A. G. Greenwood, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Conviction of aggravated assault, punishment assessed being a fine of $35. The Assistant Attorney General has filed a motion to dismiss the appeal because the recognizance does not comply with article 887, Code Cr. Proc. 1895, and does not conclude with the phrase "in this case," as provided by said article. This is necessary. Pigford v. State, 74 S. W. 323, 7 Tex. Ct. Rep. 827; Heinen v. State, 74 S. W. 776, 7 Tex. Ct. Rep. 921; Brock v. State, 72 S. W. 599, 7 Tex. Ct. Rep. 72; Cryer v. State, 36 Tex. Cr. R. 621, 37 S. W. 753, 38 S. W. 203; Duffer v. State (Tex. Cr. App.) 38 S. W. 997.

The motion is sustained, and the appeal is accordingly dismissed.

1. The fact that decedent's father and some other relatives interested themselves and employed able counsel to prosecute defendant for homicide is insufficient to show the existence of a formidable combination in the county of influential citizens against defendant, so as to warrant a change of venue on that ground.

2. Where defendant in a criminal case seeks a change of venue on the ground of prejudice in the county, evidence is admissible that the trial judge was beaten in his candidacy for reelection because of animosity of the voters of the county, engendered by granting the defendant a continuance.

3. On an application for change of venue of a prosecution for homicide, evidence examined, and held to show such prejudice of the people of the county as to render erroneous the refusal of the change.

4. On a prosecution for homicide, a charge that if defendant engaged in the difficulty between his companion and deceased, no matter how brought about, and in a sudden transport of passion, engendered by the difficulty between his companion and deceased, defendant became excited, and incapable of cool reflection, and killed deceased, he would be guilty of murder in the second degree, if the killing was not manslaughter, or justifiable homicide, as explained in succeeding portions of the charge, was erroneous, as too indefinite in the application of the law to the facts.

Appeal from District Court, Coleman County; Jno. W. Goodwin, Judge.

Marcario Alarcon was convicted of murder in the second degree, and he appeals. Reversed.

Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convict. ed of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 12 years; hence this appeal.

Appellant questions the action of the court refusing to change the venue, the grounds alleged being that a formidable combination existed in Coleman county of influential citizens against appellant, and that so great a prejudice existed in said county against him as to render it improbable that he could get a fair and impartial trial. As to the first proposition, it is not necessary to discuss it, as the only evidence relating to that matter is to the effect that decedent's father and some other relatives interested themselves in the prosecution, and that they employed able counsel to prosecute the case. On the subject of prejudice a number of witnesses were introduced, who testified pro and con. There is some evidence to the effect that after the homicide there was considerable excitement about the town of Coleman, where it occurred. There is testimony showing that the sheriff removed appellant from the jail of said Coleman county to another county, in apprehension of a mob. However, no witness testifies directly that any mob was formed. There is testimony tending to show that on the night of the homicide, and during the excitement, something was said about getting up a mob, and one witness testified that he was aroused at home, and asked to come down and join a party to mob appellant. At the term of the court succeeding the homicide appellant was indicted, and his case was continued by the court. On that occasion there was considerable excitement in the courtroom and about the courthouse. Defendant's counsel testi. fied to overhearing conversations in which certain parties threatened him with violence for procuring a continuance. It is also shown that a crowd of people gathered at the courthouse steps and created some excitement. But it is not shown in this connection that anything was said or done looking to violence toward the prisoner. It is suggested that the people gathered at the courthouse around some of the relatives of deceased, who were crying, and talking about the court having continued the case. It was further shown that after this continuance there was a contest for the office of district judge in the judicial district of which Coleman county was a part. The contest was waged between Hon. Jno. W. Goodwin, judge who granted the continuance, and Hon. J. O. Woodward, his opponent; and that the continuance granted by Judge Goodwin in this case entered into the campaign, and was used against Judge Goodwin. It was also shown by several witnesses that they had heard others speak of the case, and generally against appellant, some saying he ought to be hanged. On the other hand, some witnesses say that they had heard as many speak in his favor as against him. It was further shown that there were some 1,500 or 2,000 qualified jurors in Coleman county; and that, in the opinion of the witnesses, appellant could get a fair and impar

tial trial in the county. Sheriff Goodfellow testified that he talked with a great many people, but outside of the relatives of deceased and other friends he knew of no prejudice in the county against appellant. In connection with the race between Judge Goodwin and Hon. J. O. Woodward for district judge in that county, and that the continuance of the case against appellant entered into the campaign at the primary election, appellant proposed to show that Judge Goodwin received a majority in every other county in the district, and that Judge Woodward beat Judge Goodwin in Coleman county more than two to one; that said Woodward knew nearly all of the voters in the county who had supported him, and he knew how more than two-thirds of the voters felt in regard to the case; that Judge Woodward was prosecuting the case against appellant. We believe this testimony, which was excluded by the court, should have been admitted, as it would tend to show what effect the continuance of said case had upon the voters of said county, and in that connection would serve to show that the same parties, Judge Goodwin and Judge Woodward, the one as judge and the other as lawyer, were engaged in the trial of the same case about which the feeling in the campaign was engendered. We believe, under the circumstances here shown, that the venue should have been changed. Evidently there must have been some ground for apprehension on the part of the sheriff when he is shown to have removed the prisoner from said county on two separate occasions. On one occasion they started out on foot, and were overtaken en route by a vehicle. We take it that the explanation that the jail of Coleman county was considered by the sheriff unsafe, as the reason for removing the prisoner, was not the real reason, as, under such circumstances, there would have been no occasion for starting the prisoner out of jail on foot, and having a vehicle to follow him four or five miles, to convey him out of the county. And, in addition to this, the spirit manifested against appellant's counsel for obtaining a continuance of the case, and the excitement prevalent on that day, is, to our minds, additional proof of conditions existing in that county indicating there was considerable prejudice prevalent among the people. The sheriff says he knew of no prejudice except on the part of the deceased's relatives and their friends. How numerous the relatives and friends were is not stated. In addition to all this, the heated campaign between the two candidates for the office of district judge, in which one was assailed because of discharging his duty on the bench with reference to this case and granting a continuance, shows that the case must have been thoroughly ventilated throughout Coleman county, and suggests strongly that, because the judge granted the continuance in the cause, prejudice was aroused against him

in the county. All these circumstances serve to show that there was danger, at least, on account of the notoriety of the case, and the feeling aroused among the people of the county, that appellant might not secure a fair trial by an impartial jury in that county. In our opinion, the court committed an error in refusing to change the venue. Ranåle v. State, 34 Tex. Cr. R. 43, 28 S. W. 953; Meyers v. State, 39 Tex. Cr. R. 500, 46 S. W. 817; Barnes v. State (Tex. Cr. App.) 59 S. W. 882; Gallagher v. State, 40 Tex. Cr. R. 296, 50 S. W. 388; Faulkner v. State, 65 S. W. 1093, 3 Tex. Ct. Rep. 575; Cortez v. State, 69 S. W. 536, 5 Tex. Ct. Rep. 591; Smith v. State, 77 S. W. 453, 8 Tex. Ct. Rep. 843.

Appellant criticises the charge of the court on murder in the second degree and manslaughter. The charge appears to be somewhat complicated in endeavoring to apply the law to the facts. The learned judge instructed the jury that, if appellant engaged in the difficulty between his companion, Fernandez, and Horace Garrett (deceased), no matter how brought about in a sudden transport of passion engendered by the difficulty between Fernandez and Garrett, he became excited and incapable of cool reflection, and killed deceased, etc., he would be guilty of murder in the second degree. We note that he subsequently tells the jury that this would be so if the killing was not manslaughter nor justifiable homicide, as explained in succeeding portions of the charge. This, in a general way, might be true; but the court should have more definitely applied the law of murder in the sceond degree and manslaughter to the facts of the case. How the difficulty was brought about might have a good deal to do with the motive with which appellant entered into the difficulty between his friend Fernandez and deceased. If Fernandez was the aggressor, and brought on the difficulty, he would become a full parti ipant with Fernandez. We understand the testimony shows that he was present, and understood how the difficulty began. Of course, if there was any theory indicating he did not know how the difficulty began, and came up after it commenced, and he saw his friend Fernandez in danger, appellant's rights might be different in entering into the difficulty under such circumstances to protect his friend Fernandez. But if Fernandez was the wrongdoer, and appellant, with knowledge thereof, entered into the conflict, he participated in the intent and motive of his companion. We believe the law of manslaughter, as applicable to the facts of this case, can be presented to the jury in a way that is not complicated as here manifested. We do not deem it necessary to further discuss these charges on murder in the second degree and manslaughter than simply to call the attention of the learned judge thereto; and on another trial, should the facts be the same, he will present the

issues clearly as they arise from the evidence.

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

MOREE v. STATE.

(Court of Criminal Appeals of Texas. Dec. 7, 1904.)

CRIMINAL LAW-APPEAL-BILL OF EXCEPTIONS - EVIDENCE ADMISSIBILITY - REMARKS OF COUNSEL ACCOMPLICES-CORROBORATION

EVIDENCE-SUFFICIENCY-INDICTMENT.

1. Where a bill of exceptions, as signed by the judge, does not contain a ground of objec tion urged by appellant in a criminal case, the objection raised is not reviewable.

2. Under Rev. St. 1895, arts. 1360-1369, authorizing the taking a bill of exceptions from the bystanders after the bill presented to the judge has been disapproved, a bill signed by the judge cannot be impeached by affidavit of counsel.

3. In a criminal case, testimony of the defendant given on a former trial is admissible, where it does not relate to former offenses.

4. In a criminal case, where the testimony of defendant given on a former trial was admitted, error cannot be based thereon, in the absence of proper objection having been made, though it contain references to former offenses.

5. Where evidence was admitted in a criminal case which was subject to exclusion on proper objection being made, but there was no such objection, the evidence affords a basis for remarks of the county attorney in his argu

ment.

6. On a prosecution for larceny, evidence examined, and held sufficient to show that certain witnesses were accomplices of the defendant.

7. On a prosecution for larceny, evidence examined, and held corroborative of the testimony of defendant's accomplices.

8. An indictment against A. M., which in the beginning alleges that the defendant, under a certain alias, committed the crime charged, but in succeeding portions omits the alias, is sufficient, where, in stating defendant's name, he is styled "the said A. M."

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Ance Moree, alias John Thomas, was convicted of larceny, and he appeals. Affirmed.

Preston Martin, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of horse theft, and his punishment assessed at two years' confinement in the penitentiary; hence this appeal.

On the trial appellant objected to the witness Mrs. Cobb, as court stenographer, reading from her stenographic notes the defendant's testimony on a former trial of this case. The bill embraces all of appellant's testimony delivered at said former trial, and, without here copying the same, we will state that it is not a confession of the offense, but is a statement exonerating him, and denying the evidence of state's witnesses as to matters inculpatory of appellant. Following this, however, as developed in the cross-examination, and which was evidently adduced for the purpose of impeachment, appellant is

shown to have stated that he had gone under different aliases at different times, and that he had been charged with theft in the Territory, and pleaded guilty thereof; that he had never stolen but three cows; that he was charged with stealing them, and pleaded guilty; they agreed to nolle pros. in that case if he would plead guilty. The exceptions contained in the original bill presented by counsel to the judge showed that appellant assigned a number of reasons for his objection to the introduction of said testimony. It appears that the court, in signing the bill, embodied the reasons assigned by appellant, except one which the court appears to have eliminated; his explanation being as follows: "That said testimony was not offered by the state for the purpose of impeachment of any witness or evidence offered by the defendant upon the trial of his case before this jury. but was only offered by the state's attorney for the sole purpose of getting before the jury his statement with reference to having been in the penitentiary for theft of cattle in the Indian Territory, and for the purpose of creating in the minds of the jury great and lasting prejudice against this defendant, and for the further reason that said testimony is irrelevant and immaterial and not pertinent to any issue in the trial of this case, and for the reason that defendant had not and did not testify in the trial of his case before this jury; and for the reason that the state had no right to offer statement or confession made by defendant unless such statement or confession was to or concerning his guilt, and all the evidence as read to the jury by the court's stenographer purported to be evidence given by defendant at the former trial of his case, to the effect that he did not have anything to do with the taking of the horses alleged to have been stolen on or about the 15th of August, 1902, but that he was in the Indian Territory, a distance of some 325 miles from the place where the horses were alleged to have been stolen, all during the month of August, 1902, and knew nothing of the theft of said horses." It appears from an affidavit filed by appellant's counsel in this connection that he prepared said bill of exceptions immediately after the trial of the case, and turned the same over to the county attorney, who kept it in his possession several days, but would not agree with defendant's counsel on said bill; that he then presented said bill to the court for his approval, and the court, after keeping the same for two or three days, filed and ordered filed said bill of exceptions No. 1. But the court, without the knowledge or consent of the defendant or his counsel, and against the wishes of both defendant and his counsel, changed and modified said bill, and, without the consent of defendant or his counsel, struck from said bill as presented to the court by defendant's counsel the objection contained therein, as heretofore stated. It will be seen by an examination of the record that the grounds of

objection in the bill signed by the judge no- | where embrace or point out the particular matter of objection urged by appellant in that portion of the bill eliminated. The bill signed and filed by the judge does not contain any objection to the stenographer's report to the effect that testimony of appellant at a former trial, in which on cross-examination he admitted he had been charged and convicted of other crimes, was not admissible for the purpose of impeaching appellant as a witness. In other words, the bill, as presented and filed by the court, not containing this special ground of objection to said testimony, cannot be considered or reviewed on that account. This brings up the question whether or not appellant has presented this matter in such a way as can be reviewed. We understand Exon's Case, 33 Tex. Cr. R. 461, 26 S. W. 1088, to lay down the rule with reference to bill of exceptions which follows the rule laid down by civil courts construing articles 1360 to 1369, Rev. St. 1895, on this subject. Under this decision, appellant can only take a bill of exceptions from the bystanders after the bill presented by him to the judge has been disapproved, and the court is not authorized to take appellant's bill and explain or modify it without his consent. It has been held, if the bill which has been corrected by the judge is accepted and filed by the defendant's attorney, the latter is estopped from claiming it is unfair. Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793. Here it does not appear that. appellant's counsel was afforded any opportunity by the judge to agree to his correction. If the judge could not approve the bill, and appellant's counsel did not agree to the correction, then he should have disapproved the bill, and prepared and filed his own bill of exceptions, and appellant would then have been afforded the opportunity to appeal to bystanders for a bill of exceptions. If appellant had treated the court's action as a refusal, under the circumstances, to approve his bill, which we believe he was authorized to do, he should then have appealed to bystanders, and have prepared and presented their affidavits in connection with his. Here he attempts to impeach the judge's bill by his own affidavit. We know of no authority which authorizes this course. It might be that if, by the action of the judge, appellant had been deprived of his right to appeal to bystanders, then, on making such showing in connection with affidavits of himself and others showing the bill allowed by the judge was not correct, he might still be allowed to impeach the bill of exceptions as filed by the judge. But we do not understand this to be the attitude of this case. Although appellant says the judge filed the bill of exceptions as correct, without his knowledge or consent, we believe it was his duty to have followed his bill of exceptions with more diligence than is shown here. It was filed within the 20 days, and, as far as we are

advised, there was still ample time left appellant to have taken steps to have filed a bill of exceptions sworn to by bystanders. We do not believe, under the circumstances, appellant could impeach the bill of exceptions as approved by the judge by his mere affidavit, however correct it may be. The testimony admitted (that is, the evidence of appellant as delivered on the former trial), with the exception of that portion relating to former offenses, was admissible. Wooley v. State, 64 S. W. 1054, 3 Tex. Ct. Rep. 236. That portion relating to former offenses, if the proper objection had been urged to its admission, should have been eliminated, but the bill as signed by the judge did not present such objection. So there was no error.

Appellant objected to the following language of the county attorney in his closing argument: "Gentlemen of the Jury: I insist upon a conviction in this case, and ask that you assess the highest penalty-ten years. It is shown by the defendant's own statement in evidence here that he is guilty of stealing in the Indian Territory, and that he was guilty of cattle theft in the Indian Territory." Said statement was objected to on the ground that it was unwarranted by the evidence, and a comment on evidence offered by the state over the protest of appellant's counsel made at the time, etc. Said testimony was admitted before the jury, and we are not prepared to say that the state was not authorized to comment upon it. If that testimony had been properly objected to, as shown in the preceding bill, and excluded, then another question would have been presented.

Appellant objects to the charge of the court on accomplices, on the ground that the court should have told the jury that the two Wingos (William and Otis) were accomplices. The fact as to whether or not they were accomplices was sufficiently submitted by the court to the jury, and it was not necessary for the court to tell the jury that they were accomplices. However, appellant insists they were accomplices, and their testimony is not corroborated by evidence of any other witness in such manner as would tend to connect appellant with the theft of said horse. We agree with appellant's contention that the Wingos were accomplices, and the jury should have so found, as Will had been convicted of the offense charged against appellant, and Otis had been indicted therefor, and the indictment dismissed, or agreed to be dismissed. Both, according to their testimony, were with appellant when he took the horse, and he took the horse under such circumstances as evidently made them particeps criminis with him. Does the testimony presented by this record show such a corroboration as would authorize the verdict to stand? In our opinion, there is such testimony. Evidently the horse was stolen on the 1st day of July. Wingos and appellant left their homes, some six or eight miles from Weather

ford, going in the direction of Weatherford. The Wingos (Will and Otis and their brother Bud, now in the penitentiary for the same offense) lived with their father, and were well known in that community. Appellant had recently come from the Indian Territory with Bud Wingo, and had been staying at the house of the Wingos for about a week or ten days prior to the alleged theft. On that morning appellant is shown by the Wingos to have stolen the gray mare. She was feeding near a lane. He asked whose horse it was, and they said they did not know. He said he believed he would take it, ran her into the lane, caught her and put his saddle on her, and one of the Wingos led his horse to Weatherford. Subsequently, in proceeding on their journey, they were met by the witness Whitmire, who was well acquainted with the Wingos; and he knew the gray mare in question, and describes how the parties were traveling, and that appellant was riding the gray mare, and one of the Wingos was leading the brown horse. It will be noted in this connection that Whitmire did not identify the party riding the gray mare on that occasion as appellant, but he described him as a stranger. Appellant admits he was in that vicinity somewhere about that time. Old man Wingo, his wife and daughter, all identify the transaction of appellant leaving his house on that 1st of July together-appellant and his son Otis, on their way to the Territory, and the other two boys going to Weatherford. Does this transaction sufficiently identify appellant as the stranger seen by Whitmire? Of course, if Whitmire identified him as the party, there would be no question. He does identify him as a stranger in that community. Appellant was a stranger in that community. He had only been there about a week. He left with the Wingo boys on that particular morning, riding a brown horse. On that morning Whitemire identifies the same party with a stranger riding the gray mare, which he recognizes as prosecutor's, and he also states that one of them was leading a bay or brown animal. We believe these circumstances tend to connect appellant with this transaction, and are corroborative of the testimony of the two Wingo witnesses. Nourse v. State, 2 Tex. Cr. App. 304; Martin v. State, 21 Tex. Cr. App. 1, 17 S. W. 430; Williamson v. State (Tex. Cr. App.) 43 S. W. 523.

Appellant filed a motion to quash the indictment because it did not carry throughout the entire indictment the aliases of appellant. In the beginning of said indictment it is alleged that "Ance Moree, alias John Thomas," did unlawfully, etc. "Alias John Thomas" is omitted in the succeeding portions of the indictment, but in stating the name of appellant he is styled "the said Ance Moree." This is sufficient, and the court did not err in refusing to quash the indictment.

No error appearing in the record, the judgment is affirmed.

GIBSON v. STATE.

(Court of Criminal Appeals of Texas. Dec. 17, 1904.)

CRIMINAL LAW CONFESSIONS-ARREST-EVI

DENCE-HEARSAY-JUSTICES

JURISDICTION.

1. On a prosecution for theft, confessions of defendant to an officer before his arrest by the officer were admissible, though defendant had not been warned, and the officer at the time had a warrant to search defendant's house.

2. On a prosecution for theft of a hog, an officer who had testified to a confession was asked whether or not "defendant, at the time you had the conversation with him, told you where you would find the meat." Held, that the question was not leading.

3. On a prosecution for the theft of a hog, testimony of an officer, who had testified to a confession, that defendant did not tell him where he would find the meat, but that defendant went into his house ahead of the witness, and, producing a box, said, "Here it is," was entirely germane.

4. On a prosecution for the theft of a hog, the testimony of a witness that defendant's wife told her that defendant had a hog was inadmissible as hearsay.

5. The finding of one who had stolen a hog by a justice of the peace was no bar to a prosecution for the theft, the justice being without jurisdiction to try the case.

6. On a prosecution for theft of a hog, evidence held to warrant a conviction.

Appeal from District Court, Smith County; Tom. C. Davis, Judge.

Robert Gibson was convicted of the theft of a hog, and he appeals. Affirmed.

B. B. Beaird, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant's punishment was assessed at two years' confinement in the penitentiary for the theft of a hog, the property of Will Parker. Without copying the testimony in detail, it shows substantially the following: Parker had a black sow and some pigs, which were fed daily at his house. One day the sow failed to come up to be fed, and prosecutor immediately instituted diligent search for her. Appellant lived a short distance from prosecutor. Prosecutor failed to find his hog, came to town, met appellant and another party and had a conversation with them, in which he stated he was going to get a search warrant for the hog. To this appellant apparently assented. Prosecutor obtained a search warrant authorizing him to search appellant's house, as well as other houses in the neighborhood where appellant lived. The facts appear to show that appellant knew that this search warrant was obtained. After prosecutor obtained the warrant he secured the services of Joe Barbee, deputy sheriff, and together they started to execute the warrant. Near the jail, in Tyler, appellant became a member of the party, and accompanied the deputy and prosecutor some distance in the country. The deputy sheriff left the party after they had proceeded on their way, in the general direction of appel

1. See Criminal Law, vol. 14, Cent. Dig. § 1153.