Constitution. In Ex Parte Boyett, 19 Texas Crim. App., 45, the word "evident" has been defined as "plain, clear, obvious." Mr. Branch substantially states the rule that all prisoners shall be bailable except when the proof is evident that not only accused is guilty, but that the jury will, if they enforce the law, assess capital punishment, this conclusion to be reached by the well guarded and dispassionate judgment of the court or judge passing upon the question. It may be added that it must also be evident that deceased came to her death at the hands of accused. In other words, it must be evident that an offense has been committed. See Ex Parte Smith, 23 Texas Crim. App., 125; Ex Parte Russell, 71 Tex. Crim. Rep., 377; Ex Parte Hill, 83 Texas Crim. Rep., 146, 210 S. W. Rep., 996. Tested by the rules above referred to, we do not believe the trial court was authorized to hold appellant without bail. The judgment refusing bail will, therefore, be reversed, and appellant granted bail in the sum of five thousand dollars, upon the execution of which with sufficient sureties, he shall be discharged pending the trial of this case on its merits. Bail granted. MATT (NAT) FENNELL V. THE STATE. No. 6505. Decided December 14, 1921. Assault with Intent to Rape-Statement of Facts-Affidavit. Where the affidavit stating that defendant was not able to pay for the statement of facts on a charge of assault to rape was filed too late and was not called to the attention of the trial judge, and no extension of time was requested in which to file the statement of facts, there was no reversible error. Appeal from the District Court of Guadalupe. Tried below before the Honorable M. Kennon. Appeal from a conviction of assault with intent to rape; penalty, fifty 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. MORROW, PRESIDING JUDGE.-The conviction is for an assault with intent to rape; punishment fixed at confinement in the peniteaGary for a period of fifty years. he indictment is regular, and the record contains neither statement facts nor bill of exceptions. An affidavit stating that the appellant was unable to pay for the statement of facts or give security there for was filed on the 16th day of June, 1921. Such an affidavit, if filed in time and called to the attention of the trial judge, would have entitled appellant to a statement of facts. Code of Crim. Proc., Art. 845a; Ex Parte Fread, 83 Texas Crim. Rep., 466. The term of court at which the appellant was convicted expired on the 17th day of May. There is nothing in the record to show that the appellant's affidavit mentioned was called to the attention of the trial judge or any request was made for an extension of time in which to file the statement of facts. We find no error in the record. The judgment is therefore affirmed. Affirmed. CLAUDE ANDERSON V. THE STATE. No. 6560. Decided December 14, 1921. 1.-Burglary-Motion for New Trial-Insanity-Statement of Facts-Practice On Appeal. In the absence of a statement of facts and bills of exception, a motion for new trial supported by affidavit expressing the opinion that defendant was of unsound mind and stating that defendant and counsel had no knowledge of the evidence during the trial, cannot be considered on appeal. 2. Same-Insanity-Procedure-Insanity After Conviction. Without knowing the facts that were adduced upon the trial, this court does not feel authorized to set aside a judgment of conviction upon the motion for new trial alleging defendant's insanity. If the defendant is insane at this time, the statute makes provision against his incarceration. Appeal from the District Court of Brown. Tried below before the Honorable J. O. Woodward. Appeal from a conviction of burglary; penalty, two 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. MORROW, PRESIDING JUDGE.-Conviction is for burglary; punishment fixed at confinement in the penitentiary for a period of two years. The indictment is regular; and the record is before us without bill of exceptions or statement of facts. Attached to the motion for new trial are the affidavits of several persons expressing the opinion that the appellant was of unsound. mind. The affidavit of the attorney who represented him also accom panies the motion. In it is the statement that they had no knowledge of the evidence set out in the affidavits before or during the trial. Without knowing what evidence was before the court and jury which rendered the judgment and verdict, we are not able to judge the merits of the motion. One of the affiants, a physician, a brother of the appellant, expresses the view that the appellant had been insane for five years; also says that other members of the family had been affected with insanity. Without knowing the facts that were adduced upon the trial, we do not feel authorized to set aside the judgment of conviction. If appellant is insane at this time, the statute makes provision against his incarceration. The judgment is affirmed. Affirmed. ALICE RUNDELL V. THE STATE. No. 5906. Decided December 8, 1920. Rehearing denied December 14, 1921. 1.-Theft-False Pretext-Fraudulent Intent-Want of Consent. Where the indictment was in the ordinary form of felony theft, and the prosecution proceeded under Article 1332, Penal Code, which provides that want of consent is not necessary if the possession of the property be obtained by any false pretext, or, with an intent to deprive the owner of the value, etc., there was no reversible error. Distinguishing Gibson v. State, 85 Texas Crim. Rep. 462. 2.-Same-Case Stated-Swindling-Theft by Bailee-Theft. Where, upon trial of felony theft, the evidence showed that a thousand dollar check was delivered to the defendant upon apparent faith in her promise as to what she could and would do, and that the money would be returned to the party injured with its earnings within sixty days, this was not swindling or theft by bailee, but theft. 3.-Same-Evidence-Other Offenses-Intent. Where, upon trial of theft of a certain check, the State proved over defendant's objection sundry other transactions of herself occurring about the same period as that covered by the one with the party injured, in each of which defendant obtained from different people sums of money varying from a few hundred dollars to as much as $9,000, all being obtained by similar representations, there was no reversible error. This testimony being important on the question of fraudulent intent. 4. Same-Refreshing Witnesses Memory-Trial of Theft-Bill of LadingFlight. There was no error in permitting the witness to refresh his memory from a copy of the bill of lading in his possession, he testifying from memory as to facts; and there was no error to show flight of defendant and concealment of her residence, which was shown by the shipment of her furniture to a place different from that claimed as her home, etc. 5.-Same-Argument of Counsel-Reply to Argument-Allusion to Defendant's Failure to Testify. Where State's counsel in his argument said, "the State's case stands before you unimpeached in any manner; the defendant has failed to produce a single witness to combat the testimony of the State." This was not an allusion to defendant's failure to testify, and besides was responsive to defendant's counsel's argument. 6.-Same-Debtor and Creditor-Fraudulent Intent-Note-Charge of Court. If the facts be conclusive of the intent to deprive the owner of the property and to appropriate the same to the use and benefit of the taker at the time the possession of such property was obtained, then the giving of notes, which were not demanded by the party injured, did not make the case one in which the relation of debtor and creditor was created. Following Anderson v. State, 77 Texas Crim. Rep., 31, and other cases; besides, the jury were properly instructed as to this phase of the case. 7.-Same-Circumstantial Evidence-Charge of Court. Where, upon trial of theft of a certain check with intent to defraud and appropriate, the evidence was direct and not circumstantial, there was no error in the court's refusal to charge on circumstantial evidence. Following Roberts v. State, 44 Texas Crim. Rep., 267, and other cases. 8. Same-Concurring Opinion. See opinions of Davidson, Presiding Judge, and Morrow, Judge, concurring in main opinion. 9.-Same-Rehearing-Evidence-Bill of Exceptions-Part of Testimony Ad missible. Where the bill of exceptions raised the objection to the testimony of other offenses, on the ground that it was not a part and parcel of the very transaction mentioned in the indictment, and was an extraneous offense not connected with that charged in the indictment, the exception did not reach the matter objected to, inasmuch as part of the testimony was admissible, even if the other was not, and the exception did not point out the particular evidence objected to. 10. Same-Requested Charge-Intent-Appropriation. Where there was no evidence tending to show the formation of an intent by defendant to appropriate the money named in the check at a time subsequent to her acquisition thereof, there was no error in refusing a requested charge thereon. 11.-Same-Requested Charge-Debtor and Creditor. Where the evidence did not raise the issue submitted in the requested charge, that if the relation of debtor and creditor existed the defendant should be acquitted, etc., there was no error in refusing the requested charge. 12.-Same-Sufficiency of the Evidence-Intent-Appropriation. Where, upon trial of obtaining by false pretext a certain check for $1,000, the proof satisfied the minds of the jury that the property which was obtained by the defendant was with the intent at the time to appropriate the same, and that she did appropriate the same, and the court charged the law on this phase of the case, the conviction was sustained. Appeal from the Criminal District Court of Harris. Tried below before the Honorable C. W. Robinson. Appeal from a conviction of theft of a check for $1,000, under false pretext and with fraudulent intent to appropriate the same; penalty, five years imprisonment in the penitentiary. The opinion states the case. Meek & Kahn, for appellant.—On question of other offenses: Haley v. State, 209 S. W. Rep., 675; Sine v. State, 215 id., 967; Moore v. State, 203 id., 767; Lawrence v. State, 219 id., 460; Bink v. State, 48 Texas Crim Rep., 599; Denton v. State, 42 id., 429; Johnson v. State, 50 id., 118; Clark v. State, 59 id., 246; Gardner v. State, 55 id., 402; Monroe v. State, 56 id., 445. Alvin M. Owsley, Assistant Attorney General, and E. T. Branch, District Attorney, for the State.-On question of other offense: Dawson v. State, 32 Texas Crim. Rep., 535; Fielder v. State, 40 id., 188; King v. State, 27 Texas Crim. App., 567; Trimble v. State, 145 S. W. Rep., 929. On question of argument of counsel: Cockrell v. State, 211 S. W. Rep., 929; Vickers v. State, 169 id., 669; Bivens v. State, 82 Texas Crim. Rep., 279, and cases cited in opinion. LATTIMORE, JUDGE.-Appellant was convicted of felony theft in the Criminal District Court of Harris County and her punishment fixed at five years confinement in the penitentiary. The indictment in this case was in the ordinary form for a felony theft, it being charged therein that appellant took from Dora Wilson a check of the value of one thousand dollars with intent to deprive said Wilson and to appropriate same to her own benefit. The facts show that about September 18, 1919, appellant, in Houston, Texas, represented to Dora Wilson that she, appellant, had a secret connection with an oil driller in the Burk Burnet oil field who would give her inside information about wells in process of drilling and just before same were completed, and that she was able by means of said information to double and treble any money turned over to her to be invested in such ventures, and that appellant urged the Wilson woman to let her have five thousand dollars to be so used, promising a return of said money together with double and treble its amount as earnings within sixty days; also that Miss Wilson declined to let appellant have at that time but one thousand dollars, a check for which amount was turned over to appellant. The latter promised to double this at least for Miss Wilson within sixty days. Later and on pretense that the first money turned over had doubled itself and earned variously stated sums, appellant got from Miss Wilson amounts totaling $4600, telling her that her money and its earnings should be returned to her or checked out by November 15th, or not later than Thanksgiving day of that year, at which time appellant represented that her connection with the oil business would cease. Just before |