and there formally acknowledged and witnessed. By the will as written that day the 206 acres deeded by appellant, as well as the other 100 acres, is devised to appellant in fee defeasible. By two separate codicils this will is modified, so that the wife of appellant, he having married since the original was executed, was given a life estate in 100 acres of the land in case of defeasance on the death of appellant. By the second codicil the 100 acres devised was changed to the appellees. Besides these documents themselves, the deposition of one witness is taken, who undertakes to detail the contract as related to her by Mildred A. Thomson. In the testimony of this witness there is nothing to contradict the idea that the will was made as the agreement contemplated. This witness does not contradict the writings themselves. We are of opinion that the appellant has failed to establish the agreement as alleged by him. Before the court would be authorized to cancel and set aside the solemn writing, executed and acknowledged, the proof should be clear and convincing, which does not appear here. The judgment of the court below was therefore not error. In this view of the case, it becomes unnecessary to discuss the questions of statute of frauds or of compromise. Judgment affirmed.

TREADWAY V. COLDIRON'S ADM'R. (Court of Appeals of Kentucky. Feb. 6, 1901.) Appeal from circuit court, Clay county. "Not to be officially reported.' Action by C. L. Coldiron's administrator against John Treadway for a new trial. Judgment for plaintiff, and defendant appeals. Affirmed. Jas. H. Jeffries, for appellant. Tinsley & Faulkner, for appellee.

GUFFY, J. This is an appeal from a judgment of the Clay circuit court granting a new trial in the case of this appellant against Coldiron's administrator. It is insisted for appellant that the petition was insufficient, and that appellant's demurrer should have been sustained. We are of opinion that the petition was sufficient, and hence the demurrer was properly overruled. The answer may be considered as a traverse of the averments of the petition. The court below, after considering the evidence, awarded a new trial in the case. After a careful consideration of all the facts and circumstances involved in the case, we are not inclined to disturb the judgment of the trial court. Judgment affirmed.

WILLIAMS v. PRESTON. (Court of Appeals of Kentucky. Jan. 25, 1901.) Appeal from circuit court, Johnson county. "Not to be officially reported." Action by Angie J. M. Preston against Dellia Williams to enforce a vendor's lien. Judgment for plaintiff, and defendant appeals. Affirmed. Vaughan & Wheeler, for appellant. T. S. Kirk, for appellee.

WHITE, J. This is an action by appellee to recover $200, the balance of purchase money alleged to be due on a tract of land sold and conveyed to appellant, and for an enforcement of the vendor's lien. Appellant pleaded that the consideration for the land was only $200, and not $300, as expressed in the deed, and that the note sued on had been altered and raised from $100 to $200, and further pleaded payment in full of the $200; filing a receipt for $100, alleged to be in full of the note sued on before it was raised to $200. Appellee, by reply, denied that the consideration was only $200, but alleged it was, as recited, $300; denied that the note sued on had been altered or raised since it was delivered to her, and denied that it had been paid, or that the receipt filed was genuine, or that any payment as recited in the receipt had been paid; admitted

that $100 of the purchase money had been paid; and asked judgment for the $200 balance due. On the issues thus presented proof was taken, and the court, on trial, determined those issues in favor of appellee, and gave judgment for the full amount claimed, $200, with a decree enforcing the lien; and from that judgment this appeal is prosecuted. The original note, receipt, and signatures of the appellee are brought up by subpoena duces tecum for our inspection. From the evidence and a careful inspection of the original papers, we are of opinion that the true consideration for the land was, as is recited, $300. While it is clear that the note sued on was at some time altered from $100 to $200, it does not appear that this was done after its delivery to appellee. The consideration expressed in the deed is $300, and the weight of the testimony is that $300 was the true consideration. There is no direct proof that appellee signed the receipt for $100, purporting to be in full of this note at $100. On the contrary, she expressly denies the signature or the payment. The sig nature to the receipt resembles the original signatures of appellee before us, but there is a very marked feature about the signature to the receipt. The name "Angie" is spelled "Amgie." It is hardly probable that a person who is in the habit of spelling her own name would misspell it when signing a receipt. The fact that the signatures resemble each other is not of great weight; for it would not be worth while to forge a person's name, unless it resembled the genuine, so as to deceive the casual observer. On the whole case, we are of the opinion that the judgment appealed from is correct; and it will therefore be affirmed, with damages.

STATE v. FLYNN. (Supreme Court of Missouri. Feb. 19, 1901.). In banc. Appeal from St. Louis court of criminal correction. John Flynn was convicted of book-making and poolselling without a license, and appeals. Affirmed. T. J. Rowe, for appellant. Edward C. Crow, Atty. Gen., Sam B. Jeffries, Asst. Atty. Gen., and H. S. Priest, for the State.

BURGESS, C. J. This is a companion case of State v. Thompson, 60 S. W. 1077, decided at the present term, and not yet officially reported: and, for the same reasons given in that case, the judgment is affirmed. All concur.

STATE v. McKINLEY. (Supreme Court of Missouri, Division No. 2. Feb. 12, 1901.) Appeal from criminal court, Buchanan county; B. J. Casteel, Judge. Finley McKinley was convicted of an assault with intent to kill, and he appeals. Affirmed. L. A. Michelson and L. M. Green, for appellant. The Attorney General, for the State.

SHERWOOD, J. For an assault made upon John R. McKinniss with a loaded revolver, and shooting him in the head with intent to kill, defendant being tried, the jury returned a verdict finding him guilty and fixing his punishment at a fine of $100 and six months in the county jail. There is no appearance or brief on part of defendant, nor on part of the state, nor is there any index to the bill of exceptions; so that we have had no guide or help in digging out the facts from this record. The assault in the case at bar was made by defendant on his brother-in-law. The evidence abundantly sup ports the verdict, the instructions are all that were required, and the verdict returned was in conformity to section 1848, Rev. St. 1899. Finding no error in the record, judgment affirmed. All concur.

from circuit court, Dent county; L. B. Woodside, Judge. James Spear was convicted of assault, and appeals. Affirmed. J. J. Cope, for appellant. The Attorney General and Sam B. Jeffries, for the State.

BURGESS, J. At the April term, 1900, of the circuit court of Dent county, defendant was convicted of felonious assault upon the person of one Burl Talley, and his punishment fixed at two years' imprisonment in the penitentiary. The cause is before us upon defendant's appeal. The facts, briefly stated, are that on Sunday morning, April 1, 1900, Burl Talley rode up to defendant's house in Dent county, and got off of his horse and called for defendant. He was then about 20 feet from the house. Two persons were seen by Talley through the window of the house, one of whom he took to be a man and the other a woman. They told him to leave the place, which he attempted to do, and while in the act of mounting his horse the defendant fired his gun at Talley, and shot him in the back. He fell to the ground from the effect of the shot, but in a few minutes got up, caught his horse, which had broken away from him when the gun was fired, and left the place. Upon a careful examination of the record, we find it to be free from error. The shooting was without provocation or excuse, and the defendant's guilt clearly shown. The judgment should be affirmed, and it is so ordered.

SHERWOOD, P. J., and GANTT, J., concur.

STATE v. VANDENBURG. (Supreme Court of Missouri, Division No. 2. Feb. 12, 1901.) Appeal from circuit court, Lincoln county; E. M. Hughes, Judge. John Vandenburg was indicted for obtaining a check and note under false pretenses. From an order quashing the indictment, the state appeals. Reversed. The Attorney General and Sam B. Jeffries, for the State. Norton, Avery & Young, for respond

ent.

SHERWOOD, J. The defendant, alias John Burg, was indicted for obtaining a check for $10 from one Martin B. Rafter, on the Farmers' & Mechanics' Savings Bank of Troy, Mo., and also for obtaining from the same party a promissory note for $30, which check and which note were alleged to have been obtained by defendant through and by means of false pretenses. Defendant's motion to quash the indictment proved successful, and the state appealed; the sufficiency of the indictment being the only question the record presents. case is on all fours with that of State v. Same Defendant (decided at the present term) 60 S. W. 79, wherein it was ruled that an indictment substantially identical with the one at bar was not obnoxious to objection. That case dominates this one, and for like reasons the judg ment must be reversed and the cause remand. ed. All concur.

This

FRANKS v. STATE. (Court of Criminal Appeals of Texas. Jan. 30, 1901.) Appeal from Johnson county court; W. D. McKoy, Judge. China Franks was convicted of betting at a game of dice, and he appeals. Affirmed. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J. The indictment contains two counts, one for exhibiting a gaming table and bank, and the second for betting at a game with dice, called "craps." Appellant was convicted under the last count, and fined $10. Appellant's motion for new trial insists that the verdict of the jury is contrary to the law and the evidence. There is no statement of the facts contained in the record, and neither bills of exception nor the charge of the court. indictment is sufficient, and, no error appearing in the record, the judgment is affirmed.

The

GILLASPIE v. STATE. (Court of Criminal Appeals of Texas. Dec. 9, 1900.) Appeal from criminal district court, Harris county; E. D. Cavin, Judge. J. K. P. Gillaspie was convicted for failure to make statement of fees collected by him as district attorney, and appeals. Affirmed. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was indicted for failing to make a sworn statement showing the amount of fees collected by him as district attorney, and the amount of fees charged and not collected by him, during the year beginning December 1, 1897, and ending November 30, 1898, as required by the act of the called session of the 25th legislature. See page 5 of said Acts. Numerous objections are urged to the law under which the indictment was framed, principally that it was violative of the provisions of the constitution. These questions were decided adversely to appellant by our supreme court in Clark v. Finley, 54 S. W. 343. The record contains neither statement of facts nor bill of exceptions, and is brought up simply upon the legal questions involved in the motion to quash the indictment. Under the authority of the above-cited case, the judgment must be affirmed.

HUNT v. STATE. (Court of Criminal Appeals of Texas. Feb. 13, 1901.) Appeal from district court, Eastland county; N. R. Lindsey, Judge. Joe Hunt was convicted of burglary, and he appeals. Reversed. D. G. Hunt and Thomas, Spellman & Stine, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of burglary, and given two years in the penitentiary. This is a companion case to cause No. 2,165, Hunt v. State (just decided) 60 S. W. 965. The same questions are raised by appellant in this case as in that, and upon the authority of No. 2,165, and for the reasons there stated, the judgment in this cause is reversed, and cause remanded.

LONG v. STATE. (Court of Criminal Appeals of Texas. Jan. 23, 1901.) Appeal from Dallas county court; Kenneth Foree, Judge. C. A. Long was convicted of violating the local option law, and appeals. Affirmed. H. E. Cullom and R. M. Clark, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and 20 days' confinement in the county jail. There is no bill of exceptions in the record. We have examined the information and the charge of the court, and they are correct. The evidence is sufficient to sustain the verdict, and the judgment is affirmed.

MOSELEY v. STATE. (Court of Criminal Appeals of Texas. Jan. 30, 1901.) Appeal from district court, Limestone county; L. B. Cobb, Judge. Sonnie Moseley was convicted of grand larceny, and he appeals. Affirmed. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of the theft of a horse, and his punishment was assessed at two years' confinement in the penitentiary; hence this appeal. The assistant attorney general has filed a motion to strike out and hold for naught what purports to be a statement of the facts filed in the cause; the same not having been filed within the 10 days after the adjournment of the court allowed for

that purpose. The court explains that this failure was in no wise attributable to appellant, but to the sickness of the district attorney. There is an affidavit by the attorney of appellant to the same effect. This is not controverted by the state. We hardly think the showing sufficient; but, concede it is, and the only question raised by appellant is the sufficiency of the testimony to sustain the verdict. We have carefully examined the record in that respect, and in our opinion the facts and circumstances detailed by the witnesses are sufficient to support the finding of the jury. The judgment is affirmed.

WARD v. STATE. (Court of Criminal Appeals of Texas. Jan. 23, 1901.) Appeal from Jones county court; J. C. Philips, Judge. Sim Ward was convicted of obstructing a public highway, and appeals. Affirmed. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. This is a companion case to cause No. 2,217, Ward v. State (just decided) 60 S. W. 757, and involves the same transaction. For the reasons indicated in that opinion, the judgment herein is affirmed.

& Son and Houghton & Robinson. From a judgment in favor of the latter, the former appeal. Affirmed. T. E. Hammond and W. A. Blackburn, for appellants. J. G. Cook, for appellees.

FISHER, C. J. The question raised in the proposition under the appellants' seventh and eighth assignments of error is the only one which we feel called upon to notice. The parol evidence sought to be introduced was not admissible. In our opinion there is no ambiguity or uncertainty in the instrument sued on. Νο issue of fraud or mistake was raised by the appellants that would authorize the introduction of parol evidence explaining or changing the legal effect of the instrument, and, there being no ambiguity and uncertainty in its terms, such testimony would not be admissible. We find no error in the record, and the judgment is affirmed. Affirmed.

as.

KEY, J., did not sit in this case.

V.

SAN ANTONIO & A. P. RY. CO. SOUTHWESTERN TELEGRAPH & TELEPHONE CO. (Court of Civil Appeals of TexJan. 9, 1901.) Appeal from McLennan county court; J. N. Gallagher, Judge. Action by the Southwestern Telegraph & Telephone Company against the San Antonio & Aransas Pass Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed. A. W. Houston, Baker & Ross, and Robson & Duncan, for appellant. McLaurin & Wozencraft, for appellee.

KEY, J. This appeal is prosecuted from a judgment of the county court in a condemnation proceeding. The principal questions in the case have been heretofore decided against appellant by the supreme court and this court, in San Antonio & A. P. Ry. Co. v. Southwestern Telegraph & Telephone Co., 55 S. W. 117, and in the case of same appellant against same appellee, decided by this court at its last term without written opinion. All the questions presented have been considered, and, finding no error, the judgment is affirmed. Affirmed.