COYLE v. STATE. (Court of Criminal Appeals of Texas. 25, 1893.) HOMICIDE-SELF-DEFENSE March EVIDENCE — INSTRUC- 1. On a trial for murder, it appeared from defendant's testimony that, on the evening preceding the homicide, defendant and deceased had a quarrel; that on the following evening defendant took his gun and went to the saloon where the homicide occurred, cocking his gun on the way; that, as he entered the saloon, he heard some one say, "Look out, Ben," whereupon defendant demanded an apology; that deceased immediately fired, slightly wounding defendant; that defendant then fired without raising his gun, killing deceased. Held, that such evidence refuted the idea of self-defense, and made the killing murder. 2. In such case, evidence of the position of deceased's arm when the shot was fired being immaterial, its admission was harmless. 3. Where evidence of certain acts and declarations of deceased, tending to show a plot to kill defendant, was excluded on exception, but subsequently defendant was permitted to testify in regard thereto, the former exclusion was rendered harmless. 4. Evidence that one F. received money from deceased for securing an abortion on a girl said to have been seduced by deceased was irrelevant. 5. It was not prejudicial error for the attorney general, in addressing the jury on a trial for murder, to refer to the fact that defendant had not put in issue his own character. 6. Where the issue of manslaughter is not raised by the evidence, instructions in relation to the law thereof are properly refused. Hurt, P. J., dissenting. Appeal from district court, Dallas coun ty: R. E. Burke, Judge. Mike Coyle was convicted of murder in the second degree, and appeals. Affirmed. Bassett, Leay & Muse, for appellant. R. L. Henry, Asst. Atty. Gen., for the State. ant to testify in relation to the matters mentioned, the other witnesses having left the court. We see no such error in this ruling as requires a reversal of the judgment. This testimony was only useful as explanatory of defendant's subsequent acts in connection with the homicide, and was fully supplied by his own evidence in this connection; and the testimony may have shown, or tended to show, his reasons for arming himself with a shotgun, and going to the drug store where Ford and others were expected to be found, and finally to the saloon where the homicide occurred. 3. The evidence that Ford received money of deceased for his services in securing an abortion on a girl said to have been seduced by deceased was properly rejected. The object or purpose of this testimony is not stated in the bill of exceptions. What possible bearing this testimony could have had on the case is not made to appear. May v. State, 25 Tex. App. 114, 7 S. W. Rep. 588; Livar v. State, 26 Tex. App. 115, 9 S. W. Rep. 552; Walker v. State, 28 Tex. App. 503, 13 S. W. Rep. 860; Jacobs v. State, 28 Tex. App. 79, 12 S. W. Rep. 408; Schoenfeldt v. State, 30 Tex. App. 695, 18 S. W. Rep. 640. 66 4. Dr. Ford testified that the shot, having entered deceased immediately under the right arm, passed into the body from right to left, and cut an artery; that he put his fingers into the wound; that from the wound flowed a stream of blood as large as his three fingers; and that he was of the opinion from the appearance of the wound and the clothing that, at the time the shot was fired, the right arm of deceased was hanging at his side, slightly to the rear of a perpendicular line." This evidence was objected to because it was irrelevant and incompetent. Conceding that the position of the arm of deceased at the time of the shot could not thus be proved, it does not follow that the admission of the evidence would cause a reversal of the judgment. To render the admission of such testimony reversible error, it must tend to solve some issue in the case adversely to the defendant. If it be clear that its admission did not tend to do so, or did not in some way injuriously affect him, this court would not be authorized to reverse the judgment because of its admission. Unless the evidence in this case | raised the issue of self-defense, the admission of this evidence could not have injured defendant. If the testimony of the state be true, the defendant was guilty of murder upon express malice; but viewing the case from the defendant's standpoint, as 2. By several witnesses, defendant offered disclosed by his own testimony, how does to prove certain acts and declarations of the matter stand? His testimony, in subdeceased and one Ford, the effect of which stance, is that on the evening preceding was to show their ill will towards defend- the homicide, at night, he and deceased ant, and indicating, as the witnesses be- had some words over a financial matter, lieved, a plot to kill defendant, and that in which he said to deceased, "If you rehe secured this information thereof prior fuse to sign the note, you are a damned to the homicide. On exception this evi- scoundrel," to which deceased replied, dence was excluded. The object and pur- "You are a damned son of a bitch; I pose of introducing this testimony is not won't sign the note." He advanced upon set out in the bill of exceptions, and there- deceased, who retreated behind the counfore we are not called upon to consider it. | ter, and put his hand upon a pistol, and Subsequently, however, the court, having warned him not to advance. They sepa. reconsidered his ruling, permitted defend-rated, he going home, and deceased re DAVIDSON, J. 1. Appellant was convicted of murder in the second degree, and allotted a term of six years in the penitentiary. State's counsel, addressing the jury, referred to the fact that defendant had not put in issue his own character, as he might have done, and as he alone could do. The remarks, if improper, were not of such a material character as were calculated to injure defendant. There was Lo argument based upon the statement. We are of opinion, however, that the testimony reflected somewhat unfavorably upon the character of defendant as a quiet, peaceable, and law-abiding citizen, and would have afforded the basis of comment. House v. State, 19 Tex. App. 227. ceased drew his pistol, but as he was in the act of drawing it from his waistband, which act threw his right arm back of a perpendicular line, as was testified by one of the witnesses. The court did not err in refusing to give defendant's requested instructions in relation to the law of manslaughter. That issue was not suggested by the testimony. The evidence would have warranted a much more severe punishment than was awarded. Finding no reversible error in the record, the judgment is affirmed. SIMKINS, J., concurs. HURT, P. J., dissents. LAURENCE v. STATE. CRIMINAL LAW-CONTINUANCE-EVIDENCE- 1. Where, on a second application for a continuance in a criminal cause for the testimony of an absent witness, it appears that sufficient diligence was not used, and that the matter expected to be shown by such witness was not probably true, the overruling of the application was proper. 2. Under Code Crim. Proc. art. 661, providing that "the court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice," error cannot be predicated on the fact that the state, though it had rested, was permitted, after defendant had declined to offer any testimony on his own behalf, to introduce additional wit maining at the drug store. McCowen, during the evening, speaking to defendant of deceased, Dr. Ford, and other friends of deceased, said, "They have got it fixed to kill you, if you go up town; that deceased followed you as far as the Union Depot, and watched you going home; and that Ford had offered to lend deceased a pistol, and deceased said he had a good one of his own." Subsequent to McCowen's interview with defendant, Ford called upon defendant with a view of amicably adjusting the trouble between himself and deceased, and promised to have deceased to sign the note. Defendant said, “I did not care so much about the money, but to be called a 'son of a bitch' was mighty hard to take." Ford informed bim that deceased would apologize for the language, out was then under the influence of liquor, as well as when the difficulty occurred at the drug store. As Ford left, he said to defendant: "Mike, come up to-night after supper to the drug store. We are going to sell toys mighty cheap. Come up and buy some for the children." Defendant replied he would see about it;" "did not know whether he would go or not.” "After supper I took up my gun, and on the way to town loaded it, putting two cartridges in it. I went with my gun to the drug store. It was closed; no lights in it. I saw a light from the back door of the saloon, and started there. I went there. I had no idea who was in there. I did not expect to meet Page. I supposed he had gone home. I stepped into the door with both feet. Heard some one say, 'Look out, Ben.' I had my gun under my arm. Without changing position I said: 'Ben Page, you called me a "son of a bitch;" I want you to apologize for it.' His reply was by a shot from his pistol. The ball struck me in the shoulder, making a slight wound. I then fired without raising my gun to my shoulder. I had my gun cocked before I reached the saloon." This shot entered Page's body, just under the right arm, and produced almost instant death. This evidence refutes the idea of self-defense, and constitutes the killing murder, at least of the second degree. He provoked the difficulty which he knew, or should have known, would end in the death of himself or of the deceased. He knew deceased to be a dangerous man, and always went armed. He approached and entered the house with his loaded gun, cocked, and ready for immediate use, and evidently for the purpose of using it if his demands were not complied with. It was in a shooting position before he reached the door. Under this state of case, it is wholly immaterial what was the position of the deceased's arm at the time defendant fired. He made it necessary for Page to defend himself against a ready-cocked and presented gun. The opinion of the witness, under such circumstances, could not have injured him. Steagald v. State, 24 Tex. App. 204,5 S. W. Rep. 853. The state's evidence shows, by all the witnesses, that defendant entered the house with his gun cocked and presented, and said to deceased, "Ben Page, you called me a 'son of a bitch;'" demanded no apology, but fired at once before de-pasture on the same day, and shortly aft nesses. 3. Where, on a trial for receiving stolen property from T., defendant denies any knowledge of T., the error, if any, in admitting testimony that defendant had made the same denial at his examining trial, is cured. Appeal from district court, Duval county: A. L. McLane, Judge. James Laurence was convicted of receiving stolen property, and appeals. Affirmed. Nicholson, Dodd & Mullally, S. H. Woods, and Bethel Coopwood, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was indicted for and convicted of receiving stolen property from Santiago Tijerena. When the cause was called for trial appellant applied for and was refused a second continuance for the testimony of one Benavides. This witness was expected to testify that he sold the horses to defendant, and executed to him therefor a bill of sale. We do not think the diligence to secure his attendance was sufficient, nor the testimony probably true. The evidence of the witness Croucher renders it reasonably certain that one Santiago Tijerena executed the bill of sale under the name of the alleged absent witness; and by two witnesses positively that said Tijerena placed the horses in defendant's pasture, and on the same day disappeared, and, after an absence of two days, returned. It is also shown that the defendant came to the er Tijerena's return; that the horses were then placed in a pen, and that defendant, in the presence and with the assistance of Tijerena, noted in a book the brands on the horses. It is further testified by the witness Caronado that defendant told Tijerena if he informed Pedro about the stock he would not buy any more stock from him; that he did not want Pedro to know about the trade. Santiago replied that he had not told Pedro. This conversation occurred in the pasture just after their return from the pen where the horses were. Defendant denied any knowledge of Tijerena, and testified on the trial that he had never seen him until some time subsequent to the transactions detailed, and had never had any dealings with him. 2. After several witnesses had testified, the prosecution rested its case, and the defendant declined to offer any testimony, whereupon the district attorney was permitted to introduce other witnesses. This was objected to by defendant on the ground that the state could not reopen its case, nor introduce additional testimony, and should be confined to evidence in re. buttal. These objections are not tenable, for the statute provides that "the court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice" Code Crim. Proc. art. 661; Nalley v. State, 28 Tex. App. 387, 13 S. W. Rep. 670; Hendricks v. State, 28 Tex. App. 416, 13 S. W. Rep. 672; Farris v. State, 26 Tex. App. 105, 9 S. W. Rep. 487; Testard v. State, 26 Tex. App. 260, 9 S. W. Rep. 888; Willson, Crim. St. §§ 2311, 2312. 3. While testifying on his examining trial defendant denied any knowldege of Santiago Tijerena. The state, on the trial of this cause, proved this statement of defendant, over his objection that said testimony had been reduced to writing, and was the best evidence, and because a predicate had not been laid for its introduction. If it be conceded that he was correct, still we do not think it reversible error, because it was shown without objection that he again testified to the same fact on the trial of Tijerena. He also testified on the trial of this case that he had never seen said Tijerena until during the month of September, subsequent to his arrest. The remaining questions have been considered, but we find no merit in them. The judgment is affirmed. Judges all present and concurring. KAISER v. CITY OF DALLAS (Court of Criminal Appeals of Texas. March 28, 1893.) RECOGNIZANCE ON APPEAL. Since the court of appeals is, by the act of 1892, succeeded, as to its criminal jurisdiction, by the court of criminal appeals, a recognizance on appeal in a criminal cause, after the passage of this act, binding the appellant "to abide the judgment of the court of appeals," is not a legal obligation, and the appeal will be dismissed. Appeal from city court of Dallas; Keneth Foree, Judge. Aaron Kaiser was convicted of a criminal offense, and appeals. Dismissed. Dowell, Asst. City Atty., for appellee. victed in the city court of Dallas, proseDAVIDSON, J. Appellant, being concutes this appeal. A motion to dismiss the appeal is made by the city attorney, based upon the insufficiency of the recognizance, in that it binds the principal" to abide the judgment of the court of appeals," instead of the "court of criminal appeals," as required by Act 1892. The motion is well taken, and must be sustained. Cummings v. State, (Tex. Crim. App.) 20 S. W. Rep. 706; Parker v. State, Id. 707. The appeal is dismissed. Judges all present and concurring. TANKERSLEY v. STATE. (Court of Criminal Appeals of Texas. March 22, 1893.) CRIMINAL LAW-CONTINUANCE-ABSENCE OF WIT NESS. It is sufficient ground for the postponement of a trial for aggravated assault that a witness, by whom defendant expects to prove that threats of personal violence had been made against him by the alleged assaulted party, is absent, as such threats, if the issue is self-defense, and the evidence is in conflict as to who began the difficulty, are material. Appeal from Eastland county court; W. G. Davenport, Judge. James Tankersley was convicted of assault and battery, and appeals. Reversed. J. H. Calhoun and J. T. Hammons, for appellant. R. L. Henry, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant, having been charged by information with the offense of aggravated assault and battery, was, upon his trial, convicted of simple assault and battery. When the case was called he made application for a postponement of the trial for the testimony of an absent witness, by whom he expected to prove threats of personal violence, made against him by Benton, the alleged assaulted party. The evidence adduced in behalf of the state was to the effect that defendant made a serious assault upon Benton with a hoe. If true, he was certainly guilty of an aggravated assault. The testimony of the defendant, if true, clearly sustained his theory of self-defense. The jury convicted him of simple assault. Threats made by an injured party, accompanied by his acts showing an intent to execute same, will justify necessary resistance by the party threatened. This resistance, however, is measured by such force as is or may be necessary to prevent the threatened injury. Where the issue is of self-defense, and the testimony leaves it doubtful as to who began the difficulty, threats of the alleged injured party, made against the accused, is legitimate evidence, and may become of a most material character in assisting the jury to arrive at a correct conclusion as to who in fact did begin the difficulty, "because the fact that such threats had been made would tend to show an attempt to execute them, proba. bly, if the opportunity was offered," "and the more ready belief of the accused would be justified to the precise extent of this probability." Stokes v. People, 53 N. Y. 164; Keener v. State, 18 Ga. 194; Pritchett v. State, 22 Ala. 39; Campbell v. People, 16 Ill. 17; Cornelius v. Com., 15 B. Mon. 539. It would be no answer to this position that the accused could or might take advantage of the evidence of such threats the more readily to execute the alleged assault. If this be true, it would not excuse him, or even tend to do so, but, on the contrary, would constitute an aggravating circumstance. It is a question of fact which the jury should be permitted to decide. The court should have granted the postponement, and in failing to do so committed error for which the judgment should be reversed. The judgment is reversed, and the cause remanded for another trial. died prior to 1848. He left, surviving, his widow, Margaret Rock, who died in the year 1866, and three daughters, all of whom were dead at the institution of this suit. He seems also to have left a son, who died at an early day, unmarried, and without issue. Edmund Lee married one of these daughters, one Coward married another, and one Mason, the third. Plaintiffs in error claim as the heirs of the wives of Lee and Coward, and the defendants claim under mesne conveyances from Mason and wife. The south half of this league seems to have passed into the hands of the locator, and there is no controversy about it. Nearly 30 years before the trial in the court below, according to the contention of all the parties, there was a parol partition of the north half of the survey. The controversy arises upon the manner and extent of this partition. The theory of plaintiffs in error is that the scope of the partition was limited to the undivided half interest inherited by the three daughters from Patrick Rock, and that this undivided half interest was divided equally between them; they taking the south HURT, P. J., concurs. SIMKINS, J., | half of the north half, and the survivabsent. 1. In trespass to try title, where it was admitted that a parol partititon was made 30 years before, by parties since deceased, but the manner and extent of the partition was in dispute, a deed made in 1861 by plaintiffs' ancestor was introduced, which had on its back a plat showing the land divided in a certain way. It appeared from a comparison of the handwritings that the deed and plat were made by the same person, and were of the same age. Held, that in view of the age and evident genuineness of the deed, the death of the parties, and that a contemporaneous partition was made, the plat was properly admitted, especially as it was explanatory of the deed. 2. It appeared that, by the long lapse of time, clear proof could not be made of the exact manner of the parol partition; that the deed and plat were inconsistent with plaintiffs' claim; and that plaintiffs' ancestors had disposed of the lands allotted to them, and no claim was made to any other lands until many years after wards. Held, that a verdict for defendants would not be disturbed on appeal. Error from district court, Denton county; D. E. Barrett, Judge. Trespass to try title by M. A. Linam and others against R. B. Anderson and others. There was a judgment for defendants, and plaintiffs bring error. Affirmed. Smith & Bell and W. C. Morgan, for plaintiffs in error. I. E. Piner and J. T. Bortoff, for defendants in error. STEPHENS, J. This suit involves the title to the north quarter of the Patrick Rock league and labor survey of land, situated in Denton county. The land was patented to Patrick Rock in the year 1856 by virtue of a location made long prior thereto; Patrick Rock himself having ing widow taking the land in controversy, to wit, the north half of the north half. The theory of defendants in error is that this verbal partition extended to the whole of the north half, and that the land in controversy was set apart to the wife of Mason and the surviv. ing widow, to become the property of the former upon the death of the latter, and that the south half of the north half was divided equally between the other two daughters. A deed was read in evidence, without objection, bearing date 21st day of March, 1861, from Margaret Rock to her daughter Mary, the wife of Coward, conveying by metes and bounds a strip of 375 acres running east and west across the south half of the north half of the survey, and adjacent to the south boundary line of the north quarter. A bond for title was also read in evidence, executed in 1859 by Lee and Coward to G. W. Lawler and George Wright, conveying a strip of 400 acres off of the south side of the north half of the survey, leaving a strip of 375 acres between the land described in the Coward deed and in the Wright and Lawler bond, for which no conveyance seems to have been read in evidence, though it was in proof that Lee and wife had conveyed this land to other parties many years ago. Upon the back of the deed from Margaret Rock to Mary Coward was found a diagram which indicated that the north half of the survey had been divided into four strips running east and west; the south strip having written upon it, George Wright and G. W. Lawler, 400 acres; the next strip north having writteu upon it, "Edmund Lee, 375 62-100 acres," and the next, "Mary Coward, 375 62-100 acres," and the last, "Margaret Rock, 957 25-100 acres;" and out of the northeast corner of this strip was cut a strip marked "W. G. Nelson, 200 acres. " Ruuning across all these strips, from north to south, near the east boundary, was an indorsement, "2,000 varas;" and across the three strips marked" Wright and Law. 64 ler," Edmund Lee," and "Mary Coward," an indorsement, "1,000 varas. Plaintiffs in error objected to the introduction of this plat in evidence, and assign error upon its admission. The ground of objection, as set forth in their first proposition under the first assignment of error, was that its execution had not been proven. This objection is amplified in the proposition with the statement that it did not constitute the basis, in whole or in part, of the pleadings in the case, and it had not been shown by whom it was made, nor by what authority it was placed on the back of the deed. The bill of exceptions was approved, with this explanation, viz.: "It is apparent from a comparison of the handwritings that said deed and plat were written by the same person, and they seem to be of the same age." It has been held in this state that the execution of a lost deed may be proven by circumstantial evidence. Crain v. Huntington, 81 Tex. 614, 17 S. W. Rep. 243, and cases there cited. In view of the age of the deed, its evident genuineness, the death of all the parties, the fact of a contemporaneous partition of some kind made by the parties, we think the evidence of identity in handwriting and age of the deed and plat tended sufficiently to show that the plat must have been the work of the parties to the deed to admit it in evidence, especially as it was not in conflict with the deed, but in explanation of it. Plaintiffs in error, by requesting appropriate instructions, might, perhaps, have had this issue passed upon by the jury, and the scope of the evidence limited; but nothing of this sort seems to have been done. This disposes of the first assignment of error. tion of said survey until after so great a lapse of time,-we have reached the conclusion that the settlement of this controversy by the verdict of the jury should not be disturbed. Believing the testimony, under the circumstances, to be sufficient to support the verdict, and there being no other questions submitted for our determination, we are brought to the conclusion that the judgment must be, in all things, affirmed. SCOTT et al. v. WEISBURG et al. (Court of Civil Appeals of Texas. March 15, TRESPASS TO TRY TITLE-COURSES AND DISTANCES 1. In trespass to try title, it appeared that J., under whom both parties claimed, conveyed the north 50 feet of a lot to plaintiff, the balance going by mesne conveyances to defendants. At the time of the purchase by plaintiff, J. pointed out a fence as his north line, and a line 50 feet south, marked by stakes, as his south line. Plaintiff adopted both lines as true, and they were true according to the distances mentioned in the deed to J., but according to the courses of said deed both lines were 30 feet too far north. Held, that plaintiff is confined to the 50 feet of land lying between the fence and stakes, since the courses in a deed must yield to distances when such was the evident intention of the parties. 2. It was not error for the court to explain his findings by referring to a map used by one of the witnesses in connection with his testimony, and filed in the case, though it was not offered in evidence. 3. Neither was it error to find that the street on which the land fronted ran north, 52 west, when in fact it ran for a short distance north, 45 west, where such finding did not affect the case or the conclusions reached. Appeal from district court, McLennan Trespass by George Scott and another against L. Weisburg and another to try title to real estate. There was judgment for defendants, and plaintiffs appeal. Affirmed Wm. M. Flournoy, for appellants. By the third subdivision of the charge. defendants' theory of parol partition was submitted to the jury, and the verdict in-county; J. R. Dickinson, Judge. dicates that they found for defendants in error under that subdivision of the charge. Error is assigned upon the giving of this charge, on the ground, as submitted by the plaintiffs' proposition under the assignment, that there was not sufficient evidence to fairly raise the issue of fact to which it relates. No objection is taken to the validity or legal effect of the kind of partition submitted by the charge, and passed upon by the jury. By the third assignment, plaintiffs in error complain of the insufficiency of the evidence to support the verdict. It thus appears that these two assignments raise substantially the same question. We have carefully considered the statement of facts, and, in view of the long lapse of time; of the inherent difficulty, therefore, of making clear proof of the exact manner of the parol partition; of the fact that the deed and title bond mentioned above were inconsistent with plaintiffs' theory of the partition; of the further fact that for nearly 30 years the defendants in error, and those under whom they claim, seem to have acted upon a theory of partition which excluded all interest in plaintiffs in error; of the conduct of plaintiffs' ancestors in disposing of the lands allotted to them in the partition, and not asserting title to any other porv.21s.w.no.8-49 COLLARD, J. This suit was brought in form of trespass to try title, by George Scott and his wife, Nettie Scott, the appellants, against L. Weisburg and Morris Lochman, to part of a lot in block 15 of the D. T. Chamberlin addition to the city of Waco. The part of the lot in dispute is described in the petition as beginning on the east line of Sixth street S., 52 W., (evidently intended for E.,) 15 feet from the N. W. corner of a lot conveyed by Wiley Jones to George Scott on July 14, 1885; running thence with the street S., 52 E., 35 feet, for front; and thence back N., 38 E., 165 feet,-forming a parallelogram. Lochman disclaimed. Weisburg pleaded not guilty and statute of limitations of three and five years, and improvements in good faith; interpleaded his warrantors, Stanley Epstein and Wiley Jones: Epstein adopting the pleas of Weisburg, and Jones denying liability as warrantor. The court tried the case, without a jury, and gave judgment for |