run. I do not know of any other points on said county line by which I could determine the direction or the way and manner in which said county line run.' Counsel for the defendant contended that the evidence in this case was not sufficient to prove venue, and requested the court to instruct the jury to return a verdict of not guilty for that reason. The court overruled said contention, and refused to submit to the jury the requested instruction aforesaid, to which defendant excepted."

We think it affirmatively appears from the evidence contained in the bill of exceptions that the venue was not proved, and for this reason the judgment is reversed and the cause remanded.

ELLISON v. STATE.*

(Court of Criminal Appeals of Texas. Jan. 21, 1903.)

THEFT-TAKING-IDENTITY OF GUILTY PERSON-POSSESSION OF STOLEN PROPERTY-INSTRUCTIONS.

1. In a prosecution for theft, a requested instruction that, to convict, defendant must be shown to have taken the property intending to deprive the owner thereof and to appropriate it to his own use, and that no other connection with the transaction will supply the proof of actual taking, is sufficiently covered by an instruction that if accused fraudulently took the property from the owner without his consent, with intent to deprive the owner thereof and appropriate it to his own use, he is guilty.

2. In a prosecution for theft, an instruction that, if the jury have a reasonable doubt as to whether defendant is the identical person who sold the stolen animals to a witness, they should acquit, is not objectionable as permitting the jury to arrive at a belief that defendant was such identical person from sources other than the evidence.

3. In a prosecution for theft, a witness testified that he bought the stolen animals from accused, and gave him a check therefor. The accused made no explanation of his possession of the property. Held, that it was not error to fail to charge that in order to warrant an inference of guilt from the possession of the stolen goods such possession must be shown to have been exclusive, personal, and recent, and to involve an assertion of property.

Appeal from district court, Bexar county; John H. Clark, Judge.

Will Ellison was convicted of theft, and appeals. Affirmed.

W. C. Linden and G. O. Brown, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of the theft of horses and mules, and given five years in the penitentiary.

Appellant insists that the court erred in refusing the following charge requested by him, to wit: "In order to warrant a conviction for theft, the proof must show beyond a reasonable doubt that the defendant in Mason county, Texas, at about the time alleged in the indictment, took the animals *Rehearing denied February 25, 1903.

described in the indictment, or any one of them, from the possession of J. M. Sudbury, without the consent of the said J. M. Sudbury, and with the intent to deprive him of its value, and to appropriate it to the use and benefit of himself, and that he afterwards brought such animal or animals into Bexar county, Texas; and you are further instructed that no other connection with the transaction, whether innocent or fraudulent, would supply the proof of actual taking; and in case you have a reasonable doubt as to whether the evidence in this case establishes the guilt of the defendant of the actual taking in Mason county, Texas, you should acquit him." In his main charge the court instructed the jury as follows: "If in this case you believe from the evidence beyond a reasonable doubt that the defendant did, in the county of Mason and state of Texas, at any time within five years next before the 19th day of April, 1901 (which is the date of the filing of the indictment in this case), fraudulently take from the possession of J. M. Sudbury the horses and mules, or any of them, as alleged in the indictment, without the consent of the said J. M. Sudbury, and with the intent to deprive the said J. M. Sudbury of the value of the same, and to appropriate it to the use of him, the said defendant, and that the said J. M. Sudbury was at the time the owner (or had the actual control, care, and management) of said horses and mules, and that afterwards the said Will Ellison carried said horses and mules, or any of them that were so stolen, into Bexar county, Texas, then you will find defendant guilty as charged." The charge of the court covered all of the phases presented by the evidence, and there is no error in the refusal of the special charge requested by appellant.

The first ground of appellant's motion for new trial is that the court erred in overruling his application for continuance. No bill of exceptions was reserved presenting this matter, and hence we cannot review this objection.

The fifth ground of the motion is "that the court erred in his charge wherein he tells the jury that, if they do not believe defendant was the identical person who sold the animals to Capps, they should acquit, instead of instructing them the state must establish the identity of defendant beyond a reasonable doubt; that said charge would permit the jury to arrive at their belief that defendant was the identical person who sold said animals from some other source than the evidence, as, for example, the reluctance of Capps in testifying the relationship of Capps to defendant, etc., or from defendant's failure to show that he was not present," etc. We do not think the charge is subject to this character of criticism. The charge presents the reasonable doubt on the theft of the animals in Mason county, and the bringing of the same to Bexar county; and then the

court charged the jury: "If you have a reasonable doubt as to whether or not defendant is the identical person who sold and delivered the alleged stolen animals to the witness Capps (if sold and delivered to him), then you will give defendant the benefit of the doubt, and acquit him." This charge was certainly favorable to appellant, and he cannot complain of it. The court charged on the law of circumstantial evidence, and presented every possible phase of the testimony by a charge covering the same.

The sixth ground of the motion is that the court "failed to instruct the jury as to the effect of possession of stolen property, in this: The state relies solely upon the evidence of possession of the property alleged to have been stolen as the same is testified to by the witness Capps. Mere possession of stolen property, although unexplained, is not sufficient to warrant an inference or presumption of guilt of theft of such property, but in order to warrant said inference or presumption, and to warrant a conviction of theft upon such evidence, the possession must be proven to be exclusive, must be personal, must be recent, and must invoke a distinct and conscious assertion of property by defendant, and, in all cases depending for conviction upon possession by defendant, this law should be submitted to the jury by instructions, and in this case the court wholly failed to refer to it in any manner." As we understand appellant's objections, they are that the court failed to charge upon recent possession of stolen property. This is not necessary when appellant makes no explanation of his recent possession. The testimony of the witness Capps shows very clearly that he bought the animals in question, and, as insisted by appellant, he equivocated somewhat as to the identity of appellant, evidently trying to shield him; but his evidence, coupled with the other circumstances, clearly identified defendant as the man who had the actual control, custody, and exclusive management of the horses and mules. Capps gave him a check for the value thereof, and everything indicates complete possession on his part.

Appellant insists that the verdict of the jury is contrary to the law and the evidence, in that it fails to establish the identity of defendant, and fails to establish the fact of the original taking of the property. We cannot agree with either of these contentions, but believe the evidence establishes both of these propositions beyond a reasonable doubt. While it is true the taking of the animals was proven, not by positive evidence, but by circumstantial evidence, it is clearly made to appear that defendant and no one else took the animals in Mason county, without the consent of the owners thereof, and that he brought them to the city of San Antonio, or near thereto, and sold them to witness Capps. There is no error in this record, and the Judgment is affirmed.

Feb.

McCOMAS v. STATE. (Court of Criminal Appeals of Texas. 11, 1903.) HOMICIDE-MANSLAUGHTER-PROVOCATION -EVIDENCE-INSTRUCTIONS.

1. In a prosecution for murder, where defendant claimed that deceased had insulted his daughter, and that he killed deceased after having learned this fact, evidence of slanderous remarks alleged to have been made by deceased concerning various other young women was not admissible.

2. Evidence of the general reputation of deceased for lewdness was admissible.

3. In a prosecution for murder, questions on the cross-examination of accused as to whether he did not know that his wife had a bad reputation when he married her were not prejudicial to accused; the answers being in the negative.

4. An exception to evidence not reserved by bill cannot be reviewed.

5. In a prosecution for murder, defendant introduced evidence to show that he killed deceased at their first meeting after learning that deceased had insulted defendant's daughter. The testimony of the state tended to show that the killing was for insulting and slanderous remarks made by deceased concerning defendant's wife, and there was no showing by defendant that the killing occurred on the first meeting after being informed of these remarks, or that he killed deceased for this cause. Held, that a charge on manslaughter, which limited the adequate cause for the killing to the conduct of deceased toward defendant's daughter, and excluded any consideration of the slanderous remarks concerning defendant's wife, was not error.

Appeal from district court, Lamar county; Ben H. Denton, Judge.

A. W. McComas was convicted of murder, and appeals. Affirmed.

BROOKS, J. Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of seven years.

The testimony of appellant is to the effect that deceased, who was a practicing physician in the town of Paris, made an indecent proposal to his daughter, and that he killed deceased upon their first meeting after being informed of it; and his testimony also tends to show that deceased made some demonstration at the time of the killing, evidencing an intent to shoot appellant. The court charged the jury upon the different phases of murder, and also presented the law of manslaughter applicable to the case. The state, in order to contradict and disprove appellant's statement that he killed deceased on account of insults to his daughter, proved by witnesses that defendant had told them deceased had imputed a want of chastity to his wife, with whom he was not living at the time of the alleged slander.

In the first bill of exceptions, appellant complains that the court refused to permit

2. See Homicide, vol. 26, Cent. Dig. §3831.

J. D. Richardson to testify for appellant to slanderous remarks, which we do not deem necessary or proper to detail here, concerning young ladies in Paris, and which deceased had made to witness some time prior to the alleged insult to appellant's daughter. The second bill complains of the refusal of the court to permit similar testimony by witness Woodal. This testimony was not admissible. Isolated acts of lewdness are not admissible in a trial of this character, nor do we think isolated statements of slanders would be admissible. In Jones v. State, 38 Tex. Cr. R. 364, 43 S. W. 78, 70 Am. St. Rep. 751, this court held that specific acts of lewdness were inadmissible, because the introduction of such acts would involve too many issues, and the courts cannot turn aside to try a vast number of collateral issues. But the general reputation of deceased for lewdness, if such testimony had been offered, would have been admissible. The court did not err in refusing to admit this testimony.

The fourth bill complains that, while appellant was on the stand on cross-examination, the state asked him if he was not warned by a friend before he married his present wife that she was a woman of bad reputation, to which defendant answered "No," and also asked appellant if he was not warned by Will Smith that she was a woman of bad reputation, to which defendant answered "No." The state then asked defendant if he did not know before he married his present wife that she had a bad reputation for virtue, to which he answered "No." The state also asked defendant if he did not know that his wife had lived in Boardtown before he married her (meaning by "Boardtown" a disreputable portion of the city of Paris, where many prostitutes reside), to which he replied that she never had lived in Boardtown. And the state also asked defendant if, after he and his present wife had separated, he did not offer again to live with her, to which he replied "Yes." The answer of appellant to the first questions being in the negative, we cannot see how he has been injured. The last question, and the answer thereto, in the light of this record, were harmless.

In motion for new trial, appellant complains that the court permitted Boyett, Wilson, McHam, Springs, and Mrs. McCuiston to testify after the state had closed its case; referring to the third bill of exceptions. This bill is not contained in the record, and the exception, not being reserved by bill, cannot be reviewed. However, we are of opinion there was no error in this respect.

In motion for new trial, appellant insists "the court erred in the charge on manslaughter, in telling the jury what would be adequate cause, so as to reduce the killing to manslaughter, in limiting the adequate cause of the killing to insulting words and conduct of deceased towards the daughter of defendant, when the state showed by its evidence

that defendant was enraged toward deceased on account of slanderous words used by deceased towards the wife of defendant, and because the court failed to instruct the jury. in substance, if they found the killing was for insulting or slanderous remarks made by deceased to or concerning the wife of defendant, and the killing took place at the first meeting of defendant and deceased, such cause would be an adequate cause for the killing, and would reduce the offense from murder to manslaughter." There was no error in the action of the court. Appellant's testimony shows the killing occurred on account of insulting conduct or language of deceased towards his daughter. It is true, the state's testimony indicates a state of facts as above detailed, but appellant did not show the killing occurred upon first meeting after being informed of such slander upon his wife, and that he killed deceased for this

cause.

It is also insisted that the verdict of the jury is not supported by the evidence. The evidence amply supports their finding. The judgment is affirmed.

RUSSELL v. STATE.

(Court of Criminal Appeals of Texas. Feb. 11, 1903.)

CARD PLAYING - INFORMATION SPECIFICATION OF PLACE-SUFFICIENCY OF ALLEGATION-JURORS-TRIAL OF COMPANION CASE -FAILURE TO EXAMINE ON VOIR DIRE-EFFECT.

1. In a prosecution for playing cards, under White's Ann, Pen. Code, art. 379, as amended, punishing any one playing at cards elsewhere than at a private residence occupied by a family, it is sufficient to allege that the game was not played at such a private residence, without specifying the place where it was played.

2. Jurors testified on their voir dire that they had neither formed nor expressed an opiuion as to accused's guilt or innocence; that they had convicted another for having played cards in the same game; that they did not know what game of cards accused was to be tried for playing, but they did know they could give him a fair trial. They testified, on motion in arrest, that they were guided solely by the evidence, and not by the evidence in the companion case. Held, that accused's failure to further examine them on their voir touching the companion case, precluded his urging their prejudice on motion in arrest.

dire

Appeal from Somervell county court; J. G. Adams, Judge.

Tom Russell was convicted of card playAffirmed. ing, and appeals. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was charged with playing at a game with cards, which said game of cards was not played at a private residence occupied by a family. The first two grounds of the motion to quash are in the nature of general demurrers, alleging that the complaint and information are vague and indefinite, and insufficient to set forth

the offense. It is contended that neither the complaint nor information affirmatively allege that defendant played at a game of cards at any place in Somervell county where card playing is prohibited. If it was intended by this criticism to say that venue was not properly alleged, it is sufficient answer to state it is specifically alleged that the playing occurred in Somervell county. If it is intended to attack these pleadings because the pleader does not designate a particular point or place, we hold that this was not necessary. We suppose the contention is that in charging, under article 379, White's Ann. Pen. Code, as amended, the pleader did not state that it was at a definite and certain place, setting it out. In cases of this character, as we understand the decisions, this has never been necessary. Where the information undertakes to charge at a public place one named in the statute-it is sufficient to allege the playing occurred at that particular place, or in that particular house or character of house, without describing it as a public place, because the statute makes it so; as, for instance, where the game is charged to have occurred in a saloon, or hotel, or public inn, or public place of that character, specifically mentioned. If it is intended to charge a playing at a public place not specifically mentioned in the statute, then the facts should be stated which makes it a public place. But that does not apply here. Under the latter clause of the article referred to, any playing anywhere, not mentioned in the preceding portions of the statute, is a violation of the law, unless at a private residence, occupied by a family. The facts show the playing occurred in a pasture in a cedar brake. We are of opinion that the criticism of the complaint and information are not well taken. We have an instance in a "crap game," which is an offense played anywhere except at a private house. It has always been held that simply to charge the playing of a game of craps at a place other than at a private residence was sufficient to charge this offense.

Bill of exceptions was reserved to the evidence of Sid McCoy and Sid Mitchell, who testified to appellant playing in the game of cards in the pasture in the cedar brake, about a mile and a half northwest of the town of Glen Rose. The grounds of objection are that the information did not allege that the game was played at a public place, or at any particular place. This constitutes no objection, for the reasons indicated in discussing the motion in arrest.

It is also urged in the motion that the jurors trying the case were disqualified and incompetent. These six jurors were taken on the trial without exception. It is contended in the motion that these jurors were incompetent, because each of them had a fixed opinion as to the guilt of defendant, and had expressed said opinion, which was unknown

to defendant. There is no bill of exceptions reserved to any of these matters; and appellant relied upon attacking the jurors after conviction. Their evidence was taken in con nection with the motion. They stated on their voir dire, in substance, that they had neither formed nor expressed an opinion as to the guilt or innocence of defendant; that they had convicted Pete Williams for having played in the same game. They further stated on their voir dire that they did not know what game of cards defendant was to be tried for playing, but they did know they could give him a fair and impartial trial under the law and the evidence; and further testified that in rendering their verdict they were guided solely by the law and the evidence submitted to them, and not by any evidence or circumstances detailed in evidence in the Pete Williams Case, 72 S. W. 192, or any other evidence or circumstance outside the record in this particular case. As this matter is presented to us, there is no error shown. The jurors were not asked with reference to the Pete Williams Case on their voir dire. If defendant knew of their having sat in the Pete Williams Case, which was a companion case to this, and he had desired to excuse them on that account, he should have directed his examination to that point while the jurors were upon their voir dire. It is too late, after conviction, to attempt to take advantage of this matter.

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

HANKINS v. STATE.

(Court of Criminal Appeals of Texas. Feb. 11, 1903.)

GAMING INDICTMENT-PLACE-SUFFICIENCY OF ALLEGATION.

1. Under Pen. Code, art. 379, as amended by Acts 27th Leg. p. 26, prohibiting the playing at a game of cards at any place except a private residence occupied by a family, it is not necessary that an indictment for gaming, which alleges that the game was not played at a private residence occupied by a family. should show the character of the place where the game was played.

Appeal from Somervell county court; J. G. Adams, Judge.

John Hankins was convicted of gaming, and he appeals. Affirmed.

Jno J. Hiner, J. E. Pearce, and E. P. Lea, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of gaming, and his punishment assessed at a fine of $10.

Appellant made a motion to quash the information on the ground that the same does not designate or describe any particular place. The information in this respect is as

See White's Crutcher v. W. 594. In

follows: That "John Hankins did then and there unlawfully play at a game with cards, the said game of cards then and there not being played by the said John Hankins at a private residence occupied by a family." Under the former decisions of this court, as the statute stood prior to the amendment of article 379, Pen. Code (see Acts 27th Leg. p. 26), it was necessary, where the playing was at a house other than those set out in said article, or at a place other than those named, to designate the house or place, and describe it so as to constitute the same a public house or a public place. It will be noticed that article 379, before its amendment, made the playing of cards at certain named public houses, or in any other public house than those named, or in certain named public places, or any other public place than those named, an offense. So it will be seen that the house or place where the game was inhibited had to be a public house or a public place. Consequently it had to be set out and described to make it such. Ann. Pen. Code, §§ 620, 630; State, 39 Tex. Cr. R. 233, 45 S. that case the playing was in a pasture. as in the case at bar; but in that case it was held, under the statute as it then existed, that the place must be set out and described in order to show that it was a public place, which was the requirement of the statute at that time. In Green v. State (Tex. Cr. App.) 61 S. W. 481, the playing was at an old mill, and at night. It was there said that a flouring mill is not one of the houses specially denominated by the statute as a public house or place; that it may be private at times and public at other times; but under the testimony, which there showed that the playing was at night, and the mill was not in use, that it was not a public place. But, as stated, in 1901 the 27th Legislature amended article 379, and, after enumerating the houses and places theretofore named as public, the statute, as amended, proceeds to inhibit the playing at a game of cards at any place except a private residence occupied by a family. It is no longer required that the place must be public, and the game of cards cannot now be lawfully played at any place except a private residence occupied by a family. And we hold, if a game of cards is played at any house or place other than those set out in article 379, as amended, it is only necessary to allege, as was done, that the playing was at a place other than a private residence occupied by a family. The proof here showed that the playing was not at one of the houses or places enumerated in the statute, but at another place, to wit, a pasture. The evidence was responsive to the allegations in the indictment, which we hold was sufficient, and the conviction was proper.

There being no error in the record, the judgment is affirmed.

WILLIAMS v. STATE.

(Court of Criminal Appeals of Texas. Feb. 11, 1903.)

GAMING PLACE OTHER THAN PRIVATE RESIDENCE-INSTRUCTION.

1. In a prosecution for playing cards, one witness testified that the game was played ou the ground in a certain pasture, and another witness testified that he saw accused and the first witness and others sitting in a circle on the ground on the day named in the pasture. The court charged that, if accused played cards at any place except a private residence occupied by a family, etc., they should find him guilty. Held, that a requested instruction that the law required the state to prove that the game of cards was played at a place not a private residence then occupied by a family, and if the jury did not find that the place was not a private residence they should acquit, was properly refused.

Appeal from Somervell county court; J. G. Adams, Judge.

Pete Williams was convicted of gaming, Affirmed. and appeals.

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

BROOKS, J. Appellant was convicted of gaming, fined $10, and prosecutes this appeal. Appellant insists that the complaint and information are defective, and filed a motion to quash the same. The charging part of the information is as follows: Pete Williams "did then and there unlawfully play at a game of cards, the said game of cards then and there not being played at by the said Pete Williams at a private residence occupied by a family," etc. This information is good. For a discussion of this matter, see Russell v. State (just decided) 72 S. W. 190; Hankins v. State, Id. 191.

The second bill of exceptions complains that the state proved by Sid McCoy that he, in company with John Hankins and three other parties, unknown to witness, on the 29th of March, 1902, played at a game of cards in Shields' pasture, in Somervell county, about a mile and half or two miles northwest from Glen Rose. Appellant objected to this testimony, because the information did not allege that defendant played poker at any place in Somervell county, and because same did not allege that defendant played cards in the pasture of Wm. Shields, in said county. Appellant's objections are not well taken, as it is a violation of law to play cards anywhere not at a private residence, under the recent statute.

The third bill of exceptions raises practically the same question.

In the fourth bill of exceptions complaint is made that Sid McCoy testified that the game he played on March 29th was played on the ground in the cedar brake in Wm. Shields' pasture; and the witness Sid Mitchell testified that he saw defendant and Sid McCoy and others sitting in a circle on the ground on said day in said pasture; and