BROWN, C. J. We copy the statement of the case made by the Court of Civil Appeals, as follows:

"G. G. Houston sued Mrs. J. E. Koonce in trespass to try title to recover two tracts of land designated as surveys Nos. 17 and 16, and from a judgment rendered in defendant's favor upon a verdict returned in obedience to a peremptory instruction by the court plaintiff has appealed.

"The evidence of title upon which the plaintiff relied was a purported purchase from the state under and by virtue of section 8, c. 103, p. 164, Acts of the Legislature 1905. Prior to the purported sales of the two surveys to the plaintiff by the Commissioner of the General Land Office, plaintiff had already purchased from the state the following four surveys of public school land, designated as surveys Nos. 12, 13, 14, and

11.

Plaintiff applied for the purchase of said survey 12 for purposes of a home on condition of settlement, and for the purchase of surveys 13, 14, and 11 as additional to survey 12, his home section. These four tracts were surveyed under section 8, c. 103, of the Act of 1905, and no sale of any of those four surveys has been canceled."

Section 3, c. 125, p. 294, Acts of the Legislature 1901, provides that: "The Commissioner of the General Land Office is hereby prohibited from selling to the same party more than four sections of land, and all applications to purchase land shall also disclose the prior lands purchased by the applicant from the state, if any, since the taking effect of this act, and the residence of the applicant at said time, and if it appear therefrom or from the records in the land office that said applicant has already purchased land aggregating four sections since the taking effect of this act, his application shall be rejected."

From section 8 of chapter 103 of the Laws of 1905, p. 164, we copy: "Any person desiring to purchase any portion of the unsurveyed school lands shall first make a written application to the surveyor of the proper county or district in which the land, or a portion thereof, is situated, signed and sworn to by the applicant, giving his post office address, and designating the land he desires by metes and bounds, as nearly as practicable, and stating that he desires to have the land surveyed with the intention of buying it, and that he is not acting in collusion with, or attempting to acquire said land for another person or corporation. shall be the duty of the surveyor to file and record such application and to survey the land and file the application and field notes in the land office within ninety days from the date of the filing of the application, to

It

gether with a properly prepared and certified sketch of the survey, with the variations at which all lines were run. The land shall be surveyed under the instructions of the Commissioner of the General Land Office, and where practicable, into sections of six hundred and forty acres each, and of a regular form. The applicant shall pay to the surveyor one dollar as a filing fee, and his further lawful fees for surveying the land. When the surveyor returns the application and field notes to the land office, he shall report under oath the classification and market value of the land, and also the timber thereon and its value, which may be considered in connection with such other evidence as may be required in determining the class and price to be given the land or timber. If upon inspection of the papers, the Commissioner is satisfied from the report of the surveyor and the records of the land office, that the land is vacant and belongs to the school fund, and the survey has been made according to law, he shall approve same and notify the applicant that the land is subject to sale to him, stating the classification, price and terms, which shall be the same as that for surveyed lands, except as herein provided."

The two laws are entirely consistent, so far as they apply to the same subject, and no repeal of the previous law was effected by the law of 1905. In the act of 1905 (section 8), which regulates the sale of unsurveyed lands, this language is used: "He (the Commissioner) shall approve same and notify the applicant that the land is subject to sale to him, stating the classification, price and terms, which shall be the same as that for surveyed lands, except as herein provided." Conclusive of this issue is this provision: "The land shall be surveyed under the instructions of the Commissioner of the General Land Office, and where practicable, into sections of six hundred and forty acres each, and of a regular form."

It is apparent that the only difference between the terms of sale of surveyed and unsurveyed lands was that the applicant was required to have the unsurveyed land surveyed, and the Commissioner might make different terms of payment. Under neither law could a purchaser acquire more than four sections. The Commissioner being prohibited in the emphatic terms of the statute to sell more than four sections to one man, the sale of the land in controversy to Houston was void, and he had no title upon which to recover.

It is ordered that the judgments of the Court of Civil Appeals and district court be affirmed, and that the plaintiff in error pay all costs.

the mule tracks that I saw at the field and at the house and in the lot were about the same size. I measured some shoe tracks in the field of two different parties who came from the wagon, and I measured their tracks. I went to where the wagon stood, and the tracks led from that wagon, and there were two different sizes, and I measured them. I also measured Wilson's and Lynch's shoes at the house. I measured the tracks with two pieces of cotton stalks, and I measured Wilson's shoes and Lynch's shoes with the same measure I used in the field, and the length of Wilson's shoe was the same as the length of one of the tracks, the shortest, and Lynch's shoes were the same length as the longest tracks. Wilson had the smallest shoe."

[1] Appellant objected to this witness and Jim Lewis being permitted to testify that they measured the men's tracks found where the cotton was stolen, with two pieces of cotton stalks, and had also measured the shoes of appellant and another, and they corresponded. No brief has been filed in behalf of appellant, and the only grounds urged to the introduction of this testimony were that the testimony "was immaterial, irrelevant, incompetent, prejudicial, and hearsay, and it was an opinion." The testimony was very material and was not an opinion but a statement of a fact; they had measured the tracks and the shoes of appellant, and these were very cogent circumstances and admissible in evidence. Mr Branch in his Criminal Law says: "Where a witness qualifies himself to give his opinion as to similarity of tracks by taking measurements, making tests, etc., his opinion is admissible" -citing Weaver v. State, 46 Tex. Cr. R. 618, 81 S. W. 39; McLain v. State, 30 Tex. App. 482, 17 S. W. 1092, 28 Am. St. Rep. 934; Goldsmith v. State, 32 Tex. Cr. R. 115, 22 S. W. 405; Thompson v. State, 45 Tex. Cr. R. 192, 74 S. W. 914; Meyers v. State, 14 Tex. App. 48; Rippey v. State, 29 Tex. App. 37, 14 S. W. 448.

[2] He also objected to this witness and Wm. Rector testifying that they noticed the tracks and stating that the wagon had been backed up to that smokehouse (where the cotton was found) and the team taken out and the cotton unloaded; that the tracks had been rubbed out by the foot (the witnesses moving their hands backwards and forward), and the tracks had been spoiled out as far as 20 feet from the door. These were facts which the witnesses should have been permitted to testify to, as they saw them, and the fact that the tracks had been rubbed out leading to the door where the

cotton was found, to say the least of it, would be a very suspicious circumstance, and, as this is a case depending on circumstantial evidence, the court did not err in admitting, the testimony.

[3] The only other testimony objected to was testimony as to the mule tracks found in the field. The witnesses say they were "common mule tracks"; and, as there was no evidence offered to show that these tracks were compared with the tracks made by mules owned by appellant, nothing prejudicial to appellant was admitted. It was certainly permissible for witnesses to state that they saw mule tracks, and it was admissible to prove that appellant owned mules. If there had been an effort made to compare the tracks found with the known tracks made by appellant's mules, then, if an objection had been made that no sufficient predicate had been laid, it might be good. There is no motion for a new trial in the record, and the bills of exception present no error.

The judgment is affirmed.

On Motion for Rehearing.

[4] Appellant has filed a motion for a rehearing in which he earnestly insists that the testimony is insufficient to sustain the conviction. We have again reviewed the record, and, while it is a case of circumstantial evidence, we think it amply supports the verdict. Jim Lewis had some cotton stolen from him one night. Dr. Maxwell was called to Lewis' house that night about 12 o'clock, and in going there he saw a wagon, with a mule team, stopped near where Lewis' cotton was stored. He called Lewis' attention to it, and shortly thereafter Lewis and a neighbor, Mr. Bowman, went to investigate the matter. The wagon had left Lewis' cotton patch, but they followed on down the road, and at appellant's house they saw a wagon with a mule team backed up to the smokehouse of appellant. The next morning cotton was found in this smokehouse. Lewis lost a certain character of cotton, Rowden. They found Rowden cotton in appellant's smokehouse. No explanation is given in the record where he got this Rowden cotton. Men's tracks were found at the point where Lewis lost his cotton. These tracks were measured. A known track of appellant was measured and they corresponded exactly. If these facts would not justify a finding that he was the person who stole the cotton, then it would be impossible to sustain a conviction unless some one saw the theft committed.

The motion for rehearing is overruled.

Wherever there is insulting conduct or words at the time of a difficulty and there had been prior insulting remarks which had been conveyed to the accused, and the killing had been upon the first meeting, both causes should be included in the charge on provocation.

The court refused to charge the jury with reference to the defense of property. He gave a charge with reference to self-defense as well as self-defense viewed from the standpoint of threats and demonstrations to execute the threats.

[1] Deceased had rented land from George B. Walker, father of appellant. The rental contract was verbal, but with the understanding that the pecan crop on trees growing on the land was reserved by Walker with the right to gather the pecans. A small barn on the premises was also reserved, as well as a small potato patch. The reason given for reserving the pecan crop was, first, Mr. Walker wanted the pecans himself; and, second, he did not want anybody thresh

[Ed. Note. For other cases, see Homicide, Cent. Dig. 8 649, 650, 652-655; Dec. Dig. 309.*]

4. HOMICIDE (§ 181*)-ADMISSIBILITY OF EVI. DENCE-UNCOMMUNICATED THREATS.

Where insulting conduct and language used by deceased with reference to defendant's wife and sister had been communicated to defendant, grossly insulting remarks by deceased referring to them, but which were not communicated to defendant, were admissible as corroborative of the communicated insults, and also as tending to show that deceased uttered the communicated insults.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. § 181.*] 5. CRIMINAL Law (§ 361*)-ADMISSIBILITY OF EVIDENCE-AGE OF INSULTED FEMALE RELA

TIVE.

Where deceased had said that a sister-in-law of defendant who was living at his house with her married sister was a prostitute, evidence that she was only 14 was admissible as tending to lessen the probability that a child of that age would be a prostitute.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 802, 803; Dec. Dig. § 361.*] 6. CRIMINAL LAW (§ 1106*)—APPEAL-TIME FOR FILING TRANSCRIPT.

Transcripts are required to be made up and filed in the Court of Criminal Appeals at once upon adjournment of the trial court.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. 8 1106.*]

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Louie Walker was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Richard Mays and Callicutt & Call, all of Corsicana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. The record is very voluminous, a great number of questions are presented by bills of exception, and motion for new trial relating to charges given and refused, and testimony admitted and rejected. The conviction resulted in murder in the second degree with five years' punishment.

trees so they would die, as some of the trees had previously died from this cause. He also reserved the right to operate the property for mineral purposes, drilling wells and pumping them after being drilled, laying pipe and guy derricks. This was to carry out a contract with the Smith-Kerr Oil Company. That part of the contract relating to the oil matter covered digging wells and laying pipe, and erecting derricks, etc. When the pecans began to ripen, there is evidence showing that deceased threshed one or more of the trees, whereupon the elder Walker employed appellant to gather the pecans with authority to employ hands to assist. The next day appellant and Hargraves went to where the trees were, and began gathering the pecans. Appellant carried his gun with him. Deceased was at the time picking cotton with some of his children and hands 500 or 600 yards away. When appellant began gathering the pecans, the deceased approached him, and an angry conversation occurred. Appellant testified when he first saw the deceased and his daughter southwest of his house, appellant and deceased living not far apart, the daughter was going in a fast walk towards the house, and deceased was approaching appellant. When deceased reached a gap and came down the lane opposite where appellant was threshing pecans at about 40 yards distant, deceased called Hargraves, who was assisting appellant in threshing the pecans, and said, "Hargraves, if you don't want to get in serious trouble, you just stand aside." Hargraves went to where appellant was, and said, "Louis, you had better look out." Hargraves then got his hat, and got off to one side. About the time that Hargraves told appellant to look out, using the language above quoted, appellant told deceased he was not gathering pecans for himself. Deceased said to him he did not care, they were his pecans, and he had to let them alone. Quoting, then appellant said: "I told him he had been threshing pecans, and we wanted to thresh some for our own use. He said