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er better than what was raised in Collin county, Texas. And whereas, in truth and in fact, the wheat so owned by the said G. W. Curtis was not superior to the wheat raised in Collin county, Texas. The said wheat so owned and exchanged by the said G. W. Curtis was wheat raised in Collin county, Texas, as he the said G. W. Curtis then and there well knew. And the said pretenses and representations so made and the devices so used by the said G. W. Curtis to the said S. M. Francis in order to acquire the title and possession of said money from the said S. M. Francis as aforesaid 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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Responsibility $150,000.

THE MERCHANTS & FARMERS BANK

Jear Tale 30

Par to Charlie Recesent offline 3000

Georgetown, Texas 317

14030

100

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Dollars.

Pat McCarty.

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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.

Because of this defect in the indictment, the judgment is reversed, and the prosecution ordered dismissed.

COLEMAN v. STATE.

(Court of Criminal Appeals of Texas. June 7, 1905.)

1. CRIMINAL LAW-HOMICIDE-EVIDENCE.

In a prosecution for murder, evidence of attempts by deceased to solicit or obtain carnal intercourse with his daughter, who at the time of the homicide was living with her father and under his protection, and was not related to defendant, though she married the latter some months after the homicide, did not raise the issue of manslaughter, and was inadmissible.

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

2. SAME THREATS-INSTRUCTIONS.

In a prosecution for murder, an instruction that threats could be considered in explaining the conduct and arriving at the intention of defendant was not erroneous on the ground that the jury is required to also consider threats of the deceased in explaining the attitude and conduct of deceased at and about the time of the killing.

3. SAME SELF-DEFENSE.

In a prosecution for murder, where the evidence showed that deceased had no weapon, but defendant testified that he thought he had, and that he shot at deceased because he thought that when the latter threw his hand to his hip he was going to shoot, a charge that if the jury believed deceased had threatened defendant, etc., and caused defendant to believe that deceased was about to assault him with a weapon, etc., was not erroneous as limiting defendant's right of self-defense to an attack made on him by deceased with a weapon.

4. SAME-CESSATION OF DANGER-RIGHT TO KILL.

An instruction that, when danger of death or serious bodily injury ceases, the right to kill ceases with it, was correct, and not erroneous as limiting defendant's right to act on apparent danger.

5. SAME-APPLICABILITY.

The instruction was applicable where, if defendant was ever in real or apparent danger from an attack by deceased, it was when the first shot was fired, and he was shown to have afterwards pursued deceased and fired several shots at him, two of which took effect. 6. SAME.

A charge that, if the jury believed the first shot was fired under circumstances which caused defendant to believe that his life was in danger or that he was in danger of serious bodily injury, he had a right to shoot to protect himself, left to the jury to determine whether or not defendant believed he was in danger, and was not erroneous as eliminating the appearances of danger.

7. SAME-CHARGE ON WEIGHT OF EVIDENCE. The charge in further submitting that if the jury believed that, after defendant justifiably fired the first shot, deceased ran, and defendant pursued and killed him, though not believing himself then in danger, defendant was guilty, was not on the weight of evidence in assuming that deceased fled.

8. SAME-SPECIFIC OBJECTIONS TO CHARGEPRESUMPTION.

When an appellant assumes to point out specifically grounds of objection to a charge, it will be presumed that he has no others to urge.

9. SAME-SPECIAL VENIRE-SUFFICIENCY OF RETURN-DILIGENCE.

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 since had been, absent from the county-recites facts as to the jurors, rendering unnecessary any amount of diligence on the sheriff's part to secure their attendance.

Appeal from District Court, Kerr County; Ed Haltom, Special Judge.

Ned Coleman was convicted of murder, and appeals. Affirmed.

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

HENDERSON, J. Appellant was convicted of murder in the second degree, and his punishment fixed at seven years' confinement in the penitentiary; hence this appeal.

By bill of exceptions No. 1, appellant questions the action of the court refusing to permit him to show acts of familiarity between deceased, Jim Askey, and his daughter, Pollie Scruggs; that is, some attempts on the part of deceased to solicit or obtain carnal intercourse with his daughter, Pollie Scruggs. At the time of the homicide Pollie Scruggs is not shown to have occupied any relationship to appellant. Some months after the homicide she married him, but this fact would not authorize the introduction of that character of evidence, as Pollie Scruggs was then living with her father and under his protection, and was not related to appellant. We fail to see how this fact, if permitted to be proven, would raise the issue of manslaughter. This is not like the case of Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719, where the insults were offered to Mrs. Bullington prior to her marriage to Jones, and there was evidence of the renewal of the insults after she became the wife of Jones; the homicide occurring after her marriage with Jones.

As explained by the court, there is nothing in appellant's contention that his counsel was not afforded the privilege of discussing murder in the second degree. The court's explanation shows that he informed appellant of his intention to submit murder in the second degree, and that the court would allow counsel for defendant such time as they desired to address the jury on that question. Defendant's counsel declined to further address the jury.

In motion for new trial, appellant excepted to a number of the charges of the court. It may be conceded that some of these charges, if properly excepted to, would be erroneous; but as excepted to, it does not occur to us that they are. For instance, the charge on threats is objected to, because the court instructed the jury that they could be considered in explaining the conduct of and

arriving at the intention of defendant, whereas the law requires the jury to also consider threats of the deceased in explaining the attitude and conduct of deceased at and about the time of the killing. We understand that threats are introduced for the benefit of a defendant, and that the jury is authorized to look to them in connection, with all the facts and circumstances of the case, in judging of the acts and conduct of the defendant at the time of the homicide.

Appellant excepts to the charge, also, because it limited the defendant's right of selfdefense to an attack made on him by deceased with a weapon. The charge on this point is, in substance, if the jury believe deceased had threatened defendant, etc., and caused defendant to believe that deceased was about to assault him with a weapon. While it is true that the evidence showed deceased did not have any weapon, appellant testified that he thought he had. He says he shot at him because he thought when deceased threw his hand to his hip that he was going to shoot him. We do not regard this as suggesting to the jury that deceased must have had a weapon, but refers the matter to them in connection with the belief of appellant.

Appellant also objected to the court's charge instructing the jury that, when danger of death or serious bodily injury ceases, the right to kill ceased with it. He says this charge is erroneous because it eliminates the right of defendant to act upon apparent danger. It states a correct proposition of law, and was applicable to this case, because, if appellant was ever in any danger or apparent danger from an attack by deceased, it was at the time the first shot was fired. He is shown to have afterwards pursued deceased and fired two or three other shots at him, two of which took effect. We hardly think, judging from the evidence, that there could be any self-defense as to these latter shots, even from the appellant's own statement.

Appellant objected to the charge of the court in which the jury were told, if they found appellant was justifiable in firing the first shot, and that thereafter deceased ran, and defendant did not believe himself in further danger, but followed after deceased, shooting at him, and then killed him, he would be guilty of murder. Appellant's objection to this charge is not on the ground that under the circumstances he might be guilty of a less grade of felonious homicide than murder, but he states specifically his grounds of objection to be that said charge was upon the weight of the evidence, in assuming that deceased fled, and erroneous in that it eliminated the defendant's right to act upon apparent danger, and it assumes that defendant's right to shoot ceased with the flight of deceased. An examination of the charge does not show that it is subject to the criticisms leveled at it by appellant.

We are only discussing those exceptions taken to the charge. The charge submits to the jury, if they believed the first shot was fired under circumstances which caused defendant to believe that his life was in danger or he was in danger of serious bodily injury, that in such event he had a right to shoot to protect himself. This does not eliminate the appearance of danger, but leaves to the jury to determine whether or not appellant believed he was in danger. It further submits to the jury that if they believed deceased, after the first shot, ran, and defendant pursued him, and did not believe himself then in danger, etc. This is not an assumption on the part of the court that deceased fled. The charge is not subject to the objection urged against it. We are by no means commending this charge as a model; nor do we say that it is not subject to objections, if they had been properly taken. We are only discussing those exceptions taken and urged against it. When appellant assumes to point out specifically the grounds of his objection to a charge, we will presume that he has no others to urge, or he would have stated them.

There is a motion to quash the special venire. The ground of objection stated is that the return does not show what diligence was used by the officer to serve and secure the attendance of R. S. Ridgway and W. C. Wharton, 2 of the special venire of 36 who were selected. The return shows, as we read it, that "R. S. Ridgway is not now nor was he in Kerr county when the writ was issued. He is now and has resided in Edwards county, Texas, for the past two years." That W. C. Wharton, when this writ was issued, was absent from Kerr county, and has ever since been so absent. We are at a loss to understand how appellant can contend that sufficient excuse is not presented for failure to serve these two jurymen. The excuse, it is true, is not set out opposite the names of the jurors, nor are the acts of diligence by the sheriff stated; but he recites facts as to said jurors which render any amount of diligence on his part unnecessary.

There being no error in the record, and no reversible errors in the charges of the court as excepted to by appellant, the judgment is affirmed.

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2. SAME-EVIDENCE-LESSER OFFENSE.

Where, on a prosecution for assault with intent to murder, it appeared that prosecutor, who was a train conductor, put accused off the train because his pistol slipped from his pocket and was accidentally discharged, whereby accused became excited and fired at the prosecutor, the court should have instructed on aggravated assault.

3. TRIAL-ABSENCE OF ATTORNEY AND WITNESSES-SURPRISE.

Where, on the calling of a criminal case for trial, accused was informed by the court that the attorney who had previously represented him had informed the court that he would not represent accused, and accused had supposed that the attorney would represent him, and had given him the names of his witnesses, and the witnesses were absent, the court should have afforded accused an opportunity of employing other counsel, or, at any rate, have given him an opportunity to have his witnesses present. 4. NEW TRIAL-SURPRISE.

On a motion for a new trial on such ground, it appearing from the affidavits filed by defendant that he had a good defense, and they not being controverted by the state, the motion should have been granted.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

William Jackson was convicted of assault with intent to murder, and he appeals. Reversed.

Hart, Mahaffey & Thomas, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of 10 years; hence this appeal.

Appellant's contention is that, although he entered a plea of guilty to the indictment, and the evidence thereon was heard by the court, yet on account of the circumstances attending said plea, and because the court failed to charge on aggravated assault, he should have been granted a new trial. He reinforces this idea by showing, in connection with his motion for new trial, by affidavits appended thereto, that there is a strong probability that he is not guilty of an assault with intent to murder, and on another trial the jury would not be authorized to find him guilty of said charge. By appellant's own affidavit, which in the motion does not appear to be controverted, it is shown that, after the alleged commission of the offense, and when he was arrested and brought before an examining court, he secured the services of W. P. Mahaffey, Esq., an attorney, to represent him; that said Mahaffey did represent him before the magistrate, waived an examination, and appellant was remanded to jail, with his bail fixed at $1,000, which he was unable to give; that he understood and believed that said attorney would continue to represent him. After he was indicted, and at the succeeding term of the district court, he gave said attorney the names of his witnesses whom he desired summoned; that, being in jail, he relied on

his attorney to represent him, and did not know when his case would be called. The criminal docket was set down for trial on March 20, 1905, and on the first day after taking up said docket he was brought into court, and was asked by the judge whether he was ready for trial. He informed the judge that his attorney was not present, and the judge then informed him that the attorney, W. P. Mahaffey, Esq., had informed the court he was not going to represent him on the trial of the case in the district court; that he was only employed to represent defendant on the trial in the justice court. Appellant alleges that this was the first information he had that said attorney was not going to represent him; that, if he had known said attorney was not going to represent him, he would and could have made arrangements with some other attorney to have represented him. After this he was called on to announce, and he stated his witnesses were not present, and the court asked him if his witnesses had been summoned, and he stated to the court he did not know; that he supposed they had, as his attorney, Mr. Mahaffey, was looking after the matter. The court then asked the clerk or sheriff if said witnesses had been summoned, and was informed that they had not. The court then told him that said witnesses had not been summoned, and that he would have to go to trial, as he ought to have had his witnesses summoned. Thereupon defendant, being ignorant of his rights in the premises, and being excited, told the court, as he had no attorney and no witnesses, that he would just plead guilty, and put himself on the mercy of the court; that said trial then proceeded; that the indictment was read, and two witnesses were put upon the stand by the state. They testified against him, but, not knowing his rights, he did not ask them any questions. It was further shown in the motion that the case was not fully developed by the state; but it is insisted that sufficient facts were developed to have required of the court a charge on aggravated assault. In order to present this matter clearly, we will state substantially the testimony adduced on the trial and contained in the affidavits appended to appellant's motion. Witness D. D. Cannon stated that, on Christmas Day, 1904, he was conductor on the road between Texarkana and Waco, and was running a passenger train on the Cotton Belt Railroad; that he left Texarkana on that day, and some four or five miles out he was informed by some of the trainmen that a darky had shot his pistol on the train. He was in the chair car at the time, and went ahead through the next car, and out on the vestibule or platform in rear of the baggage coach and saw some darkies. He asked who was doing that shooting, and none of them replied. He asked the darky standing by appellant, and he motioned to him, and, just as he did, he reached around and got hold of

appellant's gun and took it from him. Appellant undertook to jump off, but he held to him, and he and the brakeman and newsboy kept him from jumping off; that some one pulled the bell cord, and the train stopped. At that time they were standing on the steps, and appellant was trying to jump off. He did jump off, and told witness to "give me my gun back, and I will walk to Redwater," which was the station where appellant was destined. At this time appellant was standing some 10 feet from the steps. Witness gave the engineer a signal to go ahead, and, just as he started the train, witness dropped the gun in front of the darky, some 10 or 15 feet ahead of him. Appellant picked up the gun, and pulled down on witness. When he saw him leveling his gun down, witness jumped into the door and heard the shooting. It appeared to witness that appellant shot about three times. After the shooting, the newsboy gave him a bullet. He saw evidence or signs of where it struck in the vestibule. The bullet struck on the opposite side of where he was standing. The bullet struck a little iron casting, and glanced and hit two or three other places, and then dropped down on the platform. With reference to where witness was standing, the bullet could not have hardly passed there without hitting him, if he had been standing on the steps where he was when appellant leveled the gun; that he jumped back into the door to keep from being shot. J. S. Jones, another witness for the state, testified, substantially, that he knew appellant; that he lived at Redwater, and witness also lived there; that, some two hours after the train passed on, appellant came up, and he had a conversation with him. Appellant said: "I shot at that conductor, but I do not know whether I hit him or not." (Witness had previously heard of the shooting from the trainmen before appellant got there.) He then asked appellant: "Are you the negro that did the shooting?" And he said: "Yes; but don't know whether I hit him or not. God damn him, I tried to hit him." He further stated: "Me and another negro were standing on the car taking a drink, between the cars." stated that the pistol slipped out of his pocket, and the conductor came back there, and asked him who shot the gun; and he said he told him it was none of his business, and the conductor grabbed him to put him off, and shoved him off the train, and when the train started he shot at him, and he shot at the engineer too. This was all the testimony adduced.

He

Appellant, in connection with his motion for new trial, appended a number of affidavits. Two white men who were on the train, and knew him, stated, substantially, that they were on the rear car from where the shooting occurred, and that the negro did not fire the pistol until after they had passed the place where the negro was standing, and that the negro must have been 150 or 200 88 S.W.-18

feet in rear of the baggage car when he fired the first shot; that he fired it parallel with the train. It is also shown that from the position where this shot was fired it would have been impossible to have hit the conductor on the vestibule of the baggage car. The affidavits of one or two of the negroes who were on the vestibule in rear of the baggage coach with appellant at the time of the occurrence show the accidental firing of the pistol when it slipped out of appellant's pocket, and that the ball struck on the south side of the coach, which was the bullet that the conductor testified about; that no bullet fired by appellant after he was off the train struck at that point.

It is contended by appellant that it was the duty of the court, on appellant's plea of guilty, and after the evidence had been adduced, to charge fully on every phase of the case presented by the evidence; that the court was not circumscribed or limited to appellant's plea of guilty to the indictment; that the indictment contained, besides an assault with intent to murder, subordinate degrees of the offense, and, if there was any evidence tending to show any lesser degree than assault with intent to murder, the court should have charged it. We believe this contention is correct. The court in every felony case is required to give a written charge, and that charge must embrace every phase of the case as presented by the testimony. Here, unquestionably, if appellant shot after he jumped off the train, or, as is testified by one witness, after he was shoved or put off the train by the conductor, and he had killed the conductor, he would have been entitled to a charge on manslaughter. The conductor had no right to put him off the train because his pistol had slipped from his pocket and accidentally fired (appellant having paid his fare to Redwater, the point of his destination), and, in doing so, was guilty of an assault. If appellant on account of this became excited and was rendered incapable of cool reflection, and under such circumstances shot and killed the prosecutor, he might be guilty of no higher offense than manslaughter, and consequently, where he did not kill the conductor, he was entitled to a charge on aggravated assault. But more than this, it occurs to us that appellant, ignorant as he was of his rights, had a right to believe that the attorney employed by him would represent him in the district court. He swears that after the court begun, and after this indictment, he gave this attorney the names of his witnesses to have summoned; and this is not controverted by the attorney or any other witness. The attorney, it seems, had done him no service in the justice court, and under the circumstances, when he was informed by the court for the first time that said attorney had informed the court he would not represen him, and appellant's witnesses were not there, the court should have afforded appellant an opportunity either to

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