fairly presents the law applicable to the facts, and the testimony supports the conviction, the judgment will not be disturbed on appeal. Appeal from district court, Nueces county; J. C. Russell, Judge. Santiago Sanchez was convicted of burglary, and appeals. Affirmed. R. L. Henry, Asst. Atty. Gen., for the DAVIDSON, J. Appellant was convicted of burglary. By the testimony it is shown that appellant and two confederates committed the offense; the confederates having entered the house through a window while defendant kept watch immediately on the outside. The property secured was carried by the three but a short distance when the parties were arrested, in possession of it. It is contended that error was committed by the court in failing to charge the jury: "If they believe from the evidence that said defendant, together with his confederates, were playing in and around said building for the purpose of amusement, and not with intent to steal, and for that purpose broke and entered said building, without the consent of the owner, then said defendant would not be guilty of burglary." Had the testimony raised such an issue, it should have been submitted in the charge, but, inasmuch as it did not, the court did not err in omitting to give the instruction. The court fairly presented the law applicable to the facts. The testimony supports the conviction, and the judgment is affirmed. All judges present and concurring. arose, and Seymour indulged in all this ob- SANCHEZ v. STATE.1 (Court of Criminal Appeals of Texas. Jan. 28, 1893.) BURGLARY-INSTRUCTIONS-EVIDENCE. 1. In a trial for burglary, error cannot be predicated on the failure of the court to instruct the jury that they could not find defendant guilty of burglary if they believed that defendant was playing in and about the building for amusement, and for that purpose broke and entered, without the owner's consent; there being no such issue raised by any testimony adduced at the trial. 2. Where, in a trial for burglary, the court For opinion on rehearing, see 21 S. W Rep. 364. MURPHY v. STATE. (Court of Criminal Appeals of Texas. Jan. 28, 1893.) SECOND CONTINUANCE-ABSENCE OF WITNESS. Where a continuance of a cause is once granted for the purpose of securing the attendance of an absent witness, it is not error to refuse, at a subsequent term, another continuance on account of the absence of the same witness, where the defendant has not used due diligence to secure his attendance. Appeal from district court, Lampasas county; W. A. Blackburn, Judge. From a conviction of assault with intent to murder, Patrick Murphy appeals. Affirmed. S. D. Foote, for appellant. R. L. Henry, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years. When the cause was called for trial, defendant presented his second application for a continuance, which was overruled, and a bill of exceptions duly reserved. The diligence used by defendant to secure the attendance of the absent witness was wholly insufficient. The cause at the previous term of the court had been continued by defendant for the same witness. The term of court at which defendant was tried convened November 7, 1892, and yet he issued no process for the witness until November 5th, although the residence of the witness was known to defendant all this time. The sole ground of the motion for new trial was the action of the court refusing the continuance. This motion was supported by the affidavit of the absent witness, stating substantially the same facts as set forth in the application for continuance. A contest was filed by the state. Viewed in any light, either from the evidence adduced in the trial, or that disclosed by the affidavits controverting the motion for new trial, the testimony of the witness is shown not to be probably true. There was no error, and the judgment is affirmed. All judges present and concurring. 1. On a trial for assault and battery, it appeared that defendant, on meeting B., used very insulting language towards him, and that B. then struck at defendant, whereupon defendant cut B. with a knife. Held, that a charge by the court that defendant was guilty of simple assault, if he cut B., is error, in that it takes from the jury the question of determining whether or not, under the circumstances, the cutting was justifiable. 2. In such case it is error to refuse defendant's requested instruction that his insulting language to B. would not justify B. in striking. Appeal from district court, Coleman county, H. A. Orr, Judge. battery, and appeals. Elias Briggs was convicted of assault and Reversed. Sims & Snodgrass, for appellant. R. L. Henry, Asst. Atty. Gen., for the State. of assault and battery. The court charged DAVIDSON, J. Appellant was convicted the jury that, if defendant “cut R. N. Baird with a knife, you will find him guilty of simple assault." Defendant excepted to H. M. Cate, for appellant. R. L. Henry, this charge, and requested a special written Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of theft, and his punishment assessed at confinement in the penitentiary. Ownership of the property was alleged in T. J. Willis, and its possession in L. Fowler, who was holding same for Willis, the owner. The proof sustained the allegations. The court charged the jury: If defendant "did fraudulently take, steal, and carry away from and out of the possession of the witness Fowler the property mentioned in bill of indictment, and you further find that said Fowler was holding same for the witness Harris, and you further find that said Harris was the owner of the property, without the consent of said Harris, with intent to deprive the said Harris of the value of said property, and with intent to appropriate same to the use and benefit of defendant, and the same was so appropriated by defendant, then the of fense of theft would be complete, and you will so find." To sustain this conviction, it was necessary for the evidence to meet and sustain the allegation in the indictment that Fowler was holding possession of the property for the owner, Willis. Harris was not an alleged owner, and, so far as it is averred instruction correctly setting forth the law, which was refused. He again excepted. The court erred in both instances. The vice in the court's charge consists in its authorizing a conviction though the cutting may have been justitied. An assault and battery is "the use of any unlawful violence upon the person of another, with intent to injure.' An assault is necessary to render the battery unlawful. If the "violence" is lawful, or not in contravention of law, it is not punishable under the Penal Code. At the time of the difficulty defendant used insulting language towards Baird, who immediately struck at him with his fist, whereupon defendant cut him with a knife. The difficulty was the termination of a quarrel over a settlement of outstanding accounts between them. It is rendered somewhat uncertain by the testimony as to who struck the first blow, with a preponderance of evidence in favor of the conclusion that Baird did so. In this connection, defendant asked a special instruction to the effect that his insulting language to Baird would not justify Baird in striking him. This charge enunciates a correct principle of law. But, if this charge should be given on another trial, then it would become necessary to inform ASHTON v. STATE. (No. 87.) (Court of Criminal Appeals of Texas. 28, 1893.) All Jan. ASSAULT WITH INTENT COMPETENCY OF JURORS 1. On his voir dire a juror stated that he had no prejudice against defendant, nor had he established in his mind such a conclusion as to his guilt or innocence as would influence his action in finding a verdict, but that he had formed from newspaper accounts an opinion which would require evidence to remove. Held, that the court did not err in overruling a challenge for cause, since Code Crim. Proc. art. 636, subd. 13, as amended March 31, 1885, provides that, if the opinion of a juror appears to be formed from newspaper accounts, etc., and the juror states that he is able, notwithstanding such opinion, to render an impartial verdict, the court, if satisfied that he will render such a verdict, may, in his discretion, admit him as a Juror. the jury, if defendant used such language | March 31, 1885, to the Penal Code, which defor the purpose of provoking the difficulty, clares that alter a juror admits that he has and, during the difficulty so provoked, cut formed an opinion as to the guilt or innocence or stabbed Baird, he would be guilty of an of the defendant, but states it will not inassault. For the error indicated the judg- fluence his verdict, the court shall then exment is reversed and cause remanded. amine into the sources of information upon judges present and concurring. which he based his opinion, and the extent to which it will affect his action, and, if the opinion appears to be formed by reading newspaper accounts, statements, etc., and the juror states on oath that he feels able, notwithstanding such an opinion, to render an impartial verdict on the law and evidence, the court, if satisfied that he is impartial, and will render such a verdict, may, in his discretion, admit him as a juror, or, if not satisfied, may reject him. Code Crim. Proc. art. 636, subd. 13. A careful examination of this amendment shows that a large discretion is vested in the district judge, and there must be an abuse of that discretion before the revising power of this court can be invoked. It is no longer the law of Texas that we must seek men to sit on juries who have never read newspapers or heard statements of the crime. The contrary ruling has often disqualified the most intelligent class of a community. With the present means of information, the facts of atrocious crimes are in a few hours spread over a large area, and learned by every intelligent or reading man within the district from which the jurors are drawn, and, if a formed opinion would disqualify, the courts are driven to seek jurors among the less intelligent, or to those who, from various causes, may be unable to appreciate the responsibility of a juror. The defendant is entitled to an impartial juror, but not one who is impartial because of ignorance or incomHence a juror who reads newspetency papers may be competent, even though he has formed an opinion therefrom, if that opinion is not fixed, or if it will not influence his verdict, and the court, by further examination, is satisfied that it will not. We see 2. On a trial for assault with intent to murder, where the character of the weapon has already been fully shown by competent evidence, it is not reversible error to allow a witness to state that, if armed with such a weapon, he would not be “afraid to tackle any man.' Appeal from district court, Dallas county; Charles Fred. Tucker, Judge. Ben Ashton was convicted of an assault with intent to murder one J. R. Brown, and sentenced to four years in the state penitentiary, from which he appeals. Affirmed. R. L. Henry, Asst. Atty. Gen., for the State. SIMKINS, J. 1. The appellant complains that the court erred in compelling him to accept the juror Lilly. The juror, on his voir dire, stated he had no prejudice or bias against the defendant, nor had he established in his mind such a conclusion as to the guilt or innocence of the defendant as would influence his action in finding a verdict, but that he had formed an opinion which it would require evidence to remove, which opinion was based entirely on newspaper accounts, still his opinion would not prevent his giving defendant a fair and impartial trial. court was satisfied from the examination that the juror was fair and impartial, and overruled the objection of defendant, whose peremptory challenges were exhausted, and the juror was impartial in the case. While it may be true, as was well said in an early case. (Rothschild's, 7 Tex. App. 519,) that no uniform rule can possibly be deduced from the conflicting decisions of the several states as to the competency of a juror who has formed an opinion in a case, we think the law is admirably settled by the amendment of The no abuse of discretion on the part of the court in seating the juror Lilly on the jury. Kennedy v. State, 19 Tex. App. 629; Johnson's Case, 21 Tex. App. 379, 17 S. W. Rep. 252; Steagald's Case, 22 Tex. App. 464, 3 S. W. Rep. 771; Suit's Case, 30 Tex. App. 322, 17 S. W. Rep. 458; Miller's Case, 20 S. W. Rep. 1103, (decided at present Dallas term.) 2. Appellant claims that the court erred in permitting the witness, over the objection of defendant, to testify that, if he had been armed with the iron poker with which he had been struck, he would not be afraid to tackle Sullivan or any man. The object of this testimony was to prove the deadly character of the weapon. Without such testimony, the character of the weapon was conclusively shown, both from the descriptions given and its effects upon the parties struck, and the fact that witness, if armed with it, would not have been afraid of any person could have added nothing to the testimony or increased its force, and we do not think the error reversible. 3. We see no error in the charge. The substance of the special charges asked for was given. 4. The motion for a continuance was correctly overruled, and besides, the witness for whose absence a continuance was sought testified at the trial. Judgment affirmed. All judges present and concurring. ASHTON v. STATE. (No. 88.) (Court of Criminal Appeals of Texas. Jan. 28, 1893.) ASSAULT WITH INTENT TO MURDER-FORMER JEOPARDY. Where defendant assaulted J. with in tent to murder, and, when B. came to J.'s assistance, defendant assaulted B. with the same intent, the offenses are distinct, and the trial for the assault on J. does not prevent a trial on a separate indictment for the assault on B. Appeal from district court, Dallas county; Charles Fred. Tucker, Judge. Ben Ashton was convicted of an assault with intent to murder, and sentenced to three years in the penitentiary, from which he appeals. Affirmed. R. L. Henry, Asst. Atty. Gen., for the State. SIMKINS, J. There is but one question that need be considered. The court ruled out appellant's plea of former jeopardy, but upon trial of the case appellant was allowed to offer evidence without objection on the part of the state to prove that appellant had been convicted of an assault with intent to murder one J. R. Brown, and that the offense for which he was being tried at this time, to wit, an assault with intent to murder one Henry Batchelor, was one and the same transaction as the one for which he had been already convicted, and was to be sustained by the same testimony. After the testimony was introduced, the trial judge declined to submit the plea of jeopardy to the jury, and this refusal is assigned as error. We do not think there was any error in the ruling of the court. The evidence shows that Brown and Batchelor were in the depot, talking to a lady, when the defendant, who was a porter, and whose business it was to sweep out the room after departure of trains, came in to discharge his duty, and got into an altercation with them, and left the room; that, arming himself with an iron poker, he (defendant) waited outside, and, as Brown stepped out, he was stricken down senseless by a blow from the poker in the hands of defendant. Batchelor then advanced on defendant, and was stricken by defendant to his knees by a blow on the head, and, defendant again striking at his head, Batchelor received the blow on his arm, severely injuring it; but he managed to catch the poker in his right hand, and held on until further help arrived, defendant in the mean time striking Batchelor with his fist. We think, then, there is no former jeopardy in this case. In Samuel's Case, 25 Tex. App. 539, 8 S. W. Rep. 656, this court held that a number of assaults may grow out of or result from the same difficulty, and still be separate and distinct transactions, for each of which parties thereto may be prosecuted to conviction. The true test in such cases must be that, if the intent to kill the one is an intention formed and existing distinct from and independent of the intention to kill the other, the two acts cannot constitute a single offense. Womack v. State, 7 Cold. 508; State v. Parish, 8 Rich. Law, 323. In the case at bar appellant evidently intended to kill Brown, and tried to do so after he emerged from the depot, and when Batchelor came to his rescue he attempted to kill him also. There were two separate assaults to murder, with distinct intents. We find no other error in this cause, and the cause is affirmed. All judges present and concurring. BOWMAN v. STATE. (Court of Criminal Appeals of Texas. Jan. 28, 1893.) MANSLAUGHTER EVIDENCE OF DECEASED'S CHARACTER INSTRUCTIONS. 1. In a trial for manslaughter, it is not error to exclude evidence of acts on the part of the deceased showing that he was a dangerous and desperate man, where no predicate is laid for such testimony. 2. It is not error to refuse to charge the jury that if deceased, by violence, took from the possession of defendant a nickel, with intent to appropriate it, the defendant would be justified in killing the deceased when he was retreating with the money. Appeal from district court, Harris county; E. D. Cavin, Judge. Defendant was convicted of manslaughter, from which judgment he appeals. Affirmed. R. L. Henry, Asst. Atty. Gen., for the State. SIMKINS. J. Appellant was convicted of manslaughter, and sentenced to three years in the state penitentiary, from which judgment he appeals. 1. Appellant complains that the court erred in excluding acts on the part of deceased showing he was a dangerous and desperate man. The court did not err in excluding the testimony offered, there being no predicate laid for the introduction of such testimony. Childers' Case, 30 Tex. App. 193, 16 S. W. Rep. 903. 2. Appellant complains that the court erred in refusing to charge the jury that if deceased, by violence, took from the possession of defendant a nickel, with intent to appropriate it, the defendant would be justified in killing the deceased when he was retreating with the money. The refusal of such a charge was correct, and, besides, it was not sustained by the facts. 3. We find no error in the charge of the court, and the judgment is affirmed. Judges all present and concurring. DISTRICT TRUSTEES OF SCHOOL DIST. 1. It appeared from the minutes of the county commissioners' court that the commis sioners therein named were present, but they did not say that any one else required by law to constitute a part of the court was not present. Held, that the evidence of the county judge that he was present, and acting with the commissioners, was properly received, as it did not tend to contradict the record, but was simply explanatory of it. 2. The three commissioners having voted for a proposition to reconsider a previous order of the court, it was not necessary that the county judge cast his vote, in order to give validity to the proceedings. Appeal from district court, Jeff Davis county; W. Kelso, Judge. Action by H. M. Patterson, J. B. Shields, and W. Keesey, as district trustees of school district No. 1, against W. W. Wimberly, county judge, and others, for an injunction. From a judgment for defendants, dissolving the injunction, plaintiffs appeal. Atfirmed. The other facts fully appear in the following statement by FISHER, C. J.: and the number of children residing on it, and enrolled in district No. 1, for the year 1889-90, was 27. At the time of commencing this suit there was about to be paid into the county treasury the sum of $774.90, available school fund for the county for the year 1889-90. Of this sum plaintiffs allege that $25.98 was due and should be apportioned to district No. 1 as the pro rata of said fund for 10 of the children residing on the Lewis survey, and not theretofore transferred to district No. 2 by defendant Wimberly, and that, unless restrained from so doing, Wimberly would apportion this sum to district No. 2, and would apportion all other school funds to which district No. 1 was entitled as the pro rata of the children within scholastic age residing on the Lewis survey. Defendants answered by general denial, and by special plea that the coun ty was redistricted on the 26th of March, 1889, only for the purpose of giving the town of Valentine and surrounding country better school facilities; that the Lewis survey had prior to this time been in district No. 2; that the duty of designating the boundaries was by the court intrusted to one of the commissioners, a surveyor by profession, and that he availed himself of his superior knowledge of the boundary lines between the various tracts of land, and, with intent to deceive the court, changed the lines between districts Nos. 1 and 2, as they had formerly existed, and detached the Lewis survey from district No. 2, and attached it to district No. 1, and thereby deceived three of the commissioners; that on the 28th day of March, and before the adjournment of the term of court, an order was passed by the court to reconsider its action in designating the boundaries between districts Nos. 1 and 2, and on the 13th day of August, 1889, in pursuance of the order to reconsider, changed the line between districts Nos. 1 and 2 so as to include the Lewis survey in district No. 2, where it was intended in the order of March 26, 1889, it should be. The case was tried before the court, and resulted in a judgment for the defendants, dissolving the injunction, and for costs. Plaintiffs, H. M. Patterson, J. B. Shields, and W. Keesey, in their corporate capacity as district trustees of district No. 1, and county of Jeff Davis, state of Texas, brought this suit to restrain W. W. Wimberly, county judge of Jeff Davis county, and his successors in office, from apportioning to school district No. 2 the sum of $25.98, and all other available school funds to which district No. 1 would thereafter be entitled, as the pro rata of said funds for the children within scholastic age residing upon the A. S. Lewis survey. The school trustees of district No. 2, being parties in interest in their corporate capacity, were made parties defendant. Plaintiffs, in their petition, allege that for about two years prior to the 26th day of March, 1889, Jeff Davis county had been divided into two school districts. In pursuance of an expressed desire of a majority of the voters of the two districts, the commissioners' court, at a special term, on the 26th day of March, 1889, redistricted said county, and, by orders duly entered on the minutes of the court, created three school districts, defined them by boundaries, and numbered them 1, 2, and 3, respectively, and that on the 14th day of August, 1889, the court, without having obtained the consent of the voters of districts Nos. 1 and 2, and in violation of the law, changed the lines between the two districts so as to detach from district No. 1 the A. S. Lewis survey No. 6, and attach it to district No. 2. Defendant Wimberly recognized the change made by the court, and apportionedging and redistricting, and so declared in their the pro rata of the school fund for the children residing on the Lewis survey to district No. 2. This survey is very populous, on account of the military post at Ft. Davis being located on it. It contains 640 acres of land, v.21s.w.no.1-4 Findings of fact: (1) That prior to March 15, 1889, the county of Jeff Davis was divided into two school districts, which were numbered 1 and 2. (2) That on March 16, 1889, an election was held to change these two districts, and redistrict the county; that in this election a majority of all the legal voters in all the districts voted in favor of changing and redistricting. (3) On March 19th the county commissioners' court of Jeff Davis county canvassed the result of the election, and ascertained, by a count of the votes, that a majority of all the voters in all the districts to be affected had voted in favor of chan order entered of record on said date. (4) In pursuance of the result of the election above mentioned, the county commissioners' court, on March 26, 1889, changed the old districts, and redistricted the county into three dis |