to file a brief in the lower court and this court as in civil actions. No brief is filed in this case, and there is no indication that one has ever been filed in the lower court. Therefore, upon the motion of the Assistant Attorney General, each of said cases is hereby ordered dismissed. Lewis v. State, 38 S. W. 205; Sparks v. State, 47 S. W. 976; Mack v. State, 57 S. W. 811; Bringhurst v. State, 37 S. W. 757; Conrad v. State, 9 Tex. App. 674. It is needless to cite other authorities. WILLIAMS v. STATE. (No. 3233.) after took a Texas & Pacific train to said station on the same railroad just across the line in Louisiana. When he got to the Louisiana station he procured his whisky and waited for a train. A Missouri, Kansas & Topeka train passed through the Louisiana station into Texas before the Texas & Pacific train arrived returning to Marshall. He took the Missouri, Kansas & Topeka train and went back thereon to a station in Texas, where it crossed the Texas & Pacific line. The Missouri, Kansas & Topeka train did not go to Marshall. He got off the Missouri, Kansas & Topeka train at the station in (Court of Criminal Appeals of Texas. Oct. 14, Texas and waited for a later train on the 1914.) 1. WEAPONS (§ 17*)-CRIMINAL PROSECUTION -QUESTIONS FOR JURY. In a prosecution for unlawfully carrying a pistol, where the defense is that the defendant was a traveler at the time, the question whether he was a traveler in fact is one for the jury. [Ed. Note.-For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.*] 2. WEAPONS (§§ 11, 17*)-CRIMINAL PROSECUTIONS-BURDEN OF PROOF "TRAVELER." The burden is upon one who is arrested while carrying a weapon upon his person to show that at the time he was a traveler-that is, one on a real journey-and the mere fact that he was crossing back and forth from one county or state to another is not decisive on the question. [Ed. Note.-For other cases, see Weapons, Cent. Dig. §§ 10-14, 20, 22-33; Dec. Dig. $$ 11, 17.* For other definitions, see Words and Phrases, First and Second Series, Travel.] 3. WEAPONS (§ 17*)—CRIMINAL PROSECUTION -EVIDENCE. In a prosecution for unlawfully carrying a pistol, evidence held sufficient to warrant the judge in finding that the defendant, who had gone across the line to another state to procure some whisky, and was then returning, was not a traveler. [Ed. Note.-For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.*] Appeal from Harrison County Court; Geo. L. Huffman, Judge. Texas & Pacific. When that reached the station he got on it, intending to go back where he left his buggy, get his buggy, and take his whisky back into Marshall. On his return, when he had gotten into Texas, the sheriff observed him, and found a pistol on his person, which he had carried with him from his home on this trip, and the sheriff arrested him. His sole defense was that he claimed to be a traveler. The case was tried before the judge without a jury. [1] Who is a traveler under our pistol statute is not defined thereby, and has not otherwise been defined. This court has all the time held that whether or not an accused is a traveler under the statute is a ques tion for the jury. Shelton v. State, 27 Tex. App. 443, 11 S. W. 457, 11 Am. St. Rep. 200, [2] There are many decisions of this court holding under a given state of facts that a person is a traveler, and others he is not a traveler. The question practically resolves itself into whether or not the accused is on a real journey. The question of crossing the county line from one county to another, or the state line from this into another state, back and forth, really is not decisive. Of course, the burden is always on an accused to show that he is a traveler under this statute to avoid conviction. There is no Gillis Williams was convicted of unlaw-question but that he carried the pistol on his fully carrying a pistol, and he appeals. Af- person. firmed. Bibb & Scott, of Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. Appellant was convicted for unlawfully carrying a pistol. The facts are clearly established and undisputed. Appellant lived in the city of Marshall, in said county. He had ordered some whisky expressed to him at a town just across the Texas line in Louisiana, 26 miles from Marshall. He had heard that other parties had theretofore been arrested for bringing whisky from Louisiana into Marshall, and he wanted to get his whisky without any trouble. Late one evening he went in his buggy from Marshall eight miles to a station on the Texas & Pacific Railroad, where he put up his team, and soon there [3] In our opinion, the judge below was authorized to find, as he did, that appellant was not a traveler. Hickman v. State, 160 S. W. 382; Stanfield v. State, 34 S. W. 116; Goss v. State, 40 S. W. 725; Harris v. State, 77 S. W. 610; Blackwell v. State, 34 Tex. Cr. R. 476, 31 S. W. 380; Jones v. State, 45 S. W. 596; Darby v. State, 23 Tex. App. 407, 5 S..W. 90. The judgment will be affirmed. BAKER v. STATE. (No. 3208.) (Court of Criminal Appeals of Texas. Oct. 14, 1914.) 1. RAPE ($ 47*)-PROSECUTION-EVIDENCE. ing her complaint informed the witness that acEvidence that the prosecutrix before makcused had never had sexual intercourse with her, and that another witness was in such a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes place that she must have heard the struggle if there had been a rape by force, as claimed by prosecutrix, is material. [Ed. Note.-For other cases, see Rape, Cent. Dig. § 66; Dec. Dig. § 47.*] 2. RAPE (8 51*)-PROSECUTION-EVIDENCEINSUFFICIENCY. Evidence held insufficient to sustain a conviction of rape. with me or laying down by me; I was trying to get him not to-just begging him not to. He was not undressed when he came into the room. I had disrobed. The defendant did have intercourse with me at that time, on that occasion. I guess that I understand what you mean by intercourse. It was without my consent. I did put forth efforts to prevent him from having intercourse with me there at that time. While he was doing this act, I was just fighting and crying; bloodshed. As to what he said to me with reference to this matter, he told me that if I told it he would kill me; he told me I was ruined if I did not marry him; said that he was going to marry me. I said, 'You are not going to marry me.' He said 'I am.' He said, 'I did it because I would die before anybody else could have you, and now they cannot. He said that [Ed. Note.-For other cases. see Rape, Cent. that was all. The act did cause me pain and Dig. 88 71-77; Dec. Dig. § 51.*] Appeal from District Court, Young County; Edgar Scurry, Judge. B. M. Baker was convicted of rape, and he appeals. Reversed and remanded. Arnold & Arnold and Kay & Akin, all of Graham, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of rape, and his punishment assessed at five years' confinement in the penitentiary. he was going to get rid of his wife." That is all the evidence there is in the record tending to show rape by force. She admitted she remained in appellant's employ until in February; that she made no complaint to any one the next morning, nor for months thereafter. She also admitted the rooms adjoining the one she occupied that night were also occupied. The occupants of the other rooms testify they heard no noise of any character that night. Appellant's father and mother testified that they oc [1] We need not discuss the ground complaining of the action of the court in overruling appellant's application for a continuance as the case will be reversed. We will say, though, that the testimony of Dr. J. W. Gallaher and Mrs. C. S. Wynns would re-cupied one of the adjoining rooms, and that late to material matters. Dr. Gallaher, it is stated, would testify that prosecutrix had told him that appellant had never at any time had sexual intercourse with her; this at a time when there was no reason to falsify; whereas this record discloses that the lady made the complaint when it appeared that a most serious charge would probably be brought against her. It is stated that Mrs. Wynns occupied the adjoining room on the night of the alleged rape; that only a thin plank partition separated the rooms; that she heard no outery or complaint of any character on that night. When it is considered that prosecutrix remained at the home of appellant several days thereafter, that no one heard an outcry that night, that she made no complaint that night, nor the next morning to any one-in fact, made no complaint for months thereafter the testimony becomes material in a case of rape by force. the partition was so thin that often after the prosecutrix had gone to bed they lay in their bed and talked with her, speaking in an ordinary tone. The prosecutrix does not deny this, and they swear positively they heard no cry or noise of any character that night. In fact, appellant's mother testifies she was in the room with the prosecuting witness that night waiting on her, and that appellant did not come in the room. It further appears that the next morning after this alleged rape the prosecutrix went about her work at the hotel apparently in her usual frame of mind, complaining to no one that she had been outraged. Charles Thigpen, Charles Osborn, Claud Rutherford, Mrs. Bridges, Will Bridges, Mrs. Gus Rutherford, Mrs. Fanny Rutherford, and other witnesses testify that the reputation of prosecutrix for virtue and chastity was bad. There is testimony in the record which would support a finding that appellant had sexual intercourse with prosecutrix at different times, but not under circumstances which would render him guilty of rape by force. It will be noted in the prosecutrix's testimony she says appellant promised to get rid of his then wife and marry her. Witnesses testify that the prosecutrix had told them while working at the hotel she would be Mrs. Baker soon, and the record discloses that no cry of rape was raised by her until months thereafter. further appears from the testimony of Dr. Terrell that shortly before this indictment was found that the prosecutrix sent for him, having heard that he had a letter reflecting directly he said, 'I am going to lay down by on her. After she had read the letter, which you,' and he did. I did make an effort at that was written by appellant, she became angry. time to prevent him from getting in the bed Then the doctor testifies: [2] In fact, we would be unwilling to sustain a judgment of guilt of rape by force on testimony of the character shown in this record. The prosecutrix, Miss Johnnie Graves, says she was 20 years of age at the date of the alleged offense. Appellant was running the Mountain Side Hotel, at Graham. Prosecutrix worked for appellant at this hotel, waiting on the table and doing other work. She says one night he came to her room and committed the act with which he is charged. She says about 11 o'clock on the night of January 10, 1913 "Beecher Baker came in there and kneeled down by my bed and began to play with me, and so It For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes I Testimony that the accused told the witness several hours after the killing that he was not going to be arrested and that all he wanted was one shot at the constable was admissible to to show a threat to resist arrest, regardless of whether it constituted a part of the res gesta. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 776, 778-785, 930-932; Dec. Dig. § 351.*] HOMICIDE (§ 307*)-SUBMISSION OF ISSUES -EVIDENCE. "I did have a conversation with her with ref- |2. CRIMINAL LAW (§ 351*) — EVIDENCE - ADerence to Beecher Baker having carnal inter- MISSIBILITY-THREATS. course with her. She seemed to be very angry with Beecher Baker, and she told me if he fooled with her that she was going to kill him, or something of that kind-if she came across him she would kill him-and I laughed and asked her where was the gun. She was a little excited. She said 'Can't I get him for rape?' I said, 'Did he rape you? She said, 'Well, not that I know of.' I said, 'What did he do?' She said, 'He came to my room one night about mid-3. night, and came to the bed and sat down on the bed.' I said, 'Did he have intercourse with you?' and she said, 'No.' I said, 'Did he get in the bed with you?' and she said, 'No.' said, 'Did he put his hands on you? She said, 'He only took hold of my hand and sat down on the side of my bed.' I said, 'Well, was there any one close by; if you were frightened did you say anything?' She said, 'No.' I believe that she told me that some of the family were in the room adjoining her. I asked her why she came to me. I said, 'I have never been your particular friend; I just hardly know you when I see you;' and she said that John Dolman told her to come to me, and he told her that she would have to swear everything that she could against Baker; if she did not, she would get into trouble herself. Now, that may not be the exact words, but that was the meaning of it; might have said that they would send her to the penitentiary, or something of that kind." It further appears from the record that there was some investigation being had as to whether Baker, appellant, had tried to poison his wife, and she had been informed that she might be implicated in it. It was after this, and other matters unnecessary to recite, that she brought the charge of rape against appellant. As before stated, under such circumstances we do not feel inclined to let the judgment stand, when the prosecutrix by her testimony shows no great resistance was made, and the other testimony would indicate that, if an act of intercourse took place on that occasion, it was by mutual consent. It may be that the prosecutrix and appellant were criminally intimate, and the testimony would suggest that probably this was true, but, if he did undertake to poison his wife in order that he might marry the prosecutrix, of course he would be guilty of a grave criminal offense, but not of rape on the prosecutrix. Where the state's evidence presented only the question of murder, and the defendant's eviand accidental killing, the court properly redence raised only the question of manslaughter fused to instruct on aggravated assault. Cent. Dig. §8 638-641; Dec. Dig. § 307.*] [Ed. Note. For other cases, see Homicide, Appeal from District Court, Navarro County; H. B. Daviss, Judge. Handy Walker was convicted of manslaughter, and appeals. Affirmed. Hawkins Scarborough and W. W. Ballew, both of Corsicana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. [1] Appellant was convicted of manslaughter for killing his wife, and his punishment fixed at three years in the penitentiary. He properly filed his plea for a suspended sentence. The court submitted the question to the jury and told them that, if they found him guilty and assessed his punishment at five years or less, to find, (1) if he had ever been convicted of a felony in this or any other state, and (2) whether his reputation was good or bad, and if they found both of these questions in the affirmative that they could, in their discretion, if they saw fit, recommend that his sentence be suspended, and, if they so desired, to so state in their verdict. The jury returned a verdict merely finding him guilty of manslaughter and assessing his punishment at tion of the suspension of his sentence. This three years, saying nothing about the quesverdict was received. He made no objection whatever to it at the time, nor did he then in any way seek to have the jury find a verdict on said issue or any of the matters necessary ques-rendered May 6, 1914. On May 8th he filed Having this view of the case, we do not deem it necessary to discuss the other tions raised. The judgment is reversed, and the cause is remanded. WALKER v. STATE. (No. 3235.) (Court of Criminal Appeals of Texas. Oct. 14, 1914.) 1. CRIMINAL Law (§ 933*)—VERDICT-WAIVER OF ERROR. The right to object to the failure of the verdict to make any recommendation of suspension of sentence was waived where the accused first complained thereof in his amended motion for a new trial filed on May 16th after rendition of verdict on May 6th. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2283-2292; Dec. Dig. § 933.*] to find in his favor thereon. The verdict was his motion for a new trial, but at that time and therein made no complaint whatever about the verdict as to suspension of sentence. For the first time, on May 16, 1914, in his amended motion for new trial he com plains in this particular. It would have been proper for the jury to specifically find, as directed by the court, on this question and in the several particulars as told by the court, but he cannot sit by and have the verdict received and the jury discharged, and, when it is too late for the court to properly remedy the matter in the trial, complain of the failure of the jury to find on said matters. This court in many cases has held that, where the court submitted the sus *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes pended sentence to the jury, and the jury made no finding thereon, or where they found that he had not before been convicted of a felony, and that his reputation was good, but failed and omitted to make any recommendation of the suspension of the sentence, that the presumption was that the jury refused to recommend a suspension, and have all the time sustained such verdicts and judgments. Roberts v. State, 158 S. W. 1003; Potter v. State, 159 S. W. 846; King v. State, 162 S. W. 890; Bowen v. State, 162 S. W. 1146; Cook v. State, 165 S. W. 573. In a still more recent case (Mills v. State, 168 S. W. 88) we held, in effect, that when it was shown by proper bill, as it was in that case, that the jury could not agree as to a finding on the suspension of sentence, and the verdict itself showing that fact, that it was error for the court to refuse to require a finding or grant a new trial when he received such verdict. But, as is stated in that case, proper objection was timely made, and the fact showu that the jury could not agree upon that issue and expressly so stated in their verdict, but that case is no authority for setting aside the verdict in this case, because no objection was made at the proper time, and the record nowhere, even now, shows that the jury failed or refused to agree upon that is sue. [2] Several hours-perhaps five-after the killing, appellant told Otto Simmons that he was not going to be arrested; that all he wanted was one shot at the constable (a white man). The court, over appellant's objection that this evidence was not res gestæ and irrelevant, immaterial, and inadmissible, properly admitted it. Evidence of resisting an arrest is always admissible against an accused. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 160 S. W. 361. And, of course, a threat to do so is likewise admissible. The question of res gestæ does not apply. Such evidence is an admission by an accused, whether res gestæ or not. [3] The only other question urged by appellant is that the court erred in refusing to submit to the jury a proper charge on aggravated assault. There was no error in this. The evidence in no way raised or suggested this offense. The state's case, without question, raised only an unlawful homicide-murder. That of appellant raised only the question of manslaughter and accidental killing. The court submitted both of these issues, and, in addition, negligent homicide. The jury found against appellant on both negligent homicide and accidental killing, and found him guilty of manslaughter. The evidence shows: That deceased and appellant were husband and wife; she rather a young woman; he rather an old man. Trouble arose between them. He claimed that she was guilty of improper conduct with another neTheir differences resulted in their gro man. mutual separation. They divided their property, and deceased went back to her former home, he remaining where he was, or going elsewhere. That on the day of the killing he passed the house where deceased was some 200 yards; she and her woman companion seeing him do so. After he had got that distance, he turned, came back to the house with his gun loaded, and the two women in the house did all they could to prevent his enterHe demanded that his wife should ing it. She refused. He then attempted come out. to force the door open. The two women resisted this. He shot either through the door, or the wall of the house right at it. claims it was accidentally; the facts would justify the jury to believe purposely. When this shot was fired, the two women left that door. He ran around the house to the other side and forced an entrance through another door. He In He The two women tried to avoid his shooting them, the deceased seeking to get. and remain, behind the other woman. their struggles they ran over a stove and fell upon the floor. The other woman succeeded in getting up. The deceased did not. From the state's side, the appellant then, while his wife was lying on the floor helpless, deliberately pointed his gun at her, shot her in the back with a shotgun and killed her. claimed that he struck her with the gun while she was on the floor and that it was accidentally discharged; that he did not intend to kill her. As soon as he killed her he left There can be no the house and went away. question but that this evidence and none of the other, which is unnecessary to recite, raised or suggested the issue of aggravated assault. Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Yzaguirre v. State, 48 Tex. Cr. R. 514, 85 S. W. 14. The judgment is affirmed. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 3. PHYSICIANS AND SURGEONS (§ 6*)—ITINER- | ceedings, and would show him guilty of vioANT PHYSICIAN-WHO are. Where accused for over a year preceding the prosecution had been a resident of the city of V. and had practiced medicine in the county in which such city was situated, he cannot be convicted of pursuing the occupation of an "itinerant physician" without payment of the tax required, even though he was not authorized to practice in the county, because he had not obtained a liecnse and registered as a physician. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.*] Appeal from Wilbarger County Court; J. B. Copeland, Judge. J. S. Rutherford was convicted of pursuing the occupation of itinerant physician with out having paid the tax required, and he appeals. Reversed, and prosecution ordered dismissed. C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was prosecuted and convicted under an indictment charging him with engaging in and pursuing the occupation of a physician, traveling from place to place, without having paid the tax levied on said occupation, and his punishment was assessed at a fine of $75, being the amount of the state and county tax on such occupation. [1, 2] In that part of the indictment where in it was intended to allege that appellant "followed the occupation of physician, traveling from place to place," etc., the word "physician" was written "physicial"; an "" being written where it should have been an "n." Appellant, among other grounds, moved to quash the indictment because there was no such occupation taxed as a "physicial." The court refused to quash the indictment, and ordered the clerk to change the indictment so as to read "physician." This the court had no authority to do, as this word was a matter of substance in the offense charged and not mere matter of form. An indictment cannot be amended in matter of substance. Article 587, White's Ann. Cr. Proc. And it is a rule of law that an indictment thus altered will not support a conviction. Calvin v. State, 25 Tex. 789; Edwards v. State, 10 Tex. App. 25. Had the trial court not undertaken to change the wording of the indictment, the whole context might have been suflicient, notwithstanding this mistake in spelling the word "physician," but we cannot countenance the alteration of indictments in matters of substance after they have been returned into court. He lating that provision of the Code prohibiting any one from practicing medicine without having obtained a license from the medical board and registering same, and not the article preventing one from practicing medicine as an itinerant physician without having paid an occupation tax. Had he paid the occupation tax under the evidence in this case, he would not have been authorized to practice medicine, and, as the evidence clearly shows that his fixed residence since he has been in this state has been at Vernon, he would not be liable for the tax levied on traveling physicians. Taking this view of the case, it is unnecessary to discuss the other questions raised. The judgment is reversed, and the prosecution ordered dismissed. LAMB v. STATE. (No. 3204.) (Court of Criminal Appeals of Texas. June 26, 1914. On Motion for Rehearing, Oct. 28, 1914.) 1. CRIMINAL LAW (§ 1091*)-APPEAL-BILL OF EXCEPTIONS-RULINGS ON EVIDENCE. A bill of exceptions in a murder case alleged that the widow of deceased was called by the state and asked if, before defendant time, she ever heard him make any threat killed deceased, during her husband's entire lifeagainst defendant, and answered that she had not, to which defendant objected as an attempt to prove deceased's character, because it related to a purported statement by deceased long prior to the killing, and because defendant did not rely on threats as a provocation. The court overruled the objection, and defendant then and there excepted and tendered his bill, which was the bill was too meager and insufficient to reapproved, signed, and ordered filed. Held, that quire review. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2943; Dec. Dig. § 1091.*] 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2. HOMICIDE (§ 158*)-EVIDENCE-THREATS. Where, in a prosecution for homicide, accused on cross-examination of a state's witness sought to show intense hostility by deceased against him which had continued for a considerable time, the state was properly permitted to ask deceased's widow if she ever heard her husband, during his entire lifetime, make a threat of any kind against defendant. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*] 3. CRIMINAL LAW (§ 363*)-RES GESTE. In a prosecution for homicide, evidence as to what was said and done by defendant and deceased from the time they first came in view of each other at the time of the killing, that defendant when leaving the scene immediately thereafter had six-shooters in each hand, and when the constable attempted to arrest him resisted arrest and shot the constable, was admissible as res gestæ. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.*] 4. CRIMINAL LAW (§ 396*)-RECEPTION OF EVIDENCE-REBUTTAL. [3] Again, we do not think the evidence in this case would sustain the conviction. was prosecuted for pursuing the occupation of itinerant physician, going from place to place, in the practice of that profession, without paying the tax levied by law. The evidence conclusively shows that he had been a resident of the city of Vernon, in the county of Wilbarger, for more than a year at the date of the institution of these proFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Where accused, on cross-examination of a state's witness, sought to show intense hostility by decedent toward him, and various acts of un |