
    G. W. Dodson v. The State.
    
      No. 714.
    
    
      Decided June 12.
    
    Murder in Second Degree—Fact Case—Evidence Insufficient.—See facts which the court holds wholly insufficient to sustain a conviction for murder in the second degree.
    Appeal from the District Court of Montague. Tried below before Hon. D. E. Barrett.
    
      Appellant was convicted of murder in the second degree, and punishment assessed at five years in the penitentiary.
    This is a companion case to Bob Leftwich v. The State, ante, p. 489. The facts in the two cases are almost identical.
    In compliance with the instructions of Judge Davidson, we give the testimony of the following witnesses, as embracing or proving all the essential facts on the trial:
    J. W. Stallings testified: “I live at Bowie. I am the father of Jack Stallings, the deceased. I last saw him at Bowie on the night of October 28, 1893, at my house, where he lived. He took supper there that night. That was Saturday night. I next saw him one week from that time, the Saturday night following, when the body was found.. It was found southwest of Bowie, about one-half mile from the town, and in Montague County, Texas. He was considerably swollen, but I identified the body as being my son by its general appearance and the clothing, by a ring he had on, and.by a breastpin he had in his vest pocket.”
    ■ James C. Stallings testified: “I am a brother of the deceased, Jack Stallings. I last saw him alive at my father’s house, in Bowie, at supper on the night of October 28,1893. I next saw his dead body on the next Saturday evening, on the night of November 4, 1893, at 4 or 5 o’ clock in the afternoon. I identified his body by its general form, by his clothes, and by a K. of P. pin and diamond ring in his pocket, and by some keys. He left home between 6 and 7 o’clock that Saturday evening, October 28, 1893. I was intending to go back to town with him, but he got done supper before I did, and when I came out from supper he had gone, and I never saw him again, until I saw him dead. On November 4 I heard that O. S. Williams had found the body of a man, and I went up to town to see him. He and some others then went with me to the body; it was about three-fourths of a mile from the business part of the town, nearly south, on a high hill in the pasture. He was lying with his head to the northwest, with his face to the southwest. His hat was lying with one side of the brim on the ground, and the other on one side of his head. I saw a wound on the back of his head, where he had been shot. Under this wound, on the ground, I saw a little blood. The body had evidently been there several days; decomposition had set in. I have lived in Bowie about seventeen years—ever since before there was any town there—but was never right at the place where the body was found before. I was with the first crowd that got to the body. The body was badly swollen. I saw a piece of iron, claimed to have been found in an up-stairs room of defendant’s hotel. It had something on it that looked like blood or water; I could not tell what it was. It also had a couple of hairs sticking on it, that were a little lighter than my hair, and corresponded, as well as I could judge without comparison, with the length and color of Jack Stallings’ hair. I did not compare it with any hair that I knew to be his. Jack’s hair was a little lighter than mine. The hair was adhering to the iron by what I took to be blood.”
    
      H. Eiley testified: “ I live in Bowie. I am a regular practicing physician, a graduate, and have been practicing medicine for twenty years. I knew Jack Stallings in his life-time. He is dead. I first saw his body on the hill, south of Bowie, in Montague County, Texas. I recognized the body from its size, shape, and clothing. I examined the body for wounds. There was a wound, which I afterwards found to be a bullet wound, in the back of the head a little to the left of the center line, and ranged forward and upwards, and came through the skull about three inches above the right eye. There was another wound on the right wrist. It seemed that the flesh had been lacerated before he was dead, by something around his wrist. The skin seemed to be blood-shotten at the wrist. The body was swollen and badly decomposed. The bugs, flies, and worms had eaten away the face and some parts of the body. The body had been lying where found several days. It was some three or four hundred yards to the nearest house. I made a post-mortem examination. I was assisted by Drs. Mitchell and Elliot. The mark on the wrist was about four inches above the hand. The skin was not broken, but was contused and blood-shotten. 1 found the bullet about two or three inches above the right eye. There was an ex-travasation between the periosteum and skull. This was caused by a blow. It was on top of the head, from the front edge of the hair back about four inches, and was about the width of a man's hand. The blow which caused it was struck before the man was dead, and was done with a blunt instrument. The skull was not broken. The bruise was three or four inches wide. It was a severe blow, and hard enough to knock a man down. The shot, in my opinion, is what caused death. There were powder-burns on the skull where he was shot, at the back of the head. I saw the room in the Dodson Hotel where it is claimed by the State that Jack Stallings was killed. I saw a good many stains on the floor. Some of them were not blood, but some of them appeared to be blood. The stains were up stairs in the room to which the back stairway leads in.”
    Cross-examined: “The stains were just in spots, about the size of where a man would spit amber. I would not be certain that the stains were blood; some of them I know were not blood, and some of them I thought looked like blood, and they were, to the best of my opinion. From where I noticed the stains on the floor in the room there was some of the same kind of stains out on the platform, and some on the back steps, that I took to be blood. There was a trail way of stains leading from the stains in the floor across the floor to the head of the stairway, and down two or three steps, as if a dripping object had been carried along. I examined the iron found in the room. It had some hair sticking to it, and had on it what I took to be blood. ’ The hair was like Stallings’ hair.”
    Dr. E. H. Mitchell testified, corroborating the testimony of Dr. Eiley, in making the post-mortem examination.
    
      O. V. Bray testified: “l am the city marshal of the town of Bowie, and was during the year 1893. I made an examination of the up-stairs room, the room into which the back stairs.run up, in the Dodson Hotel, in the town of Bowie. This was sometime after Dodson moved out, sometime in ¡November or December, 1893. I found in that room a piece of iron. [The witness here exhibits a piece of iron about twelve or fourteen inches long, about two, two and one-half or three inches wide, and about three-fourths of an inch thick.] It is a part of a fish plate used to fasten the ends of the railroad rails together at the ends. When I found it, I found some hair on it at one side. They compared, as well as I could tell, very well with Jack Stallings’ hair; might have been a little lighter. The Dodson House fronts on Mason street, to the eastward. It is about 180 feet from the northeast corner of the block. There is an alley twenty feet wide that runs east and west on the north side of the Dodson House. The hotel is about 621 feet east from the southeast corner of the block. There is another alley that runs through the middle of said block from north to south. The calaboose is situated northwest of the Dodson Hotel. It (the calaboose) is in the north and south alley, and is north of the east and west alley. The block is 300 feet square. Mrs. Jarrott lived on the south side of the block, 225 feet from the south corner, and on the side next to the Fort Worth & Denver City Railroad. There were a couple of splotches on the piece of iron, which looked that they might be blood or water. I had Hillia Wilkerson in the calaboose, on the 15th day of October, 1893, on a charge of vagrancy.”
    Cross-examined: “I did not compare the hair with any hair that I knew to be Jack Stallings’. I will only say that it was about the same color, or a little lighter, from my memory of the color of Jack Stallings’ hair, having been acquainted with Jack Stallings for a long time. I remember putting Hillia Wilkerson in the calaboose; it was on the 14th or 15th of November, 1893. I do not know whether there was anybody in the calaboose on the night of the 28th of October, 1893, or not. I have no recollection about the matter. My books will show, however, whether there was anybody in the calaboose that night, as I keep a record of every person I put in there. The northeast corner of the calaboose is about eight feet from the southwest corner of the old grain house.”
    Recalled by the State: “Since being on the stand before, I have examined my books, and they do not show that anybody was put in the calaboose on October 28, 1893.”
    Mrs. Getting testified: “In ¡November, 1893,1 lived in the town of Bowie, and kept a hotel adjoining the Dodson Hotel on the south, and fronting Mason street. On the night of October 28, 1893, about 10 or II o’ clock, and after I had gone to sleep, I heard some kind of a noise that woke me up. After I had been awake awhile, I heard a pistol shot, which sounded like it was up stairs in the back room on the south side of the Dodson Hotel. The reason I know it was about that time, a boarder came in about 11 o’clock that night and engaged a bed; the next day he engaged board, and staid at my house a month. My books show that he began boarding there the 29th of October, 1893.”
    Cross-examined: “Mr. Dodson and I were competitors in the hotel business at the time, and up until the time he moved out of the hotel. I saw Hillia Wilkerson at my doors the next morning after the shot was fired, and. talked with her. It was Sunday morning. There is but one wall in the addition of my place to the Dodson House. It is a plank wall, and I was sleeping just under the southwest room, where it is said Stallings was killed, and the shot seemed to be just over my head in the southwest room of the Dodson House. There were several boarders came in my house that night.”
    W. T. Keith testified: “I lived in Bowie at the time Jack Stallings was killed. On the night of October 28, 1893, I was doing business on the west side of the block that lies directly north of the block on which the Dodson Hotel is situated. My business house fronted the west, and was seventy-five feet from the southwest-corner of the block on which it was situated. About 11 o’clock that night, and just before closing up, I walked out at the back end of my business house, and while there I heard a shot in the direction, of the Dodson Hotel. It had a muffled sound, as though it were in a house.”
    Cross-examined: “My hearing is not good at times, but was unusually clear that night. I sometimes have catarrh, and it affects my hearing. I did not have it that night. My.hearing was very good at that time.”
    Mrs. Jarrott-testified: “In the year-18931 kept a hotel in the town of Bowie. My hotel was situated on the south side of the block on which the Dodson Hotel was situated. It fronts south, next to the railroad, and was situated on the first lot west of the north and south alley. On the night of the 28th of October, 1893, I.heard a shot in the direction of the windmill, as well as I could guess. It was about 10 or 11 o’clock that night. The windmill is in the street, northeast of the Dodson House, almost opposite the Dodson House from where I lived. In the afternoon of October 28, 1893, I also saw Hillia Wilkerson. She came to my door. I know the time she came there was the 28th, because I went to the Dallas fair that week, and came home on the 26th, and it was the Saturday evening after I came home. I know the date from the fact that I got a letter from my brother to meet him at the Dallas fair on the 26th of October, and I went on the 25th, and did not see my brother, and came back home on the 27th, and the day I saw Hillia was the day after I got home, and it was Saturday.”
    Will Cates testified: “I was in the town of Bowie on the night of October 28, 1893. I was northeast of the windmill, and was on . the northeast corner of the block that lay directly east of the Dodson House. I was about seventyrfive yards from the, Dodson House. I heard a shot on that night about 10 or 11 o’clock, andas near as I could judge it was in the direction of the Dodson House. I went to bed about 9 or 10 o’ clock that night. I was lying down and reading a paper when I heard the shot, which I took to be in the direction of the Dodson House. There were several houses between my house and the Dodson House. I slept in a little house, and the south door was open. There is no house immediately between where I slept and the Dodson House.”
    Hillia Wilkerson testified: “I lived in Bowie, in Montague County, Texas, on the night of the 28th October, 1893, and was in Bowie, Montague County, Texas, and at the Dodson Hotel, kept by the defendant. I came there on the night of the 21st of said month, and had been there the rest of the week. I remember the circumstances of the killing of Jack Stallings. On Saturday night about 10 o’clock I heard a noise up stairs, and went up the inside stairway and out on the front gallery on Mason street, and went in at the east door of the southeast corner room, and opened that door and went, through the room to the door of the next room, which is the southwest corner room. There is no shutter on this door on the inside. As I came to the door I saw Jack Stallings and Dodson. Jack seemed to be starting towards the door in the direction of where I was. Defendant and Bob Leftwich and Jack were all on-their feet near the table, and as Jack took a step or two in my direction Bob Leftwich struck him from behind with something I took to be a flatiron. He seemed to hit him on the side of the head, and Jack staggered and fell back, and as he staggered he sunk down, and told me to tell his folks how this is. Bob Leftwich told me if I told it he would kill me, and if he did not live to do it, his folks would. I was badly frightened, and turned and ran to my room, and in a few minutes after I got there I heard a pistol shot that seemed to be in that room where I saw Jack knocked down, and shortly after this Mrs. Harris came into my room. I slept in that room that night, and left the Dodson House on the next Monday and went to Karr Switch, and got off and went to my sister’s, Mrs. Moberly. I staid there about a month. I saw Mrs. Getting the next morning after I saw Jack knocked down. It was Sunday morning. I had some conversation with her. I went to her door. I had never seen Jack Stallings but a time or two before. I was in the calaboose in Bowie on Sunday, about .the 15th of October. Fred Smith paid my fine. I went from the calaboose to Dodson’s, and staid there until the 17th, and went from there to the Dallas fair. The defendant had gone down a day or two before; he met me at the depot, and took me to a hotel and staid with me: I came back to Bowie on the 21st. The next day was Sunday. I went to the Pipes Hotel. On Monday, the 23rd, I went to my farm after my rent money. Mr. Pennock went with me. The money had been paid in at Bellevue, and I went there and got it and came back to Bowie, where I found my sister. She wanted me to go home with her, and I started with her and got on the train after supper, but after the train started I got off on the right-hand side and went back to the Dodson Hotel, and I staid there until the next Monday after the killing. I saw Hr. Palmer at the depot. I had got on the train, and he came up to the window and was talking to me, and gave me a note. I also saw Sam Cannon, and spoke to him as he was passing through the aisle; he stopped and talked a moment. I did not go on with my sister to her house, but got off as the train started towards Bellevue. I was put in the calaboose at Bowie on a charge of prostitution. It was the only time I was ever arrested on such a charge. I had lived for about ten years near Bellevue, in Clay County. Since the trial of Leftwich I have been married to Palmer. I saw the defendant, Bob Leftwich, Brit Bolen, and another man I did not know, in the room on the night of the 28th. Bolen and the other man were sitting down around the table, and the defendant and Leftwich and Stallings were on their feet. I did not see the defendant do anything. I first told about seeing Leftwich strike Jack to Mr. J. W. Stallings. I had been sworn before this and examined, but denied knowing anything. I was afraid to tell it, but when I saw old man Stallings, and found out he was the father of Jack, I made up my mind to tell him, and I told him one night at the Vanzant House, in Bowie. I bad been arrested a day or two before this at Belcher as an accomplice to the killing, and brought back to Bowie and examined before Squire Cook. Mr. Thomas, the attorney for the State, told the squire to dismiss my case, and I went from there to the place where I afterwards saw Mr. Stallings, and made the statement to him of what I saw. On the Saturday afternoon before the 28th I was at Mrs. Jarrott’s house, in Bowie. I went to the door after a bundle of things I thought was there. I saw Mrs. Jarrott, and spoke to her on that evening. I and Mrs. Harris went out riding; we drove a gray team; I don’t know where Mrs. Harris got it. My twin sister Hattie looks a great deal like me, and people frequently take one for the other. There were a good many people coming and going from the Dodson Hotel. It was in Montague County, Texas, that I saw Jack Stallings struck in the manner that I have detailed, and on the 28th of October, 1893.” Cross-examined: “I first went to the Dodson House about the 9th of October, and staid there until about the 17th of October. I left there about the 17th, and went to the Dallas fair. I was put in the calaboose on October 15, 1893. Mr. Dodson had gone ahead of me to Dallas. When I got to the depot at Dallas Mi'. Dodson met me; he went with me to the national Hotel. I staid in Dallas until the 22nd. On that day I came back to Bowie. I staid two nights at the national Hotel. The defendant staid with me part of the time. A man by the name of Smith was at my room at the national Hotel, and staid with me awhile. I charged him $5, which he paid. Dodson did not come with him to my room. He came alone. I had been engaged in prostitution about that time. While I was in Dallas I fell out with Mr. Dodson. It was because he took me to such a low-down place. He took me away from the national Hotel and took me to one of the most lowdown places I ever saw. He took me to aplace where there was a man and his wife living, or they said it was his wife. He took me there one morning after we left the National Hotel. The man kept a beer saloon. I did not go in the saloon and drink beer and ‘carouse’ that night. We just went to a side window of the back room of the saloon, and they handed the beer out to us. The saloonkeeper’s wife went with me to the saloon. I do not know how many glasses we drank. I slept that night at the saloonkeeper’s house, Mr. Dodson and I. I slept with the saloonkeeper and his wife. The saloonkeeper slept in the middle. Mr. Dodson slept on a cot by himself. I do not know whether the saloonkeeper spooned or not. The next morning Mr. Dodson and I had a racket, and he went off and left me there. I fell out with him for taking me to such a low-down place. That day I went to another place tliat the saloonkeeper’s wife told me about, and staid all day. The place was kept by a young white woman, and she had an old woman and a negro woman living with her. That evening I went back to the saloonkeeper’s home and staid all night there again. That was the last night I staid in Dallas. A man by the name of-came home with me. He had been to my room at the National Hotel at Dallas, and had paid me some money. He went with me to. the Pipes Hotel, known as the Travelers’Home, October 22, 1893, the night I got back from Dallas.. The next day I got a buggy and went to Bellevue to collect the rent on my farm. I got back after night. When I got home my sister, Mrs. Moberly, was there waiting for me, and wanted me to go home with her. I agreed to go home with her. She went to the Dodson Hotel, and had my trunk taken to the depot. I went with her to the depot, and when the train came we got on the train. Just before the train came I was talking to a man by the name of Corbett. Will Palmer handed me a note through the car window after I had gotten on the train. After the train started, I jumped off and went to the Dodson Hotel. After I jumped off I did not see Corbett nor Palmer, nor Mrs. Dodson, nor any of the folks that were with her, about the depot. T went back to the Dodson Hotel alone, and staid there until October 30, 1893. On that day I went to Bellevue, on the Fort Worth & Denver City Bailroad, and from there to my sister’s, Mrs. Moberly’s. Will Palmer and I had been sweethearts, and he had been intimate with me, but I did not see him or any other man that I had been intimate with after I had got off of the train on the night of the 23rd. I do not remember anybody being sick at the Dodson Hotel. Don’t remember of ever seeing Harry Wicks about there. During that week I don’t remember anybody that was there except the family and Mrs. Harris, and Bertie Beard. Mrs. Harris was there all that week, and done the cooking. I left her there when I went away. I did not sleep up stairs at the Dodson Hotel on the night of the 28th. I don’t remember ever having seen John Patchen about that hotel. l am familiar with every part of that hotel. I know the room up stairs at the head of the stairway, where it is claimed that John Patchen slept on the night of the 28th of October, 1893, and I know the room across the hall, opposite it. ' This last room was a dark room. It had no windows in it and only one door, and had rooms all around it except the side next to the hall. It was an old cobweb lumber room that nobody ever slept in. It was used to keep rubbish and old plunder in, and the wall was canvassed on the outside on the hallway, so that nobody could have seen through it. I did not pay any board at the Dodson Hotel that week. Mr. Dodson told me to tell his wife that I had paid him. I was in the calaboose on Sunday, the 15th of October, 1893. They had me in there on a charge of vagrancy. Fred Smith paid me out. I did not tell my sister, Mrs. Moberly, that I was forced to tell what I told. I was arrested, charged with the murder of Jack Stallings. Was arrested at Belcherville, fourteen miles north of Bowie, by Bud Taylor, a deputy sheriff, who was a cousin of Jack Stallings. I was sick at the time at the Antram Hotel. After they had arrested me, they carried me over to the Bilbo Hotel. The next day I was taken to Bowie, and was sworn to testify in regard to this case, and I swore that I did not know anything about it. I did not tell Mrs. Moberly that Bud Taylor, or any one else, told me on the road from Bowie to Montague, near the bridge, that that was a good place to hang a woman. That one woman had been hung near that place, and that a rope would make a woman talk. I did not tell Mrs. Moberly I was forced to tell what I did tell. She told there would have been $60 for me to have taken the other side, and I told her she knew I was in Bowie, and was telling the truth, and that she ought to tell the truth herself. That was what I told my sister. They did not try to scare me, and I did not get scared at what they said. I saw Sam Cannon on the train at Bowie on the night of October 23,1893. He spoke to me and I spoke to him, and he passed on. I did not talk to him all the way from Bowie to Bellevue. I would not have talked with such a man. I was well acquainted with him, and did not consider him a nice gentleman, nor a man fit for a girl to talk to or associate with. The saloonkeeper that I slept with two nights in Dallas conducted himself in a nice and gentlemanly way. Mr. Dodson did also the night he slept with me. At the time I made my first statement in regard to this, I don’t think Will Palmer had been arrested for the murder of Jack Stallings. He was arrested immediately afterwards. Will Palmer had been intimate with me before that time, and I have since married him, and I am now living with him as my husband.”
    Redirect: “I first told about this to "Mr. Stallings, the father of Jack Stallings. Mr. Thomas had told the justice of the peace, before that time, to have me discharged.”
    Recross: “At the time I made this confession I was still under arrest. Bud Taylor had me in charge. It was at a beer joint on Smythe street. I had been drinking some beer. I had a dram of whisky this morning just before I went on the witness stand. Jack Stallings’ father gave it to me. He also gave me a dram just before I went on the stand in the Leftwich case. At the time I saw BobLeftwich hit Jack Stallings, the defendant did not say or do anything, nor did old Brit Bolen, nor any of the men who were in the room at the time, say or do anything either.”
    Scott Johnson testified: “I was in Bowie in the morning of Tuesday or Wednesday following the time when Jack Stallings was missing on Saturday. I saw the defendant and Bob Leftwich there. They were in the southwest corner room of the Dodson House, the room that was entered by way of the back stairs. There was a game of poker played there. There were several in the house. Somebody said that Jack Stallings was missing, and had been missing since Saturday. I said I saw Jack Stallings to-day talking with a girl, and she was crying. The defendant said, ‘I guess not. His folks have been telegraphing everywhere about him.’ ”
    Cross-examined: “I might have told W. S. Jameson or John P. Slaton, attorneys for the defendant, on the evening that I came to this court, that this talk I had was with Bob Leftwich, and that the defendant said nothing about it. I remember to have seen them and had a conversation with them, and I do not now undertake to say that the defendant said anything in said conversation. The conversation was general. I merely state the substance of the conversation, but do not undertake to say what any particular person said. It has been a long time since, and I have thought nothing particular about it until lately, since I have been summoned in this case. I was honest in what I said about seeing Jack Stallings, but was mistaken. I learned afterwards that it was his brother.”
    W. A. Stephens testified: “I live in Gainesville, Cook County. I lived in Bowie during the year 1893, and was in the laundry business. I was in that business when Jack Stallings was missing and when he was found. I was doing washing for the Dodson Hotel at that time. About that time I received some bloody towels from the Dodson Hotel. I am not certain as to the time.”
    Cross-examined: “It might have been before or it might have been after Jack Stallings was missing. I could not undertake to be certain about it. I had gotten bloody clothes from the Dodson House before that time. It is not an unusual thing to get bloody clothes at a laundry. The clothes are frequently received in that condition. The bloody towels that I speak of were rolled up, and that is what attracted my attention to them.”
    J. S. McBride testified: “I live in the town of Bowie, and lived there in 1893, at the time Jack Stallings was missing. I lived in the southwest part of Bowie, and lived about three or four hundred yards from where Jack Stallings was found. On the night of October 28, 1893, about 10 or 11 o’clock, and while I was at home, I heard a pistol shot in the direction of where Jack Stallings was afterwards found.”
    Birdie McBride testified: “I boarded at the Dodson House awhile in October, 1893. I came there on Sunday, the 14th, and left there on Friday, the 27th of October, and was there all the time between those days. I knew Mrs. Harris. She was cooking there when I went there. She left there about the 21st, or the next Saturday after I got there. She said her little boy at Wichita Falls was sick, and she was-going to see him. I never saw her there any more. If she was ever there any more I did not see her nor hear of her. Hillia Wilkerson was also at the Dodson House when I went there. I remember when she went away, about the time Mr. Dodson went to the Dallas fair. This was in the early part of the next week after I went there—a few days before Mrs. Harris left. I never saw her again but one time. She was never back at the Dodson House again when I was there, or, if she was I did not know anything about it. I am certain I never saw her there any more. I never saw her but one time after Dodson went to Dallas to the fair. I then saw her at the depot on the night of October 23, 1893. She was then with her sister, Mrs. Moberly. She took the excursion [no such word used] that passes through Bowie, on the night of the 23rd, going west in the direction of Bellevue. The way I came to see her, Mrs. Dodson, the wife of the defendant, and Eoena Bindley, stepdaughter of defendant, and Mrs. Hayney, an old lady who is an aunt of Mrs. Dodson, and myself, all of whom staid at the Dodson Hotel, had gone from the Dodson Hotel to meet Mr. Dodson, who was expected to come back on that train from the Dallas fair. Mr. Dodson did not come on that train, as we expected. I was in company with them when they went to the depot. We staid there until the train had moved out. We saw Hillia Wilkerson and her sister get on the train, and after they were in the train. We then went back all together to the Dodson House. Hillia Wilkerson did not fall in company with us going back, nor did I ever see her again at the Dodson Hotel. I staid then at the Dodson House until Friday, the 27th of October, 1893. On that day I left the Dodson House, and went to live with Mrs. Worley, and I lived with Mrs. Worley continuously up until the time I married. Mrs. Worley is a sister of Jack Stallings, the deceased.”
    J. F. Elliott testified: “I am a practicing physician, and live at Bowie. I have resided there for many years. I was practicing medicine there in the fall of 1893, and was called to see a gentleman sick at the Dodson Hotel, by the name of Harry Wicks. He was sick when I visited him. I found him at the Dodson Hotel, in the southeast corner room, up stairs. The way I got up stairs, I went up the front stairway from the street, and went out on the front gallery, and entered the room in which he was sick, from the gallery, fronting east on Mason street. I examined the patient and prescribed for him. I don’t remember how often I visited him. I only have a distinct remembrance of having visited him once. Don’t have the distinct remembrance of the date.” Witness here being shown a prescription bearing date October 26, 1893, says: “I wrote that prescription, and from the date on it I am willing to say the date is correct, and that I visited him on that day. It was not in the day-time that I visited him. I can not say what time of night it was, but think it was in the early part of the night. The reason that I know that it was after night, I remember that he asked me to write a letter for him to his folks in Hew York, and I sat down by a little table in his room, and wrote the letter by lamp light. I am unable to say how long he was sick, or when I first saw him after I last visited him. He was quite sick. About a week or ten days after I had seen him in the sick room, I saw hi in up town on the streets, and he paid me my bill. I made no memorandum of my charges on my book, and have nothing to refer to, to refresh myself about dates. The reason that I made no memorandum of it was because he was a stranger and appeared to be a transient man, and I did not have much expectation of getting pay for my services. The way I estimate the time he paid me the money, after the time I had visited him in his sick room is, that I remember that when he paid me, I estimated that it had been about long enough since I wrote the letter for him to receive an answer from Hew York.”
    George O. Slaughter testified: “I am prescription clerk for Foreman & Greer, druggists, at Bowie, Texas, and was so acting during the year 1893.” Witness here being shown prescription dated October 26,1893, says: “This prescription was given by Dr. Elliott for Harry Wicks, and was filled on the date it bears.” Witness being shown another prescription, which bore no date, says: “This prescription was also given by Dr. Elliott for Harry Wicks, but the number it bears shows it was given after the other one.”
    Brit.Bolen testifies: “I was in Bowie on the night of October 28, 1893. I staid at the Pipes Hotel, what was called the Travelers’ Home. I went to bed at my usual time, about 8 o’clock; was some 150 yards from the Dodson Hotel. After I went to bed I remained in bed all night, and was not at the Dodson Hotel that night, and did not see the defendant or Bob Leftwich or Hillia Wilkerson on that night. Hor was I in the room, where it is claimed by the State that Jack Stallings was knocked down, when Jack Stallings was there.”
    Cross-examined: “I have been in that room. I have been arrested on an indictment for the killing of Jack Stallings, and the case has been dismissed at this term of court. I did not want it dismissed, and my attorney objected to my case being dismissed. I told my father before I came over here that I did not think there would be any trial in my case, as I thought it would be dismissed.”
    Sam Cannon testified: “I was on the train that went up from Fort Worth to Wichita Falls on the night of October 23, 1893, and was on the train as it passed Bowie and Bellevue. When the train stopped at Bowie, the witness Hillia Wilkerson, in company with another woman, got on the train. Hillia told me that the other lady was her sister. I talked with Hillia until the train got to Bellevue, and saw her get off at Bellevue. Her and her sister got off, and I saw her no more. Hillia Wilkerson did not get off the train at Bowie. I know she did not, because I remember distinctly that I talked with her on the train all the way from Bowie to Bellevue, and saw her get off at Bellevue.”
    Cross-examined: “I am in the produce business at Wichita Falls. I have been in jail on a charge of gambling. Was in jail only a short time—long enough to get a friend to go on my bond, and when I was tried I was acquitted of the charge. I never talked to anybody about this case until I was attached in the Leftwich case. I had never known Leftwich, or any of his friends, or any of his kinfolks, until I was brought to court by attachment.”
    Tom Sweazer testified: “lama farmer, and reside in Clay County, and have lived there for ten years. Live near Bellevue. I went to Henrietta on the train from Bellevue—on the passenger train—October 30, 1893. There is a platform above Bellevue a few miles, called the Karr platform, where passengers sometimes get on and off. I know Hillia Wilkerson, and have known her several years. I first saw her and her sister, Hattie Miller, standing on said platform, before the train reached the platform. The train stopped at the platform and Hattie Miller got on, and Hillia Wilkerson remained on the platform, and the train passed on. I know it was on the 30th of October, 1893, because I was going to Henrietta on a business transaction, and I know the day I went to transact that business. I am but slightly acquainted with Bob Leftwich. Am not acquainted with Dodson, the defendant. I never knew anything about him until I was attached in this case.”
    J. M. McCray testified: “I live in Clay County, near J. E. Moberly. Have lived there for many years. Am a farmer. Have known Hillia Wilkerson five or six years. I saw her in the evening, somewhere between 3 and 4 o’clock, on October 28, 1893. I saw her at her brother-in-law’s, Mr. Moberly’s. I went after some old wagon tires to use in building a chimney. I had some trouble in getting them. One of the tires was in an old well, and I had trouble in getting it out. I got tired and thirsty, and went to the house to get a drink of water. I saw Hillia Wilkerson and her sister, Hattie Miller, both there that day. I know both of them well. If the excursion to Fort Worth was on the 23rd of October, then the time I speak of when I was at Moberly’s after the old tires was October 28th. My son went to Fort Worth on that excursion.”
    J. H. Majors testified: “I live at Bellevue. I am a farmer and land agent. My principal business is farming. I have known Hillia Wilkerson for several years. I saw her on Sunday, in the latter part of October, 1893. I could not be certain as to the date. I am pretty well satisfied in my own mind that it was on October 29,1893. It was not the next Sunday after that, for on that Sunday I was at home all day. Had some neighbors visiting us, and know it was not on the first Sunday in November. I know Hillia Wilkerson and Hattie Miller apart. Know them well. I also saw Mrs. Moberly there that day. They were all three there that day, and Mr. Moberly, too. It was about 12 o’clock when I left there, probably awhile before 12, for I did not take dinner there. I remember that after I left there I drove south in the direction of the school house, and met several parties coming from church, and that I met Remos Graves, and stopped and talked with him. I. remember distinctly that the time I met that crowd and talked with them was the same day I talked to Hillia Wilkerson, and after I had left Moberly’s. And I know it was bn Sunday. The object of my visit to Moberly was to see Hillia Wilkerson, because I was a land agent, and I had heard that she had a piece of land she wanted to sell, and that is the reason I wanted to see her in order to get the agency for the sale of her land. I have no acquaintance with the defendant or any of his folks, nor knew anything about him until I was attached in this case.”
    Remos Graves testified: “I live near Bellevue, in Clay County, Texas. Am a farmer, and have lived there several years. I remember the day I met Mr. Majors and talked with him in the lane south of Moberly’s field. I had been to church, and met him on my way from church. It was the 29th day of October.”
    J. E. Moberly testified: lil live in Clay County, Texas. Am a farmer. Live a few miles west of Bellevue. I live about a mile and a half from Karr Switch platform. I have lived there several years. Mrs. Blanche Moberly is my wife. Hillia Wilkerson and Hattie Miller are sisters. I know where they were during the latter part of October, 1893, in company with my wife. This was Monday night. I met them at the depot and carried them home. She staid there all the time for about a month. She was there all the week following on October 23rd. She was there on October 28th, Saturday. That is, she was there to my knowledge when I left home in the morning, and she was there when I came back. I went to Port Worth on the train that day, and came back late at night. She was there when I came back late that night. They made a light, and prepared my supper. She slept that night with her sister. Hattie Miller was there in bed with her when I got home. She was there the next morning, the 29th of October, which was Sunday. Mr. Majors came there that day to see Hillia Wilkerson to get the sale of her land. She was there on the morning of the 30th of October, 1893. Her and her sister Hattie that day walked from my house to the Karr platform. I saw them start. Hattie Miller was going for the purpose, as she expressed it, of taking the up train on the Port Worth & Denver City Railroad, and Hillia went along to accompany her. Hillia was to come back from the platfrom after Hattie took the train. After they had been gone awhile, my wife suggested that it was a long trip for Hillia to the platform and back, and that I take a horse and meet her. I accordingly got a horse and went in the direction of the platform, and met her coming back. She had gotten but a little way from the platform on her way back when I met her. I got down and walked, and she rode my horse back home. I never was acquainted with defendant until this case came up, and I have no interest in this case except to tell the truth about what I know.”
    Blanche Moberly testified: “lam the wife of J. B. Moberly. My husband is a farmer. We live near Bellevue, Clay County, Texas, and. have been living there five or six years. On the 23rd day of October, 1893,1 went from Bellevue to Bowie on the train. I went after Hillia. When I got to Bowie, I went to the Dodson House and asked Mrs. Dodson about her. She was not there. I then went to the Pipes Hotel, and found that she had been staying there. I waited at the Pipes Hotel until Hillia came in that evening. Her trunk was at the Dodson Hotel. After she came in at the Pipes Hotel, I went over to the Dodson House and got a man to take her trunk over to the depot. The train was late. We had to wait some time at the depot for the train. When the train came she and I got on it, and took adjoining seats, and went to Bellevue, where we got off of the train. Hillia did not get off of the train that night until she reached Bellevue. Hillia talked all the way from Bowie to Bellevue with a gentleman who was on the train. Hillia said his name was Sam Cannon, and that he lived at Wichita Falls. He was a stranger to me. I had never seen him before. My husband met Hillia and I at Bellevue, and took us out to our home. She staid at my house for about a month. Hillia staid at my house all that week, and was there on the night of October 28, 1893. On the night of the 28th my husband went to Fort Worth, and came back late at night. Hillia and Hattie slept together that night in the same room that I slept in; the room that Mr. Moberly occupied when he came back from Fort Worth. On the day that my husband went to Fort Worth, Mr. McCray came to my house to get some wagon tires to use about his chimney. On the 29th, which was Sunday, Mr. Majors, the land agent, came there to see Hillia to try to get the agency to sell her land, and saw her and talked with her. On the 30th, which was Monday, Hillia and Hattie went to the Karr switch on foot, and Hillia was going along to accompany Hattie to the Karr switch, and was coming back. Hattie was going to take the train at the Karr platform to Wichita Falls, and Hillia was coming back from the platform. After they had gone awhile, I asked Mr. Moberly to get on a horse and go and meet Hillia, so that she would not have such a tiresome long walk on her way back to our bouse. He did as I requested. He came back with Hillia. He was walking and she was riding his horse. Hillia staid there until November 27, 1893. I have talked to Hillia several times since the trial of Bob Leftwich. She don’t pretend, when she is with me alone, that she was at Bowie on the 28th of October, or that she told the truth about the circumstances. She claims that she was forced to tell this story, and that she would have to stick to it. She says she was scared when she told the story, and that she was afraid to change it and tell the truth. She has never made any pretense to me, whatever, that she has told the truth; she knows that I know better. I never did tell her that there was money in it for her to tell it differently. I never thought of such a thing. I know the story she had told was untrue, and all I said was that she should tell the truth about it, and I have always told her that. She said that she had been threatened and that she was afraid to do otherwise than the way she had done. She said that one time as she came to Montague when Bud Taylor was with her, about the place where the bridge is, between Montague and Bowie, she was told that that would be a good place to hang a woman, that there had been one woman hung there, and that a rope was what would make a woman talk. Hillia was going along to accompany Hattie to the Karr switch. Hattie was going to take the train to Wichita Falls; Hillia was coming back. After they had gone awhile I got Mr. Moberly to get a horse and meet her so she would not have such a walk back; he came back with her, he walking, she riding. Hillia staid there until ^November 27,1893. I have talked to Hillia several times since the trial of Bob Leftwich. She does not pretend with me that she was at Bowie. I told her to tell the truth. She claims that she was forced to tell this story, and would have to stick to it. She said she was scared when she told the story. She knows I know she is not telling the truth. She told me that .one time when she was going to Montague that Bud Taylor told her near the bridge that that would be a good place to hang a woman, that there had been a woman hanged there,, and that a rope would make a woman talk.”
    Cross-examined: “I heard of Hillia being arrested a day or two after the arrest. I did not try to get her to take the other- side of this question. I have always told her to tell the truth. I have never been offered any money to testify in this case.” .
    Jack Patching testified: “I live in Clay County. I have lived in Clay and Montague seventeen years. • I was in Bowie on the night of October 28, 1893, and slept at the Dodson Hotel that night. I first went to the Dodson Hotel between 12 and 2 o’clock, to get a bed. I went from over on Smythe street to the Dodson Hotel. I went east along Wise street on the south side of said street until I got to Joe Lewis’ blacksmith shop; then I turned in south, in behind Joe Lewis’ blacksmith shop, and south of the grain, store and across to the front of the Dodson Hotel, over on Mason street. I went in the Dodson Hotel, made a racket, and stamped on the floor, but could not raise any one at the hotel. As I went there I saw some parties near the calaboose. Looked like two or three men carrying off a drunken man. I did not pay much attention to them, and did not know any of the parties. When I went to the hotel I stamped on the floor and made considerable racket, but did not seem to attract any one’s attention, as no one came out. I then went-back on Smythe street and staid ten or fifteen minutes. Then I afterwards went back to the Dodson Hotel. As I went back I went by the calaboose. I sat down there on a couple of planks that were on an old wagon, a half or three-quarters of an hoar. I then went on the Dodson House again, and made a racket, and the defendant came out in his night clothes, and I called for a bed. He struck a light and took me up stairs, and gave me a bed in the first room at the head of the stairs on the north side of the hallway. The door opens from the right at the head of the stairway into the room which I slept in. I staid there until about peep of day. I woke up, and got up, and went down stairs. I then went back up stairs and lay down again, and I heard a peculiar kind of a noise that attracted my attention in the room just opposite mine, on the other side of the hall. I got up and slipped across the hall, and saw a man and a woman" on the bed. The bed was about the middle of the room. I watched them through a crack between the plank on the hallway wall of the room. After they finished up their performance, I went back in my room and laid down, and in a little while I heard the door open, and I watched and saw a woman come out of that room and go down the stairs. She had on a green or blue checked dress. I have seen the woman since; it was Hillia Wilkerson. I spoke to Mr. Dodson about seeing her there, and what I saw. He answered me that he did not allow anything of that kind to go on there. Ho, I am not mistaken. He said it was the governess playing with the children. It was sixty or seventy-five yards from where I was to where I saw the parties carrying a man.”
    Cross-examined: “I did not tell before about peeping through the crack, when I testified in the Leftwich case. Heither did I tell in said trial about stopping, on my second trip to the Dodson House, at the calaboose, and sitting on the wagon a half or three-quarters of an hour. I was not asked about these matters. When Red Dodson came out he was in his night clothes. I staid in Montague County until Wednesday following the missing of Jack Stallings. Then I left Bowie and went to Bast Texas, and never came back any more until the sheriff followed me and brought me back. I never told what I knew in regard to this case until then. I told it to the sheriff. As I went to the Dodson Hotel the first time, I went between the calaboose and the grain house.”
    Mrs. Dodson testified: “I am the wife of Mr. Dodson. We kept hotel in Bowie in October, 1893. On the night of the 28th of October, 1893, Mr. Dodson and I went to bed about 8 or 9 o’clock. Mr. Dodson was not up after he went to bed. If he had gotten up he would have woke me, as I am very easily awakened. I did not hear any shot or any noise about the house that night. I never saw the witness Patching about the hotel. He did not stay there on the night of the 28th. I slept on the north side of the house, downstairs, next to the front room. There could not have been shots fired there that night without my hearing them. Mrs. Harris was not there that night; neither was Hillia Wilkerson. About the 21st Mrs. Harris went to Wichita Balls; said her little boy was sick. She never came back any more until the week after Jack Stallings was missing. Hillia Wilkerson left my house about the 17th of October, and I did not know where she went to. She left her trunk there. She never came back to my house any more. The next I saw of her was Sunday night, October 22, 1893. I saw a woman get off the train and go in the direction of the Pipes Hotel, known as the Travelers’ Home, whom I took to be Hillia. On the next day, the 23rd, Mrs. Moberly, her sister, came to my house, inquiring for Hillia, and I told her where I saw the woman go. The way I come to see her get off, I had gone to the depot to see if Mr. Dodson wouldn’t come in on a train from the Dallas fair. I went to the train on the 23rd, at night, to meet the excursion, thinking that Mr. Dodson would be on it. I was in company with Mrs. Haney, my aunt, my little daughter Boena, and Birdie Beard. Went from the Dodson Hotel to meet Mr. Dodson. While there I saw Hillia and her sister, Mrs. Moberly, at the depot. I also saw them get on the train when the excursion arrived, and they were on it when it started. I never saw Hillia Wilkerson afterwards for more than a month. It is not true that either Hillia Wilkerson or Mrs. Harris was at my house any time between the 21st day of October, 1893, and the 30th day of said month. Mrs. Harris did not cook for me that week, or any part of that week. When Mrs. Harris left on the 21st Harry Wicks took her place, and cooked a few days and got sick, and was confined to his room for six or eight days. His room was the southeast corner room, up stairs. Dan Fisher occupied it with him. He was sick in that room on the night of October 28, 1893. Mrs. Haney and my little daughter Boena occupied the middle room on the front, on Mason street, that night. Will Tribble and Jim Brooks occupied the back room on the middle row, up stairs, that night. They usually went to bed about 8 or 9 o’clock. Went to bed early and got up early. They did not board with me—only had a room and slept up there, and worked at the saloon restaurant on Smytbe street. I do not know where they are now. They have left Bowie, and I can not find where they are at. Me and my husband have made inquiry. John Pearson occupied the back room up stairs on the north side as a bedroom. It is the room which the back stairway on the outside leads into. The stairway is on the outside of the house, and comes down from the southwest corner of the room to the westward, as shown on the plat. The north side was occupied by Corbett, and the room at the head of the stairs on the north was occupied by-. The' front room on the northeast corner, up stairs, was unoccupied. It had been occupied by Birdie Beard, but was vacated on the 27th of October, 1893. The room opposite to the room that Mr. Patching claims to have occupied was not occupied by any one. It could not be occupied with any comfort. It was a dark room; was surrounded on three sides by other bedrooms; had no ventilation; rooms were all tight walls, and it had no opening except the door that opened out into the hallway, and when it was shut, the room was as dark as a dungeon. It was canvassed and papered in the hallway. It was never used for any purpose except for an old lumber room. Nobody had ever occupied it as a sleeping apartment or for any other purposes. The stains referred to, on the floor, I know all about! They were caused by Indian peaches that were spread out in that room. I put the peaches out on a chicken coop at the back of the house to dry, and it came up a rain and I had to move them into the house. They were very ripe and juicy, and stained the floor. We moved them in the room at the head of the back stairs—the room that the State claims Jack Stallings was killed in.”
    Cross-examined: “My name was Latón before I married Mr. Dodson. My husband died on the- of February, 1893. I married Mr. Dodson on the- day of May, 1893. The room that the back stairs lead to was occupied by John Pearson as a bedroom. If there was any card playing in that room, I never knew anything about it. The peaches I speak of were put out on the chicken coop. The coop was made of a large box. The peaches were cut up and pealed of a night, and carried out the next morning and put out to dry. They were ripe and very juicy when I spread them out. They were put out there in July or August, as well as I can remember. Before the peaches were put out to dry there was a large waiter covered with them, and the peaches were piled up on the waiter as high as I could pile them. The chicken coop was a large goods box, and I put a cloth on it and spread the peaches on the cloth. There was not room enough to spread them out nicely on the coop, but after they were spread there were still some piled on top of one another.” [Witness being asked if she did not say on a former trial that the peaches were on a veranda, said, that she had stated that part of them were on the veranda and part on the chicken coop. Being further asked what she meant by veranda, she said, that she meant the platform at the head of the back stairs, outside of the back door. Witness being then asked if she did not say that they were on the front gallery, on the trial of the Leftwich case, said she did not, but said that she did dry peaches on the front gallery up stairs during the summer of 1893.]
    Redirect: Witness stated at the January Term of this court, 1894, while Bob Leftwich was on trial, that Mr. Templeton, the attorney for Leftwich, in company with Mr. Baker, then county attorney, came to her hotel, and by her permission went to the room in which the State claimed Jack Stallings to have been killed, and sawed out a large section of the floor of said room—a piece about three feet square—embracing portions of the floor on which the State claims there was blood, and brought the same to Montague to be used in evidence in the Leftwich trial. Defendant’s counsel here produced said section of said floor and offered it in evidence, which was identified by the witness, and admitted by the State’s counsel to be the same section of the floor which was used in evidence on the trial of the Leftwich case, and that the same had been in the custody of the district clerk ever since the trial of the Leftwich case. Witness being further recross-examined, being asked if there were not some stains on the upper steps at the back stairway, replied, that there were some peaches on the platform at the head of the stairway and some on the top steps, and that while the peaches were in the house during the wet weather the children ran up and down the back stairs with peaches from that room, and might have dropped some in going up and down the stairs and tread on them.
    Jud Sides testified: “My name is Judson Sides. I keep a restaurant in Wichita Falls. I kept a restaurant there during the fall of 1893. I am acquainted with Mrs. Harris, and was at that time. Her little boy, Jack Johnson, worked for me in the restaurant. The little boy got sick about the 20th of October, 1893. I wrote her word that he was sick, and she came to see him immediately, and got there about the 21st or 22nd. She remained there, to the best of my knowledge, constantly from that time until October 30, 1893. Did not see her every hour, but called every day, sometimes two or three times a day, where the little boy was sick, and always found her there. I gave her orders at various times during the week for medicines for the little boy, and she took the orders to the drugstore and got medicine for him. I gave her one order on October 26th, one on the 27th, and one on the 30th of October, 1893. The little boy first got up on Sunday. I don’t think Mrs. Harris was away during all that time. I think if she had been away I would have known it. I can be certain she was not absent from Wichita Falls a day or two at a time during that period. I first saw the little boy up on Sunday morning, the 29th of October, 1893. He was in company with his mother walking down the street to the restaurant to get his breakfast.”
    Dan Fisher testified: “ I boarded at the Dodson Hotel, in October, 1893, and also roomed there. I staid there from the time I went there until after the time Jack Stallings was found. My room was the southeast corner room, and joined the room in which it is claimed that Jack Stallings was killed. There was only a thin partition wall between that room and the room I was in. There is also a door between the two rooms. I was occupying that room on the night of October 28, 1893, and sleeping with a man by the name of Morgan. Harry Wicks was also sick, and was occupying that room with us. There were two beds in the room, and Harry Wicks slept by himself. I do not know what time I went to bed that night. I went to bed between 9 and 10 o’clock, unless I staid out at the oil mill that night to try and get a night job of work. Ingoing to the room where Jack Stallings was said to have been killed, by way of the front stairway, one would have to go up stairs in the hallway, thence out on the gallery on Mason street, then pass through the room in which I slept. Ho one passed through my room on that night after I went to bed. If so I knew nothing of it. To the best of my recollection, I went to bed at my usual hour, between 9 and 10 o’clock, on that night. I heard no disturbance in that room where Stallings is said to have been killed. There was no shot fired in that room while I was there. Hillia Wilkerson was there two or three days about the time when I first went there. I knew her only by sight. I went to Dodson’s about the middle of October, 1893. Hillia Wilkerson was there a day or two after I went there. Then she left, and I never saw her there afterwards.”
    J. W. Baines testified: “I am deputy sheriff at Bowie. Have lived at Bowie several years. I am well acquainted with the Dodson Hotel. I know the room at the head of the stairway where Jack Patching claimed to have slept on the night of October 28, 1893. Am also well acquainted with the room opposite to that room. It is a dark room, and is closely canvassed and papered, and it would be impossible for said Patching to have seen in the said room at that time unless the door had been open.”
    
      W. 8. Jameson and John P. Staton, for appellant.
    
      Mann Trice, Assistant Attorney-General, for the State.
   DAVIDSOhT, Judge.

Appellant was given five years in the penitentiary for murder in the second degree.

Hillia Wilkerson testified, that in the Dodson Hotel she heard a noise in a room, approached it, saw Bob Leftwich strike deceased with an iron bar on the head, appellant being present, but did not say or do anything; that she left, went to her own room, and shortly heard a pistol-shot, which sounded as if it was in that part of the hotel; and that this occurred in the town of Bowie, Montague County. Deceased’s body was found several days later, about three-quarters of a mile from the hotel, with a bullet hole in the back of the head. This witness twice denied any knowledge of this transaction, was herself charged with the murder, and under threats and the influence of intoxicants, finally testified, that she was cognizant of the facts above detailed.

It is also overwhelmingly proved, that at the time of the occurrences above stated this witness was at her sister’s residence, in Clay County, and remained there for about a month, and that she neither saw nor heard the matters stated. Even if her testimony be conceded to be worthy of belief, yet it is totally insufficient.

The Beporter will report the facts. We can not sanction this verdict under the record before us. The evidence is not sufficient.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Judges all present and concurring.  