M. S.

For such reason the jury was dismissed by the court sua sponte after part of the evidence for the commonwealth had been received, and defendant neither consented nor objected, but was silent. Held that a plea of former jeopardy on a subsequent trial for marrying M. S. was good.-Robinson v. Commonwealth, (Ky.) 11 S. W. 210. Venue.

14. A judgment of guilty will be reversed if the record shows no proof of the venue of the offense. -Shelton v. State, (Tex.) 11 S. W. 457.

15. On a prosecution for stealing hogs the prosecuting witness testified that he lived in L. county, and owned hogs; that he missed some of them from their range, but he did not testify where the range was, whether in L. or some other county. It was not proved either directly or circumstantially that the hogs were taken in L. county. Held, that there was not sufficient proof of the venue of the offense.-Stone v. State, (Tex.) 11 S. W. 637.

16. Under Code Crim. Proc. Tex. art. 205, providing that prosecutions for offenses committed wholly or partly without, and made punishable within, the state, may be carried on in any county in which the offender is found, a prosecution for removing mortgaged property from the state can be maintained in the county from which the property was removed, and to which the defendant is returned on being arrested in another county.Williams v. State, (Tex.) 11 S. W. 114.

Change of venue.

17. Where the court, of its own motion, changes the venue, a motion made in the same court, to change to a different county, is properly denied, as the matter may be brought up in the county to which the case is sent.-Thurmond v. State, (Tex.) 11 S. W. 451.

18. Act Ky. April 1, 1880, amending the general statutes as to change of venue in criminal cases, provides that the court shall hear all the witnesses, and from the evidence determine whether defendant is entitled to a change, which shall be granted if it appears that he cannot have a fair trial in that county. The killing by defendant created great excitement, and caused much indignation, so that the military were called out to prevent mob violence. The excitement had, however, mainly subsided at the time of application for change of venue, and a large majority of the witnesses were of opinion that defendant could obtain a fair trial. The change was refused, and the first trial resulted in a hung jury, and on the second neither party exhausted their peremptory challenges. Held, that a conviction would not be reversed for the refusal to grant the change.-Dilger v. Commonwealth, (Ky.) 11 S. W. 651.

19. Rev. St. Mo. §§ 1869, 1870, make it the duty of the clerk, when a case is removed by change of venue, to transmit to the clerk of the court to which the case is removed a transcript of the record, "duly certified under the seal of the court," which becomes a record of the court to which it is transmitted. Held that, where the transcript is not properly certified, the clerk of the court to which the case is removed may rule the other clerk to perfect it, and such perfected transcript is properly admitted to record.-State v. Haws, (Mo.) 11 S. W. 574.

20. Where the testimony is conflicting as to whether the accused can have a fair and impartial trial in the court where arraigned, the supreme court will not disturb the conclusion of the trial court as to the right to a change of venue, under Gen. St. Ky. p. 185, art. 4, § 1, providing for a change if it "appears" that defendant cannot have a fair trial.-Hasson v. Commonwealth, (Ky.) 11

S. W. 286.

Continuance.

21. Continuance should not be granted for absence of a witness, who is a fugitive under indictment, where it is not shown that he would testify to any exculpating fact or circumstance which did not appear from testimony given, or that there was reason to believe his attendance could be procured at the next term.-Morris v. Commonwealth, (Ky.) 11 S. W 295.

22. Defendant is not entitled to a continuance as a matter of right, on the ground of the absence of material witnesses, where it appears that at a former term, when the case stood for trial, he secured a continuance, and did not ask to have such witnesses recognized to appear at the term to which the case was continued, nor that they should be arrested, if absent, but simply had subpœnas issued at the term at which he was tried; and where what such witnesses would testify to, and the fact that they would so testify, must have been known to him at such prior term.-Radford v. Commonwealth, (Ky ) 11 Ŝ. W. 12.

23. Where the state, in a prosecution for theft of a horse, relies on testimony of two witnesses that they saw three men take the horse from a place of concealment, and that they "took" defendant to be one of them, and that the person they took to be defendant was riding a horse similar to one which defendant had, a motion for continuance to procure a witness to show an alibi should be granted.-Taylor v. State, (Tex.) 11 S. W. 35.

24. Where subpoenas were served seven months before trial, on witnesses who, at the time of trial, live outside the state, and it does not appear how long they have been absent, or that defendant was not apprised of their intended departure, or that he might not have obtained their depositions, it is

tinuance on account of their absence.-State v. not an abuse of judicial discretion to refuse a conCarter, (Mo.) 11 S. W. 624.

25. Where the defense to an indictment for the larceny of wood is that defendant took it under mistake, the evidence of a witness who will testify that he directed defendant, who was in his employ, to take the wood, thinking that it was owned by another man with whom he could settle for it, is important, and a continuance should be granted for the absence of such witness, diligence to procure his attendance being shown.-Donahoe v. State, (Tex.) 11 S. W. 677.

26. If the subpoena for such witness was issued eight days before the first day of the term, and served on the first day, and the case is set for the third day, sufficient diligence is shown, the witness' absence being occasioned by his sickness.Donahoe v. State, (Tex.) 11 S. W. 677.

27. On trial for assault, it appeared that defendant and the injured person were solicitors for rival omnibus lines; that they got into a dispute while endeavoring to secure a certain passenger; that the injured person used insulting language to defendant; and that defendant struck him with a walking-stick. Held, that a continuance for an absent witness, by whom defendant promised to prove that defendant struck in self-defense when pressed by the injured person, should be granted, where the witness lived some distance away, and three subpoenas and an attachment had been issued before the trial, and all returned “not found." -Stevens v. State, (Tex.) 11 S. W. 459.

The

28. Defendant applied for a continuance on the ground that an absent witness would deny that defendant made a certain statement which several witnesses for the state testified he did make. case had already been continued over one term at his instance. The witness was a brother of defendant, under indictment for another offense, and had come into court and recognized at an earlier day of the term, and there was evidence raising a strong suspicion that his absence when the case was called was not on account of his wife's illness as alleged, but that he was engaged in an attempt to procure the absence of some of the state's witnesses, and that defendant was a party to the scheme. Held, proper to refuse a continuance.Ogles v. Commonwealth, (Ky.) 11 S. W. 816.

29. Defendant was convicted on the testimony of a single witness that he saw him carrying a pis tol. He applied for a continuance to procure as witnesses his brother and another, who, he alleged, would testify that he had bought the pistol, and was carrying it home. He showed that a subpoena had issued for one of them on the day the indictment was found, and that an attachment had issued for the other, but that he was confined to his bed. Held, that the facts set forth were

"probably true, " and the desired evidence was material, within the meaning of Code Crim. Proc. Tex. art. 560, subd. 6. authorizing a new trial where an application for a continuance has been overruled in such a case.-Black v. State, (Tex.)

11 S. W. 485.

30. On a murder trial, an application for continuance for absence of a witness stated that the witness had been in attendance on the court at different times under process of court, but did not state when he was summoned, or when he attended, or for whom. The application showed that the case was set to be tried on February 18th; that on that day attachment for the witness issued, and was returned, "Not found." The court met January 7th, but no process issued till February 18th. Witness lived in the county, but no additional process was sought after that date. The expected testimony of the witness was as to threats made by deceased, and not communicated to defendant, and which could be used only to rebut the inference that deceased, having made former threats and afterwards met defendant, had abandoned the intention to execute them, or for the purpose of showing that deceased probably began the violence. Held, that the continuance, and also a new trial, were properly refused; as the application was vague and suspicious, and there was a want of diligence, and the bearing of the expected testimony was too remote.-Brumley v. State, (Tex.) 11 S. W. 831.

31. Civil Code Ky. § 315, provides for a continuance on affidavit showing the absence of material witnesses, what they will prove, etc., and that, if the adverse party will consent, the affidavits may be read as the depositions of the absent witnesses. Crim. Code, § 189, provides that similar provisions shall apply to criminal prosecutions, except that in such cases "if the defendant made affidavit as to the facts," etc., the continuance should be granted unless the state admitted the facts to be true. Act May 15, 1886, provided that in criminal prosecutions, unless the court decided otherwise, the state might allow the statements to be read as depositions unless the motion for continuance was made at the term when defendant was indicted, in which case section 189 applied. Held that, where an affidavit for continuance on account of absence of witnesses was made at the term at which the indictment was rendered, the state, in order to proceed to trial, must admit the facts stated to be true, although, on account of the alleged insanity of defendant, the affidavit was made by a third party. - Hardesty v. Commonwealth, (Ky.) 11 S. W. 589.

Conduct of trial.

32. The order of the admission of testimony is in the discretion of the trial court. -State v. Pratt, (Mo.) 11 S. W. 977.

33. To allow a jury in a murder trial to take defendant's pistol and cartridge-box to the juryroom, to experiment with them, apparently to test the truth of defendant's statement, is reversible error.-Forehand v. State, (Ark.) 11 S. W. 766.

34. Where a state's witness refuses to disclose to defendant's counsel what his testimony will be, after the court has permitted a consultation with him for that purpose, the court will not require such disclosure.-Cahn v. State, (Tex.) 11 S. W. 723.

35. Under Crim. Code Ky. § 219, providing that the commonwealth's attorney "shall read to the jury the indictment, "it is proper to read the entire indictment, though the commonwealth has been compelled to elect on which of several counts it would proceed.-Greenwood v. Commonwealth, (Ky.) 11 S. W. 811.

36. Where a special term of the trial court is called a week before the regular term, and there is no conflict with the regular terms required to be held by the judge in any other county, it is not error to allow the jury to return a criminal verdict after 12 o'clock on Saturday night, at the close of the week of the special term, rather than to pass the case over till the following Monday, since the same jurisdiction, with the same judge presiding, in the same county, continues on the follow

ing Monday, when judgment may be pronounced. -Bales v. Commonwealth, (Ky.) 11 S. W. 470.

37. A remark by the prosecuting attorney, made in the presence of the jury, to the effect that he proposed to prove that a defendant charged with larceny was arrested for burglary at the time and place that the theft was committed, is reversible error, if not cured by a charge to the jury to disregard it.-Taylor v. State, (Tex.) 11 S. W. 462.

38. Where, in a second trial for murder, any reference to the former trial was made only to contradict witnesses, there was no error.-Smith v. Commonwealth, (Ky.) 11 S. W. 778.

39. Gen. St. Ky. p. 185, providing that before the commonwealth's attorney can dismiss an indictment he shall file a statement setting forth his reasons, and an order shall be made on the record-book, etc., is merely directory, and relates to cases where, as a result of dismissal, the defendant is discharged, and it is not improper to allow the commonwealth's attorney, pending a continuance, to dismiss the indictment, resubmit the case to the grand jury, and procure a new indictment, without the knowledge of defendant or his attor ney, and without any reasons being entered of record.-Dilger v. Commonwealth, (Ky.) 11 S. W.

651.

40. Nor was such procedure prejudicial to defendant where the new indictment charged the same offense, and defendant did not plead the order of dismissal in bar of a prosecution on the second indictment, as no jeopardy had attached, and the dismissal operated merely as an admission of defect.-Dilger v. Commonwealth, (Ky.) 11 S. W. 651.

41. It is not error to allow a member of the bar of the trial court, other than the prosecuting attorney or his assistant, to make the opening statement in, and assist in conducting, a criminal case, though the latter are both present, and able to conduct the case.-State v. Taylor, (Mo.) 11 S. W. 570.

42. It is not necessary to require such member of the bar to take an oath to prosecute without partiality or prejudice.--State v. Taylor, (Mo.) 11 S. W. 570.

Evidence Competency and relevancy.

43. The fact that a witness was a non-resident of the state at the time his testimony was taken before an examining court, does not prevent its admission in evidence on the trial, such testimony being made admissible by Code Crim. Proc. Tex. art. 774.-Crook v. State, (Tex.) 11 S. W 444.

44. The signatures of a defendant, charged with forging a bill of sale, to an application for continuance and to an attachment, were admissible to show that he wrote the bill of sale, if the signatures only, and not the bodies of the instruments, were produced.-Williams v. State, (Tex.) 11 S. W. 481.

45. The issue being defendant's identity, the state improperly asked a witness on cross-examination if he had received a letter from defendant after the commission of the crime, asking if defendant was accused of it; as the loss of the letter should first be established; and, for impeaching the witness, the fact that he had or had not received the letter would be immaterial.-Johnson v State. (Tex.) 11 S. W. 106.

46. On a murder trial, it appearing that defendant and another were jointly indicted, and that defendant was charged as being present and aiding and abetting the murderer, words spoken by the actual murderer, while in pursuit of and shooting at deceased, are admissible as part of the res gesta. -Morris v. Commonwealth, (Ky.) 11 S. W. 295.

47. On a prosecution for aggravated assault, the injury being inflicted when the assaulted person was in the act of arresting defendant for theft of cattle, testimony of a witness that another had told him that defendant was the person who drove the cattle from her pasture is inadmissible, as hearsay.-Massie v. State, (Tex.) 11 S. W. 638.'

48. On indictment of a county judge for demanding illegal fees, a prior indictment against defendant for the same offense is admissible in evidence, as tending to show that he knew that the

that a conviction could not be sustained.-Roguemore v. State, (Tex.) 11 S. W. 834.

69. On the trial of an indictment of two for burglary, one of the defendants admitted that he had entertained a proposition from the state's witness to rob the treasury, and agreed to and did submit the matter to the other defendant. The latter was shown to have confessed that he joined in the conspiracy, and obtained the combination of the safe for the purpose of robbing it. It was proved that, on the night of the burglary, (which was committed by some one who knew the combination,) defendants, farmers, came to the county-seat in the midst of a winter storm; that they had no apparent business there, and left before daylight; and that they afterwards denied having been in the town on that night. Held sufficient corroboration of the testimony of their accomplice that they committed the burglary.-Fort v. State, (Ark.) 11 S. W. 959.

Character.

70. Evidence of bad moral character of defendant is competent to impeach his testimony in his own behalf.-Hasson v. Commonwealth, (Ky ) 11 S. W. 286.

71. A question asked of a witness on cross-examination, as to whether witness did not, on the trial of one for rape, endeavor to get this defendant to procure false testimony against the defendant in the rape case, was properly disallowed, as immaterial.-McCoy v. State, (Tex.) 11 S. W. 454.

Other crimes.

72. While it is not competent to attack the character of a defendant in a criminal cause, unless he puts in evidence of a good character, yet, as affect ing his credibility as a witness in his own behalf, it is admissible to show his conviction of a former felony.-State v. Nelson, (Mo.) 11 S. W. 997.

73. On a trial for theft, the state cannot prove another theft, unless the two thefts are contemporaneous, and then for the purpose only of proving identity, developing the res gesta, or establishing a necessary link in the chain of circumstances connecting defendant with the theft on trial.-Van Musgrave v. State, (Tex.) 11 S. W. 927.

74. The error in the admission of such evidence cannot be rendered harmless by a charge.-Van Musgrave v. State, (Tex.) 11 S. W. 927.

75. On trial for theft, evidence of another theft committed by defendant, but not shown to have been committed at the same time and place, is inadmissible.-Beach v. State, (Tex.) 11 S. W. 832.

Variance.

76. On a trial for obtaining drafts by false pretenses, when the description in the indictment, which purports to set out the drafts in hæc verba, differs from the drafts shown in evidence, by omitting to state that they were stamped "Paid" on their faces, and by describing the figures on one as "173,75," while they appeared on the draft "$173.75," there is not a fatal variance.-Pruitt v. State, (Ark.) 11 S. W. 822.

77. Where it is a matter of doubt whether the name of the payce in an alleged forged instrument, which was exhibited to the jury, is "Toles" or "Toler," and the name is equally uncertain in the indictment, the draughtsman evidently having endeavored to copy the name as it was written in the instrument, it cannot be objected that there was a variance between the instrument described in the indictment and that offered in evidence.Greenwood v. Commonwealth, (Ky.) 11 S. W. 811.

Weight.

78. Where a defendant is a witness in his own behalf, an instruction that the jury may believe his testimony or disbelieve it, according as it is or is not corroborated, is erroneous.-State v. Patterson, (Mo.) 11 S. W. 728.

Instructions.

On prosecution for misdemeanor, defendant must request instructions to supply omissions in the charge, and exceptions to the omission are not sufficient.-Davidson v. State, (Tex.) 11 S. W. 371.

80. Failure of the court to construe for the jury a foreign law which is in evidence is not reversible error, where the jury properly construed the law.-Clark v. State, (Tex.) 11 S. W. 374.

81. An instruction applying the doctrine of reasonable doubt to the whole case generally is sufficient, and it is not error to omit to charge that, if the jury have a reasonable doubt as to whether a certain other person than defendant, whom the evidence connected with the crime, committed it, they should acquit defendant.-Thurmond v. State, (Tex.) 11 S. W. 451.

82. Where the jury has been instructed to acquit if they entertain a reasonable doubt of defendant's guilt on the whole evidence, it is not error to refuse to charge that every material fact in the indictment must be established beyond a reasonable doubt.-State v. Whalen, (Mo.) 11 S. W. 576. 83. The court having in its charge announced the correct rules relating to principals and accomplices, but having made no direct application of these principles, it was error to refuse a requested instruction making such application.-Knowles v. State, (Tex.) 11 S. W. 522.

84. The defense having admitted, on the trial, an issue in the case, and the state for that reason having introduced no evidence in support of it, the trial court did not err in assuming, in its charge, the proof of the issue.-Fahey v. State, (Tex.) 11 S. W 108.

85. An instruction that the failure or inability of defendant to show his innocence does not lend any additional probative force to the incriminative facts, if any, shown by the state, or raise any presumption of guilt against defendant, is error, as conveying the impression that in the opinion of the court defendant had failed to show his innocence.-Johnson v. State, (Tex.) 11 S. W. 106.

86. An instruction that if the jury have a reasonable doubt of defendant's guilt, they must ac quit, and not resolve the doubt by a mitigation of the punishment, is error, as tending to influence the jury to inflict the death penalty, rather than milder punishment.-Johnson v. State, (Tex.) 11 S. W 106.

87. In discussing the admissibility of evidence in the presence of the jury, the court remarked to shown that a conspiracy existed to admit the evicounsel: "Has it not already been sufficiently dence?" Held, a violation of Code Crim. Proc. Tex. art 729, forbidding the judge to make any remark calculated to convey to the jury his opinion of the case.-Crook v. State, (Tex.) 11 S. W. 444.

88. Una prosecution for maliciously and wantonly killing a horse, the court charged, on circumstantial evidence, that "if the facts and circumstances in evidence could not be accounted for upon any reasonable grounds consistently with the innocence of defendant, and were such as to establish the guilt of defendant with a degree of certainty to satisfy the mind of a man of ordinary understanding, and so to convince him that he would act on that conviction," the jury should convict. Held that the charge was incorrect.Woods v. State, (Tex.) 11 S. W. 723.

89. Where a reading of the whole charge shows that the court did not intend to interfere with the jury's right to believe the testimony of a witness, but to inform them that, if they believed it, other evidence would still be necessary to warrant a conviction, a remark in the course of the charge, that such witness was "an accomplice" could not have been construed as an assumption that defend959. ants were guilty.-Fort v. State, (Ark.) 11 S. W.

90. On a murder trial the court instructed that defendant was presumed to be innocent till his guilt was established by competent evidence beyond a reasonable doubt, and if the jury had a reasonable doubt arising from the evidence they should acquit. Held not objectionable, as requiring affirmative evidence of innocence, or as contravening the rule that a reasonable doubt may arise from want of evidence as well as from evidence adduced.-Zwicker v. State, (Tex.) 11 S. W. 633.*

91. Though it is error, under Rev. St. Mo. §§ 1908, 1920, providing that in criminal cases the court must instruct the jury in writing, to give

stance

* *

*

oral instructions, yet such error is not cause for reversal, where they were given at the request of defendant, who saved no exceptions thereto, as section 1821 forbids any judgment to be arrested or affected "for any error committed at the inof defendant," and section 1921 provides that exceptions in criminal cases rest on the same footing, and have to be taken in the same way, as exceptions in civil cases, which latter, under section 3635, have to be taken at the time the error complained of occurs.-State v. De Mosse, (Mo.) 11 S. W. 781. Verdict.

statements. Held, that a new trial should be granted-Lucas v. State, (Tex.) 11 S. W. 443. 102. On motion for new trial, defendant's affidavits showed that one juror was not a householder in the county, nor a freeholder in the state; that he was not a resident of the county; that before being impaneled he was questioned, and answered under oath that he resided in the county, and was a qualified voter there; that the juror was a stranger to defendant, and that neither he nor his counsel knew that he was not qualified; also, that the juror, before being impaneled, had made statements showing prejudice against defendant, and that defendant and his counsel were ignorant of these statements at the time. There was no evi

93. The defects in spelling in a verdict reading: "We the josurys find defendant gilty," etc.,-are not material.-Shelton v. State, (Tex.) 11 S. W. 457.

94. Where two are jointly indicted and tried, a verdict of guilty which does not assess a separate penalty for each is bad.-Medis v. State, (Tex.) 11 S. W. 112.

95. Though Code Crim. Proc. Tex. art. 715, authorizes an informal verdict, with consent of the jury, to be reduced to proper form, the jury cannot be recalled, after discharge, to substitute a valid for an invalid verdict.-Ellis v. State, (Tex.) 11 S. W. 111.

96. The return of a verdict, properly signed, into court by the jury, and handed by the foreman to the judge, and by him to the clerk, who then reads it aloud, is a sufficient compliance with Crim. Code Ky. § 255, providing that "when a jury have agreed upon their verdict, they must be conducted into court, ** and their foreman must declare their verdict. "-Hasson v. Commonwealth, (Ky.) 11 S. W. 286.

*

Judgment and sentence.

* *

*

97. Kev. St. Mo. 1879, § 1253, is not unconstitutional in submitting the penalty of death or imprisonment for rape to the discretion of the jury. Should a defendant plead guilty to such charge, the court may assess the punishment, and render judgment by virtue of section 1930, conferring that power "in all cases of judgment by confession."Ex parte Dusenberry, (Mo.) 11 S. W. 217.

98. The jury were instructed that, if they found defendant guilty of murder, they should fix his punishment at death or confinement in the penitentiary for life, and, if guilty of manslaughter, the maximum was confinement for 21 years. The verdict was guilty, with "punishment in the penitentiary for 99 years. Held, that the court properly reformed the verdict, and made it read "punishment at confinement in the penitentiary for life. "-Bledsoe v. Commonwealth, (Ky.) 11 S. W.

84.

99. Where the allegations of an indictment for forgery, though so defectively stated as to render the indictment bad on demurrer, are yet sufficient to show that defendant had committed the offense of forgery within the county, the objection that it fails to charge that the person whose name was forged never authorized it to be signed cannot be raised on motion in arrest of judgment; the only ground for such motion, under Crim. Code Ky. $276, being that the facts charged do not constitute a public offense, within the jurisdiction of the court.-Hodges v. Commonwealth, (Ky.) 11 S. W.

821.

New trial.

100. A motion for a new trial, based on the court's refusal of a continuance to obtain absent witnesses, is properly refused, where it appears that the testimony of such witnesses is in part probably not true, and so far as it is probably true is merely cumulative.-Kilgore v. State, (Tex.) 11 S. W. 830. 101. While a case was being considered, two of the jurors told the others that they were quainted with a witness in the case, and that they did not regard him as worthy of credit, he having often lied to them. It appeared probable that one of the jurors was influenced in his verdict by such

ac

Tex. art. 631, requires that a juror be asked if he possess these qualifications, and provides that, if he states under oath that he does possess them, he shall be held to be qualified until the contrary ap pear by further examination or other proof. Held, that a new trial should have been granted.-Brackenridge v. State, (Tex.) 11 S. W. 630.

103. Where the affidavit of one juror shows that a verdict was arrived at by casting lots, and his statement is contradicted by ten other jurors, a motion to set aside the verdict on that ground will be denied.-McDade v. State, (Tex.) 11 S. W. 672. Appeal and error-Jurisdiction.

104. Rev. St. Tex. art. 361, provides that all trials and proceedings in recorders' courts shall be governed by laws and rules regulating justices' courts. Code Crim. Proc. arts. 894-896, empower mayors and recorders to exercise the same criminal jurisdiction as justices of the peace. Article 837 gives a defendant in any criminal case the right of appeal under the rules prescribed thereafter. Article 839 provides that appeals from justices of the peace and other inferior courts shall be heard by the county court, except that, in counties where there is a criminal district court, the latter court shall hear them. Rev. St. art. 1497, gives the criminal district court of Galveston and Harris counties exclusive appellate jurisdiction over all criminal cases tried before justices of the peace, mayors, and recorders, under the same rules provided for the county court in criminal cases. Held, that an appeal lies to the criminal district court in Galveston county in a criminal case tried before the recorder of a city, though the charter makes no provision for such appeal.-Bautsch v. City of Galveston, (Tex.) 11 S. W. 414.

105. A prosecution in a recorder's court for repairing a wooden building in violation of a city ordinance, though prosecuted in the name of the municipality, and not in the name of the state, is a "criminal case" or "criminal action," within Pen. Code Tex. art. 26, defining a criminal action as "the whole or any part of the procedure which the law provides for bringing offenders to justice,” and Code Crim. Proc. art. 61, which provides that "a criminal action is prosecuted in the name of the state of Texas, " etc.-Bautsch v. City of Galveston, (Tex.) 11 S. W. 414.

Practice.

106. Where one convicted of murder escapes from jail pending appeal, and fails to comply with an order of court to surrender himself to abide the result of the judgment of the appellate court, the appeal will be dismissed.-State v. Carter, (Mo.) 11 S..W. 979.

107. On appeal from the conviction of one D. for burglary of the house of one "C. F. Jones," the statement in the record was that a witness testified that he arrested "C. F. Jones," and that "C. F. Jones" confessed the crime and produced the stolen property. Held, that the statement would control as to the facts, where no exceptions were filed, though the court may believe that it was defendant, and not "Jones," who so confessed.Davenport v. State, (Tex.) 11 S. W. 836.

Review.

108. Under Crim. Code Ky. § 281, providing that decisions of the court upon motions for a new trial shall not be subject to exceptions, exceptions taken to such decisions will not be considered-Merritt v. Commonwealth, (Ky.) 11 S. W. 471.