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er better than what was raised in Collin hundred and four, and before the presentcounty, Texas. And whereas, in truth and ment of this indictment, did then and there in fact, the wheat so owned by the said G. unlawfully and without lawful authority W. Curtis was not superior to the wheat and with intent to injure and defraud did raised in Collin county, Texas. The said wilfully, and fraudulently make a certain wheat so owned and exchanged by the said false and forged instrument in writing, purG. W. Curtis was wheat raised in Collin porting to be the act of another, to-wit: purcounty, Texas, as he the said G. W. Curtis porting to be the act of Pat McCarty, which then and there well knew. And the said said false and forged instrument in writing pretenses and representations so made and is substantially to the tenor as follows: the devices so used by the said G. W. Curtis to the said S. M. Francis in order to ac

K20DQ0Z 日 Did quire the title and possession of said money from the said s. M. Francis as aforesaid

2 O 3 O P = a 2 O o were false and fraudulent when so made, and he, the said G. W. Curtis, then and there well knew the said pretenses, devices, and representations to be false and fraudulent when he made and used them as aforesaid," etc. We do not think the indictment charges any offense against the laws of this state. As to whether the wheat sold was dryweather wheat is more a question of opinion than a statement of fact. As to whether it would stand the drought better than the other wheat is also a question of opinion. Furthermore, as to whether said wheat was superior to wheat raised in Collin county, is a question of opinion. While, as the state insists, it was reprehensible for appellant to sell wheat that was not raised as he stated, yet under no state of facts do we think the allegations of the indictment authorize a prosecution under the swindling statute.

The judgment is accordingly reversed, and the prosecution ordered dismissed.

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Pay to Charlie Becedente a la

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Responsibility $150,000.
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100

McBRIDE v. STATE.* (Court of Criminal Appeals of Texas. May 3,

1905.) FOBGERY-INDICTMENT-SUFFICIENCY.

An indictment for the forgery of a check of the tenor, "Pay to

or breer $10.30 Jer rale 80/100 dollars," is bad for failing to contain innuendo averments explaining the terms "breer" to be intended for "bearer," and "Jey rale" to be "ten and" dollars.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Forgery, $ 79.)

Appeal from District Court, Williamson County; V. L. Brooks, Judge.

Frank McBride was convicted of forgery, and he appeals. Reversed.

H. N. Graves, for appellant. Warren Moore, Dist. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

Dollers.

Foot

#77•ON

BROOKS, J. Appellant's punishment was fixed at two years' confinement in the penitentiary upon conviction under an indictment charging substantially as follows:

* That Frank McBride, in said county and state, on or about the 8th day of March, in the year of our Lord, Nineteen

Appellant contends there should have been innuendo averments in the indictment explaining the term "breer" to be intended for "bearer," and "Jev rale" to be "ten and” 30/100 dollars. In our opinion, the contention of appellant is well taken, for it is not manifest from the face of the instrument that this was the intention, unless innuendo averments are placed in the indictment to that effect.

"Rehearing denied June 21, 1905.

Because of this defect in the indictment, 9. SAME-SPECIAL VENIRE-SUFFICIENCY OF the judgment is reversed, and the prosecu

RETURN-DILIGENCE. tion ordered dismissed.

A sheriff's return to a special venire reciting that one of the venire was not then, nor when the writ was issued, in the county; that he then was, and for the past two years had resided, in another county; that another of the

venire, when the writ was issued, was, and ever COLEMAN v. STATE.

since had been, absent from the county--re

cites facts as to the jurors, rendering unneces(Court of Criminal Appeals of Texas. June 7,

sary any amount of diligence on the sheriff's 1905.)

part to secure their attendance. 1. CRIMINAL LAW-HOMICIDE-EVIDENCE.

Appeal from District Court, Kerr County; In a prosecution for murder, evidence of at. tempts by deceased to solicit or obtain carnal

Ed Haltom, Special Judge. intercourse with his daughter, who at the time Ned Coleman was convicted of murder, of the homicide was living with her father and and appeals. Affirmed. under his protection, and was not related to defendant, though she married the latter some Howard Martin, Asst. Atty. Gen., for the months after the homicide, did not raise the is- State. sue of manslaughter, and was inadmissible.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, $8 383-384.]

HENDERSON, J. Appellant was convict2. SAME-THREATS-INSTRUCTIONS.

ed of murder in the second degree, and his In a prosecution for murder, an instruction punishment fixed at seven years' confinethat threats could be considered in explaining ment in the penitentiary; hence this appeal. the conduct and arriving at the intention of defendant was not erroneous on the ground that

By bill of exceptions No. 1, appellant the jury is required to also consider threats of questions the action of the court refusing to the deceased in explaining the attitude and con- permit him to show acts of familiarity beduct of deceased at and about the time of the

tween deceased, Jim Askey, and his daughkilling.

ter, Pollie Scruggs; that is, some attempts 3. SAME-SELF-DEFENSE. In a prosecution for murder, where the evi

on the part of deceased to solicit or obtain dence showed that deceased had no weapon,

carnal intercourse with his dat ghter, Pollie but defendant testified that he thought he had, Scruggs. At the time of the homicide Poland that he shot at deceased because he thought

lie Scruggs is not shown to have occupied that when the latter threw his hand to his hip he was going to shoot, a charge that if the jury

any relationship to appellant. Some months believed deceased had threatened defendant, etc., after the homicide she married him, but this and caused defendant to believe that deceased fact would not authorize the introduction was about to assault him with a weapon, etc.,

of that character of evidence, as Pollie was not erroneous as limiting defendant's right of self-defense to an attack made on him by

Scruggs was then living with her father and deceased with a weapon.

under his protection, and was not related to 4. SAME-CESSATION OF DANGER-RIGHT TO appellant. We fail to see how this fact, if KILL.

permitted to be proven, would raise the 1sAn instruction that, when danger of death

sue of manslaughter. This is not like the or serious bodily injury ceases, the right to kill ceases with it, was correct, and not erroneous

case of Jones v. State, 38 Tex. Cr. R. 87, 40 as limiting defendant's right to act on ap- S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719, parent danger.

where the insults were offered to Mrs. Bul5. SAME--APPLICABILITY.

lington prior to her marriage to Jones, and The instruction was applicable where, if there was evidence of the renewal of the indefendant was ever in real or apparent danger from an attack by deceased, it was when the

sults after she became the wife of Jones; first shot was fired, and he was shown to have the homicide occurring after her marriage afterwards pursued deceased and fired several with Jones. shots at him, two of which took effect.

As explained by the court, there is noth6. SAME.

ing in appellant's contention that his counA charge that, if the jury believed the first

sel was not afforded the privilege of disshot was fired under circumstances which caused defendant to believe that his life was in danger

cussing murder in the second degree. The or that he was in danger of serious bodily in- court's explanation shows that he informed jury, he had a right to shoot to protect himself, appellant of his intention to submit murder left to the jury to determine whether or not

in the second degree, and that the court defendant believed he was in danger, and was not erroneous as eliminating the appearances of

would allow counsel for defendant such danger.

time as they desired to address the jury on 7. SAME-CHARGE ON WEIGHT OF EVIDENCE. that question. Defendant's counsel declined

The charge in further submitting that if to further address the jury. the jury believed that, after defendant justifiably In motion for new trial, appellant exceptfired the first shot. deceased ran, and defendant pursued and killed him, though not believing

ed to a number of the charges of the court. himself then in danger, defendant was guilty,

It may be conceded that some of these charwas not on the weight of evidence in assuming ges, if properly excepted to, would be errothat deceased fled.

neous; but as excepted to, it does not oc8. SAME-SPECIFIC OBJECTIONS TO CHARGE- cur to us that they are. For instance, the PRESUMPTION.

charge on threats is objected to, because the When an appellant assumes to point out specifically grounds of objection to a charge, it

court instructed the jury that they could be will be presumed that he has no others to urge. considered in explaining the conduct of and

we

arriving at the intention of defendant, We are only discussing those exceptions takwhereas the law requires the jury to also en to the charge. The charge submits to consider threats of the deceased in explain- the jury, if they believed the first shot was ing the attitude and conduct of deceased at fired under circumstances which caused deand about the time of the killing. We un- fendant to believe that his life was in danderstand that threats are introduced for the ger or he was in danger of serious bodily inbenefit of a defendant, and that the jury is jury, that in such event he had a right to authorized to look to them in connection, shoot to protect himself. This does not with all the facts and circumstances of the eliminate the appearance of danger, but case, in judging of the acts and conduct of leaves to the jury to determine whether or the defendant at the time of the homicide. not appellant believed he was in danger.

Appellant excepts to the charge, also, be It further submits to the jury that if they cause it limited the defendant's right of self- believed deceased, after the first shot, ran, defense to an attack made on him by de and defendant pursued him, and did not beceased with a weapon. The charge on this lieve himself then in danger, etc. This is point is, in substance, if the jury believe de- not an assumption on the part of the court ceased had threatened defendant, etc., and that deceased fled. The charge is not subcaused defendant to believe that deceased ject to the objection urged against it. We was about to assault him with a weapon. are by no means commending this charge While it is true that the evidence showed as a model; nor do we say that it is not subdeceased did not have any weapon, appel-ject to objections, if they had been properly lant testified that he thought he had. He taken. We are only discussing those exsays he shot at him because he thought | ceptions taken and urged against it. When when deceased threw his hand to his hip appellant assumes to point out specifically that he was going to shoot him. We do not the grounds of his objection to a charge, we regard this as suggesting to the jury that will presume that he has no others to urge, deceased must have had a weapon, but re- or he would have stated them. fers the matter to them in connection with There is a motion to quash the special vethe belief of appellant.

nire. The ground of objection stated is that Appellant also objected to the court's the return does not show what diligence was charge instructing the jury that, when dan- used by the officer to serve and secure the ger of death or serious bodily injury ceases,

attendance of R. S. Ridgway and W. C. the right to kill ceased with it. He says Wharton, 2 of the special venire of 36 who this charge is erroneous because it elimi- were selected. The return shows, as nates the right of defendant to act upon ap- read it, that “R. S. Ridgway is not now nor parent danger. It states a correct proposi- was he in Kerr county when the writ was tion of law, and was applicable to this case, issued. He is now and has resided in Edbecause, if appellant was ever in any dan- wards county, Texas, for the past two ger or apparent danger from an attack by years." That W. C. Wharton, when this deceased, it was at the time the first shot writ was issued, was absent from Kerr counwas fired. He is shown to have afterwards ty, and has ever since been so absent. We pursued deceased and fired two or three are at a loss to understand how appellant other shots at him, two of which took effect.

can contend that sufficient excuse is not preWe hardly think, judging from the evidence,

sented for failure to serve these two jurythat there could be any self-defense as to

The excuse, it is true, is not set out these latter shots, even from the appellant's opposite the names of the jurors, nor are the own statement.

acts of diligence by the sheriff stated; but Appellant objected to the charge of the

he recites facts as to said jurors which rencourt in which the jury were told, if they

der any amount of diligence on his part unfound appellant was justifiable in firing the

necessary. first shot, and that thereafter deceased ran,

There being no error in the record, and no and defendant did not believe himself in fur

reversible errors in the charges of the court ther danger, but followed after deceased,

as excepted to by appellant, the judgment is shooting at him, and then killed him, he

affirmed would be guilty of murder. Appellant's objection to this charge is not on the ground that under the circumstances he might be

JACKSON V. STATE. guilty of a less grade of felonious homicide (Court of Criminal Appeals of Texas. June 7, than murder, but he states specifically his

1905.) grounds of objection to be that said charge 1. CRIMINAL LAW INDICTMENT - INSTRUCwas upon the weight of the evidence, in as- TIONS-DUTY TO INSTRUCT ON LESSER OFsuming that deceased fled, and erroneous in

Where, on a prosecution for assault with that it eliminated the defendant's right to

intent to murder, there was evidence tending act upon apparent danger, and it assumes to show a lesser degree than such crime, and that defendant's right to shoot ceased with defendant entered a plea of guilty, it was the

duty of the court to instruct on the lesser dethe flight of deceased. An examination of

gree. the charge does not show that it is subject

[Ed. Note.—For cases in point, see vol. 26 to the criticisms leveled at it by appellant. Cent. Dig. Homicide, $ 658.]

men.

FENSE.

2. SAME-EVIDENCE-LESSER OFFENSE.

his attorney to represent him, and did not Where, on a prosecution for assault with

know when his case would be called. The intent to murder, it appeared that prosecutor,

criminal docket was set down for trial on who was a train conductor, put accused off the train because his pistol slipped from his pocket March 20, 1905, and on the first day after and was accidentally discharged, whereby accus- taking up said docket he was brought into ed became excited and fired at the prosecutor, the court should have instructed on aggravated

court, and was asked by the judge whether assault.

he was ready for trial. He informed the 3. TRIAL-ABSENCE OF ATTORNEY AND WIT

judge that his attorney was not present, and NESSES-SURPRISE.

the judge then informed him that the atWhere, on the calling of a criminal case

torney, W. P. Mahaffey, Esq., had informed for trial, accused was informed by the court that the attorney who had previously represent

the court he was not going to represent him ed him had informed the court that he would not

on the trial of the case in the district court; represent accused, and accused had supposed that he was only employed to represent dethat the attorney would represent him, and had

fendant on the trial in the justice court. given him the names of his witnesses, and the witnesses were absent, the court should have

Appellant alleges that this was the first inafforded accused an opportunity of employing formation he had that said attorney was not other counsel, or, at any rate, have given him

going to represent him; that, if he had an opportunity to have his witnesses present. known said attorney was not going to rep4. NEW TRIAL-SURPRISE. On a motion for a new trial on such ground,

resent him, he would and could have made it appearing from the affidavits filed by defend- arrangements with some other attorney to ant that he had a good defense, and they not being have represented him. After this he was controverted by the state, the motion should

called on to announce, and he stated his withave been granted.

nesses were not present, and the court askAppeal from District Court, Bowie Coun- ed him if his witnesses had been summoned, ty; P. A. Turner, Judge.

and he stated to the court he did not know; William Jackson was convicted of assault that he supposed they had, as his attorney, with intent to murder, and he appeals. Re

Mr. Mahaffey, was looking after the matversed.

ter. The court then asked the clerk or sherHart, Mahaffey & Thomas, for appellant.

iff if said witnesses had been summoned, and Howard Martin, Asst. Atty. Gen., for the

was informed that they had not. The court State.

then told him that said witnesses had not

been summoned, and that he would have to go HENDERSON, J. Appellant was convict- to trial, as he ought to have had his witnessed of assault with intent to murder, and his

es summoned. Thereupon defendant, being igpunishment assessed at confinement in the norant of his rights in the premises, and be penitentiary for a term of 10 years; hence

ing excited, told the court, as he had no atthis appeal.

torney and no witnesses, that he would just Appellant's contention is that, although he plead guilty, and put himself on the mercy entered a plea of guilty to the indictment, of the court; that said trial then proceedand the evidence thereon was heard by the ed; that the indictment was read, and two court, yet on account of the circumstances witnesses were put upon the stand by the attending said plea, and because the court state. They testified against him, but, not failed to charge on aggravated assault, be knowing his rights, he did not ask them any should have been granted a new trial. He

questions. It was further shown in the moreinforces this idea by showing, in connec

tion that the case was not fully developed by tion with his motion for new trial, by affi- the state; but it is insisted that sufficient davits appended thereto, that there is a facts were developed to have required of the strong probability that he is not guilty of an court a charg'on aggravated assault. In assault with intent to murder, and on an- order to present this matter clearly, we will other trial the jury would not be authorized state substantially the testimony adduced on to find him guilty of said charge. By appel- the trial and contained in the affidavits aplant's own sfidavit, which in the motion pended to appellant's motion. Witness D. does not appear to be controverted, it is D. Cannon stated that, on Christmas Day, shown that, after the alleged commission of 1904, he was conductor on the road between the offense, and when he was arrested and Texarkana and Waco, and was running a brought before an examining court, he se- passenger train on the Cotton Belt Railroad; cured the services of W. P. Mahaffey, Esq., that he left Texarkana on that day, and an attorney, to represent him; that said Ma- some four or five miles out he was informed haffey did represent him before the magis- / by some of the trainmen that a darky had trate, waived an examination, and appellant shot his pistol on the train. He was in the was remanded to jail, with his bail fixed at chair car at the time, and went ahead $1,000, which he was unable to give; that through the next car, and out on the vestihe understood and believed that said attor- bule or platform in rear of the baggage coach ney would continue to represent him. After and saw some darkies. He asked who was he was indicted, and at the succeeding term doing that shooting, and none of them reof the district court, he gave said attorney plied. He asked the darky standing by apthe names of his witnesses whom he desired pellant, and ne motioned to him, and, just summoned; that, being in jail, he relied on as he did, he reached around and got hold of aprellant's gun and took it from him. Ap- feet in rear of the baggage car when he fired pellant undertook to jump off, but he held the first shot; that he fired it parallel with to him, and he and the brakeman and news. the train. It is also shown that from the boy kept him from jumping off; that some position where this shot was fired it would one pulled the bell cord, and the train stop- have been impossible to have hit the conped. At that time they were standing on the ductor on the vestibule of the baggage car. steps, and appellant was trying to jump off. The affidavits of one or two of the negroes He did jump off, and told witness to "give who were on the vestibule in rear of the me my gun back, and I will walk to Redwa- baggage coach with appellant at the time of ter," which was the station where appellant the occurrence show the accidental firing of was destined. At this time appellant was the pistol when it slipped out of appellant's standing some 10 feet from the steps. Wit- pocket, and that the ball struck on the south ness gave the engineer a signal to go ahead, side of the coach, which was the bullet that and, just as he started the train, witness the conductor testified about; that no bullet dropped the gun in front of the darky, some fired by appellant after he was off the train 10 or 15 feet ahead of him. Appellant picked struck at that point. up the gun, and pulled down on witness. It is contended by appellant that it was When he saw him leveling his gun down, wit- the duty of the court, on appellant's plea of ness jumped into the door and heard the guilty, and after the evidence had been adshooting. It appeared to witness that appel- duced, to charge fully on every phase of the lant shot about three times. After the shoot- case presented by the evidence; that the ing, the newsboy gave him a bullet. He saw court was not circumscribed or limited to evidence or signs of where it struck in the appellant's plea of guilty to the indictment; vestibule. The bullet struck on the opposite that the indictment contained, besides an asside of where he was standing. The bullet sault with intent to murder, subordinate de. struck a little iron casting, and glanced and grees of the offense, and, if there was any hit two or three other places, and then drop- evidence tending to show any lesser degree ped down on the platform. With reference than assault with intent to murder, the court to where witness was standing, the bullet should have charged it. We believe this concould not have hardly passed there without tention is correct. The court in every felony hitting him, if he had been standing on the case is required to give a written charge, and steps where he was when appellant leveled that charge must embrace every phase of the the gun; that he jumped back into the door case as presented by the testimony. Here, to keep from being shot. J. S. Jones, another unquestionably, if appellant shot after he witness for the state, testified, substantially, | jumped off the train, or, as is testified by that he knew appellant; that he lived at one witness, after he was shoved or put off Redwater, and witness also lived there; the train by the conductor, and he had killed that, some two hours after the train passed the conductor, he would have been entitled on, appellant came up, and he had a conver- to a charge on manslaughter. The conductsation with him. Appellant said: "I shot or had no right to put him off the train beat that conductor, but I do not know whether cause his pistol had slipped from his pocket I bit him or not." (Witness had previously and accidentally fired (appellant having paid heard of the shooting from the trainmen be- his fare to Redwater, the point of his destifore appellant got there.) He then asked ap- nation), and, in doing so, was guilty of an pellant: "Are you the negro that did the assault. If appellant on account of this beshooting?" And he said: “Yes; but don't came excited and was rendered incapable of know whether I hit him or not. God damn cool reflection, and under such circumstances him, I tried to hit him." He further stated : shot and killed the prosecutor, he might be "Me and another negro were standing on the guilty of no higher offense than manslaughcar taking a drink, between the cars." He ter, and consequently, where he did not kill stated that the pistol slipped out of his pock- the conductor, he was entitled to a charge et, and the conductor came back there, and on aggravated assault. But more than this, asked him who shot the gun; and he said he it occurs to us that appellant, ignorant as he told him it was none of his business, and was of his rights, had a right to believe the conductor grabbed him to put him off, that the attorney employed by him would and shoved him off the train, and when the represent him in the district court. He train started he shot at him, and he shot at swears that after the court begun, and after the engineer too. This was all the testimony this indictment, he gave this attorney the adduced.

names of his witnesses to have summoned; Appellant, in connection with his motion and this is not controverted by the attorney for new trial, appended a number of affida- or any other witness. The attorney, it seems, vits. Two white men who were on the train, had done him no service in the justice court, and knew him, stated, substantially, that and under the circumstances, when he was they were on the rear car from where the informed by the court for the first time that shooting occurred, and that the negro did said attorney had informed the court he not fire the pistol until after they had passed would not represen, him, and appellant's wit. the place where the negro was standing, and nesses were not there, the court should have that the negro must have been 150 or 200 afforded appellant an opportunity either to

88 SW.-18

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