spiracy had been established between appellant and the others acting with him to kill Bob Alexander on account of said alleged insults, they could not regard any acts or declarations made by others, in the absence of appellant, tending to show animus or an act of preparation on their part. In this connection we would observe that the case of Chapman v. State, 76 S. W. 477, 8 Tex. Ct. Rep. 392, in its facts, as well as its legal propositions, is very much like the case at bar, and we can do no better than refer to said case for the propositions arising in this case in regard to the doctrine of conspiracy. We would further remark that some evidence was objected to as to acts and declarations of others made in the absence of appellant, on the ground that no conspiracy was shown, and that such acts and declarations were not in furtherance of any conspiracy. All of such testimony which was in furtherance of a conspiracy was admissible.

In regard to the failure of the court to charge on manslaughter, as we understand the evidence, so far as the state's case was concerned, this was the paramount issue. There can be no question from this record that Bob Alexander uttered scandalous remarks attributed to him by the witnesses in regard to the female relatives (nieces) of appellant. There can be no question that these slanderous accusations were communicated to appellant prior to the homicide. We fail to recall any testimony which shows that he may have met with Bob Alexander between the communication of the slanderous remarks to him and the homicide. Nor is it at all doubtful that he went to see Bob Alexander on the morning of the homicide on account of said slanderous remarks. According to the state's theory, he and his companions sought the meeting on a hostile mission. According to his own account, he went there on a peaceful mission, to have an explanation made to him by said Alexander in regard to said remarks. Now, whether he conspired with others to go with him on that occasion or not is immaterial. If he was laboring under excitement on account of said remarks, and was incapable of cool reflection, and when they reached the place appellant and his companions, in attempting to slay Bob Alexander, although without any justification on their part, accidentally killed his wife, D. V. Alexander, then it could be no more than manslaughter on his part. Or if she interfered, and assisted her husband, and they slew her, it would be manslaughter, as far as he was concerned. As stated before, it could only be murder in case he was not actuated by passion at the time. As heretofore stated, no charge was given on manslaughter whatever, and yet it occurs to us that this is the only evidence in the case on which the state ought really to ask for a conviction. Why the learned judge failed to give a charge on this subject we are at a loss to understand. On the other hand, while the court gave a

87 S.W.-10

charge of self-defense, we believe the court should have applied the law to the facts of this case more accurately than was done, and the jury should have been especially told that appellant and those with him had the right to defend themselves not only against Bob Alexander but against any hostile act or demonstration of his wife, D. V. Alexander. There was evidence that she engaged in the difficulty, and fired at the parties. If appellant and those with him went there on a peaceful mission, or if, after going to Alexander's, they made no hostile act or demonstration against Bob Alexander or his wife, and Bob Alexander first attacked them, and his wife joined him in such attack, then they had a right to self-defense as well against her as against him, and the charge should have been so framed. As we read the charge, they were not authorized to defend against an assault made by her, though the record shows evidence of such assault by her.

There are other assignments, but, in the view we take of this case, it is not necessary to discuss them.

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

Ex parte ISBELL.

(Court of Criminal Appeals of Texas. May 10, 1905.)

CRIMINAL LAW-DISMISSAL OF PROSECUTION

STATUTES.

Code Cr. Proc. 1895, art. 37, provides that on the dismissal of a criminal case the county attorney shall file a written statement giving reasons for the dismissal, to be filed with the papers and incorporated in the judgment of dismissal. Held, that where a judgment was entered by the county court dismissing a criminal case, and the judgment recited that a written statement was filed by the state's attorney, asking permission to dismiss, defendant could not be prosecuted without a new indictment, though the judgment did not contain the reasons on which the motion was based, and no motion was filed among the papers in the case.

Appeal from District Court, Hill County; O. L. Lockett, Judge.

Habeas corpus by Elmer Isbell to obtain his release from custody under a conviction for violating the local option law, and from a judgment remanding him to custody he appeals. Reversed, and relator ordered discharged.

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

BROOKS, J. Appellant was indicted for violating the local option law in Hill county. The indictment is in proper form, and presented by the grand jury on April 2, 1904, and numbered on the docket 6,886. On November 26, 1904, an order was entered by the county court dismissing said cause No. 6,886. The judgment of dismissal does not contain the reasons of the county attorney upon which the motion to dismiss was based,

However, the judgment recites that a written statement was filed by the state's attorney, asking for permission to dismiss said cause. No motion of the county attorney was filed among the papers. At the subsequent term of the county court, on January 17, 1905, appellant was tried and convicted in said cause by virtue of said indictment. Appellant's attorney discovered, after too late to file motion for new trial, that said judgment of dismissal had been entered at the previous term of the court. The record shows that neither appellant's counsel nor the then county attorney or county judge knew that said judgment of dismissal had been entered. Neither of said officers were so acting when the judgment of dismissal was entered. Appellant is confined at the county poor farm for the purpose of discharging the amount of the fine and costs under this conviction. He sued out writ of habeas corpus under the above state of facts, and, being remanded by the district judge, he appeals to this court. He insists that the conviction was void, the case having been dismissed and not reinstated. The Assistant Attorney General resists appellant's discharge for the reason that the attempted dismissal was void, and in fact the case was never dismissed, for two reasons: First, because there was no evidence before the district judge who heard this case on habeas corpus to sustain him in finding that the county attorney did not file a written statement in the papers setting out his reasons for asking a dismissal; and, second, because the judgment fails to incorporate the reasons upon which the judgment of dismissal was based; that article 37, Code Cr. Proc. 1895, is mandatory, and should be strictly complied with both by the state's attorney and the court. To support this contention, he cites us to Kelly v. State, 36 Tex. Cr. R. 480, 38 S. W. 39, and Parchman v. State, 2 Tex. App. 228, 27 Am. Rep. 435. In the first case we held that the county attorney is only authorized to dismiss a case upon compliance with the requirement of article 37, Code Cr. Proc. 1895, which requires a written statement by him, with the reasons, to be filed with the papers in the case, and with the permission to dismiss by the judge presiding, and such reasons also incorporated in the judgment of dismissal, and that a plea in bar setting up a contract or agreement of the county attorney to dismiss a case is worthless unless it, in substance, shows a compliance with the statutory requirement. Since this case was written we have reaffirmed it in Maeyers v. State (Tex. Cr. App.) 49 S. W. 381; Tullis v. State, 41 Tex. Cr. R. 87, 52 S. W. 83. However, we do not think this case is authority for the proposition that, where the judge does not comply with article 37 in the dismissal of a case, the case is not dismissed. The article in question must be complied with in order to secure, as stated in said opinion,

immunity from subsequent prosecution under an agreement with the county attorney; but we do not mean, nor did we decide, that the case could not be dismissed from the docket without a literal compliance with said article. In Parchman's Case, supra, we held that, though the act of 1876 regulating the duties of county attorneys prohibits the dismissal of a prosecution unless a written statement of his reasons for the dismissal be filed by the county attorney, yet if, with the permission of the judge, though over the protests of the accused, the county attorney has judgment of dismissal entered without filing such statement, the omission of the statement is not available to the accused against a subsequent indictment. This authority appears to support the proposition that the dismissal under consideration was a valid dismissal, so far as the taking of the case off of the docket of the county court of Hill county. Before appellant could be prosecuted for the offense, there would have to be a new indictment or information. A failure to comply literally with article 37 would not preclude said subsequent prosecution. The dismissal was a dismissal of the case, and, this being true, applicant was entitled to his writ of habeas corpus to be released from the prosecution predicated upon the dismissed indictment, and it is so ordered.

The judgment is reversed, and relator ordered discharged.

1. Under Code Cr. Proc. 1895, art. 839, subd. 3, providing that a sentence may be suspended where there has not been a motion for a new trial, or a motion in arrest of judgment, and defendant answers that he has good grounds for either or both of these motions, which may be immediately entered and disposed of, though more than two days have elapsed since the rendition of the verdict, where defendant was unable to secure counsel until about 13 days after the trial, and when called for sentence at the same term he interposed a motion for a new trial, no prior motion for a new trial or in arrest having been filed, the court should have considered the same.

2. Where, in a prosecution for burglary, there was no evidence that plaintiff was present or that he was keeping watch when the offense was committed, it was error to charge in regard to keeping watch.

3. Where, in a prosecution for burglary, there was no proof that defendant was present, and his witnesses testified to an alibi, the court should have affirmatively charged that, unless the evidence showed beyond a reasonable doubt that defendant actually participated in the burglary as a principal, being present aiding and abetting, he should be acquitted.

4. That defendant received stolen property after it was taken by others in the commission of a burglary was insufficient to make him a principal in that crime.

Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.

Jim Bird was convicted of burglary, and he appeals. Reversed.

Reynolds & Barkley and E. P. Branch, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of burglary. When the court called him up for sentence he interposed a motion for new trial, under article 839, subd. 3, Code Cr. Proc. 1895. This motion was not filed within the two days mentioned in the statute. In fact, he had not filed a motion for new trial or motion in arrest of judgment. This occurred some days after his conviction, and he asked to be heard on the motion for new trial, and for its disposition, in bar of the sentence. Appellant was not defended by an attorney, and was unable to secure counsel to assist him until about 13 days after the trial. The motion for new trial sets up various grounds why it should have been granted, mainly criticising the charge of the court. We believe the motion should have been heard by the court. This case does not come within the rule laid down in Darter's Case, 69 S. W. 509, 5 Tex. Ct. Rep. 607, nor Hines v. State, 44 Tex. Cr. R. 319, 70 S. W. 955. In the Darter Case appellant undertook to file his motion for new trial at a term of the court subsequent to his conviction, and after his rearrest, he having escaped custody the night following his conviction. In that case the record did not contain a statement of facts, and there was no criterion furnished this court by which it could ascertain there was merit in the grounds of the motion. In Hines' Case he invoked the appellate jurisdiction of this court, and, pending the appeal, escaped, and some 14 years afterwards was arrested, and undertook, when called up to be sentenced, to interpose the bar provided for in article 839, supra. It was held in that case that it was too late. He had invoked the appellate jurisdiction of this court, and could not thus secure a second appeal. In other words, in order to secure the benefit of article 839, supra, it must be done before an appeal has been taken. In this case, the motion was interposed at the same term of the court at which the conviction occurred, and before appeal. We believe that the court should have heard the motion, and that the grounds of said motion presented merit. Under the view we take of this question it now becomes the duty of this court to decide the grounds of the motion as they should have been legally decided by the trial court, inasmuch as the entire matter is before us.

As the record presents itself, the case is one of circumstantial evidence. However, this question is not suggested in the motion for new trial for revision, nor was exception taken to the charge for this reason. We mention this simply that upon another trial, if

the record is then as now, this phase of the law should be given. The court charged the law of principals, and, among other phases, with regard to keeping watch. There is no evidence that appellant kept watch. This is assigned as error in the motion for new trial. The exception is well taken. In fact, if the statement of witness Kessler is to be considered as evidence, appellant was not present at all, and had no participancy in the burglary; and his only connection with it was as a receiver of stolen property. Kessler testified to the confessions of Williams and Crockett. These two parties stated that they broke the car, but appellant was not present when it was done; that he subsequently employed a drayman to haul the goods from the place where they secreted them to the merchant to whom they were subsequently sold. If we look at the case from the standpoint of these confessions, the state has no case of burglary against appellant, but simply the receiving of stolen property. Appellant's evidence was to the effect that he was not present. His witnesses were introduced for the purpose of proving an alibi. The court's charge upon another triak should give the law with reference to alibi fully, and the jury should be told in clear and affirmative language that, unless the evidenceshows beyond a reasonable doubt that appellant participated in the burglary actually as a principal, being present aiding and abetting others, he should be acquitted; but the receiving of stolen property after being taken from the car would not make him a principal in the burglary.

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

ROBERTS v. STATE. (Court of Criminal Appeals of Texas. May 3, 1905.)

CRIMINAL LAW-PREVIOUS DIFFICULTY - EVIDENCE-ADMISSIBILITY-HARMLESS ER

ROR-REMARKS OF COUNSEL.

1. On a prosecution for aggravated assault, testimony was admitted that just before the assault, a friend of defendant's made an assault on prosecutor in the saloon, that prosecutor and defendant's friend were still quarreling, and were returning to the saloon to renew the fight, when defendant intervened and took up the difficulty. Held that, even though the evidence was not part of the res gestæ, it was of such character that its subsequent withdrawal cured the error in its admission.

2. The mere suggestion of the county attorney that he had tried many criminal cases, but had never tried one where the evidence was strong as in the case on trial, was not of such character as to injuriously affect defendant.

as

Appeal from Bexar County Court; Robt. B. Green, Judge.

William Roberts was convicted of aggravated assault, and he appeals. Affirmed.

H. B. Salliway, T. M. Paschal, and Joseph Ryan, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $200, and he appeals.

Appellant questions the action of the court admitting testimony in reference to a fight between prosecuting witness, Keilman, and Solcher, and the subsequent exclusion thereof by the court. He maintains that the testimony was originally improperly admitted, and that it was of such a character as to injuriously affect appellant, and that the impression could not be eradicated from the jury by its withdrawal. We have examined the record carefully in this respect, and it occurs to us that this fight between Keilman and Solcher was a part of the res gestæ of the subsequent fight between Keilman (prosecuting witness) and Roberts. It seems that Solcher and Roberts belonged to the same gang, and that, just preceding the difficulty between Roberts and Keilman, Solcher made an assault on prosecutor Keilman in the saloon where this offense subsequently occurred. Keilman and Solcher had just separated, were still quarreling, and were returning to the saloon to renew the fight, when appellant intervened and took up the difficulty. The difficulties were so near in point of time, and otherwise connected in circumstance, it seems to us, as to constitute the first a part of the res gestæ of the second. But if it be conceded that they were not so connected in point of time and circumstance, still we do not believe the testimony regarding the first difficulty was of that character as that its subsequent withdrawal would not serve to cure the error of its former admission. We hold that the court did not err as to this matter.

- We do not believe that the remarks of the county attorney were unauthorized. The mere suggestion that he had tried many cases, but had never tried one where the evidence was as strong as in this, was not of that character as injuriously affected appellant.

We have examined the record, and in our opinion the evidence is sufficient to sustain the conviction.

The judgment is affirmed.

TAYLOR v. STATE.

(Court of Criminal Appeals of Texas. May 3, 1905.)

ADULTERY-EVIDENCE-SUFFICIENCY.

On a prosecution for adultery, evidence held insufficient to sustain a conviction. Appeal from Lavaca County Court; C. J. Gray, Judge.

W. M. Taylor was convicted of adultery, and he appeals. Reversed.

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

DAVIDSON, P. J. The question in the case is whether or not the evidence sustains the conviction for adultery. The state's case is made to depend upon the fact that appellant had sexual intercourse with his alleged paramour four times. These acts occurred at intervals of one week. This is shown by the paramour. She weakens her testimony considerably by stating that she had previously informed the county attorney, while he was investigating the matter looking to a prosecution, that appellant had had sexual intercourse with her but once; that the county attorney then informed her that she must tell him the truth, and that it was no more shame to tell of the other instances than the one time, and she then told him it might have been two or three times. But not until on the witness stand did she swear that there had been four acts of intercourse. Appellant denied entirely having had intercourse with her at any time. There are some other matters of contradiction, as well as testimony tending to show that one of the witnesses in the case may have been the author of the girl's shame, and, further, that this prosecution was at the instigation of a party for the purpose of obtaining money from defendant. However this may be, the state's case, under this record, must depend upon the acts of intercourse to which the girl testified. The allegation in the information is that the adultery was constituted by habitual carnal intercourse, without the parties living together. The facts show that they did not live together. We do not believe this testimony sustains the allegation.

Because the evidence does not support this conviction, the judgment is reversed, and the cause remanded.

FRANKS v. STATE.

(Court of Criminal Appeals of Texas. May 3, 1905.)

CRIMINAL LAW-REMARKS OF COUNSEL-WITNESSES-IMPEACHING TESTIMONYEFFECT OF IMPEACHMENT.

1. In a prosecution for hog theft, where the evidence showed that the hog stolen was a black sow, and defendant testified to the killing of a red hog by him, and stated that it was of the same litter as a black sow which he acknowledged killing, testimony of the state with reference to the weight of the red hog, which was much greater than that of the black sow killed by defendant, was admissible to show the improbability that the two hogs were of the same litter.

2. In a prosecution for the theft of a black sow, testimony was admitted as to a red hog, the meat of which was found on defendant's premises. The prosecuting attorney, after stating that such testimony was admitted for a special purpose, said in closing that "this matter relating to the taking of the red hog will be attended to later." The court admonished counsel by stating in the presence of the jury that there was no evidence of the theft of the red hog. Defendant excepted to the remarks of counsel, but no special instructions were quested, relating to the matter. Held, that there was no reversible error.

re

3. The mere fact that a witness is sought to be impeached or contradicted does not necessarily require the jury to disbelieve his testimony.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, § 1176.]

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

Orange Franks was convicted of hog theft, and appeals. Affirmed.

J. B. Dibrell, Jr., and P. E. Campbell, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Three years in the penitentiary was fixed as appellant's punishment on conviction of hog theft.

The testimony shows that the alleged stolen hog was a black sow, with some white hair. After the animal was missed, a search warrant was obtained, and the premises of appellant investigated. Meat corresponding to that of the lost animal was found in a barrel or tub in the house on appellant's premises. In the same barrel was found other meat, indicating that a red hog had been killed. The testimony with reference to the meat of the red hog was admitted over appellant's exceptions. The court states in connection with this bill "that the testimony as to the weight of the red hog was admitted after defendant had testified as to the killing of that hog, and that it was of the same litter as the black sow he claimed to have killed on Wednesday, for the purpose of showing the improbability of the two hogs being of the same litter, and the probability of the black sow being the hog alleged to have been stolen. There was no evidence tending to show that the red hog had been stolen." With this qualification, we see no error in admitting the evidence. Appellant's testimony was to the effect that the red hog referred to was of the same litter as that of the black sow, and that there were other black hogs of the same litter. The sow set up in the indictment weighed about 125 pounds. The red hog weighed about 250 pounds. of the other hogs claimed by appellant to be of the same litter were about the same size as the black sow. We believe this testimony was properly admitted, and tended to show, as explained by the court, the improbability of appellant's theory that they were of the same litter. While it may not have been a very cogent fact, yet, taken with the other facts, it had a tendency to disprove appellant's evidence which tended to show the two hogs were of the same litter.

All

ter relating to the taking of the red hog will be attended to later." Exception was reserved to this language on the ground that there was no evidence of the theft of the red hog. The court reproved and admonished state's counsel for this argument by stating in the presence of the jury that there was no evidence of the theft of the red hog; but appellant nevertheless excepted on the ground that the words had been spoken, and had their effect, though withdrawn, and were calculated to emphasize the effect of the testimony admitted over appellant's objection. We are unable to perceive any injury by reason of these remarks, unless it be found in the fact that counsel said the matter relating to the taking of the red hog would be attended to later. If this had any allusion to a possibility of appellant having committed theft of the red hog, the court reproved counsel in the presence of the jury by stating to them that there was no evidence of the theft of the red hog. No special instructions were requested, and, as presented, we do not believe there was any such error, if error at all, as would require a reversal.

It is insisted that the evidence is not sufficient to justify the conviction. To this we cannot agree. The circumstantial evidence is strong and cogent, and, in addition to this, the stepson of appellant testified positively to the theft of the hog by his stepfather, and that the animal in question was the property of the alleged owner. The mere fact that he was sought to be impeached or contradicted in regard to this matter did not necessarily require the jury to disbelieve his testimony. They may have and evidently did believe it in preference to those whose evidence tended to impeach him.

The judgment is affirmed.

ELKINS v. STATE.

(Court of Criminal Appeals of Texas. May 3, 1905.)

WITNESSES-IMPEACHMENT-INSTRUCTIONFUNCTION OF JURY.

1. The jury are the exclusive judges of the credibility of witnesses, and of the weight to be given to their testimony.

2. Where evidence is introduced to impeach a witness for the state, a charge that impeaching evidence is to be considered for the sole purpose of enabling the jury to judge of the weight to be given the testimony of the witness impeached, and failing to state that it is to be considered in determining the witness' credibility, is erroneous.

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

Deed Elkins was convicted of aggravated assault, and appeals. Judgment reversed.

Dibrell & Mosheim, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. In regard to the im