him, in New York, his wife and two minor children, she expecting to
join him in the new home, but never did. He bought a lot and built a
house thereon, and about two years after his arrival remarried, without
a divorce from his first wife. The second wife married him in good
faith, supposing him to be single, and lived with him as his wife on said
premises till his death, prior to which he conveyed the property to her.
None of the first family ever lived in Michigan, except that a son, aged
then about eighteen, came and was received as a member of his father's
new household, until dismissed for ill-treating the children of the second
wife; and the husband never made or proposed to make the property a
home for the common occupancy of himself and first wife, but it was
intended for and actually occupied by the second wife and family, and
so continued till the husband's death. Under this state of facts, the
land never became the homestead of the first wife, and the husband's
deed to the second wife was not void for want of her signature Id.
12. BOND FOR TITLE EXECUTED BY HUSBAND AND WIFE TO CONVEY
THEIR HOMESTEAD can be enforced against the husband by a bill for
specific performance, if at any time before the bond should become
barred, such homestead was abandoned and a new homestead was ac
quired. Or if the facts are such as would prevent the enforcement of
a specific performance, a suit for damages will lie against the husband
for breach of the condition of the bond, if damage has been sustained.
Goff v. Jones, 619.
13. PROVISION OF TEXAS CONSTITUTION, ARTICLE 16, SECTION 50, under which
mortgages, liens, deeds of trust, and deeds involving a condition of
defeasance on the homestead are void, has no application to a con-
tract to convey at a future time, and after the property has lost its
homestead character. Id.
14. WIFE WHO IS INDUCED BY FRAUDULENT CONDUCT on the part of her
husband to sign a deed conveying their homestead is entitled, in a court
of equity, to have such deed set aside, and to be restored to her rights.
Spiegel v. Spiegel, 826.
15. CITY LOT PURCHASED WITH INTENTION OF MAKING IT HOMESTEAD
for the purchaser and his family will be exempt from levy and sale on
execution from the time of purchase, even though unimproved and
without a dwelling thereon, if the purchaser incloses it and uses and
occupies it with the constant purpose of making it his home, and uses
the proceeds thereof, and such means as he can procure, within a reason-
able time, to erect a house thereon for his family, provided it does not
exceed in quantity and value the constitutional limit. What will be
regarded as a reasonable time must necessarily depend upon the circum-
stances of the particular case. Deville v. Widoe, 852.
1. ONE WHO IN ATTEMPT TO KILL ONE PERSON BY MISTAKE KILLS AN-
OTHER IS GUILTY OF MURDER OR MANSLAUGHTER; but where two par-
ties assault a third, who in the attempt to shoot them kills another by
mistake, the assaulting parties are not guilty of or responsible for such
killing, where there was nothing in the character of the assault which
would justify a prudent man in resorting to a revolver, and there was
no concert of action, and no common design or purpose between them
and the assaulted party. Butler v. People, 423.
2. IT IS QUESTIONABLE WHETHER THE CORPUS DELICTI IS SUFFICIENTLY Es-
TABLISHED where the whole testimony of the cause of death is that given
by a companion of the deceased, who testifies: "I knew Louis McDon
gald; he is dead; Mr. High shot him; I suppose that was the cause of
his death,"— no excuse being shown why other evidence on the point
was not produced. High v. State, 488.
8. MURDER. EVIDENCE IS ADMISSIBLE TO SHOW MOTIVE, HOSTILITY, IN-
TEREST, OR BIAS OF WITNESS TOWARD ACCUSED, as that witness had
had some difficulty with the accused the night preceding the shooting,
and had followed accused, threatening to see him again and shoot him.
Bonnard v. State, 431.
MURDER-EXPLANATORY STATEMENTS OF ACCUSED AS EVIDENCE.- Where
prosecution proves by certain witnesses the statements accused had
made to them, the defense is entitled to prove what statements he had
made to another, in order to explain the statements made to the wit-
nesses for the prosecution, under the statutory rule that "when a de-
tailed act, declaration, conversation, or writing is given in evidence,
any other act, declaration, or writing which is necessary to make it
fully understood, or to explain the same, may also be given in evi-
dence": Texas Code Crim. Proc., art. 751. Id.
ACCUSED IS GUILTY OF MURDER if the killing is consequent upon a dif-
culty between him and the deceased, no matter which provoked it, and
there had been an enmity between the parties for some months, and ac-
cused had made serious threats against the deceased, which had been
communicated to him, and he was anticipating trouble with accused
when he should meet him, and was prepared therefor, and under these
circumstances both parties had determined to bring on a difficulty when
they should meet, in which the one intended to kill the other, or inflict
serious bodily injury, which might result in death. Id.
6. KILLING 18 MANSLAUGHTER ONLY if accused did not intend to provoke a
difficulty with deceased, but sought an interview with him solely to
obtain payment of a claim, and a difficulty ensued, in which accused, on
account of abuse heaped upon him by deceased, voluntarily slew him in
heat of passion engendered by the present abuse, taken in connection
with the previous wrongs done him by deceased, and the circumstances,
all combined, were of such a character as to produce cause adequate to
render the mind incapable of cool reflection. Id.
7. INSTRUCTION. KILLING IS MANSLAUGHTER ONLY if accused sought inter-
view with deceased with no hostile intentions, and deceased became en-
raged, and committed an assault upon defendant, which inflicted pain or
bloodshed, and under the passion thus engendered accused shot and
killed deceased; and an instruction is radically defective which does not
present this phase of the law in affirmative terms. Id.
8. KILLING IS JUSTIFIABLE ON GROUND OF NECESSARY SELF-DEFENSE if so-
cused sought an interview with deceased with no hostile intentions, bat
solely to demand settlement and payment of a claim, and deceased
became angry and a wordy altercation ensued, during which deceased
drew his pistol, and assaulted accused in such a manner as to create in
the latter's mind a reasonable apprehension of death or serious bodily
injury, and, acting upon such reasonable apprehension, accused fired
the fatal shot. Id.
Two OF THE "ADEQUATE" CAUSES SUFFICIENT TO REDUCE A HOMICIDE
FROM MURDER TO MANSLAUGHTER are: "1. An assault and battery by
the deceased causing pain and bloodshed; and 2. A serious personal con-
flict, in which great injury is inflicted by the person killed, by means of
weapons or other instruments of violence, or by means of great superi-
ority of personal strength, although the person guilty of the homicide
were the aggressor, provided such aggression was not made with intent
to bring on a conflict for the purpose of killing": Texas Penal Code,
arts. 593, 597. And it is expressly declared that "an assault and bat-
tery so slight as to show no intention to inflict pain or injury" is not
adequate cause: Id., sec. 596. High v. State, 488.
10. HOMICIDE IS PERMITTED BY LAW IN NECESSARY SELF-DEFENSE for the pur-
pose of preventing murder, or maiming, or serious bodily injury, and the
only qualification prescribed is "that the attack upon the person of an
individual in order to justify homicide must be such as produces a rea-
sonable expectation or fear of death or some serious bodily injury":
Texas Penal Code, art. 574. A defendant so attacked is neither bound
to retreat nor to resort to any other means before slaying his assailant. Id.
11. SELF-DEFENSE WHERE THE ATTACK AND INJURY ARE BY THE FISTS OF THE
DECEASED, WITH INTENTION OF INFLICTING A BEATING upon defendant,
and if defendant had already received serious bodily injury at the hands of
deceased, and it reasonably appeared to him from the acts and conduct of
deceased that the combat was not over, and that he was about to receive
additional bodily injury from deceased, that deceased had the ability to
inflict the injury, that the danger was threatening and imminent, and
under such circumstances and so believing he shot and killed deceased,
then he would be justifiable upon the ground of his necessary self-de-
fense. Id.
12. KILLING IN SELF-DEFENSE. - WHERE ACCUSED HAS BEEN THREATENED BY
DECEASED WITH DEATH OR SERIOUS BODILY INJURY, and such threat
has, prior to the homicide, been communicated to the accused, and at
the time of the homicide the deceased by any act manifests an intention
to execute such threat, the killing is justifiable homicide. Alexander v.
State, 438.
13. INSTRUCTIONS. WHERE ACCUSED RELIES UPON THE LAW OF SELF-DE-
FENSE, evidence as to threats and character of deceased, and his conduct
at the time of the homicide, should be affirmatively submitted to the
jury, to be considered by them in determining whether or not "adequate
cause for the homicide existed. Id.
14. INSTRUCTIONS - INTENT TO KILL. - Where jury were instructed what the
law was in case the evidence showed that the accused provoked the con-
test with the deceased, with intent to kill him, they should also, where
the evidence warrants it, be instructed as to what the law is when a
difficulty is provoked with no intention to kill. Id.
15. HOMICIDE COMMITTED IN PREVENTING ARREST IS JUSTIFIABLE, even if the
attempted arrest is lawful, where power to arrest is exercised in such a
wanton and menacing manner as to threaten accused with loss of life or
some bodily harm. Jones v. State, 454.
16. KILLING IN RESISTING AN ILLEGAL ARREST of ordinary character is man-
slaughter. Id.
17. ON TRIAL FOR MURDER, INSTRUCTIONS SHOULD DISTINCTLY SET FORTH THE
LAW applicable to the case, not alone the case as made by the evidence
for the prosecution, but the case as made by all the evidence, and espe
cially the law applicable to any favorable evidence comprising defensive
matter in behalf of the accused. Meuly v. State, 477.
18. SELF-DEFENSE. Under the law of Texas, a party has a right to defend
himself against any assault, or threatened assault, made upon his person,
calculated to inflict death or serious bodily injury; and it is not essential
to his perfect right of self-defense that the danger be real or in fact ex-
ist; it may only be apparent. If it reasonably appears from the circum-
stances of the case that danger existed, the person threatened with such
apparent danger has the same right to defend against it, and to the same
extent, that he would have were the danger real. But if a party, by his
own wrongful act, brings about the necessity of taking the life of an-
other to prevent being himself killed, he cannot say that such killing
was in his necessary self-defense, but it will be imputed to malice, ex-
press or implied, by reason of the wrongful act which brought it about,
or malice from which it was done. Id.
19. MURDER. THE RULE As to Self-defense is Limited BY THE INTENTION
of a party who brings about the necessity of taking the life of another.
If the intention was not felonious, the homicide which necessity com-
pelled will not be murder.
20. SELF-DEFENSE. - WHERE THERE ARE MORE ASSAILANTS THAN ONE, the
slayer has the right to act upon the hostile demonstrations of either one
of them, and to kill either of them if it reasonably appear to him that
they were present, acting together to take his life or do him serious
bodily injury. Id.
21. RIGHT OF SELF-DEFENSE exists, notwithstanding a mere preparation to
commit the wrongful act, where there is no accompanying demonstra-
tion which indicates the wrongful purpose. Id.
22. MANSLAUGHTER. - A PERSON ILLEGALLY RESTRAINED OF HIS LIBERTY
may not only oppose force to force, but can increase that force to killing
of his adversary, if necessary to prevent the attempted wrong, and such
killing is reduced to manslaughter. Id.
23. MANSLAUGHTER.—WHERE One, under thE INFLUENCE OF SUDDEN PAS-
SION, KILLS ANOTHER, not having provoked the contest with intent to
kill, but, under the influence of terror produced by the acts of his adver-
sary, procures a pistol as a means of defense in case of an attack, or in
case of an attempted enforcement of a threat to illegally restrain hìm of
his liberty, and the acts, words, and conduct of his adversary are such
as to arouse anger, rage, sudden resentment, or terror, rendering his
mind incapable of cool reflection, and under the immediate influence of
the sudden passion the killing is done, this is not murder, but man-
slaughter: Texas Penal Code, arts. 593, 594. Id.
24. QUESTION WHETHER ACT OF KILLING WAS CAUSED BY PASSION IS FOR THE
JURY, and not for the court, to pass upon, where the evidence tends to
show that passion was aroused by an adequate cause. Id.
1. COMMUNITY PROPERTY. IT IS SETTLED LAW IN TEXAS THAT ALL
PROPERTY ACQUIRED during marriage is presumed to belong to the
community, whether the conveyance is to the husband or wife, or both,
and the burden of proving that it is the separate property of either is on
the party asserting it. And in order to show that property purchased
during the marriage is the separate property of one of the spouses, the
fund with which it was acquired must be clearly shown to have been
the separate property of such person, and this will not be inferred
except from circumstances of a conclusive tendency, if at all. Morris
v. Hastings, 570.
2. RECONVEYANCE TO HUSBAND of Land DeedeD TO WIFE WILL be Ordered,
WHERE SHE ABANDONS HIM WITHOUT CAUSE, and such land was con
veyed to her at her solicitation by reason of his confidence in her as his
wife, to relieve her anxiety, and to provide her with a means of support
in case of his death. Dickerson v. Dickerson, 213.
3. WIFE WILL BE BOUND WHERE SHE EXECUTES DEED OF REAL ESTATE IN
BLANK as to grantee, date, or amount of consideration, and delivers it
to her husband under circumstances which imply authority in him or
such person as he may authorize to fill out said blanks; especially so,
where she afterwards, with full knowledge of the fact, receives and uses
the money arising from a sale of the land to a bona fide grantee.
Morton, 247.
4. HUSBAND CANNOT TESTIFY WHERE HIS WIFE HAS INTEREST involved in
the litigation. Johnson & Co. v. Boice, Frellsen v. Witkowski, 528.
1. PRINCIPALS IN CRIME. - PERSON NOT PRESENT AT THE COMMISSION
OF A CRIME, BUT WHO COUNSELED, INDUCED, AND PROCURED it to be
committed, may, under the provisions of section 294 of the Penal Code of
New York, be convicted under an indictment charging him with the
commission of such crime. People v. Bliven, 701.
2. ACCESSARIES BEFORE THE FACT, IN CASES OF TREASON AND OF MISDE-
MEANOR, ARE PRINCIPALS, by the rules of the common law. Id.
8. ACCESSARIES BEFORE THE FACT IN THE COMMISSION OF A FELONY MAY BE
INDICTED AND CONVICTED AS PRINCIPALS, under section 29 of the Penal
Code of New York. That section reads as follows: "A person con-
cerned in the commission of a crime, whether he directly commits the
act constituting the offense or aids and abets in its commission, and
whether present or absent, and a person who directly or indirectly
counsels, commands, induces, or procures another to commit a crime, is
a principal." Id.
4. IN INDICTMENT FOR FELONY, ONE CHARGED AS PRINCIPAL CANNOT BE
CONVICTED AS AN ACCOMPLICE. Phillips v. State, 471.
5. IDEM SONANS.-IN CHARGING INTENT IN INDICTMENT FOR THEFT, THE
USE OF "APPRIATE" FOR "APPROPRIATE" IS FATALLY DEFECTIVE, where
intent to appropriate is an essential and material element of the offense
under the statute. Jones v. State, 449.
1. COURT CANNOT PROPERLY SUBMIT TO JURY facts on which the testimony
is all one way. Hunt v. Order of Chosen Friends, 855.
2 INSTRUCTIONS WHICH PRESENT MATTERS OF FACT, SUPPORTED TO SOME
EXTENT AT LEAST BY THE EVIDENCE, should be given, and it is error to
refuse them; the court may not ignore matters of fact submitted by a
defendant, by refusing to submit to the jury the law applicable thereto.
Phillips v. State, 471.
3. STATE MAY BE REQUIRED TO ELECT UPON WHICH COUNT OF AN INDICT-
MENT IT WILL CLAIM CONVICTION, ONLY WHEN distinct felonies not of the
same character are charged in different counts in the same indictment.
but where there are two counts, and the state itself elects upon which,
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