fused. We have also carefully examined the evidence in the case, and in our judgment it supports the conviction. Affirmed. JAMISON V. STATE. (Court of Appeals of Texas. April 5, 1889.) FENCES-TRESPASS. 1. Under act Tex. March 17, 1887, p. 30, § 2, the sole owner of a fence dividing his land from that of another cannot withdraw or separate his fence from the adjoining fences of his neighbor without giving six months' notice; and, if he does so, exposing his neighbor's crops to danger, the latter may connect the fences again, and is not thereby a trespasser. 2. If, after the person whose crops were thus exposed restored the fence, the owner also pulls this down, he violates Pen. Code Tex. art. 684, forbidding a person to break, pull down, or injure the fence of another without his consent, etc. Appeal from Cooke county court; J. E. HAYWORTH, Judge. Pen. Code Tex. art. 684, provides that if any person shall break, pull down, or injure the fence of another without his consent, or shall willfully and without the consent of the owner open and leave open any gate leading into the inclosure of another, etc., he shall be fined, etc. R. V. Bell, for appellant. Asst. Atty. Davidson, for the State. WILLSON, J. Although the defendant was the sole owner of the fence dividing his farm from the farm of McNeill, he could not lawfully withdraw or separate said fence from the adjoining fences of said McNeill without first having given said McNeill, his agent or attorney, notice in writing of his intention to do so, for at least six months prior to so doing. Act March 17, 1887, p. 30, § 2. ure caused by the removal of said division fence. This being our view, other questions presented in the record are immaterial, and are therefore not determined. The judgment is atfirmed. JUNIPER V. STATE. (Court of Appeals of Texas. April 20, 1889.) INFORMATION-COMPLAINT. Where an information charges "Frederick Juniper," and the complaint charges "John Juniper," the variance is fatal. Appeal from Dallas county court; E. G. BOWER, Judge. Evans & Gooch, for appellant. Asst. Atty. Gen. Davidson, for the State. WILLSON, J. There is no complaint in the record to support the information. The information charges Frederick Juniper. There is a complaint in the record charging John Juniper, but none charging Frederick Juniper, with the offense charged in the information. This variance between complaint and information is fatal, and requires the conviction to be set aside. McDevro v. State, 23 Tex. App. 429, 5 S. W. Rep. 133. This defect is confessed by the assistant attorney general. The judgment is reversed, and the cause is remanded for such further proceedings as the state may see proper to pursue. LEE v. STATE. (Court of Appeals of Texas. April 13, 1889.) LARCENY-POSSESSION. 1. An instruction that "possession of property recently stolen is presumptive evidence of guilt" is error, as tending to lead the jury to believe that the law presumes guilt when recent possession is shown.1 2. An instruction that "if the first time defend ant's right to said property was called in question planation of his possession, it then devolves upon he gave a natural, reasonable, and satisfactory exthe state to prove that such explanation is false, and, if such explanation be not shown to be false, further evidence of defendant's guilt will be required," is correct.1 Appeal from district court, Dallas county; Charles Lee, convicted of theft, appeals. In this case the record fails to show that such written notice was given, and therefore the defendant acted in violation of the law, and of the rights of McNeill, in removing said division fence. By such removal the growing crops of McNeill were exposed to the depredations of stock without notice to him. Finding his crops thus suddenly and unexpectedly exposed to the danger of destruction, McNeill had the legal right to avert the danger by again connecting his fence with the fence of defendant, and in so doing did not violate the law, and cannot be regarded as a trespasser, although the conHURT, J. This conviction is for the theft necting portion of his fence was upon de- of a trunk, blankets, quilts, bed-spreads, and fendant's land. The intention of the law is divers other articles, aggregating a value of to protect growing crops from depredation, more than $20. The state relied alone upon and such intention would be defeated in this recent possession of a part of the goods, withinstance if we were to hold that the defend-out reasonable explanation of possession; that ant by his wrongful, illegal act of removing is, that appellant's explanation was not reathe division fence could deprive McNeill of Sonable. Upon this matter the learned judge his right to again connect his fence to said instructed the jury: "Possession of property division fence for the purpose of protecting recently stolen is presumptive evidence of his crops. Willson, Crim. St. § 1179. As we understand the purpose, spirit, and intent of article 684 of the Penal Code, the defendant violated said article by pulling down the portion of fence erected by McNeill for the purpose of closing the gap in his inclos from the possession of recently stolen property, 'Respecting the presumption of guilt arising and the necessity for an explanation of that possession, see Young v. Sate, (Fla.) 3 South. Rep. 881, and note; State v. Espinozei, (Nev.) 19 Pac. Rep. 677, and note; People v. Weldon, (N. Y.) 19 N. E. Rep. 279. Ap guilt, but to warrant this presumption from | us illustrate. A. is on trial for theft. The the circumstance of possession alone such pos- state proves that he is found in exclusive possession must be recent, must be personal and session of the stolen property; that his posexclusive, and must be unexplained; but if session was sufficiently recent to call upon the first time the defendant's right to said him for an explanation; that an explanation property was called in question he gave a was directly or constructively demanded of natural, reasonable, and satisfactory expla-him; and that he failed to explain. These nation of his possession, it then devolves upon are all the facts in the case bearing upon the state to prove that such explanation is the question whether or not he was the taker false, and, if such explanation be not shown of the property. Now, as a matter of fact to be false, further evidence of the defend---not of law-the presumption would arise ant's guilt will be required." That posses- that he was the person who took the propsion of property recently stolen is presump-erty, and the jury would be authorized to tive evidence of guilt, as contradistinguished make such presumption and convict him. from positive or direct evidence, is unques- But, while this is so, it does not follow that tionably true. Nor could there be in any the court can instruct the jury to make such case danger to the accused for the court to conclusion and convict; nor can the court simply instruct the jury that such was the tell the jury that the law ingrafts upon such character of the evidence; that is, to inform a state of case such a presumption. the jury that possession of property recently pellant insists that the evidence is not suffistolen is not positive, but circumstantial or cient to sustain the conviction. We will not presumptive, evidence. But to instruct that discuss the evidence, remarking, however, such possession is presumptive evidence of that we have some doubts as to its sufficiency. guilt may not be proper, and may work seri- For the error in the charge noted above the ous injury to the accused. If the jury should judgment is reversed, and the cause remanded. understand the court as merely intending by such instruction to draw the distinction between positive and presumptive evidence, then there would be no harm; but if they should believe from such instruction that, as a rule of law by which they must be governed, they should presume guilt, or that the law presumes guilt, when recent possession is shown and the accused fails to explain his his possession, then, we say, if such should be their opinion of the charge, a wrong impression would be made upon the minds of the jury, though the possession be recent and unexplained. The instruction quoted, being so framed as to be regarded in the light of the last proposition, was erroneous; and, when viewed in connection with the other facts in this case, was such error as was reasonably calculated to injure the rights of accused. TRACY v. STATE. (Court of Appeals of Texas. April 27, 1889.) CARRYING WEAPONS-INSTRUCTIONS. Where the information charges, and the proof establishes, the carrying of a pistol only, it is error to instruct the jury as to carrying a dagger, dirk, etc. Appeal from Wichita county court; E. W. In WILLSON, J. The information alleges that defendant unlawfully carried upon his person a pistol. He was put on trial on this charge alone, and all the evidence introduced The rule which has been repeatedly stated related to the carrying of no other weapon by this court, following Perry v. State, 41 than a pistol. In his charge to the jury the Tex. 483, is that "proof of the possession of court not only instructed with reference to a property, however recent, and whether ex- pistol, but also as to a dagger, dirk, slungplained or not, is merely a fact or circum-shot, sword-cane, spear, knuckles, etc. stance to be considered by the jury in connec- fact he gave in charge article 318 of the tion with all the other facts submitted to them | Penal Code literally and entirely. Defendant in determining the guilt of the possessor.' promptly excepted to the charge, and reWhile this is so, the court should not fail, when the accused explained or accounted for his possession, to properly instruct the jury as to the effect of such evidence, upon which point this charge is correct. We deem it necessary here to make some observations upon this subject. Under our Code the judge shall not discuss the facts, nor charge upon the weight of the evidence; and, this being a question of fact, and not of law, any instruction given as to the effect of or presumption arising from other facts proved is not permitted by the Code. But, while the court is not permitted to draw conclusions or make presumptions from other facts, it does not follow that the jury cannot; on the contrary, this is their duty, as well as province. Let served a proper bill of exceptions. Said charge is manifestly erroneous, because in part it is unwarranted by the pleading and evidence, and is not the law applicable to the case. The charge should have been confined to the specific facts, the specific weapon charged in the information, and to which the evidence related. The charge also embraced literally and in its entirety article 319 of the Penal Code, which is law not applicable to the evidence in the case, and should not have been given. The special instructions requested by defendant are not the law applicable to the facts in evidence, and were properly refused. Because of the error in the charge excepted to as above stated, the judgment is reversed and the cause remanded. BLACK V. STATE. (Court of Appeals of Texas. April 27, 1889.) CARRYING WEAPONS-CONTINUANCE. Defendant was convicted on the testimony of a single witness that he saw him carrying a pistol. 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, authorizing a new trial, under Code Crim. Proc. Tex. art. 560, subd. 6. Appeal from district court, Wilson county; GEORGE MCCORMICK, Judge. William Miller appeals from a conviction for perjury. Code Crim. Proc. Tex. art. 746, provides that a conviction for perjury can be had only upon the testimony of two credible witnesses, or of one credible witness strongly corroborated by other evidence, as to the falsity of the defendant's statements under oath, or upon the defendant's confession in open court. Asst. Atty. Gen. Davidson, for the State. WILLSON, J. This is a conviction for perjury. The indictment is a good one, and the exceptions thereto and motion in arrest of judgment were properly overruled. There is no statement of facts in the record, and were it not for a fundamental defect in the charge of the court the judgment would be affirmed. The insufficiency of the charge consists in the omission to give in charge to the jury article 746 of the Code of Criminal Procedure, which is an essential part of the law of every perjury case, and must be given The prosecution was for carrying a pistol. A single witness testified that he saw the defendant with the pistol on his person. The defense relied on was that the defendant purchased the pistol on that same day, and was lawfully taking it home. His application for continuance set up that such defense could be established by the absent witnesses, Wal-in charge, whether requested by defendant or lace, who sold him the pistol, and defendant's brother, J. H. Black, who was present and witnessed the purchase. For diligence the application showed that subpoena issued for Wallace on the day the indictment was found, Wallace being a resident of Wilson county, and that on the same day, J. H. Black being then in Gonzales county, an attachment was issued for him, but that Black, at the time of this trial, was confined to his bed, unable to be moved, by the fracture of an arm. B. F. Ballard, for appellant. Asst. Atty. Gen. Davidson, for the State. not. Omission to give it in charge is fundamental error. Gartman v. State, 16 Tex. App. 215; Washington's Case, 22 Tex. App. 26, 3 S. W. Rep. 228. The judgment is reversed, and the cause remanded. CUNNINGHAM v. STATE. (Court of Appeals of Texas. April 20, 1889.) LARCENY-EVIDENCE-INSTRUCTIONS. 1. On a trial for theft of a railroad ticket, a let ter from the general passenger agent to the conductor of the line, informing him of the theft, and directing that the ticket be taken up and canceled, property of the value of $20 or over, an instruction 2. Where the statute makes it a felony to steal that, if the jury have a reasonable doubt whether the value was over $20, they should convict of misdemeanor, is error, and, though favorable to defendant, is reversible error, if exceptions are prop erly reserved. WILLSON, J. We think the court erred in is properly excluded as immaterial. refusing defendant a new trial. His application for continuance was a first one, and was in compliance with statute, both in form and substance. It showed legal diligence to obtain the absent testimony, and the materiality of such testimony. Viewed in connection with the evidence adduced on the trial, the absent testimony would be material to the defendant, as it would tend strongly to establish for him a valid defense; and, there being nothing in the testimony adduced on the trial to contradict or render it improbable, we must hold that the facts set forth in the application for continuance are probably true. Code Crim. Proc. art. 560, subd. 6; Willson, Crim. St. § 2186. The judgment is reversed, and the cause remanded. MILLER v. STATE. (Court of Appeals of Texas. April 27, 1889.) PERJURY-INSTRUCTIONS. It is fatal error in a trial for perjury for the court to omit to charge the provision of Code Crim. Proc. Tex. art. 746, that conviction can be had only on the testimony of two credible witnesses, or of one, strongly corroborated by other evidence, of the falsity of the statements under oath, or on confession in open court. Appeal from district court, Caldwell county; II. TEICHMUELLER, Judge. 3. An instruction that, though the property came into defendant's possession by lawful means, but the owner of the value, etc., he was guilty of theft, defendant afterwards took it with intent to deprive is erroneous, as, under Pen. Code Tex. art. 727, the original taking must be with fraudulent intent.1 4. Where all the evidence showed that the property if worth anything was worth more than $20, an instruction submitting the issue of petty theft or theft of property under that value was error. the jury should find the ownership of the property as charged was not reversible error, when there was no dispute as to the ownership, and no requested instruction to that effect, and where the jury were charged as to the necessity of finding all the other essential elements and ingredients of the theft. 5. Failure to submit by express instruction that Appeal from district court, Dallas county; R. E. BURKE, Judge. J. W. Cunningham appeals from a conviction for theft. Asst. Atty. Gen. Davidson, for the State. WHITE, P. J. 1. The witness Hirsch swore positively that the railroad ticket was 1 See note at end of case. purchased by him in Dallas for $25, and that it was worth in Dallas $55. This fact having been thus proved by this witness renders appellant's first three bills of exceptions reserved to the admission of evidence of value, over his objections, immaterial, and if in any manner erroneous the error is without prejudice and harmless. 2. There was no error in excluding the letter of Cark, the general passenger agent of the railroad, notifying conductors that said ticket had been stolen, and instructing them to take up, cancel, and return the same to his office. The rejected evidence could throw no light upon the transaction under investigation. This cepted to, and is presented by a proper bill of exceptions on appeal, the statute (Code Civil Proc. art. 685) is mandatory that the conviction shall be set aside without inquiry as to the effect of such error upon the jury. Willson, Crim. St. § 2363. (3) Another portion of the charge which was excepted to was as follows: "But if you are satisfied that although the ticket came into his [defendant's] possession by lawful means, and you are further satisfied from the evidence, beyond a reasonable doubt, that the defendant afterwards took the ticket with the intent to deprive the railway company of the value thereof, and appropriate the same to his own use and benefit, and the same was so appropriat3. Several objections to the charge of the ed, the offense of theft is complete." court were saved by bills of exception which instruction was erroneous. The correct rule appear in the record: (1) The ownership of is "that, when the taking of the property the ticket was averred in the indictment to was originally lawful,-that is, when the be in the Gulf, Colorado & Santa Fe Railway property came into the possession of the acCompany, and the court nowhere instructs cused not wrongfully but lawfully,-a conthe jury in terms that they should find the viction for theft cannot be sustained unless ownership to be proved, as charged, in order it be shown that the accused obtained the to convict; but, while this charge is, per- property by some false pretext, or with the haps, critically obnoxious to the objection, yet, intent, at the very time of obtaining it, of when taken in connection with the fact that depriving the owner of the value thereof, and there was no question as to ownership and of appropriating the property to the use and possession raised by the evidence, and the benefit of the person taking; and it must furfurther fact that the jury were charged as to ther appear that the property was so apthe necessity of finding all the other essential propriated." The fraudulent intent must ingredients and elements of a theft of prop-exist at the very time of acquiring the property stolen from the possession of said rail-erty. No subsequent fraudulent intent or road company, we do not think the omission appropriation of the property will suffice to complained of would be reversible error, in the absence of a special requested instruction supplying the defect or omission. There was no contest or dispute as to ownership and possession. It was fully proved as alleged, and the jury could not possibly have 4. The charge was also specially excepted been misled, nor the accused in any manner to because it submitted the issue of petty or prejudiced, by the omission to charge in misdemeanor theft, that is, theft of propterms the necessity of finding the fact as al-erty under the value of $20,-there being no leged and as proved. Had there been any question as to ownership, the objection would doubtless have been fatal. Kay v. State, 40 Tex. 29; Bray v. State, 41 Tex. 560; Williams v. State, 4 Tex. App. 5; Robinson v. State, 5 Tex. App. 519; Smith v. State, 7 Tex. App. 382. (2) With regard to the value of the ticket, the jury were instructed that if they believed the theft had been committed in Burleson county, and the property was brought by defendant into Dalias county, "but that the market value of the ticket at Dallas was not over $20; or, if you have in your minds a reasonable doubt from the evidence as to whether the ticket was over the value of $20, then you should find him guilty of a misdemeanor," etc. The charge is erroneous in that the statute makes it a felony to steal property of the value of $20, and does not require that the value shall be over that amount. Pen. Code, arts. 735, 736. The instruction was favorable to the defendant, but, being erroneous, and excepted to at the time, the error is fatal. If error of law occurs in the charge as given, no matter how immaterial it may be, if it is promptly ex constitute the original taking theft. Willson, Crim. St. § 1269; Taylor's Case, 25 Tex. App. 96, 7 S. W. Rep. 861; Guest's Case, 24 Tex. App. 235, 5 S. W. Rep. 840; Penal Code, art. 727. evidence calling for such a charge, as all the testimony went to show that the ticket, if worth anything at all, was worth more than $20. This exception is also well taken. A charge which submits issues not raised by the evidence is erroneous, and, when excepted to, as in this case, such error is reversible. For errors in the charge of the court above pointed out the judgment is reversed, and the cause remanded. NOTE. LARCENY-WHAT CONSTITUTES-INTENT AT TIME OF TAKING. Where possession of property is obtained lawfully, the subsequent appropriation thereof, animo furandi, to the taker's use, does not constitute larceny. Boyd v. State, (Tex.) 6 S. W. Rep. 853; see, also, cases cited in note; People ler, (Utah,) 11 Pac. Rep. 514; Mead v. State, (Neb.) v. Cruger, (N. Y.) 7 N. E. Rep. 555; People v. Mil41 N. W. Rep. 277; People v. Gillis, (Utah,) 21 Pac. Rep. 404. In People v. Rae, (Cal.) 6 Pac. Rep. 1, Where, by means of fraud, conthe court says: spiracy, or artifice, possession of the property is obtained with felonious intent, and the title still remains in the owner, larceny is established." It is theft, under the Texas statutes, to point out the property of another, claiming it, and thus to sell it to a third person. Doss v. State, 2 S. W. Rep. 814. But it is not larceny to take a steer for the 66 purpose of fastening a board over his face to keep | act of April 2, 1889, a legal term of the dishim out of the fields, though without the owner's trict court for Karnes county could not be consent. Bryant v. State, (Tex.) 8 S. W. Rep. 937. An officer, to discover who had committed certain held, except at the times prescribed by said thefts, feigned a drunken slumber, with intent to act. allow any thief to rob him, in order to make a case of larceny against him, having no suspicion that defendant would be the one. While in this condition, perfectly conscious, and making no resistance, defendant took money from his person. Held, that the conduct of the officer did not constitute such consent as to take away a material element of the crime, and that defendant was guilty of larceny. People v. Hanselman, (Cal.) 18 Pac. Rep. 425. Taking property under a bona fide claim of right is not larceny, People v. Schultz, (Mich.) 38 N. W. Rep. 869; Buchanan v. State, (Miss.) 5 South. Rep. 617; but where possession is obtained by a false pretense it is larceny, State v. Hall, (Iowa,) 40 N. W. Rep. 107; as by defendant representing himself as purchasing agent for another, to whom the goods are charged, Harris v. State, (Ga.) 7 S. E. Rep. 689. In general, as to what constitutes larceny, and the character of the taking necessary, see Johnston v. State, (Tex.) 9 S. W. Rep. 48; Connor v. State, (Tex.) 6 S. W. Rep. 138; Com. v. Eichelberger, (Pa.) 13 Atl. Rep. 422; Haley v. State, (Ark.) 4 S. W. Rep. 746; Howard v. State, (Tex.) S S. W. Rep. 806; People v. Eastman, (Cal.) 19 Pac. Rep. 266. See, also, De Mint v. State, (Tex.) 9 S. W. Rep. 738; Brooks v. State, Id. 562; Minter v. State, Id. 561. Ex parte MURPHY. (Court of Appeals of Texas. April 24, 1889.) CONSTITUTIONAL LAW-TERMS OF Court. Act Tex. April 2, 1889, changing the time of holding the district court in Karnes county from the fifth after the first Monday in March to the fourth Monday in March, and containing an emergency clause, and providing that the act shall take effect from its passage, is constitutional, but does date fixed by the act, and so as not to deprive the county of the two terms each year provided for by Const. art. 5, § 7. not take effect until the terms can be held at the F. R. Graves, for appellant. Asst. Atty. Gen. Davidson, for the State. WILLSON, J. On the fifth Monday after the first in March, 1889, being the 8th day of April, 1889, a term of the district court for Karnes county was begun and held in said county, and at said term the applicant was convicted and sentenced for the felony of incest. He applied to the Honorable H. C. PLEASANTS, judge of said court, for the writ of habeas corpus, which was granted, and upon a hearing of said writ he was remanded to the custody of the sheriff of said county, that said sentence might be executed. He has appealed to this court, insisting that said conviction is illegal and void, because rendered at a time when a legal term of the district court of Karnes county could not be held. The facts are that the said term was held at the time fixed by the act of 1885, (Laws 1885, p. 8,) that is, commencing on the fifth after the first Monday in March. On April 2, 1889, six days prior to the convening of said term, on April 8th, an act was passed by the legislature changing the time of holding said court in said county to the fourth Monday in March. This act contains an emergency clause, and declares that it shall take effect from its passage. Applicant contends that after the passage of said court at which the conviction was had was a district would have to continue to be held at RANDOLPH v. STATE. (Supreme Court of Texas. April 12, 1889.) PUBLIC LANDS-DEMURRER-APPEAL. 1. Act Tex. April 14, 1883, provides that if the ulent purchases of public lands, and conclude that land board discover certain illegal or fraudu the interests of the common school fund will be subserved by the institution of suits to annul the purchases, it shall notify the attorney general of their conclusions, and he shall institute suit, etc. Held, that the question of the right of the attorney general to bring a suit without specific direction to do so cannot be raised by demurrer. that the suit be brought against any particular per2. It is not necessary that the board shall direct son, and where defendant, after suit brought, conveys to another, and dies pending suit, the grantee and those in whose names the application to purchase was originally made may be made defendants, and the heirs of the original defendant need not be joined. 3. The suit may be maintained against the subsuit brought within 12 months after the act of stituted defendants, not as a new suit, but as a April 14, 1883, took effect, though the conveyance |