If silence upon the lips of husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man, and violates any human or Divine enactment? Is she less sensitive, is she less humiliated, when he commits murder or robbery or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she feels or suffers, but whether the crime is one against her. Polygamy and adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against such relation than against the wife; and, as the statute speaks of crimes against her, it is simply an affirmation of the old, familiar, and just common-law rule. We conclude, therefore, that under this statute the wife was an incompetent witness as against her husband." It has been held in this state that the statute has not changed the common-law rule. that be true, then the two cited decisions rendered by the supreme court of the United States are in point. It occurs to us that the common-law rule is rather broadened and emphasized, than weakened, by our statute. This line of reasoning finds support in many of the text-writers. See 3 Rice, Ev. p. 282. There this language is found: "And it is well that the principle does not rest on the discretion of the parties. If it did, in most instances it would afford no substantial protection to persons uninstructed in their rights, and thrown off their guard and embarrassed by searching interrogatories." See 3 Jones, Ev. § 757, and authorities cited in note 6; 1 Greenl. Ev. § 340; Davis v. Dinwoody, 4 Term R. 678; 1 Ves. Jr. 49. The only English authority which has been called to our attention, laying down a contrary doctrine, is Pedley v. Wellesley, 3 Car. & P. 558. That case does not enter into a discussion of the question, or state any reason for the holding; nor does it state whether it is under the common law, or the act of parliament, which seems to have abridged the common law in regard to this rule. Without further discussion of the question, we are of opinion that it was error, though no exception was reserved, to use the wife as a witness against appellant. In other words, under the statute she is an incompetent witness, whose evidence cannot be used even by the consent of the husband, and she can only be used when placed on the stand by her husband, except where the offense is against her personally. Offenses against the daughter are not offenses against the wife. For the errors discussed, the judgment is reversed and the cause remanded. 1. In a prosecution for homicide, defendant applied for a continuance for absence of witnesses, which was denied; and, after conviction, defendant applied for a new trial for overruling such application; submitting the affidavits of two witnesses, one of which deposed that he was present at the killing, and that the acts of the person assailed indicated that he was about to draw a weapon on defendant before defendant shot; and it was claimed that the other witness would testify to declarations of defendant indicating self-defense, constituting a part of the res gesta. Held that, notwithstanding defendant's lack of diligence in attempting to procure such testimony at the trial, the court should have granted a new trial. 2. Where, in a prosecution for homicide, there was evidence that the party assailed had threatened to kill defendant, and that such threat had been communicated to the latter on the night of the difficulty, an abstract instruction on the subject of threats, merely in the language of the statute, was insufficient. 3. Where defendant, charged with homicide, had not put his reputation for peacefulness in issue, it was improper for the prosecuting attorney to argue that, since defendant had failed to prove his good character, it might be presumed that he was a violent and dangerous man. Appeal from district court, Gonzales county: M. Kennon, Judge. Dan Cline was convicted of murder, and he appeals. Reversed. Walter & Von Strewe, for appellant. Robt. A. John, Asst. Atty. Gen., for the State. HENDERSON, J. Appellant was convicted of murder in the second degree, and his punishment assessed at seven years' confinement in the penitentiary. Appellant assigns as error the action of the court in overruling the motion for continuance, and then in overruling the motion for new trial based thereon. In explaining the bill, the court shows that appellant was lacking in diligence in procuring process for the witnesses; but the question presents itself, if it be conceded that the testimony of the absent witnesses was material, ought not the court to have granted a new trial on this ground? Appended to the application is the affidavit of witness Love Tollerson, one of the absent witnesses. He says he was present at the time of the shooting, and saw Dan Cline enter the east door of the room where the homicide took place, and at the same time, or immediately thereafter, he saw Wirk Stewart in the room, and he was facing defendant, Dan Cline. He immediately turned his right side to defendant, placing his left hand in his left pants pocket, and threw his right hand under his coat, about 3. See Criminal Law, vol. 14, Cent. Dig. 1674. his (Stewart's) waist. Then it was that Dan Cline fired at Wirk Stewart with his pistol, which was the shot that killed Tandy Tollerson, father of witness, who was standing just beyond Wirk Stewart. This testimony, while not entirely clear on the point, suggests that Stewart made the first demonstration, and, in connection with the other testimony found in the record on the line of self-defense, was material evidence for appellant. Appellant says he could have proven by the absent witness Tom Butler the declarations of appellant immediately after the homicide, indicating self-defense. Two witnesses at the trial testify to these declarations as a part of the res gestæ, but this would afford no reason why appellant would not have been entitled to still further testimony on this point. In this connection, we would observe that appellant files affidavits to the effect that Wirk Stewart had intimidated the witnesses, which caused them to remain away. These affidavits were evidently made in order to excuse diligence. In rebuttal of these, the state filed affidavits showing that there were fines adjudged against said witnesses in misdemeanor cases, and attributed their absence to this. From these affidavits it does not appear that appellant was engaged in keeping these witnesses away. If so, unquestionably, he But would not be entitled to a new trial. viewing the question purely in the light of an absence of diligence to secure said witnesses, it occurs to us that, notwithstanding this lack of diligence, the court should have granted the motion for new trial. Appellant also insists that the court committed an error in charging as was done on threats, and in refusing to give the special requested instruction on that subject. There was evidence of one witness that Wirk Stewart, whom the appellant shot at when he killed Tandy Tollerson, had threatened to kill appellant only the evening before the homicide, and that he intended to kill him the first time he met him. This threat was communicated to appellant on the night of the difficulty, but before it occurred. On this subject of threats the court only gave the statute, which was a mere negative form of putting the question, and was in the abstract; there being no application of the principle of law to the facts of the case. If appellant was entitled to a charge at all on this subject,-and he evidently was,-he was entitled to a proper charge; that is, an affirmative charge applying the law to the facts, and presenting this issue, in connection with self-defense, to the jury. Sims v. State, 9 Tex. App. 586; Gonzales v. State, 28 Tex. App. 130, 12 S. W. 733; Gaines v. State (Tex. Cr. App.) 53 S. W. 623; Sebastian v. State (Tex. Cr. App.) 57 S. W. 820. Appellant not only excepted to this charge as inadequate, but asked a charge on this subject which, in our opinion, should have been given. The judge, in explaining his refusal to give this charge, says that, so far as it was called for by the evidence, it was given in the court's main charge. He also says that the requested charge is upon the weight of the evidence, We do not agree with this explanation. A proper charge on threats was not given in the court's charge, nor was the requested charge upon the weight of testimony. Appellant may be ever so guilty, but he is entitled to a fair trial under a charge which adequately presented every phase of his defense; and it is not the province of the judge, because he may have thought the testimony on the issue weak, to refuse a charge on that subject, if in fact the issue is raised by the testimony. Appellant also reserved a bill to the remarks of the district attorney in his closing argument. These remarks were as follows: "That defendant had not proven that his reputation for being peaceful was good. The fact could be presumed that his reputation could not be shown to be good. Could it have been shown to be good, defendant's able and energetic counsel would have shown it; and that, from the fact that it could not be shown to be good, he had a right to presume that the reputation of the defendant was that of a violent and dangerous man." This was excepted to, but there was no request to instruct the jury to disregard said argument. All the authorities hold that it is not competent to put a defendant's reputation in evidence unless he takes the initiative and does so himself. If his character cannot be assailed by testimony without his consent, much less should it be assailed in the argument in the absence of testimony. These remarks should not have been indulged in. For the errors discussed, the judgment is reversed and the cause remanded. BELL v. STATE. (Court of Criminal Appeals of Texas. Dec. 11, 1902.) INDICTMENT-OWNERSHIP-CIRCUMSTAN- 1. Code Cr. Proc. art. 445, expressly permits an indictment to allege ownership of property to be in the one in possession, though another is the owner. 2. An instruction on circumstantial evidence was not erroneous because it did not tell the jury that, in order to convict, they must find that defendant "alone" committed the crime. Appeal from district court, Bexar county; John H. Clark, Judge. Wiley Bell was convicted of theft from the person, and appeals. Affirmed. Robt. A. John, Asst. Atty. Gen., for the State. BROOKS, J. Appellant was convicted of theft from the person, and his punishment assessed at confinement in the penitentiary for a term of four years. 1. See Indictment and Information, vol. 27, Cent. Dig. §§ 562, 569, 570. Appellant complains in the motion for new trial that the court erred in charging the jury that, although the watch may have been the separate property of the wife of T. H. Nutt, still, if the same was in his (the said Nutt's) possession, he would be in law the owner of the same. The evidence, though circumstantial, discloses the fact that appellant took the watch from the person of T. H. Nutt. Nutt testified that the watch in fact belonged to his wife, but that he had it in his vest pocket at the time appellaut took it. It is proper to allege ownership, as was done in this indictment, in the person having possession of the watch; and the court did not err in so charging the jury. This is authorized by article 445, Code Cr. Proc. Appellant also complains that the court erred in his charge on circumstantial evidence, in that it did not tell the jury they must find from the evidence that appellant alone committed the crime. A charge similar to the one complained of was approved by this court in Ramirez v. State (Tex. Cr. App.) 66 S. W. 1101. The evidence supports the verdict of the jury. No error appearing in the record, the judgment is affirmed. STRUCTIONS-MALICE-EXCESSIVE PENALTY. 1. It was not error to refuse a continuance for a witness by whom defendant expected to prove threats against himself by deceased on the day of the homicide; the application being contested by affidavits that the witness was not present at said time, and by others that the deceased and defendant were seen associating on terms of friendship after the time of the alleged threats. 2. On prosecution for homicide, it was not error for the state, in examining jurors on their voir dire, to ask whether they had scruples against inflicting the death penalty on circumstantial evidence. 3. A confession of homicide was not inadmissible as involuntary where made after a warning by the sheriff, though one of the witnesses told defendant that he would be better off if he told the truth, and that it would save his neck if he would plead guilty. 4. Where articles of clothing worn by deceased, and a pistol with which defendant confessed he had killed him, were found at the places stated in the confession, the confession was admissible, irrespective of any warning to defendant. 5. Articles of clothing worn by deceased at the time of the homicide were admissible. 6. An indictment charging a homicide with malice aforethought authorizes an instruction on express malice. 7. Where the evidence pointed to a murder in the perpetration of robbery, which under the statute is murder in the first degree, irrespective of malice, defendant could not complain of an 4. See Criminal Law, vol. 14, Cent. Dig. § 1202. instruction on murder in the second degree on implied malice. 8. Where defendant, for purpose of robbery, struck and killed deceased when he was not suspecting an attack, and afterwards robbed the body of a small sum of money, watch, pistol, and articles of clothing, and then threw the body in a ditch, the death penalty was not excessive. Appeal from district court, Walker county; J. M. Smither, Judge. Rip Johnson was convicted of murder in the first degree, and appeals. Affirmed. W. A. Leigh and A. F. McKinney, for appellant. Robt. A. John, Asst. Atty. Gen., for the State. HENDERSON, J. Appellant was convicted of murder in the first degree, and his punishment assessed at death. Appellant's first bill of exceptions questions the action of the court in overruling his motion for continuance, and in refusing a new trial based thereon. The motion for continuance was based on the absence of one John Mills. If it be conceded that the diligence shown to have been used for the procurement of said witness was sufficient, we do not believe, from the contesting affidavits, the witness would have testified as alleged by appellant, or, if he had done so, it was probably true, or that the same would have had any effect upon the jury. Appellant claims that he desired the attendance of said witness in order to prove threats made against him by the deceased, Mose Washington, on the day of the alleged homicide. The state contested the motion, and filed a number of affidavits in connection therewith. These affidavits were made by a number of witnesses, and show that Johu Mills, the alleged witness, was not at Oakhurst, where the alleged threats were said to have been made, or in Walker county, at the time appellant says they were made. Some of them also show that, if the threats could have been made, appellant and deceased were seen associating together afterwards on terms of friendship. So it does not occur to us that the court committed any error in overruling the application for continuance. Appellant also excepted to the action of the court in permitting state's counsel, in examining certain of the jurors on their voir dire, to ask them if they had any conscientious scruples in regard to the infliction of the death penalty for crime in cases depending wholly upon circumstantial evidence. The said jurors answered in the negative. This was objected to because it was not a statutory question. It has been held in a number of cases that this was a proper question. Shafer v. State, 7 Tex. App. 239; Clanton v. State, 13 Tex. App. 139; Little v. State, 39 Tex. Cr. App. 654, 47 S. W. 984. Appellant objected to the confession introduced by the state through the witnesses Palmer, Brooks, and Elkins; the grounds of his objection being that, under the circum stances as stated in the bill, said confessions were not free and voluntary; that, among other things, witness Palmer told him that he would be better off if he would tell the truth, and that it would save his neck if he would plead guilty; that appellant was excited, and said he wanted to tell him something, but was afraid. This occurred after he had been warned by the sheriff, Brooks. Before he made any statement, he said that he was afraid they might treat him like Alf Watson was treated. Alf Watson was hung by a mob. This occurred a short time after appellant's arrest, at Dodge, where quite a crowd had gathered; and the parties to whom he made the confession took him out to a stable near by. In connection with the statement, it may also be observed that appellant gave a detailed account of how he committed the homicide. When the body of deceased was found, his coat and hat and some other articles of clothing were missing, and his watch and pistol were not found on him. The body of deceased was found near the Cold Springs and Huntsville road, in a deep gully, and his body was bruised as if struck or beaten with some stick or club, and several shot holes were found in his head. In connection with appellant's statement or confession, he told the officers the clothing and other articles could be found in the woods, some 50 or 100 yards from the body. He also told them where the pistol would be found with which he shot deceased, stating that it was deceased's pistol. The circumstances relating to the homicide, as detailed by him, were that he and deceased were going along the road together, and went out from the road a short distance and sat on a log; that there he struck deceased with a heavy stick that he had, knocking him down, and broke his arm, rendering him helpless, and then took his (deceased's) pistol from his pocket and shot him with it; that he then robbed him of $5.80 in money and threw him in the gully, taking the wearing apparel of deceased, and other articles, and placing them where they were subsequently found in pursuance of said confession. The confession was admissible under the warning giv en. Grimsinger v. State (Tex. Cr. App.) 69 S. W. 593; Ransom v. State (decided at present term) 70 S. W. 960. In addition to this, the confession was admissible regardless of the warning, because of facts and circumstances which conduced to establish his guilt, and which were found to be true by virtue of his statement. Spearman v. State, 34 Tex. Cr. App. 279, 30 S. W. 229; Parker v. State, 40 Tex. Cr. App. 119, 49 S. W. 80. And for further authorities see section 1034, White's Ann. Code Cr. Proc. There was no error in the action of the court in admitting in evidence the garments worn by deceased. The objections urged in this bill do not disclose any facts in connection with the admission of said clothing that could prove hurtful to appellant, and the grounds of objection stat ed were not sufficient. Aside from this view, however, articles of clothing worn by deceased at the time of the homicide have been held to be admissible. Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Mitchell v. State, 38 Tex. Cr. App. 170, 41 S. W. 816; Kidwell v. State, 35 Tex. Cr. App. 264, 33 S. W. 342; Gregory v. State (Tex. Cr. App.) 43 S. W. 1017. Appellant objects in the motion for new trial to certain charges of the court. He objects to the charge of the court on express malice. The indictment charged a homicide of his malice aforethought, and this authorizes a charge responsive thereto on express malice. Evidently the charge was not only authorized, but was required, under the proof. The court also charged on murder committed in the perpetration of robbery, and instructed the jury that murder committed under such circumstances was murder in the first degree. This is made so by the statute, and under the proof the court was authorized to give this instruction. The court gave a charge on murder in the second degree on implied malice. Under the evidence, we think the court could have well refused an instruction of this character. Certainly it was one of which appellant could not complain. The statute makes all murder, whether upon express or implied malice, when committed in the perpetration of robbery, murder in the first degree. However, the court saw fit to give defendant the benefit of a charge on murder in the second degree. This was to his advantage, and, in our opinion, he cannot complain of this. The evidence shows that appellant, actuated by the motive of robbery, struck down and killed deceased, who at the time was not suspecting the cruel fate in store for him. After he killed him he robbed him of the pitiful sum of $5.80, and then threw his body in a ditch or gully, took from deceased certain articles of clothing, his watch and pistol, and concealed them. We do not believe, considering the facts of this case, that the verdict of the jury was excessive. On the contrary, the evidence shows that the jury were fully warranted in affixing the highest penalty known to the law. No error appearing in the record, the judgment is affirmed. with his lantern. Failing to secure an answering signal, he returned to the caboose to get a red lantern, when it was struck by the second section, and the brakeman injured. The company's rules required the brakeman to go backwards on the stopping of a freight train to signal any approaching trains. The engineer of the second section failed to whistle both for the station, when half a mile distant, and for the wagon crossing, a mile distant. It was shown that for one standing in front of an approaching train at night it was extremely difficult to estimate its distance or rate of speed. Held, that the brakeman was not guilty of contributory negligence in climbing on the caboose. 2. Neither did the brakeman assume the risk. 3. In an action against a railroad company by a brakeman injured while attempting to flag an approaching train, any error in an instruction that a railroad employé assumes the ordinary and reasonable risks of his employment, and it is his duty to comply with the rules of the company in running its trains, is not available to the company. 4. An instruction which assumes a fact in issue, and is therefore objectionable as being on the weight of the evidence, is not ground for reversal where such fact is elsewhere submitted to the jury for determination. 5. An objection, to an instruction that "the burden of proof is upon the defendant to establish its plea of avoidance set up in its answer," that the term "plea of avoidance" is unintelligible to the lay mind, and calculated to mislead the jury, is not available to a party who has failed to request an additional charge. 6. In an action by a brakeman against a railroad company for personal injuries it is proper to permit the brakeman to testify that one of the physicians testifying to the extent of the injuries examined him, looking to a settlement with the company, and to permit the physician himself to make the same statement, the evidence being limited to the question of the physician's bias, and nothing further being offered on the fact of attempted compromise. Error from district court, Harris county; W. P. Hamblen, Special Judge. Action by W. S. Scott against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed. Baker, Batts, Baker & Lovett and A. L. Jackson, for plaintiff in error. Perry J. Lewis, H. C. Carter, O. T. Holt, and J. M. Cobb, for defendant in error. GILL, J. This suit was brought by W. S. Scott against the Texas & New Orleans Railroad Company to recover damages for personal injuries alleged to have been suffered by him as a result of the negligence of the servants of the company. A trial by jury resulted in a verdict and judgment for plaintiff, from which the defendant company has prosecuted this writ of error. Plaintiff alleged that he was employed by the company as rear brakeman on one of its freight trains, and on the occasion in question, while the train on which he was at work was standing at the station of Sour Lake, the engine of another freight train was negligently run into the caboose on which he was at work, inflicting the injuries of which he complains. The negligence of the engineer and 3. See Appeal and Error, vol. 3, Cent. Dig. § 4056. fireman on the engine which caused the injury is alleged to be responsible for the wreck. The defendant pleaded in answer general denial, contributory negligence in failing to display signal lights on the caboose as provided by the rules, and in failing to go back the proper distance with signals for the purpose of stopping the approaching train, and in negligently and rashly going upon the caboose when the approaching train was in rapid motion near the caboose, and the collision evidently inevitable. Assumed risk was also pleaded, predicated upon his alleged knowledge of the danger of going upon the caboose directly in front of the rapidly approaching train. The plaintiff's cause of action, if he has one, rests in the facts testified to by himself, and are here set out in his own language: "I had been in the service of this defendant about ten years; part of the time as brakeman, and for eight years as a conductor. On the 10th day of December, 1899, I was rear brakeman on first section of train 246, which was a freight train. We left Houston about eight o'clock at night, and reached Sour Lake somewhere about three o'clock in the morning. When we reached Sour Lake, we stopped for water. It was then about three o'clock a. m. on the 11th of December, A. D. 1899. While the train was standing in this position, with the engine taking water, the collision occurred between the second section of train 246 and the train I was on. I am familiar with the printed rules of the company, and identify the book of rules handed me as the rules of defendant company then promulgated and in force among the employés. Rule 97 reads as follows: 'When a freight train is detained at any of its usual stops more than three minutes, where the rear of the train can be plainly seen from a train moving in the same direction at a distance of at least fifteen telegraph poles, the flagman must go back with danger signals not less than one pole, and as much further as may be necessary to protect his train; but if the rear of his train cannot be plainly seen at a distance of at least fifteen telegraph poles, or if it stops at any point that is not its usual stopping place, the flagman must go back far enough to be seen from a train moving in the same direction when it is at least fifteen telegraph poles from the rear of his own train; and if his train should be detained until within ten minutes of the time of a passenger train moving in the same direction, he must be governed by rule No. 99.' Rule 99 reads as follows: 'When a train is stopped by an accident or obstruction, the flagman must immediately go back with danger signals to stop any train moving in the same direction. At a point thirteen telegraph poles from the rear of his train he must place one torpedo on the rail. He must then continue to go back at least fifteen telegraph poles from the rear of his train, and place two torpedoes on the rail, ten yards apart (one rail length), when he may return to a point thirteen telegraph poles |