home, and gave it to his wife, this would not constitute her an accomplice, especially in the absence of proof that she knew where her husband obtained the purse. Pen. Code, art. 87; Elizando v. State, 31 Tex. Cr. R. 237, 20 S. W. 560; Gray v. State, 24 Tex. App. 611, 7 S. W. 339.

3. This is not a case of circumstantial evidence. The accomplice testified that appellant and brother and himself were the participants in the crime, and that appellant killed deceased in his presence. Willson's Cr. Proc. § 2342.

4. The court's charge in regard to the jury being the exclusive judges of the credibility of the witnesses and weight to be given their testimony was correct. Appellant contends that such a charge might induce the jury to disregard the special instruction given in relation to the necessity of corroborating the accomplice, and leave them authority to convict if they believed Anderton to be a credible witness, whether corroborated or not. We think this criticism hypercritical.

5. The evidence is voluminous, but we are of opinion that Anderton is corroborated, and the verdict sustained by the testimony. The judgment is affirmed.

SIMKINS, J., absent.

BLOUNT v. STATE.

(Court of Criminal Appeals of Texas. Dec. 18, 1894.)

THEFT EVIDENCE.

On a trial for theft it is proper to exclude evidence as to what defendant said regarding the stolen property after the theft.

Appeal from district court, Llano county; W. M. Allison, Judge.

Tom Blount was convicted of hog theft, and appeals. Affirmed.

R. L. Henry, for the State.

DAVIDSON, J. The charge of the court was an admirable application of the law to every phase of the case, liberal and just to the accused. The court acted correctly in refusing the requested instructions, because the proposition of law therein contained had already been submitted to the jury. There was no error in refusing to permit the defendant to prove by Mandy Blount that Stonewall Blount, when he requested appel lant to go with him to the place at which the hogs were penned, stated to appellant that he, said Stonewall Blount, had gathered the hogs for Webster Rouse. Defendant was

permitted to prove by this witness that on Sunday evening,-same day the hogs were found in the pen by other witnesses,-after sundown, Stonewall Blount drove up to her father's residence, where she and appellant were living, and later on, and near night, they left together in the wagon, to go where the hogs were penned, and that defendant went at request of Stonewall. Upon objection of the state this witness was not permitted to testify that Stonewall Blount told defendant that he had penned the hogs for Webster Rouse. The theft was complete. These statements were not admissible further than to show why appellant accompanied said Stonewall to the pen where the hogs were, other witnesses having testified to their presence at the pen that night. We are of opinion the evidence is sufficient to sustain the verdict in this case. The judg ment is affirmed.

BORER v. STATE.

(Court of Criminal Appeals of Texas. Dec. 18, 1894.)

THEFT-CATTLE RUNNING AT LARGE-MISCONDUCT OF JURY-CONTINUANCE.

1. Cattle running at large, and not in their accustomed range, are the subject of theft.

2. The fact that jurors discuss among themselves features of the case not directly testified about is not ground for reversal.

3. Defendant's application for a continuance on account of the absence of witnesses is properly overruled, where it appears that the witnesses were present at a former trial, having been attached, and defendant failed to require them to enter into a recognizance as witnesses.

Appeal from district court, Llano county; W. M. Allison, Judge.

E. A. Borer was convicted of theft of cattle, and appeals. Affirmed.

Slator, McLean & Spears and John C. Oatman, for appellant. R. L. Henry, for the State.

HURT, P. J. Conviction for theft of cattle. Appellant requested the court to submit two instructions to the jury. The first was given; the second, refused. The second contains this proposition, to wit, that cattle at large, and not in their accustomed range, are not deemed in law to be in possession of their owner, and while thus running at large are not the subject of theft. This is a startling proposition, and would authorize thieves to steal all stock that should happen to leave their accustomed range.

Appellant proposed to prove by jurors that they had considered facts not properly before them. The bill shows no such matter. It shows, however, that the jury reasoned or discussed the fact that Coulter and Scott had not attempted to regain the steer from Griffay, although they claimed to have purchased it from him, and so testified. We cannot reverse a judgment because the jury

may have discussed among themselves features of the case not directly testified about. These observations, if made, were legiti mate. Scott and Coulter, if correct in their testimony, owned the animal in question, and yet permitted Griffay to take and retain it without questioning his right. Though there be a conflict in the testimony, when thoroughly understood we believe it sufficient to sustain this conviction.

Application was made to continue the cause for the testimony of Jim Wyckoff and Bill Smith. These witnesses did not reside in the county of the prosecution. This case was tried on the 16th day of May, 1894. At the December term, 1893, there was a mistrial. These two witnesses were present at that term. They had been attached and carried to court. Neither was under bond as a witness to attend court. They were liberated by the officers, were not recognized as witnesses in the case, and hence were not under any legal obligation to further attend the court as witnesses. Appellant should have required them to enter into recognizance as witnesses. There was no diligence, hence no error in refusing to postpone or continue the case. Judgment affirmed.