quires that the jury must believe the liquid to be an intoxicant before they can convict. The exceptions to this charge were well taken.

The sale of an intoxicant is a prerequisite to a conviction under a charge of violating the local option law. Unless the state can show this beyond a reasonable doubt, an acquittal should be awarded. The jury are not required to believe the liquid is not a nonintoxicant; nor is it upon the defendant to show that it is not a nonintoxicant. The state must prove beyond a reasonable doubt that it is an intoxicant, and the jury should be so instructed.

Over the appellant's objection, Thompson was permitted to testify that he had drunk hop ale at Fred Uloth's place of business about two and a half years before this sale is alleged to have occurred. Appellant was in no way connected with Fred Uloth's business at the time of the prior sale, and was only assisting him for the day on which the sale here is alleged to have occurred; and it would make no difference as to what was sold by Fred Uloth two and a half years before this transaction, so far as the defendant is concerned. Nor, in any event, would such testimony be admissible. The transaction, occurring two and a half years prior to this time, would not be introduceable against appellant; and, besides, before the sale of hop ale or any other liquid could be used against appellant to prove the intoxicating property of the article he did sell, it must be shown that they are the same sort of liquid.

The remaining questions were disposed of in Uloth v. State (decided at the present term) 87 S. W. 822, and it is not necessary to enter into a discussion of them.

The judgment is reversed, and the cause remanded.

BROWN v. STATE.

(Court of Criminal Appeals of Texas. June 21, 1905.)

1. FALSE PRETENSES - FRAUDULENT SALES EVIDENCE.

Where an indictment alleged that defendant, in conjunction with another, procured the sale to prosecuting witness of a lot which defendant falsely represented to be owned by his accomplice, the deed from the accomplice to the prosecuting witness, executed after the payment of money by the latter, was admissible in evidence, although not set out in the indictment. 2. SAME-EVIDENCE-TITLE TO PROPERTY.

In a prosecution for swindling by means of a pretended sale of property, induced by false representations as to ownership, testimony of prosecuting witness that a certain person told him, in defendant's absence, that witness had acquired no title to the lot by his deed, was hearsay and inadmissible.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 950.]

3. SAME-INSTRUCTIONS-RELIANCE ON REP

RESENTATIONS.

In a prosecution for swindling by means of a pretended sale of property, induced by

BROOKS, J. Appellant's punishment was fixed at a fine of $100, and 24 hours in the county jail, under an indictment charging swindling of property under the value of $50, to the effect that appellant falsely represented that one J. H. Walker owned a certain lot, to wit, lot No. 221, located in the town of Pleasanton, Atascosa county, state of Texas, and had a right to dispose of the same, and, by false and fraudulent representations so made, procured from one Valente Mauricio the sum of $20 in money, and one certain note, alleged to be of the value of $20, which was a vendor's lien upon said lot.

Bill No. 1 complains that the court permitted the state, over the objection of appellant, to introduce in evidence the deed from J. H. Walker and wife to prosecuting witness. The objection was that the proof showed that the money and note were delivered to Valente Mauricio before said deed was signed, and that after the delivery of said note and money by said Mauricio to this defendant, in Pleasanton, this defendant went to the country, to the residence of J. H. Walker, and procured said deed; said deed not being set out in the indictment; there being no express allegation of a sale and delivery of said lot No. 221 to Valente Mauricio. The indictment does allege that appellant, Brown, in conjunction with J. H. Walker, procured the sale of said lot 221 to the prosecuting witness. We see no reason for holding that the deed must be set out in the indictment.

Bill No. 2 complains that the court permitted Valente Mauricio to testify, over the objections of this defendant, that H. G. Martin told him (Mauricio), the defendant not being present, that he (Mauricio) had acquired no title to lot 221 by his deed from J. H. Walker. This testimony was clearly hearsay, and was placing the opinion' of the witness Martin as to the validity of the title in question before the jury, which constitutes reversible error. As to who had title to the

property was the issue in the case. The court committed error in permitting the opinion of the witness as to its validity to be introduced; the records being the best evidence of title, outside the proof of heirship, which must necessarily be done by oral testimony.

Appellant requested the following special charge: "You are charged that if defendants, or either of them, made any false statements to Valente Mauricio, as alleged in the indictment hereof, if you find that they or either of them made such false statement, then, if you find that said Mauricio had the means at hand of ascertaining the truth or falsity of said statement, then it was his duty to do so, and he could not rely upon said statement and claim he was defrauded." There was no error in refusing to give this charge. Nor did the court err in refusing the charge No. 5, wherein appellant asked the court to charge the jury that, if prosecuting witness voluntarily left the lot without having been dispossessed of the same, defendant would not be guilty. This is not the law.

For the error pointed out, the judgment is reversed and the cause remanded.

Under Acts 26th Leg. p. 220, c. 128, § 3. requiring the petition for a stock law election in a subdivision of a county to particularly describe such subdivision and designate the boundaries thereof, a petition for an election in a given precinct, which merely designates the precinct by number, and fails to give the boundaries thereof, is fatally defective.

Appeal from Collin County Court: F. E. Wilcox, Judge.

J. W. Cox was convicted of unlawfully permitting cattle to run at large, and appeals. Reversed.

H. L. Davis and Abernathy & Mangum, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was indicted for unlawfully permitting 12 head of cattle to run at large in Justice Precinct No. 4 of Col

lin county, in violation of the stock law then in force, and upon conviction his punishment was fixed at a fine of $5. This election was held under chapter 128, Acts 26th Leg., p. 220. Section 3 thereof provides: "Such petition shall set forth clearly the class or classes of animals enumerated in the preceding article which the petitioners desire shall run at large in such county or subdivision, as the case may be, and if the petition be from the free-holders of a subdivision of any county, such subdivision shall be particularly described, and the boundaries thereof designated." Section 4 provides: "Upon the filing of such petition the commissioners' court at the next regular term thereof shall pass an order directing an election to be held throughout the county, or particular subdivision thereof," etc. It will be noted from this section that the petition must be filed prior to the next regular term of the commissioners' court. A similar question to the one now under consideration was passed upon by us in a hog law case. Roberson v. State, 70 S. W. 542, 6 Tex. Ct. Rep. 20. We there held that the petition for the election to prohibit the running at large of hogs, filed during the term of the county commissioners' court, cannot be acted upon and election ordered until the next regular term. It will be noted in that decision that the statute governing hog law elections, so far as the petition is concerned, is the same as that required in stock elections. Each of them provides that the petition must be filed prior to the next regular term of the commissioners' court. The evidence shows quite conclusively, we take it, that the petition was filed during the regular term of the court. At any rate, this is a jurisdictional fact that the state has not affirmatively established to the contrary. The evidence in the record clearly shows that it was filed at the regular term. Furthermore, we note that the petition merely gives the number of the justice precinct in which the stock law election is to be held. The statute says it must give the boundaries. We are not at liberty to disregard the plain provision of the statute, yet we see no reason for giving the boundaries of a precinct when the number is given; but the statute says it is necessary. This being true, the petition is defective in both particulars; that is, the petition fails to give the boundaries of the precinct, and the evidence shows that it was filed at the regular term of the commissioners' court that ordered the election instead of being filed prior thereto. This being true, it vitiates the entire election. We do not deem it necessary to discuss the various other questions raised by appellant.

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

JOHNSON v. STATE.

(Court of Criminal Appeals of Texas. May 31,

1905.)

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1, BURGLARY EVIDENCE - IDENTIFICATION OF DEFENDANT-BURGLARIOUS INTENT. In a prosecution for burglary, where it ap peared that the only property taken was a watch, of which defendant was found in possession, and which he sold early in the morning after the burglary, and there was evidence that the burglar took the watch from a certain room while in the house, and was subsequently seen in the room of another, who was unable to positively identify him, testimony that the watch belonged to the occupant of the room from which it was taken, and was afterwards identified by him at a pawnshop as the watch taken from his room on the night in question, was admissible to identify defendant and connect him with the burglary, and to show that the burglary was committed, as alleged, for the purpose of committing theft.

2. SAME-INDICTMENT-VARIANCE.

In a prosecution for burglary, where it appeared that the burglar entered the owner's room for the purpose of committing theft, evidence of the taking of a lodger's watch from the room of the latter was not a variance from an indictment alleging that the house was in the possession of and under the control of the owner, and that the burglar entered the same with the intent to steal personal property belonging to the owner.

3. SAME.

In a prosecution for burglary, evidence that the proprietor of the house burglarized was not the owner thereof, but was merely a tenant, shows the proprietor to have been a special owner, within the meaning of the statute, and is not a variance from an indictment alleging ownership in and occupancy of the house by the proprietor.

Appeal from District Court, Jefferson County; L. B. Hightower, Judge.

Dick Johnson was convicted of burglary, and appeals. Affirmed.

Matt Cramer, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. This is a burglary conviction. The state introduced the following testimony: Martin Sweeney occupied and controlled a certain room in the dwelling house of Charley Bryant; the house alleged to have been burglarized by defendant on the night of September 28, 1904. That a certain watch, the only property missed or taken from said dwelling house, was the property of Martin Sweeney, and was taken from his room, which was a room in said house. That said watch was afterwards identified by said Sweeney at a pawnshop as being the same watch taken from his room on said night. Exception was reserved on the ground that this testimony was irrelevant, incompetent, immaterial, and fatally variant from the allegations in the indictment as to ownership, and it did not prove any issue or throw any light upon any issue in the case, and was prejudicial. This bill was approved with the following qualification: "The testimony also showed that the room Sweeney

occupied was one of the rooms in Charley Bryant's private residence, which said residence was rented and controlled by Bryant, and Sweeney was a roomer in said residence, renting from Bryant." This testimony was admissible. The facts disclose that Sweeney occupied an adjoining room to that of the alleged owner, Bryant; that the burglar took Sweeney's watch from his room while in said house, and was subsequently seen in Bryant's room, at the dresser, handling a watch or jewelry of some kind. Bryant was unable to positively identify appellant, or with any degree of certainty say that he was the man who entered his room. Appellant was found in possession of the watch and disposed of it about 2 o'clock at night. The burglary occurred on the night of the 28th, and appellant sold this watch on that night about 2 o'clock in the morning. This evidence was introduceable for two purposes, under this record: First, as a means of identifying appellant and connecting him with the burglary; and, second, to show the intent with which that burglary was committed, as the indictment charges the burglarious entry for the purpose of committing theft, and the burglar did not succeed in securing any property in Bryant's room. is true, the evidence was sufficient, independent of the watch, to show the purpose with which the burglar entered Bryant's room; but the fact that the burglar took Sweeney's watch from his room cogently illustrated the purpose for which he entered the house, and it was a potent fact in identifying appellant as the burglar.

It

Nor is there any merit in the contention that the introduction of the evidence in regard to this watch taken from Sweeney's room was variant from the allegation in the indictment that the house was under the control of Bryant. The fact that Sweeney had rented and slept in one of the rooms in the house, and it was entered, and his watch taken, would not be a variance, under the allegations that the house was in possession of Bryant, when the facts, as in this case, also show that the burglar entered Bryant's room for the purpose of committing theft. The indictment did not charge the ownership of the watch in Bryant, nor did it allege that any of Bryant's property was taken. The allegation was that he entered Bryant's house with the intent to fraudulently take, steal, and carry away the personal property belonging to Bryant, etc.

It is contended that because Bryant did not own the house, but was only a tenant (that is, controlled it as renter), the evidence was variant from the indictment, which alleged ownership in and occupancy of the house by Bryant. There is no merit in this proposition. He was in control of the house as such renter, and was special owner, within the contemplation of the statute. Linhart v. State, 33 Tex. Cr. R. 504, 27 S. W. 266; Reed v. State, 34 Tex. Cr. R. 597, 31 S.

404; Willis v. State, 33 Tex. Cr. R. 168, 25 S. W. 1119.

The evidence amply sustains this conviction, and the judgment is affirmed.

BROOKS, J., absent.

CROW v. STATE.

(Court of Criminal Appeals of Texas. June 21,

1905.)

1. MURDER-EVIDENCE-DANGEROUS SITION OF DECEASED.

DISPO

In a prosecution for murder, evidence that a short time before the difficulty in which deceased was killed he was under the influence of liquor, quarrelsome, and had to be held in order to prevent him from killing his brother, was admissible if defendant had knowledge of these facts.

2. SAME-PROVOKING DIFFICULTY-EVIDENCE. In a prosecution for murder, evidence that defendant, after having a difficulty with deceased, went for his pistol, and returned for the purpose of renewing the difficulty or killing deceased, but said nothing and did nothing to deceased, when he reached him, to provoke a difficulty, was not sufficient to justify a charge on provoking the difficulty.

3. SAME SELF-DEFENSE LIMITATION OF RIGHT.

Where, in a prosecution for murder, the evidence showed that deceased started toward defendant with a knife, and continued to approach after having been warned to stop. whereupon defendant fired, and deceased fell, immediately arose, and was shot again, it was error to charge that, if the jury should find that after defendant shot deceased, rendering him incapable of inflicting any injury, and afterward, when all real and apparent danger had passed, shot deceased again, he would be guilty of murder in the first or second degree or manslaughter.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

J. W. Crow was convicted of murder, and appeals. Reversed.

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

DAVIDSON, P. J. Appellant was convicted of murder in the second degree, and his punishment fixed at 15 years' confinement in the penitentiary.

While McAlister was testifying, appellant proposed to prove by him that he saw deceased, Sam Brown, not a great while before the homicide, in the town of Red Oak, drunk, or under the influence of whisky, and while in this condition undertook to kill his brother, Gus Brown, with a meat ax; and, further, that witness and others had to hold deceased in order to prevent him from killing his brother with the meat ax; and, further, that said passion or anger on the part of deceased was not caused by any act or conduct on the part of Gus Brown. The court sustained the state's objection, because he did not believe the particular character of testimony was introduceable to show the reputation of the deceased. The trial court may have been correct in holding that the par

If

ticular act would not prove general reputation. We understand this testimony was not offered for the purpose of proving reputation of deceased, but for the purpose of showing that he was a dangerous man while intoxicated or under the influence of whisky. It was abundantly shown by witnesses for the defense that deceased was a dangerous and violent man when intoxicated or under the influence of intoxicants. However, this was contradicted by evidence for the state. appellant knew as a fact, or it was brought home to his attention, that deceased was a dangerous man, and liable to execute threats when under the influence of intoxicants, it was the subject of legitimate inquiry or proof before the jury. This, we understand, has been the rule in Texas since Childress' Case. Reputation of a certain character is introduceable under the idea that, this reputation being general, everybody would be cognizant of that fact. Its office is simply to bring notice to the party who seeks to take advantage of that reputation, and from which the presumption arises that he was cognizant of such reputation. A party can as well take advantage of the knowledge of this characteristic of the deceased where it is brought to his actual attention or knowledge as if he knew it from general reputation. If appellant knew of the particular instance sought to be proved by the witness, he was entitled to show it. Whatever enters into the defendant's mind, and prompts his action, is the subject of legitimate inquiry. Where the violent or dangerous reputation of deceased is at issue, it is proper to prove the acts of the deceased showing the dangerous character, if knowledge of this characteristic is brought home to the accused. The effect upon the mind would be practically the same whether the information was from general reputation or from knowledge of the facts themselves.

The law of self-defense is burdened with a charge on provoking the difficulty. The evidence does not suggest the issue of provoking the difficulty. Somewhere from 15 to 30 minutes before the tragedy there had been trouble between appellant and deceased. They had been to the little village of Red Oak. Deceased was drinking to a considerable extent, if not drunk. Returning from Red Oak, they stopped at the residence of Mrs. Cavitt, where appellant obtained his clothing that had been washed, and placed it in the wag

on.

Deceased took the clothes, tore open the bundle, and scattered them about on the muddy ground. Appellant expostulated with him. This brought on a fight between them, deceased being the aggressor, in which he used a knife. They were separated by Parks. Appellant left; went to Cherry's, where he resided; was gone 15 to 20 minutes, and returned. As he came out of the field, a short distance from the wagon, deceased alighted from the wagon, and went towards him, and, appellant says, with his drawn knife.

He urged deceased not to come upon him, and fired one shot to frighten. Deceased continued to approach, and appellant continued to warn him not to come, and, finally, when he got within a few feet, fired the second shot. This rather stunned deceased, but he straightened up, and, some of the witnesses say, "got hold of or clinched defendant." Appellant pushed him back and fired the third shot. The testimony at this point varies somewhat as to the immediate acts of the parties. But this is a sufficient statement to illustrate the immediate environments of the difficulty. One or two witnesses testified that while appellant was coming back from his residence he was heard to use the expression in a loud tone of voice, "God dog my rowdy soul, I am coming." At this time he was some distance away from the scene of the tragedy. Those who were nearest did not hear appellant use any expression, but heard the noise, or loud talking, down at the wagon, where deceased was, or in that direction. As we understand this record, the only evidence indicating any act or word on the part of appellant tending to bring on a difficulty was the expression above used. This was not heard by deceased or those parties working in the cotton field who were much nearer appellant than deceased. We do not believe this evidence suggested the theory of provoking the difficulty. appellant, after the first difficulty with deceased, went off, got his pistol, and returned for the purpose of renewing the difficulty or killing deceased on account of the previous trouble, and said nothing and did nothing to deceased, when he reached him, to provoke a difficulty, that issue would not be in the case. The testimony shows that after he reached the scene of the difficulty he asked deceased and urged him not to come upon him with the knife; that he did not want to kill or hurt him, and wanted no trouble with him. We think there was error on the part of the court in charging this theory of the law.

If

The court further charged the jury curtailing the right of self-defense to the effect that, when the right of self-defense ceases, then the right of appellant to shoot also ceases. This is a correct proposition of law, if the charge had stopped at this point. But it went farther, and instructed the jury that if they should find, after defendant shot deceased, thereby rendering him incapable of inflicting any injury upon his person, and they should further find that defendant knew of this disabled condition of his adversary, and that all real and apparent danger to his life had passed, he then shot deceased in the head, causing death, he would be guilty of murder in the first or second degree or manslaughter, as the facts might show the grade of offense to be, the penalty therefor to be determined by the jury under the evidence before them under the principal charge of the court in relation to murder in the first

degree, murder in the second degree, and manslaughter. This charge with reference to the grades of homicide, and the application of this principle, seems to be very much confused. Exception was reserved to this charge, and, as the charge is given, we believe the exceptions are well taken. It is a correct proposition to assert under the law of self-defense, where danger to life or serious intent to injure has passed, the right of self-defense ceases. But if the right of selfdefense is once operative, it continues until all danger to life or the infliction of serious bodily injury has passed. In a difficulty where one of the parties is killed, covering a space of a very few seconds, it is a very difficult proposition for the court to charge curtailing the right of self-defense. Under the strongest evidence for the state, and as strongly stated as the prosecution could demand, the whole difficulty occurred covering a space of a very few feet and in a short time. The events crowded themselves together suddenly, and very hurriedly. Under the state's theory appellant fired three shots. The first evidently missed; the second struck the body of deceased, and he fell; and in the act of getting up the third shot was fired into the head of deceased. We do not understand how, if the right of self-defense existed by reason of the fact that deceased was approaching appellant with a drawn knife, and was shot down, and in getting up was fired upon by appellant and killed, the facts could have raised murder in the first or second degree. It would be a rapid transition of the mind to so place it in a cool reflective condition as to bring it within murder in the first degree under such circumstances, or even to suggest murder upon implied malice. Under no possible condition of facts or state of mind does it occur to us that a man's mind could be sufficiently cool and calm under that condition of facts to pass it suddenly to such a condition as to show express or implied malice. We are only discussing now the theory given in this charge; that is, passing from a case of self-defense to murder in the first or second degree under the condition of things existing at the time. This charge should not have been given.

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