The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1876-02-10
> Opinion by Ireland. Justice,

I tDtc. Il, 1870. Ben. Martin c. State.
Sc Eyidence-Charge in Burglary-Th
/ possession of property recently stolen, o
I burglariously taken, and the failure of de
/ fendant to reasonably account for such pos
! session, may be taken into consideration b,
| the jury, on a trial for burglary, in connec
/ tinn with all the other facts and circum
stances in evidence, in determining defend
ants guilt or innocence, and charge L
that effect is not erroneous. Opinion b!
Reeves, Justice. Jsnusry 2s, 1876. Al
deTson Prince {. The State.
81. Sentence, Cumulalion of--Under ou
code, there can be no such procedure n:
cumulative sentences. Ii defendant be
convicted of two felonies at the same tern
of court, having no relation with or de
pendence upon each other, the date of i'm
prisonment in the last conviction must com
mence from the date of sentence in that
case, and cannot be made to commence az
future, after expiration of sentence In the
first conviction. ID.
IS. Habeas Corpus, Appeal in No sp.
peal lies from the refusal of district Judge
to grant the writ of hdbeas corpus, and an
order made on the hearing, sustaining ex'
ccptions to the petition and dismissing the
writ, is tantamount TO refusal to grant the
writ in the first instance, and is not such 4
judgment as will support an appeal. Opin-
ion by Gould, Justice, January 2S, 1870.
Er parte b. f. COopsco0G.
SO. HdbeaS Corpus, Practice in-After the
issuance and return of writ of hdbeds cor
PuS, it is irregular for the judge To dispose
Of the matter by simply dlsnlissing the appli-
cation. The case should be heard on the
law and the facts, and an order made,
either discharging the applicant, admitting
him to bail or remanding him to custody.
d.
80. Witness, Impeachment Of-The law
does not fix any required number OF wit
nesses as necessary to be produced and used
in impeaching a witness, but surely more
than one should testify to the witness's bad
character for veracity, in order to authorize
jury to disregard his statements. Opin-
ION by Roberts, Chief Justice, Ganusfy 90,
1876. ". c. Wcfard .. The State.
81. Practice on Defective Plea-When a
special plea (as of former ac9uittaO is a
nullity upon its face, evidence offered in
support OF it may be properly excluded
but when it is merely defective, and liable
to be held ON exception, it is error to ex.
clude evidence offered in support of it.
ary %, 1870. +. N. DeatOn q. The State.
NCIuNJ- w HOu opCCldl piCdo cuO-
mitled with the general issue, the jury, in
returning their verdict, must pay regard to
the statute. P. D., 309l.) Id.
93. Swindliug, Indictment for-An IN
dictment for swindling must aver that the
defendant knew the pre:enses to be false
Opinion by Moore. Justice, January %,
1870. Nardda Dc Crtise .. The State.
"a. Jury Script, Unlawful Dealing in
Article 354b, Penal Code, (P. D., 1885, in
so far as it relates to the purchase of jury
scrip by officers, is repealed ty the act oi
March 30, 1874, General Laws of 1874,
chapter 39); and an indictment under the
latter statute must charge that defendant
contracted or WAS interested in contract
for jury scrip, not that he ''unlawfully &C
quired jury scrip" Opinion by Gould,
Justice, Ganuary 25, 1870. State o. r. II.
Smith.
80. Murder, Indictment for-An indict-
ment for murder in the first degree need
not aver that the person killed was "a rea-
sonabIe creature" nor that the killing was
done with express malice. Opinion by
Gould, Justice, (JanuarY 2S, 1850 arch.
Perry Q. State.
SO. Homicide, Verdict in-The verdict
in Il case of homicide is not vitlated, be
cause the jury, after a finding of guilty Of
lEsurder in the first degree, unnecessarily
Pfuceed to affiX the punishment at deatt
|'by hanging. III.
81. Variance The indictment designated
the party slain as ''Isaac Thomas, freed
man" :" the court below treated it as charg
ing defendant with the murder of Isaac
Thomas, and the proof showed that Isaac
Thomas was freedman. Held, that in
the absence of the original indictment, ano
no objection being interposed below,
verdict of conviction would not be dis
turbed on appeal on this ground. I'd.
9S. Homicide, Evidence and Charge IN
The burden of proof is never on the de-
fendant ID a criminal case, in the sense in
which it is understood to rest on a de.
fendant in civil suit. The plea of mot
guilty." throws the 0nus on the State tc
overcome the legal presumption of limo
cence, and the question of guilt is to bt
decided from the whole evidence, without
pausing to inquire whether it was intro
duced by one party or the other. l. is
therefore, not strictly accurate to charge
the jury in case of homicide that 1.-THE
law implies malice in case of unlawful
killing by means calculated to produces
death, and in such case, the burden of proc
is on the defendant, if he would reduce
the otfense to a lesser grade than murder
in the second degree" because, If the at
tendaut circumstances leave it doubtful
whether the killing was not manslaughter,
the defendant cannot be convicted of muir
der Id
80. Homicide, Charge ina charge tha
''If personal conflict be brought on by
defendant for the PURPOSE of killing an
other, he cannot contend that such con
tlict renders his mind incapable of coo
reflection" is Objectionable, because j
fails to tell the jury the law, if the con
fiict was brought ON for some purpose othe
than killing. Id.
100. THEFT, Evidence in-Actual, exclu
sive possession may be sufficient of itself h
support an allegation of ownership in al
indictment for theft; but where the proc
is that the alleged owner occasionally uset
the gelding alleged to have been stolel
! (Which was an estray); that he never com
piled with the law in having him regularl
estrayed, but for eight months had now an'
then taken him up off the range and use'
and fed him, and then turned him back ol
the range: and there was no proof that b
had him IN an inclosure at the time he wa
taken; nor that he had the gelding in hi
excl lsive possession at that time; nor tina
he was the owner, or had any au.horit
from the owner; the evidence wholly fail
to support the allegation of ownership
Roberts, g. j., Ganuary 25, 1850 Georg
Bldek5uTn o. The State.
1Ol. Theft, Evidence in = II the proc
show that defendant was found riding a
estray animal for several days, but made N
attempt to sell him, nor laid any claim b
him, and upon being arrested for an aggra
waited assault, the horse was left by the ofii
GERS making the arrest at a certain point
where he was claimed and taken into posses
sion by another party, not the owner, tn
question of fraudulent intent should hav
been very clearly submitted to the jury