gations of the date of the offense in the complaint and the information, the conviction cannot be sustained, and the judgment is reversed and the cause remanded.

Appeal from the County Court of Comanche. Tried below before the Honorable F. J. Reese.

Appeal from a conviction of aggravated assault; penalty, a fine of $500.

The opinion states the case.

Callaway & Callaway, for appellant.—Cited cases in opinion.

R. G. Storey, Assistant Attorney General, for the State.

MORROW, PRESiding Judge.—Conviction is for aggravated assault; punishment fixed at a fine of $500.

The complaint alleges the date of the offense at an impossible date, namely, the 20th of December, 19120.

The information states the date of the term of court as January, 19120 and the date of the offense December 20, 1920.

Touching errors of this character, this court, at an early date, said: "It is better that the judgment should be reversed than to establish such a precedent or encourage carelessness in the preparation of so important a part of the record to be rought to this court as the indictment."

The necessity that the date of the offense charge 1 in the complaint and information must correspon has been frequently declared. Hoerr v. State, 4 Texas Crim. App., 75; Lackey v. State, 53 Texas Crim. Rep., 459; Winn v. State, 87 Texas Crim. Rep., 485, 223 S. W. Rep., 230.

Where the date of the offense is laid at an impossible date, or where there is a variance between the allegation of the Cate of the offense in the complaint and information, this court has uniformly refused to sanction the conviction. Donaldson v. State, 15 Texas Crim. Rep., 30; Clement v. State, 22 Texas Crim. Rep., 25; Harwell v. State, 65 S. W. Rep., 521; Collins v. State, 5 Texas Crim. App., 37; and citations thereof in 4 Rose's Notes on Texas Rep. (2 ed.), p. 1215.

Because of the impossible date and variance referred to, the judgment is ordered reversed and the prosecution dismissed.

Reversed and dismissed.

ORANGE EDWARDS V. THE STATE.

No. 6482. Decided November 30, 1922.

Misdemeanor Theft-Sufficiency of the Evidence.

Where, upon trial of misdemeanor theft, the evidence sustained the conviction, there was no reversible error.

Appeal from the County Court of Williamson. Tried below before the Honorable F. D. Love.

Appeal from a conviction of misdemeanor theft; penalty, a fine of $50 and sixty days imprisonment in the county jail.

The opinion states the case.

W. C. Wofford, for appellant.-Cited: Johnson v. State, 60 S. W. Rep., 667.

R. G. Storey, Assistant Attorney General, and Dan Moody, County Attorney, for the State.

LATTIMORE, JUDGE.-Appellant was convicted in the County Court of Williamson County of misdemeanor theft, and his punishment fixed at a fine of $50 and sixty days in the county jail.

A car loaded with wheat in sacks, reached Taylor, Texas, April 4, 1921. It was shown in testimony that the seals were then intact upon said car. Next morning the car seals had been broken and not far from said car and under another car a sack of wheat was discovered. It was watched and that night appellant and another negro went to where said sack was and were removing it when they were apprehended. The car of wheat was then checked and found to be short two sacks of wheat. The sack which was being removed by appellant and his companion when arrested, had the same mark and brand as the other sacks in said car. There was a small hole in said sack and a trail of wheat led from the point where the sack lay, to said car. The appellant confessed. The ownership and possession of said wheat was properly laid in the local agent of the railroad company. The evidence was sufficient.

The judgment is affirmed.

Affirmed.

EX PARTE LLOYD LINE.

No. 6714. Decided November 30, 1921.

Habeas Corpus-Bail-Rule Stated.

Where, upon appeal of denial of bail in a capital case, the record showed that the proof was not so evident that it led one to believe that upon trial defendant would be convicted and receive the death penalty, the judgment must be reversed, the cause remanded, and bail is fixed at $5,000.

Appeal from the District Court of Eastland. Tried below before the Honorable E. A. Hill.

Appeal from a habeas corpus proceeding denying bail in a capital

case.

Burkett, Anderson & Orr, for appellant.-Cited: Ex Parte Russell, 160 S. W., 75; Ex Parte Lewellyn, 229 id., 327; Ex Parte Young, 222 id., 242.

R. G. Storey, Assistant Attorney General, for the State,-Cited Ex Parte Harris, recently decided.

LATTIMORE, JUDGE.-This is an appeal from an order of the 88th District Court of Eastland County denying bail to the appellant. From the record it appears that he had been committed to custody following an examining trial before a justice of the peace on a charge of murder, and that he sued out his writ of habeas corpus in the District Court seeking bail, which upon hearing was refused.

The testimony of four witnesses appears in the record. None of them saw the homicide. One of said witnesses was an officer who testified that on the night of November 11, 1921, one Stella Winks drove up to where he was, in a car in which was the dead body of Joe Freibrich. Later, but how much later does not appear, the officer found appellant and one Barney Barnes in a car together and arrested them and brought them to the office of the justice of the peace.

Judge McFatter, the justice of the peace who held the examining trial, swore that he examined the body of Freibrich and found on same a watch, a pocket-knife, a couple of rings and a pocketbook and some money amounting to about $28. The hook or eye of the swivel of the watch was pulled out, and he found no watch chain. Deceased was shot near the left nipple, the ball going through the body.

Bill Farrell swore that he was the son of Rosa Farrell, and that on the night in question he saw appellant and one Johnnie Boyd at his mother's house, and that Stella Winks and deceased were also there. That the latter couple left the house, and that about five minutes after they had gone appellant and Boyd also left, and that within five or ten minutes after appellant and Boyd left he heard a shot. Later appellant came back to the house and stayed a while and left again. Witness heard nothing said by appellant while at his home.

Rosa Farrell testified but her statements are somewhat incoherent. She said that on the 11th of November appellant and Johnnie Boyd came to her house in the afternoon and stayed some time and went away, but later came back and remained until about 7 o'clock. She said that on these occasions appellant was talking to her about hi-jacking somebody. She also testified that Stella Winks and deceased were at her home that night and left, and that some time after they went away appellant came in and wanted to borrow her gun and said something about wanting to drive those s-s of b-s away from there. She

refused to let him have the gun and he went away. A short time after appellant and Boyd went away and while witness was reading she heard a shot. Still later appellant came back and wanted her to give him a drink of liquor, saying that he wanted to steady his nerves until he got to town. This appears to be about the substance of the testimony as we gather it from the record before us.

We are unable to conclude from this evidence that the State has made out a case in which, by proof evident we are led to believe that upon trial appellant would be convicted and receive the death penalty. There appears nothing to show any animus or ill-will on the part of appellant toward deceased. Stella Winks did not testify, nor did any other person give evidence as to the facts and circumstances immediately surrounding the shooting. Appellant is not shown to have been in possession of a pistol prior to the shooting, nor to have been any nearer the scene of the shooting than the home of Rosa Farrell. If the purpose of the killing was robbery, none of the property of Freibrich was found in the possession of, or traced to appellant. The evidence seems to point to Johnnie Boyd with about as much certainty as to appellant. We are of opinion that the testimony must not only make out a case sufficiently to make us believe that this accused would receive the death penalty upon trial, but such testimony must not be in such condition of conflict and doubt as to leave uncertain the guilt of the party seeking bail.

The judgment of the trial court will be reversed and bail granted in the sum of five thousand dollars.

Bail granted.

ARTHUR JETTY V. THE STATE.

No. 6407. Decided November 30, 1921.

1.-Murder-Sufficiency of the Evidence.

Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction, there was no reversible error.

2. Same-Continuance-Postponement-Practice in Trial Court.

Where defendant filed a motion to withdraw his announcement and continue the case on account of the condition of one of his witnesses whom he averred was a drug addict, but the record showed that the case did not go to the jury until three days thereafter, and there was no showing that the witness was still incapacitated to testify, the application was properly overruled. Following Sweeney v. State, 59 Texas Crim. Rep., 373.

3. Same-Bill of Exceptions-Practice on Appeal.

Where the bill of exceptions consisted entirely of questions and answers and rulings of the court, same could not be considered on appeal; besides, there was no reversible error when the bills were considered, and all were defective in not complying with the rules for bills of exception.

4.-Same-Insanity-Charge of Court.

Where, upon trial of murder and a conviction of manslaughter, defendant objected to the court's charge on insanity on the ground that it was merely an abstract statement of the law, etc., but the record showed that the court's charge on insanity was in approved form, there was no reversible

error.

5.-Same-Charge of Court-Self-Defense-Right to Arm Himself.

Where, upon trial of murder and a conviction of manslaughter, the court's charge in no way restricted defendant's right of self-defense, there was no error in refusing a requested charge on defendant's right to arm himself,

etc.

6.-Same-Conduct of District Attorney-Practice on Appeal.

Where, during the cross-examination of defendant's witness, who was a character witness, the district attorney on cross-examination remarked that the State wanted to show that defendant was not virtuous, and it did not appear from the record whether the defendant's reputation had been placed in issue, there was no reversible error.

Appeal from the Criminal District Court of Dallas. Tried below before the Honorable Robert B. Seay.

Appeal from a conviction of manslaughter; penalty, five years imprisonment in the penitentiary.

The opinion states the case.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.

HAWKINS, JUDGE.-Appellant was charged with the murder of his wife. Conviction for manslaughter followed, with punishment assessed at five years in the penitentiary.

We do not regard it as necessary to set the testimony out at length. Appellant's marriage seems to have been one of those hurried and unfortunate unions entered into a few months before he sailed for France with the American Expeditionary Forces. During his absence and after his return his wife's conduct was not of an exemplary character. The evidence is amply sufficient to support the verdict.

The case went to trial on January 17th. On the next day appellant filed a motion to withdraw his announcement and continue the case on account of the condition of one of his witnesses, Mrs. Etta Winrod. Said witness is averred to have been a "drug-addict." That on the night of January 17th when counsel attempted to converse with her she was under the influence of morphine, opiates and drugs, and was unable to remember facts or relate them in detail. There is no averment in the motion that witness was not in the same condition when the trial was begun. The application is for continuance. It is deficient in that it wholly fails to state that there was no reasonable expectation of procuring the attendance and testimony of such witness during the term of court then in session by a postponement to a fu