To the same effect is the case of Kimbrough v. Kimbrough, 99 Ga. 134, 25 S. E. 176. In that case the court said: gift or grant to himself. Besides, in all cases, it purports to have upon its face, and that where the intention to give a separate prop- is that he part with all his interest in the erty to the wife is manifest, that intention property conveyed. The rationale of that is to be carried into effect; and, where the case is that the mere fact of the conveyance husband himself makes a gift or grant to from husband to wife conclusively ascertains the wife, the intention to relinquish his own the husband's intention to be that the wife rights in favor of the wife, and thus to give is to hold the property as her separate esher a separate property or interest, is neces- tate. The reasoning applies with equal force sarily and most clearly and unequivocably where the husband purchases real estate and manifested and declared. The cases, there- pays the consideration price and directs that fore, which have been referred to, to show the conveyance be made to his wife without that expressions such as those used in the any reservation of his own rights as huspower, do not create a separate property in band. Such an act excludes the thought that the wife cannot apply to this case, while by he intended the purchase for his own benefit. these terms, as between the husband and [5] We recognize the rule to be that, where wife, the intention of the husband to give a a stranger conveys real estate to the wife, separate right and interest in the property it is necessary for the use of apt words clearto the wife is unequivocably declared, and ly expressing the intention to cut off the such intention, by all the authorities, is to marital rights of the husband in order that be carried into effect." Whitten v. Whitten, the wife may have a separate estate. But 3 Cush. (Mass.) 191. those cases are not this case and should not be confused with it. Some of them refer to the grantor as a third party in connection with the statement of the rule referred to, but by that, we apprehend, is meant a stranger to the husband and the wife, and no reference is meant to transactions between the husband and the wife. The transaction is none the less between husband and wife because the husband has the grantor to convey directly to the wife upon the payment of the purchase money by him rather than take a deed to himself and he convey to the wife. The substance, and therefore the intention, is the same, and it is the intention which must control. Barnum v. Le Master, supra. We are of opinion, therefore, that the deed of Shields and others to Elizabeth vested in her a technical separate estate. This being concluded, her deed to her husband with her proper privy examination was valid, and vested in him the title which she theretofore held. Vick v. Gower, 92 Tenn. 391, 21 S. W. 677; Shannon's Code, § 4246. This latter deed being valid, the complainants have no interest in the land sued for, and the decree of the chancellor dismissing the bill is in all respects affirmed. "Where a husband with his own money purchased and paid for a home and deliberately and intentionally had the same conveyed to his wife, with no understanding or agreement that he was in any event to have an interest in the title, the transaction amounted to a gift from the husband to the wife, and as between them the property be came absolutely her separate estate." Our own case of Barnum v. Le Master, 110 Tenn. 640, 75 S. W. 1045, 69 L. R. A. 353, establishes the proposition that a conveyance of lands made by a husband to his wife in the usual form, without any words indicating an intention to do so, has the effect in law to create a technical, separate estate in the wife. The reasoning of that case is full and cannot be added to or strengthened by us. It is the leading case in this state upon the propositions stated and establishes beyond further controversy that the law conclusively presumes that in a conveyance made by husband to wife the husband intends that his act shall have the effect that THOMAS v. STATE. (Court of Criminal Appeals of Texas. Oct. 15, HOMICIDE (§ 295*)-INSTRUCTIONS APPLICA- In a prosecution for manslaughter, where the evidence showed that, in previous altercations between defendant and deceased, the deceased was the aggressor, and the defendant was seeking to avoid trouble, and there was some testimony that defendant went to the place where he thought deceased was, although without stating what his intentions were if he found deceased, but the defendant testified that he did not know deceased was in that place, and went there for another purpose, whereupon deceased began the difficulty by attacking him with a knife, there was no evidence that the defendant provoked the difficulty which would warrant a court in instructing on that issue. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.*] Appeal from District Court, Sabine County; A. E. Davis, Judge. Emanuel Thomas was convicted of manslaughter, and he appeals. Reversed and remanded. It this remark, and says he went to the closet to answer a call of nature; that when he got to the closet deceased began the difficulty, and "made a lunge at him with a knife." He apparently was the only eyewitness to the beginning of the difficulty. If the facts and circumstances in evidence would authorize the deduction that he went to the closet to raise a dufficulty with deceased, perhaps there would be no error in submitting the issue. But the record when read as a whole does not suggest that appellant was seeking a difficulty with deceased; but, on the contrary, all the threats were made by deceased. He was the person who seemed to be seeking the difficulty. It is shown that he had an open knife in his hand, a "springback" knife, 61⁄2 inches in length. He had expressed an intention to have the woman Sallie, or do some killing. Under the evidence in this case, we think the court erred in submitting the issue of provoking the difficulty, and imperfect self-defense, for under the evidence appellant was entitled to a charge on selfdefense unabridged, and not limited by a charge on provoking the difficulty. If the court thought the evidence authorized this charge, then certainly the converse of the proposition should have been given. Appellant testified he did not know deceased was at the closet; that he went there to answer a call of nature, when he was assaulted by deceased with an open knife. may not be true, yet he so testified, and, if the court was going to charge on provoking the difficulty, then in appropriate language the jury should have been instructed that, if they believed this state of facts to be true, or had a reasonable doubt thereof, appellant's right to act in self-defense would be unabridged. However, we do not think the issue of provoking the difficulty was in the case, and on another trial, if the facts are the same, the court should not present that issue in his charge. These facts C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was indicted, charged with manslaughter, convicted of the offense, and his punishment assessed at two years' imprisonment in the penitentiary. Appellant contends that the court erred in submitting the issue of provoking the difficulty, and, if that issue was in the case, then the court erred in his charge on that issue in several respects. As we have concluded that the court erred in submitting that issue, we do not deem it necessary to discuss at length the other questions in the case. appears from the record that appellant was the manager of Abe Smith's dance hall in Pineland. A negro woman named Sallie was in the dance hall on the night preceding the fatal encounter. While Sallie was in the dance hall, deceased attempted to go in the hall, making threats, and, when prevented from going in the hall, tried to borrow a gun. Deceased is shown to have made several ugly remarks, and claimed the negro woman Sallie as his woman. When the dance hall closed, Sallie went home with appellant, and went to bed with him. While they were in bed, deceased broke in the house, and struck (Court of Criminal Appeals of Texas. Oct. 15, appellant with a club. Appellant grabbed a pistol, and fired at deceased, when deceased ran. It is shown that during the next day deceased made threatening remarks, and appellant reported the matter to the officers. The officers told the appellant to go to the dance hall and remain there until they had arrested deceased. The officers did not succeed in finding him, and made no arrest. The state's testimony is that appellant said, "I believe Jim Wade is out at the closet; I am going out there," not saying what he was going to do, or intended to do, if deceased was out there. Appellant denies making The cause is therefore reversed and remanded. REDO v. STATE. 1913.) CRIMINAL LAW (§ 1101*)-APPEAL-AFFIRM- In the absence of a statement of facts duly Ethel Thompkins Redo was convicted of burglary, and appeals. Affirmed. C. E. Lane, Asst. Atty. Gen., for the State. There is no statement of facts signed by the attorneys for either side, or approved by the judge. There is no bill of exception. There is no question raised by the motion for new trial that can be considered in the absence of a statement of facts. PRENDERGAST, P. J. The appellant was purpose of acquiring and obtaining from Mrs. convicted of burglary, and the lowest punish- Youngblood said vendor's lien notes, did ment fixed by law-two years in the peniten-fraudulently and willfully promise and agree tiary-was assessed. to make and deliver to her (the said Mrs. Youngblood) a deed of conveyance to the 48 acres of land, a part of the Wm. Williams league in Newton county, being the land for which the said notes were given in part payment thereof, and by reason of such fraudulent representations and agreements induced Mrs. Youngblood to deliver to him the aforesaid vendor's lien notes which were of the value of $100 each, and the said T. J. Windham did then and there and by means aforesaid acquire from Mrs. Youngblood said ven The judgment is therefore affirmed. WINDHAM v. STATE. (Court of Criminal Appeals of Texas. Oct. 15, dor's lien notes, the same being the property 1913.) 1. FALSE PRETENSES (§ 29*)-SUFFICIENCY OF ACCUSATION CERTAINTY AND DEFINITE NESS. An indictment for obtaining notes by false pretenses, which fails to state whether the pretenses were with reference to a promise to deliver a deed to land or with reference to the land conveyed by the deed delivered, and which fails to show except in an inferential way that the deed delivered did not cover the land to be conveyed, is vague, indefinite, and uncertain. [Ed. Note. For other cases, see False Pretenses, Cent. Dig. §§ 34-36; Dec. Dig. § 29.*] 2. FALSE PRETENSES (8 7*)- ELEMENTS OF OFFENSE NATURE OF PRETENSE - FALSE PROMISES. A fraudulent representation that deceased would at some future time convey title to certain land in return for the present delivery of certain notes does not constitute the offense of swindling, since the statute expressly excludes matters of that sort; to constitute the offense the representations must relate to a past matter or existing fact and not a mere promise to do some act in the future. [Ed. Note. For other cases, see False Pretenses, Cent. Dig. §§ 5-12, 25; Dec. Dig. § 7.*] Appeal from District Court, Newton, County; A. E. Davis, Judge. T. J. Windham was convicted of swindling, and he appeals. Reversed, and prosecu tion ordered dismissed. J. M. Reag., Forse & Wigley, and Cheatham & Stout, all of Newton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of swindling. The indictment charges appellant with swindling Mrs. Youngblood; the allegation being in substance that she was the owner and in possession of four vendor lien notes each dated September 20, 1909. and payable respectively on the 1st day of October, 1910, 1911, 1912, and 1913, for the sum of $100, each drawing 10 per cent. interest annually. The notes were executed on the 20th day of September, 1909, by one S. V. Lott, and being given in part payment for 48 acres of land, a part of the Wm. Williams league in Newton county, and being the J. H. Booker farm containing the dwelling and improvements, and that theretofore, to wit, on or about 23d day of February, 1912, T. J. Windham in said county and state, for the of the said Mrs. Youngblood, with the intent then and there to appropriate the same to the use of him (the said T. J. Windham), when in truth and in fact the said T. J. Windham did not convey the said 48 acres of land to her (Mrs. Youngblood), but instead of so doing he (the said T. J. Windham) did fraudulently, willfully, and knowingly make and execute and deliver a deed of conveyance to Mrs. Youngblood, which is as follows: (It is unnecessary to set out the field notes in the deed executed by defendant, but after giving the field notes it recites that it contains 56 acres of land, more or less, with the usual clause.) The grand jury further said that this above-mentioned deed was fraudulently, willfully, and knowingly delivered to the said Mrs. Youngblood by appellant without her consent and without her knowledge in that she (the said Mrs. Youngblood) relied upon the representations made to her that she was to receive a deed of conveyance to the 48 acres of land first mentioned herein, and that she (Mrs. Youngblood) believed at the time the notes were delivered that it was a deed to said 48 acres of land, and but for such false and fraudulent representations so made by appellant Mrs. Youngblood would not have given and delivered the notes to appellant, and that the deed so delivered to her by appellant was worthless, being of no value, and was delivered to Mrs. Youngblood with the intent to defraud her of the value of said notes, and that appellant then and there knew that said pretenses and representations so made by him to Mrs. Youngblood were false. [1] Many reasons are assigned why this indictment is vicious. It certainly is a very vague and indefinitely written document. Besides, in the last clause just above it does not show or allege what pretenses and representations made by appellant to Mrs. Youngblood were false, whether they were original pretenses or representations to obtain the notes, or whether pretenses and representations with reference to the deed he did deliver. It is also vague, indefinite, and uncertain in that it does not, except in a most inferential way, undertake to exclude the idea that the 48 acres about which the first the naked promise to do some act in the future, to wit, to make a deed to 48 acres of land. conversation occurred were not included in the field notes for the 56 acres. That the pleader may have intended to convey the idea that the 48 and 56 acres were different tracts of land doubtless may be true, but the allega- | "Mere false promises or false professions of tions do not, except in a most inferential way, so show. [2] But there is beyond all this a fatal defect that goes to the very gist of the whole matter. The representations as alleged were as to some future matter, not as to some past occurrence or then existing matter. If he obtained the notes by fraudulent representations that he would convey a title to 48 acres of land, this was an occurrence to take place at some future time, not even specified in the representations or mentioned in the indictment. But the notes were transferred not as to a past matter or existing fact but on something to be done by the appellant at some time in the future. This would not constitute the offense of swindling and cannot be made under our statute to do so, for the statute expressly excludes matters of that sort as forming the basis of swindling. In addition to the statute, see Johnson v. State, 41 Tex. 65; Martin v. State, 36 Tex. Cr. R. 125, 35 S. W. 976; Allen v. State, 16 Tex. App. 151; Hurst v. State, 39 Tex. Cr. R. 196, 45 S. W. 573; Williams v. State, 31 S. W. 649; Fairy v. State, 50 Tex. Cr. R. 396, 97 S. W. 700. In the Johnson Case, supra, the Supreme Court said: "Swindling is the acquisition of any personal or movable property, money, or instrument of writing, conveying or securing a valuable right, by means of some false or deceitful pretense or device, of fraudulent misrepresentation with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the rights of the party justly entitled to the same.' We do not think the false and fraudulent representations set forth in the indictment such In Allen v. State, supra, it was said: intention, although acted upon, are not sufficient to constitute swindling." In Hurst v. State, supra, the court said: "Allegations that the accused had induced prosecutor to sign a note by falsely representing to him that a certain collecting agency would pay a certain per cent. thereof is something to be done in the future." See, also, Bishop, Crim. Law, vol. 2, pp. 419, 420. Mr. Bishop uses this language: "In the next place, a promise is not a pretense. And if a man says that he will do an act, which he does not mean to do, as that he will pay for goods on delivery, his purpose being to defraud the seller of them, the case is not within the statute." Again, in section 420, the same author said: "And both in the nature of things and in adjudication the doctrine is that no representations of a future event, whether in the form of a promise or not, can be pretense, within the statute, for the pretense must relate either to the past or to the present." Authorities might be indefinitely enumerated, but these are sufficient. There are several other questions of importance in the case, but under the view taken we do not purpose to discuss or decide them further than to say several of them are reversible in their nature, but under the allegations contained in the indictment the state has not alleged a case upon which a conviction can be predicated for swindling. The judgment is reversed, and the prosecution is ordered dismissed. CAGEL v. STATE. as come within the meaning of the statute. (Court of Criminal Appeals of Texas. Oct. 15, They do not relate to existing facts or past events and in this respect differ from the instances specified in the statute." It has always been held, as we understand, in this state that false promises or false professions of intention, although they may have been acted upon, are insufficient to constitute swindling. In the case of Martin v. State, supra, the court said: "The representations here made, as it appears, were not to an existing fact but related to a future event and was in the nature of a representation or promise. * 1913.) CRIMINAL LAW (§ 255*)-RECEPTION OF EVI- tery, and T., the person claimed to have been Accused was charged with assault and batassaulted, was also charged with the same offense committed at the same time against accused. On accused's trial T. was offered as a witness, but excluded upon a showing that he had been convicted of a felony and not pardoned, and after all of the evidence was introduced, accused requested the court to decide his case, a jury having been waived, which the court refused to do, stating that it would reserve its decision until the evidence was heard in the case against T., when T. would be permitted to testify for himself. T. testified in his own asked the jury if they considered accused guilty, case, and was acquitted, whereupon the court and received an affirmative answer, when the court found a verdict against accused in his own case. Held, that the court's action in deciding accused's case on testimony introduced Applied to the case in hand, appellant was in T.'s case was erroneous, requiring a reversal. convicted by the only act or fact by which [Ed. Note. For other cases, see Criminal that conviction should have been predicated-Law, Cent. Dig. §§ 539-541; Dec. Dig. § 255.*] In our opinion, before a defendant can be convicted of the offense of swindling, there must be a distinct and certain representation of an existing fact, and the indictment must show such certain and distinct representation of the fact, either past or present." Appeal from Jefferson County Court; R. against them, and not on the evidence of the W. Wilson, Judge. Ed. Cagel was convicted of aggravated assault and battery, and appeals. Reversed and remanded. Blain & Howth, of Beaumont, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. trial of another, or facts learned from some other source, For this error, this case will be reversed and remanded. There is no other question raised, which will probably occur on another trial. Reversed and remanded. EASTER v. STATE. PRENDERGAST, P. J. From a conviction for an aggravated assault and battery on (Court of Criminal Appeals of Texas. Oct. 15, Gid Thomas, with a fine of $100 assessed, appellant appealed. The allegations to make the offense an aggravated assault and battery are, in effect: (1) That a serious bodily injury was inflicted; (2) that a deadly weapon was used. The state introduced but two witnesses, Harris and Gill, who testified; the appellant none. Appellant contends the evidence does not show an aggravated assault and battery, because it neither shows serious bodily injury, nor that a deadly weapon was used. It is unnecessary for us to pass on this question, in view of the fact that we must reverse the case on another ground. 1913.) DISORDERLY CONDUCT (§ 1*)—ABUSIVE LAN- Where accused, in response to P.'s accusation that he had not paid for feed furnished him by P.'s brother, replied, "If you say that I did not pay your brother for the feed, you are a liar," he was guilty of using abusive language calculated to bring about a breach of the peace, cused does not justify him in using abusive since the use of abusive language towards aclanguage, although it may be considered in mitigation of the penalty. [Ed. Note. For other cases, see Disorderly Conduct, Cent. Dig. 88 1-7, 9-13; Dec. Dig. 1.*] Appeal from Stonewall County Court; W. J. Arrington, Judge. Jim Easter was convicted of using abusive language, and he appeals. Affirmed. C. E. Lane, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of using abusive language calculated to bring about a breach of the peace. By a proper bill appellant shows he was prosecuted for committing this offense on said Thomas. That in the same court, in the very next case said Thomas was prosecuted for the same offense against appellant, all growing out of the same transaction. That appellant waived a jury, and tried his case before the court. That in his trial the state offered said Thomas as a witness, but on objection of appellant, showing said Thomas had been convicted for a felony, served a term in the penitentiary, and had not been pardoned, the court could not permit him to testify. That after all the evidence in this case was introduced and the trial closed, ap- | pellant called on the court to decide his case. The court declined to do so, stating, among other things, he would reserve his decision until he heard the evidence in said next case against Thomas, at which time he would permit said Thomas to testify in his own behalf. That thereupon said case against Thomas was then tried before a jury, on which trial not only did said witnesses Harris and Gill testify, but several other witnesses also testified, as did said Thomas and appellant. That testimony is given in the bill, and is very material against appellant. That the jury acquitted Thomas. Thereupon the court asked the jury if they considered appellant guilty, and the jury replied affirmatively. That the court then found appellant guilty. It is clear that the court did not decide appellant's case on the testimony introduced on his trial, but really on the evidence in the Thomas case, and the opinion of the jury in that case. This is against all law and reason. Persons ac-standing he turned and walked back to where cused of crime, however guilty, must be tried we were, picked up the board, or plank, and alone on the evidence introduced on the trial rushed on the defendant and struck him on The party to whom the language was used was Luther Pittcock. The witness Shipman testified that some time in the fall Easter and himself were in a field in the eastern part of Stonewall county, and Pittcock made his appearance; that they went from the field up near a house, when Pittcock said to defendant, "I come down here after my money [the money defendant owed Pittcock]." Defendant said, "I haven't got the money now, but as soon as I can get it I will pay you." Pittcock said, "I come down here to tell you how low down trifling you were; where is that bale of cotton?" Defendant said, "It is over at the gin, and when I get the money I will pay you." Pittcock said, "You will not do any such thing; you did not pay my brother for the feed he let you have." Defendant said, "I did pay your brother for the feed." Pittcock said, "You didn't do any such thing." Defendant said, "If you say that I did not pay your brother for the feed, you are a liar." Pittcock said, ""Take that back,' and then picked up a board or piece of plank and stood and held it for some little bit, threw it down, and turned and walked toward his horse like he was going home, and after he had gotten some distance from where Jim Easter and I were |