The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1877-05-24
synopsis Of Decisions in the Court
OF Appeals.


synopsis Of Decisions in the Court
OF Appeals.
REPoRTED BY JOHN c. RANDOLPH AND
A. r. COLEMAN.
Sam Mason ct ais. Y. The State. Opin-
ion by Winkler, J.
i. One witness testified when ex
amined on his o0ir dire that he was
only seven years Of age, and on being
further examined he said "Lhat il he
swore n lie the bad man would get
him." and said he 'fmesnt the devil"
and that he would go 10 Huntsville"
and said he meant .he 'penitentisry."
Held, that there was no error IN per-
hitting the testimony of this witness
to go to the jury.
2. The offense of conspiracy to COM
NIT burglary IS defined in PLAIN lau-
guage, and has affixed to it proper
punishment.
Affirmed.
Motley v. The State; appeal from
CorJell. Opinion by White, ].
The appellant moved, the Attorney
General ooiecting, to substitute in this
court an instruction asked by defend
ant and refused by the court on the
trial below, which instruction 1t is
stated having been lost from the record,
was not incorporated IN the transcript
in this case. The substance of the
lost instruction is set out as part of the
motion and agreement that it is such is
signed by the county attorney and AZ
torneys for defendant. Held, that the
proper remedy to supply the loss would
have been to have taken the necessary
steps for that purpose in the lower
court. or. d., arts. 1869 and 1870; Az
Texas, p. 400; Lunsford v. The State,
decided by this court at Tyler, 1861
The motion is Oyerruled.
Affirmed.
CARING v. The State; appeal from Be-
xar. Opinion by Ector, p. j.
The indictment in this case was as
follows: SIN the name and by the au-
thority of the State of Texas: The
grand Jurors of Bexar county, State Of
Texas, duly elected, tried, impanneled,
sworn and charged, at a term of the
district court of Bexar county, begin
ming on the first Monday of May, eigh-
teen hundred and seventy-six, to in
quire for the body OF SAID county of
Bexar, upon their oaths, in said district
court of BeXar county, present that
John CARING, on the fourteenth day of
the month of March. in the year of our
Lord eighteen hundred and seventy
SIX, in SAID county Of BeXar, and State
OF Texas, did feloniouslY and fraudu-
lently steal, take and carry away from
the possession of S. s. Carder one hack,
the property of SAID S. S. Carder, OF
the value of $40, without the consent
of the said S. s. Carder, and with the
feloniOus and fraudulent intent to de-
prive the owner, s. 8. Carder, of the
value of the same and with the fraud
ulent and fclonious intent to appropri.
ate the same to the use and benefit oil
him, the SAID John CARING, contrary
to the statute and against The peace and
dignity of the State. Joseph Dentz,
foreman of the grand jury" Held
that the indictment has all the requi-
sites required by the code Of crimlna
procedure.
2. Carder bought hack and left il
IN the possession of one Moke to sell
from whom it was stolen. He'll, that
the possession of Moke was the posses
sion of Carder.
Affirmed.
w. +. Davis v. The State of Texas
appeal from the county court oil
Williamson county. Opinion by
White, j.
The information in this case charged
the accused with an aggravated assault
and battery. The affidavit upon which
the information was based charged &C
cused with an assault with intent tC
kill and murder. There WAS plea t
the jurisdiction of the county cour
= upon the ground that the ofTeuse as sci
forth in the affidavit was a felony
which the county court could not try
and also II motion to quash the infor
nation, because it stated differen
oirense from that in the affidavit upoT
which it was based. This plea anC
motion were both overrulod by the
court below and appellant convicted o
an aggravated assault and fined 800
Held, that the rule of procedure gov
erning such cases at the time this in
formation was brought was that pre-
scribed by section of Gan act to or
ganize the county courts and to detinr
their powers and jurisdiction" ap
proved June 10, 1876, which provide
that prosecutions may be commence
in the county courts 'by information
in writing, which information shall
comply with article 403 Pas. Dig.
Art. 2S70), part 3, title 4, chapter
code OF criminal procedure, filed will
the county clerk by the district o
county attorney, which information
shall be based upon the affidavit o
some credible person, which shall bt
filed with the information, etc." anC
that the county attorney cannot disre
gvrd the offense us stated in the atiida
Wit, and thereby of his own motion
confer jurisdiction where it does no
rightfully belong by law. The case o
The State v. Elliott, Al Tex, 224, i
not analogous to this one.
Reversed and dismissed.
Con. Campbell v. The State of Texas
appeal from Grayson. Opinion b,
Winkler, j.
Appellant was indicted and con
Yicted for exhibiting bank for gam
ing purposes. Theindictment charged
that he did "unlawfully keep and ex
hibit bank for the purpose of gam
ing.n Held, that the indictment wa
sufficient, referring to article 2051 o
Paschars Digest,
Affirmed.
John T. Beal V. ]. A. NcQuidy; APP
peal from District Court of Eratl
county. Opinion by Ector, p. J.
There are but two questions in tn,
case. First, as to the suiiiciency o
the sherifi's return; and, second, as Il
whether the clerk of the court haC
any right to issue process to the sheriff
- of Shackelford county, upon the return
by the sheriff of Erath, that dofendan
could not be found, without any
amendment Of the original petition
which alleged defendant to be resi-
dent of Erath county, having beer
made. He'd, that the return being II
these words, "Came TO hand this sec
ond day of September, 1879, and exc
cuted on the sixth day of September
1878. by delivering to john I. Beall
the within named defendant, tru,
copy OF this writ, With the accompany
ing certified copy Of plaintiffs petit
tion,n was good but that the clerl
had no authority for issuing to Shack
elford county and that ths service b,
the sheriff OF ShSckelford county wa
a nullitv. and that defendant. Beall