jury by the charge of the court. We are of opinion that the evidence warranted the jury in finding against the defendant upon said issue. It was shown that at the time defendant carried the pistol he was fleeing from the officers of the law to evade arrest. It is not the intention of the law to license fugitives from justice to carry arms. They are not "persons traveling" within the meaning of the exception in the statute. There is, no proof in the record of the venue of the offense, and therefore the conviction must be set aside. This error is confessed by the assistant attorney general. The judgment is reversed, and the cause remanded.

WRIGHT v. STATE.

is claimed by defendant that the conviction is wrong for two reasons: First, that at the time he carried the pistol he was a "person traveling;" and, second, that he had reasonable ground for fearing an unlawful attack upon his person, etc. A person traveling" may lawfully carry upon his person a pistol or other weapon. Pen. Code, art. 319. In this case the evidence shows that the defendant, accompanied by his wife and child, left his residence in the Indian Territory, to go to Bloomfield in Cooke county, a distance of 50 miles, to the home of the defendant's wife's parents. They traveled in a wagon. Two other persons went with them in the wagon, who intended to and did stop at Gainesville, which place was on the route to Bloomfield. They reached Gainesville at

(Court of Appeals of Texas. April 10, 1889.) night, and stopped at a wagon-yard.

CRIMINAL LAW-PLEA-VERDICT.

Where a plea of former conviction is interposed, the court must instruct the jury to find specially on such plea, and, on failure so to instruct and find, a verdict of guilty will be reversed.

Appeal from Cooke county court; J. E. HAYWORTH, Judge.

an omission to so state is error for which the

De

fendant left his wife, child, and companions at the wagon-yard, saying that he would go into town and try to hire a hack to take his wife and child on to Bloomfield that night, as the team which had brought them to Gainesville was fatigued, and he did not wish to drive it further that night. He was Asst. Atty. Gen. Davidson, for the State. shortly afterwards arrested in a gamblingWILLSON, J. In the trial court the de- other persons, and a pistol was found on his house, while he was sitting at a table with fendant pleaded in due form a former conperson. We are clearly of opinion that while viction for the same offense. Evidence was adduced by him in support of said plea, and Gainesville, and while he was at the wagonhe was making the journey from his home to the court submitted the issue made by said yard where he had stopped, he was a "person plea and evidence to the jury. The verdict of the jury does not find whether said ute, and did not violate the law in carrying traveling," within the meaning of the statplea is true or untrue, but merely finds the a pistol on his person during that time. We defendant guilty as charged, and assesses the are also of opinion that he might lawfully punishment. Where a special plea is sub- have carried the pistol on his person in the mitted to the jury the verdict must expressly town of Gainesville during a temporary cesstate whether said plea is true or untrue, and sation of his journey, and for a legitimate or provisions, or to transact other business purpose, such as to procure a conveyance, connected with the prosecution of his journey. But beyond this we do not believe the law intends to protect him. It would be an of the law to hold that a person travelunreasonable interpretation of the intent ing might stop in a town or city, and idly stroll through its streets and visit its gambling dens and saloons and public places, armed with a pistol. The practical result of such an interpretation of the statute would cause our cities and towns to be infested with armed men, while the citizens of such places would be prohibited from carrying arms to protect themselves from these privileged characters. We are of opinion, therefore, that the evidence does not show that the defendant, at the time he was found in the gambling-house with the pistol upon him, was a "person traveling," within the meaning of the statute. He was not then traveling. He was not engaged in any business connected with his journey. If he was so engaged it devolved upon him to show it, which he failed to do. His having the pistol on his person at the time, place, and under the circumstances proved, made a prima facie case of guilt against him, and it de

verdict must be set aside. Burk's Case, 24 Tex. App. 326, 6 S. W. Rep. 300; Smith's Case, 18 Tex. App. 329. The court in its charge should have instructed the jury explicitly that they must find and state on their verdict whether said plea was true or untrue. Such instruction the court failed to give. The judgment is reversed, and the cause re

manded.

STILLY v. STATE.

(Court of Appeals of Texas. April 10, 1889.) CARRYING WEAPONS.

A person who, traveling 50 miles in a wagon, stops at a midway town, and, telling his wife that he will go and find a hack to take her along, goes into town, and is arrested afterwards in a gamblinghouse while sitting at a table with others, with a pistol on his person, is not at the time of arrest a "person traveling," within the exception of Pen. Code Tex. art. 319, defining the offense of carrying

weapons.

Appeal from Cooke county court; J. E. HAYWORTH, Judge.

Mathis & Lewis, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J. This conviction is for unlawfully carrying a pistol on the person. It

Appeal from Dallas county court; E. G. BOWER, Judge.

volved upon him to establish the facts or cir- | cumstances on which he relied to excuse or justify the prohibited act. Pen. Code, art. 51. Steve Stevens appeals from a conviction As to the other defense claimed by defend- for aggravated assault. According to the ant, the evidence does not establish it. No witness for the state, the defendant and such danger existed as is contemplated by the Blasdell, who were solicitors for rival omnistatute, and the court did not err in refusing bus lines, got into a dispute while endeavorthe special instructions requested by defend-ing to secure a certain passenger. While ant. We are of opinion that there is no error expatiating on the superior qualities of his in the conviction, and it is affirmed.

O'BRIEN V. STATE.

(Court of Appeals of Texas. April 10, 1889.) BURGLARY-INDICTMENT.

Under Texas statutes, an indictment for burglary with intent to commit theft, which fails to allege that defendant entered the house with the fraudulent intent to take the property from the possession of the owner, and also to allege, in charging the theft, that the property was taken from the possession of the owner, is fatally defective.

Appeal from district court, Dallas county; R. E. BURKE, Judge.

Asst. Atty. Gen. Davidson, for the State.

bus the defendant held his walking-stick between the passenger and Blasdell's bus, when Blasdell told him to take it down. He replied that he would use it on Blasdell. Blasdell then pushed it out of the way, when defendant struck him two blows, and ran,the second blow being the one described in the opinion. According to the witnesses for the defense, Blasdell called defendant ad―d black son of a bitch, and struck him two blows in the face, before defendant struck him. He struck Blasdell both blows while

Blasdell was advancing on him. The motion for continuance set up that by the absent witness the defendant would prove that Blasdell cursed and abused defendant, and assaulted him, and that defendant struck Blasdell in self-defense, and while retreating before the advance of Blasdell. For diligence it was shown that the motion was filed on the day of the trial, October 18th; that the absent witness was a resident of the city of Dallas,

was issued for him on October 8th, an attachment on October 9th, another subpœna on October 15th, and still another on October 18th,-all of which were returned "not found."

HURT, J. This is a conviction for burglary. The entry into the house is alleged to have been made with intent to commit theft. The indictment fails to allege that the appellant entered the house with the fraudulent intent to take the property from the possession of the owner, etc., and that part of the indict-in which the trial was had; that a subpoena ment charging the theft fails to allege that the property was taken from the possession of the owner. Theft, as are all other offenses in this state, is a crime by statute, and the rules of pleading applicable to such offenses must prevail. The language of the statute must be followed, or language of equal or greater import must be used. Now, there is no term used in the indictment which is sufficient to convey the same meaning as that used in the statute. The property may have been taken from the owner, and yet not taken from his possession. We are of opinion that the indictment is not sufficient. Reversed and dismissed.

STEVENS v. STATE.

(Court of Appeals of Texas. April 10, 1889.)

ASSAULT AND BATTERY-CONTINUANCE.

1. Evidence that defendant struck a person with a "good-sized walking-stick made of bois d'arc, and loaded;" that it was a "fair-sized walking stick;" that the last blow was over the eye, and stunned the assaulted person; that the blow "cut the skin;" and that blood was wiped from the forehead,-is insufficient to convict of assault with a deadly weapon, or of an assault inflicting serious bodily injury.

2. It appearing 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, a continuance for an absent witness, by whom defendant promises 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. "

J. J. Eckford, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J There were two counts in the information upon which this conviction was had, viz., one for an aggravated assault committed with a deadly weapon, and one for an aggravated assault, by which serious bodily injury was inflicted. In our opinion neither of these counts have been established by the evidence as disclosed in the record before us. The only evidence as to the character of the weapon used is that "it was a good-sized walking-stick, made of bois d'arc, and loaded." Defendant's witness testified that "the walking-stick was a fair-sized walking-stick." There is no evidence that it was a deadly weapon. As to the injury inflicted, the injured party, Blasdell, testified that "when he was struck again over the eye, this last blow partially stunned him, and the defendant ran off." The other state witness says: "The lick over the eye cut the skin." Another witness saw Blasdell wipe blood from his forehead. This evidence is insufficient to show serious bodily injury. Under the circumstances developed by the evidence adduced at the trial, we are further of opinion that a new trial should have been awarded on defendant's application for a continuance. We think the application showed sufficient diligence in the first instance, and the ma

teriality and probable truth of the proposed | with defendant and one W. C. Jump on testimony, in the light of the other testimony, is, we think, unquestionable. The judgment is reversed, and the cause remanded.

stored to competency as a venireman. Bailey | error is that the verdict is not supported by being a competent juror, the state should the evidence. In this we think counsel for have been compelled to challenge him either appellant are correct. We are not willing to for cause or peremptorily.

sanction and allow to serve as a precedent a verdict founded upon such vague and inconclusive facts. For the reasons noted above the judgment is reversed, and the cause re

JUMP v. STATE.

(Court of Appeals of Texas. April 10, 1889.) MURDER-EVIDENCE.

1. On a murder trial, evidence that one separately indicted for the same offense as defendant was arrested some time after the murder, about 400 miles from the place of the crime, is inadmissible, as, if a conspiracy had existed, it had then ended. 2. Evidence that defendant, after the disappearance of the person for whose murder he was indicted, collected money due such person, is admisthat the debtor stated that he was indebted to sible; and the fact that his name was Spears, and Pierce, is immaterial, where it is shown that they were the same person, and that the debtor knew him by the wrong name.

Appeal from district court, Dallas county; R. E. BURKE, Judge.

The indictment alleges that appellant shot and killed deceased "with a weapon to the grand jurors unknown." If the pleader had alleged a gun as the weapon, under such al-manded for another trial. legation, proof that deceased was shot with any character of fire-arms would have been competent. But, having omitted to name the weapon, the state introduced evidence to prove diligence on the part of the grand jury to ascertain the character of the weapon,that is, whether a gun or pistol, we suppose, -and the county attorney propounded this question to the foreman of the grand jury: “What effort, if any, did you make to learn the manner and cause of the death of deceased, and what conclusion did you arrive at?" The witness answered: "We had a great many witnesses before the grand jury, and we returned this indictment, which we thought was right." Counsel for appellant objected to the question, and also to the answer. We are of opinion that the objection to the question was well taken; because, if it was the purpose of the state to show that the grand jury had used the necessary diligence to ascertain the weapon (whether gun or pistol) with which deceased had been killed, then the question was too broad,was too comprehensive,—and was clearly calculated to elicit the answer given by the wit- HURT, J. This is a companion case to ness, and which answer was most evidently that of Monk v. State, ante, 460, (just decidincompetent, and very prejudicial to accused. ed.) Monk and Jump were separately inIf the state desired to show diligence on the dicted for the murder of C. Spears. They part of the grand jury to learn whether de- were separately tried, and convicted, this apceased was shot with a gun or pistol, the wit-pellant being given 25 years in the penitenness should have been asked: "What efforts, tiary. The state proved, over objection, that, if any, did you make to ascertain the fire-arm after the death of Spears, appellant collected with which deceased was killed?" Such a question could have been answered without danger to the rights of the accused, and the witness would be confined to the diligence regarding the weapon.

The indictment alleging that the deceased came to his death by being shot, the state was bound to prove this to be true, and this fact must be proved by competent and not hearsay evidence. Over objection of defendant, the state, by the witness Alexander, showed that he was the justice of the peace in the precinct in which the body which was supposed to be that of Calvin Spears was found, at the time that said body was found, and that he held an inquest over said body, and that he and the jury of inquest examined a great many witnesses at said inquest, and searched the ground near where the body was found for weapons, and from the hole in the head and the appearance of the body, and the testimony of witnesses, it appeared that the deceased came to his death by being shot. This testimony is obnoxious to two objections: (1) A part of it is hearsay; (2) a part is the opinion of the witness, the result of an investigation to which the appellant was in no manner a party. Appellant's last assignment of

W. C. Jump appeals from a conviction for murder. For statement of facts and further syllabi, see Monk v. State, ante, 460.

Asst.

Fitzhugh & Wozencraft, Smith & Obenchain, and K. Forer, for appellant. Atty. Gen. Davidson, for the State.

$10 from the witness Adams, which money Adams owed to Spears. This, under the facts of this case, was competent evidence. But counsel for appellant contends that as the witness Adams states that he was indebted to C. Pierce, not Spears, the fact that appellant collected the money was immaterial. This would be correct but for the proof that Spears and Pierce was the same person; that Adams knew him by the name of Pierce, while his true name was Spears.

There was error in permitting the state to prove by J. H. Taylor the matters complained of in bill of exceptions No. 4. See opinion in Monk's Case, with reference to the testimony of Alexander. And the court also erred in permitting the state to prove by Alexander the matters complained of in bill No. 5. This matter is also discussed in Monk's Case.

It was also error to permit the state to prove by Lewis, the sheriff, that after the homicide he arrested Monk in Mason county, 400 miles from Dallas, because, if a conspiracy between Monk and defendant Jump had been shown, it had unquestionably ended. We will not discuss the rule relating to the admission in evidence of the acts and declara

tions of a co-conspirator; for, if what has al- | evidence, the case was one of possession, exready been said in repeated decisions cannot plained by defendant, of property recently be understood, we feel our inability to ex-stolen, the sufficiency of such explanation press our views more explicitly, or with being a question for the jury. The factum greater clearness.

DONALDSON v. STONE et ux.

(Court of Appeals of Kentucky, May 2, 1889.) SERVICE OF PROCESS-GUARDIAN AND WARD. 1. Civil Code Ky., before the amendment of January 16, 1882, required the summons to be served on the father of an infant under 14 years of age. Held, that service on the father of several defendAsst. infant described in the summons, where a guardants under that age is good as to an unchristened ian ad litem is appointed and defense is made for all, though the father is a party plaintiff, and the sheriff's return mentions the other children, but