some six years before his last marriage, would not go to its admissibility.

We think it was abundantly shown by the evidence that appellant's first wife was living at the time of his second intermarriage. This was established not only by appellant's own confession, but by other witnesses and circumstances in the case. Gorman v. State, 23 Tex. 646; Hull v. State, 7 Tex. App. 593. Appellant complains of some action of his attorney in the examination of Katie Faught, in propounding to her certain questions reflecting on her character, and an apology which he says was required to be rendered by said attorney, but this matter is not in such shape as to be revised.

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

LIVELY v. STATE.

(Court of Criminal Appeals of Texas. Feb. 18, 1903.)

INTOXICATING LIQUORS LOCAL OPTION ELECTION-ORDER - NOTICE CERTIFICATE -EVIDENCE-RECORD ON APPEAL.

1. In a prosecution for violation of the local option law, a recital in the record that "the state offered in evidence the order of the commission

ers' court ordering a local option election to be held" does not show that the order for the election was in accordance with the statute.

2. A statement, in the record of a trial for violating the local option law, that "the state read in evidence the order of the commissioners' court declaring the result of a local option election, and ordering the result to be published," does not show whether the election resulted in favor of or against local option.

3. A certificate of the county judge, in which he states that notice of the result of a local option election ordered to be published by the commissioners' court was published four times on certain specified days, which were one week apart, is not such a certificate as is required by law to put local option into effect.

4. In a criminal case the appellate court cannot look into the bill of exceptions in order to complete the statement of facts.

5. Testimony of a defendant on trial for violating the local option law that, "It looks like I sold out the stock of whisky I had on hand as the time was up for us to close as result of the election, after the time had expired," is not an admission that local option was legally in effect in the county.

Appeal from Montague county court; W. W. Cook, Judge.

F. R. Lively was convicted of violating the local option law, and appeals. Reversed. James A. Graham, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and 20 days' confinement in the county jail.

There is only one question that need be considered; that is, the sufficiency of the evi

dence to sustain the conviction. The contention is that neither the order of the court authorizing the election nor the order of the court putting local option into effect is shown by the record. We find the following in regard to these orders: "The state offered in evidence to the jury the order of the commissioners' court ordering a local option election to be held in Justice Precincts Nos. 1, 2, 4, 5, 6, 7, and 8 in Montague county, Texas, on June 7, 1902, in which order the field notes are as follows," etc. After setting out the field notes, it is stated, "Said election was ordered held throughout said territory on June 7, 1902." Then follows this: "The state then read in evidence to the jury the order of the commissioners' court of Montague county, Texas, declaring the result of said election, and ordering the said result to be published in the Montague Democrat, a weekly paper published at Montague, Texas; and which order contained the field notes as set out above in ordering said election. The state then read in evidence to the jury certificate of W. W. Cook, county judge of Montague county, Texas, in which he states that said notice of the results was published in the Montague Democrat on June 21, June 28, July 5, and July 12, 1902." We do not think the mere statement, "local option election," is equivalent to a showing that the order for the election was in accordance with the statute on the subject. Nor does the evidence show how said election resulted-whether in favor of prohibition or against it. Moreover, the certificate of the county judge, which is required to put local option into effect, is not such as is authorized by law. These various orders are not otherwise shown in the statement of facts, and we are not authorized to look to the bills of exception in order to complete the statement of facts. The bills of exception set out some of these orders. The court, in its charge, treated local option as in effect in said territory; presumably on the theory that the necessary orders were introduced. But we do not find them in the statement of facts, and there is no agreement that local option was in effect in said territory. The statement of appellant in his crossexamination, to the effect, "It looks like 1 sold out the stock of whisky I had on hand as the time was up for us to close as result of the election, after the time had expired," is not an admission, as we take it, that local option was legally in effect in said county. Because the orders of the court putting local option into effect in said county are not shown in the statement of facts, the judgment must be reversed, and the cause remanded. See Johnson v. State (Tex. Cr. App.) 44 S. W. 834; Tyrel v. State (Tex. Cr. App.) 44 S. W. 159; Morton v. State (Tex. Cr. App.) 38 S. W. 1019.

The judgment is reversed and remanded.

and charge the same to the account of him, the said M. F. Stapp; and then charges that

HEAD v. STATE.

1903.)

FORGERY-INDICTMENT-INNUENDO AVERMENTS-EXPLANATORY AVERMENTS

-SUFFICIENCY.

1. An indictment for forgery in the utterance to M. of a written instrument of unintelligible character charged that the instrument was "intended to purport to be" an order by S. to B. to let accused have $5 worth of merchandise, and charge it to S.'s account. It then alleged that accused represented that the instrument meant as follows: "Mr. B., please let H. [accused] have $5 in merchandise for S. June 25, 1902 (meaning by the figures 192, 1902, and by the figure 5).' The indictment further charged

that accused did then and there mean the instrument to convey to M., a partner of B., that S. had executed it; and that accused knew the same to be false and forged, and passed it as true. Held, that the indictment was defective for want of sufficient innuendo averments disclosing the meaning of the instrument.

as follows, to wit: "Mr. Jess Bowen please let Jim Head have five dollars in merchandise for M. F. Stapp, June the 25th 1902 (meaning by the figures 192, 1902; and by

the figure 5)." The indictment further charges that the allegation that the said Jess Bowen was then and there a member of the mercantile firm of McComick & Bowen, who were partners in the mercantile business at Topas, a post office in Erath county, and said firm composed of C. H. McComick and Jess Bowen; and the said Jim Head did then

and there mean the said instrument to convey to the said C. H. McComick that the said M. F. Stapp had signed and executed the same; and that the said Jim Head knew the same to be false and forged, and passed the same as true. Appellant made a motion

Among others, that the instrument is not plain and intelligible on its face; that the words written are unintelligible, and the instrument itself does not import an obligation, and was and is not the subject of forgery; that, if it is the subject of forgery, to have made the words intelligible there should have been innuendo averments, giving the meaning of the same; and that the indictment failed to do this. Furthermore, that, before the instrument could be held the subject of forgery, apt extrinsic or explanatory averments should have been used in the indictment so as to show that said instrument imported an obligation, and was calculated to deceive some one. In Cagle v. State, 39 Tex. Cr. R. 109, 44 S. W. 1097, the difference between innuendo and explanatory averments was discussed. It was there held, following the authorities: "That an innuendo averment does not enlarge or point out the effect of language beyond its natural and common meaning in its usual acceptation, it being intended merely to explain or make clear the use of terms in the paper itself; while extrinsic averments are such additional allegations as show a writing, otherwise incomplete, to be such as, in connection with other allegations, is an instrument which will create, increase, diminish, discharge, or defeat a pecuniary obligation." The instrument above set out is difficult to be made out, and is so unintelligible in itself as, without the aid of innuendo averments, to be not susceptible of conveying to the ordinary mind that it is a pecuniary obligation. Unless one is informed as to what is meant by the use of the words in the instrument, it is difficult, if not impossible, to decipher it. We do not understand that any innuendo averments are used in the indictment except the figures "192" meaning "1902," and by the "" figure "5." The allegation with reference to the other parts of the instrument was with reference to appellant's representation as to what they were. We hold that

66

that it is. See Davis v. State (Tex. Cr. App.) 69 S. W. 73, and authorities there referred to.

And see the subject discussed in Anderson v. State, 20 Tex. App. 596. In that case the instrument was held not the subject of forgery, because it did not appear to have been signed by any person. Martin Basinger, whose name was alleged to have been forged, appeared in the body of the instrument, and there was no explanatory averment in the indictment. But we think this indictment is different from that, in that the name of the person here alleged to have been forged appeared at the bottom of the instrument. The explanatory or extrinsic averments with reference to C. H. McComick's connection with the firm of McComick & Bowen, who were engaged in merchandising, etc., we believe sufficiently set out the extrinsic facts. But for the defects in the indictment, not containing proper innuendo averments, it should have been quashed. In the view we have taken, it is not necessary to discuss other assignments, including the misconduct of the jury, which of itself, as shown by the bill of exceptions, would be sufficient to reverse the case. The judgment is reversed, and the prosecution ordered dismissed.

SIRMONS v. STATE.

(Court of Criminal Appeals of Texas. Feb. 18, 1903.)

ASSAULT WITH INTENT TO RAPE-EVIDENCE. 1. On a trial for assault with intent to commit rape, evidence held insufficient to support a conviction.

Appeal from district court, Erath county; W. J. Oxford, Judge.

W. T. Sirmons was convicted for an assault with intent to commit rape, and appeals. Reversed.

Eli Oxford, W. J. Thompson, and C. Nugent, for appellant. Lee Riddle, Dist. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of an assault with intent to commit rape, and his punishment assessed at confinement in the penitentiary for a period of two years and one day.

Minnie Gordon, the prosecutrix, testified, substantially: That she worked for defend

ant-washing dishes, sweeping floors, making up beds, etc., about the hotel-but did not wait on the table. That she slept in the same room with appellant and his wife, but in a separate bed. "One morning, about four or half past four o'clock, defendant came to my bed. When I waked up, he was standing with one hand on my right shoulder and one on my waist [indicating the place]. Both of his hands were on top of the cover. He stooped down to kiss me, and I slapped him in the mouth. He did not say anything. He did not put his hands under the cover. I told him if he did not go away I would tell papa. He went away. I did not look where he went. He had on his night clothes. He did not speak. The next morning he came to me at the ice box, and asked me what I hallooed for." This occurred on Wednesday night-and that she left defendant's house Friday night, when her father came after her. On witness' attention being called to what defendant said at her bed, she stated that "he asked me if I was going to holler." Prosecutrix was 14 years of age. Various witnesses testified to lascivious and filthy remarks about prosecutrix made by appellant, and as to what he had done and intended doing with her. We do not think the testimony of prosecutrix supports the finding of the jury. It fails to show any intent on the part of appellant to assault prosecutrix, with intent to commit rape upon her.

Because the evidence is not sufficient, the judgment is reversed, and the cause remanded.

CUMMINGS v. STATE.

(Court of Criminal Appeals of Texas. Feb. 18, 1903.)

BANKING GAME-CRAPS.

1. A game called "craps," played by one mån throwing dice on a table and betting on certain numbers, while another party bets against him, without the intervention of the owner of the table, who acted as a mere stakeholder, and took from the stakes 10 cents for every two passes as a commission, was not a banking game, for the keeping of which the owner of the table was liable to prosecution.

Appeal from Tarrant county court; M. B. Harris, Judge.

Cal Cummings was convicted of exhibiting a gaming table and bank, and he appeals. Reversed.

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

DAVIDSON, P. J. Appellant was convicted of exhibiting, for the purpose of gaming, a certain gaming table and bank; and his punishment assessed at a fine of $25, and 30 days' confinement in the county jail.

The evidence shows that the crap game was exhibited under the following circumstances, as shown by the witness Davis: "I

1. See Gaming, vol. 24, Cent. Dig. 196.

He

bet at the crap game with the defendant. was standing behind the table, which was about 42x6 feet, with raised edges, to keep the dice from falling off on the floor, and with a hollowed out place across one corner, where defendant stood. I bet several times on this game with any one who desired to bet around the table. Defendant did not fade every man who desired to bet, nor did he put up his money against each and every better. He took his chances with the balance of the men who were throwing dice, and took his turn as the dice came around the table if he so desired. If a man wanted to bet, he would throw the money on the table in front of defendant, and, if another wanted to bet, he would cover the money so put in front of defendant, and the man throwing the dice would bet on 7 or 11 or his point to win. If he threw 7 or 11 on the first throw, he would win, but, if he threw 8 on the first throw, 8 was his point; but if he threw 7 or 11 before again throwing 8, his point, he would lose. Defendant 'picked the passes' that night; that is, he would get ten cents for every two passes." On cross-examination he states: "I know defendant did not bet against every man who wanted to bet on this night, but he would take the money that they wanted to bet and hold it until another man who desired to fade the first better put up his money, and he would pay the whole amount of said money to the man who won; taking out of the money, for his services, ten cents for every two passes." This evidence does not constitute a banking game. The essential element of a banking game is that it is one against the many, and the banker accepts all bets. This evidence does not show this character of game, but belongs to that class of crap games which is discussed in Chappell v. State, 27 Tex. App. 310, 11 S. W. 411.

Under the authority of Chappell's Case, the judgment is reversed, and the cause manded.

CAMPBELL v. STATE.

re

(Court of Criminal Appeals of Texas. Feb. 18, 1903.)

BANKING GAME-CRAPS.

1. An ordinary game of craps, at which the parties who were in attendance played against each other, and where the owner of the game or table did not bet against all comers, was not a banking game or table, for the keeping of which the owner was liable to prosecution.

Appeal from Tarrant county court; M. B. Harris, Judge.

George Campbell was convicted of exhibiting a gaming table and bank, and he appeals. Reversed.

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

1. See Gaming, vol. 24, Cent. Dig. § 196.

HENDERSON, J. Appellant was convicted of exhibiting a gaming table and bank, and his punishment assessed at a fine of $100 and 90 days' confinement in the county jail.

The only question that we deem necessary to consider is, does the testimony support the finding of the jury? We have examined the record carefully, and, in our opinion, it does not. A gaming table or bank, and the distinction between it and gaming generally, was defined by Judge Roberts in Stearnes v. State, 21 Tex. 692, and that decision has since been followed. Bell v. State, 32 Tex. Cr. R. 187, 22 S. W. 687. In Chappell v. State, 27 Tex. App. 310, 11 S. W. 411, the ordinary game of craps was described, and the distinction which had theretofore been declared in Stearnes v. State was adopted. The facts of this case show that it was not a banking game, where one person kept or exhibited the game, and bet against all comers, but that it was a game at which the parties who were in attendance played against each other; that is, it was an ordinary game of craps. See the companion case, No. 2,689, Cal Cummings v. State (just decided) 72 S. W. 395.

The judgment is reversed and the cause remanded.

TAYLOR v. STATE.

(Court of Criminal Appeals of Texas. Jan. 28, 1903.)

MURDER-EVIDENCE OF THREAT-JURORSHARMLESS ERROR-VARIANCE.

1. The examination is not sufficiently extended to show that there is established in th juror's mind such an opinion as to disqualify him; he answering that he had heard of the case, and, from what he had heard, had formed an opinion as to guilt or innocence; that it would require evidence to remove the opinion, but that he could go on the jury, and try the case fairly, according to the evidence and charge.

2. The overruling of a challenge for cause is not ground for reversal; defendant's peremptory challenges not being exhausted, and it not appearing that he was compelled to take an unfair or partial juror.

3. Evidence that, four days before the murder, defendant said to a girl, of the attention of deceased to whom he was jealous, "I am going to do some devilment, and get my name in the paper," is admissible, not only because of its malignant character, showing that defendant was bent on mischief, but because it is shown to have been directed towards deceased, by defendant's statement at the same time that deceased "thinks he can run it over me, but I am going to kill him and leave town.”

4. There is no variance between an indictment charging the killing with a gun, and evidence that it was with a pistol.

Appeal from district court, Dallas county; Chas. F. Clint, Judge.

George Taylor was convicted of murder, and appeals. Affirmed.

O. F. Wencker, J. J. Fagan, and A. S. Baskett, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

4. See Homicide, vol. 26, Cent. Dig. § 256.

HENDERSON, J. Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

On the impanelment of the jury, appellant excepted to the action of the court in overruling his objection to G. H. Eagan, who had been summoned on the special venire. This juror answered that he had heard of the case, and from what he had heard he had formed an opinion as to the guilt or innocence of the defendant; that it would require evidence to remove this opinion, but that he could go into the jury box, and try the case fairly, according to the evidence and charge of the court. This juror was challenged by appellant on the ground that he had formed an opinion as to the guilt or innocence of appellant, such as would require evidence to remove it. The court overruled the challenge for cause, whereupon appellant peremptorily challenged the juror, and he was set aside. In the first place, the examination does not appear to have been sufficiently extended to show that there was established in the juror's mind such an opinion as would disqualify him, nor that the juror had read the evidence in the case. In the second place, appellant's challenges were not exhausted, nor was it shown that he was compelled to take an unfair or partial juror. Nalley v. State, 28 Tex. App. 387, 13 S. W. 670; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; White v. State, 30 Tex. App. 652, 18 S. W. 462.

By bills of exception Nos. 2. 7, and 6, appellant questions the action of the court in admitting the testimony of witnesses Mary Taylor and Della Anderson, to the effect that, when George Taylor came to the witness Della Anderson's house on the night of Thursday before the killing of Ed White on Monday night, he called Mary Taylor out on the gallery, and said, "I am going to do some devilment, and get my name in the papers." The objection to this testimony was that the declaration or threat of appellant was too general, and did not show it was directed toward, or had any reference to, deceased, Abe White, and did not import any personal violence toward deceased or any one, and that the state did not connect the statement with deceased or show that defendant meant thereby that he intended to do any personal violence to deceased. It has been held in a number of cases that where the threats made by defendant are not directed toward deceased by name, or are otherwise shown to be so directed against him, such threats are not admissible. Godwin v. State, 38 Tex. Cr. R. 466, 43 S. W. 336; Holley v. State, 39 Tex. Cr. R. 301, 46 S. W. 39; Strange v. State, 38 Tex. Cr. R. 280, 42 S. W. 551. Although the name of deceased be not mentioned, yet, if it can be reasonably gathered that deceased was meant or alluded to, the evidence of such threat will be admissible. Moreover, if the

threats, though general, were of such malignant character as to embrace deceased, and the circumstances of the killing were such as would indicate that deceased must have been referred to, the testimony will be admissible. See Sparks v. Com., 89 Ky. 644, 20 S. W. 167; State v. King (Mont.) 24 Pac. 265; Brooks v. Com. (Ky.) 37 S. W. 1043. In this case the threat showed a malignant disposition, and suggested that appellant was bent on mischief. Moreover, it is shown that appellant was solicitous in regard to the attentions of deceased to Mary Taylor, his kept woman, and evidently the killing occurred because of this. Judged by this record, appellant assassinated deceased because of his intimacy with Mary Taylor, The killing occurred in her room, and the party who did it was familiar with the surroundings, and must have known deceased would be there that night, and shot him from the outside, through a window. In addition to this, on that same night appellant requested Mellin Taylor, another witness, to raise the window curtain at the house where the homicide occurred, in order that he might kill deceased, Abe White. In the explanation of the judge to one of the bills, we are referred to the evidence contained in the record; and we are authorized to look to it, in order to ascertain the competency of this evidence. Besides, the bill itself does not assume to disclose all the circumstances under which this evidence was admitted. We hold that the evidence objected to was admissible, because it was of that malignant character which embraced deceased, and so was directed towards him. We further hold that the record shows the threat was aimed at deceased, and no one else.

Appellant objected to testimony offered by the state showing that tracks were found near the window of the house through which deceased was shot and killed, leading from there across a bridge to a tub; that by the tub was the imprint of the left hand of a man, spread out, and also the imprint of the fist of the right hand of a man, and immediately in front of it a small hole in the ground about one-half or three-fourths of an inch in diameter; and that subsequently there was found at defendant's room a 38-caliber pistol, with black, sandy dirt in the muzzle, which was identified as appellant's pistol; and that the soil by the tub was of a black, sandy character. This testimony was objected to on the ground that the indictment charged the homicide to have been committed with a gun, and this proof tended to show that it was done with a pistol; that a gun and pistol are not the some thing, and there was a variance. It is the received doctrine that in homicide cases, where the indictment alleges the killing was done with a gun, proof can be made under such allegation that the killing was done with any firearm. Although a gun is alleged a pistol may be proved, and vice