The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1878-05-30

wavering hand against the mobs of
freebooters attempting its wreck.
Yours, etc., VIDE.
STnopses OfChe OecisIo ms orthe Court
OF APpeaIs-Rendere red at the AusIIn
Term, 1878.
No. - David p. Baker v. The State OF
Texas appeal from Caldwell. Opin-
ion by Winkler, j.
Held, l. That the provisions of the
statute (P. D. 3O70-4), which provides
for the care of the jury in criminal
cases, are In the main directory, and
any infraction thereof, not going to
the extent of involving the jury in such
misconduct as would authorize the
court to grant a new trial, would not
vitlate the verdict; and, in absence of
proof of such misconduct, mere rela-
tioDship of the bailiff in charge of the
jury to the parties would not affect
their verdict. Nor would it authorize
the granting OF new trial, which can
only be granted for the causes enumer-
ated in the statute Up. d 3137 ;Slaugh-
ter v. The State, "a Tex. 410.I
2. That where the objection to the
ofiicerin charge of the Jury is mentioned
for the first time on consideration of
motion for a new trial, it is not error
for the court to hear evidence on the
subject; and. where it shown that the
ballIif had acted as an officer, the legal
presumption is that he had authority
so to act on collateral question.
(Wharton Am. Cr. L. s 713; CIR Ev.
5 So; Ecd'drte Call. 2 Tex. G. A. R.,
497
3. That a juror In the trial of pros
ecution for murder, to be rendered liza
BILE to challenge on account of relation
ship to the deceased, must have been
related within the third degree by
consanguinity or affiuity. (Gen. L.
1876, 2. 83, sec. %
4. That new trial will not be grant
ed on account of the disqualification of
juror, though unknown to the defend
ant at the time of taking him on the
jury, unless it be shown that the dis
qualification could not have been dis
covered by using due diligence. Rose-
borough v. The State, 43 Tex, $40;
O'Mealy v. The State, / Tex. c. A.
R., 1907
8. That 1t is not error for the court be.
low asked on account of the verdict not
being supported by the evidence, which
1t is alleged showed the killing to have
been done in self defense, to refuse
new trial in case OF conviction of
murder, unless the evidence sufficient.
ly showed on the trial that the defend.
ant, at the time of the killing, was in
danger of his life or great bodily harm
9. That the charge of the court
should distinctly set forth the law ap-
plicable to the case as made by the
pleadings and evidence; and the law
applicable to every legitimate deduc-
ton which the jury may reasonably
draw from the evidence adduced. P
D.. 3059; Tex. G. A. r., 1877; 2 ID
III; 40 Tex, Is; Tex. @. A. r, ,225
2. That where defendant charged
with murder in the first degree has
been convicted of murder in the second
degree, such conviction is an acquittsl
Of the higher grade of offense, and on Q
new trial. since the court judicially
knows of the former trial and its result,
it is not error for it to refuse to charge
the jury as to murder in the first degree
and its ingredients, such a charge not
being the law OF the case. (13 Tex
1853; 2 Tex. c. A. R., 652.) Nor can
defendant be heard successfully 10
complain that he was convicted of the
lower grade of offense when the
testimony showed him to be guilty of
the higher.
8. That an Inappropriate charge CIV
en- is error for the reason that it might
tend to mislesd and confuse the jury.
Il Tex. c. A. r., 460)
Affirmed.
White, J. did not SIT in this. case.
No. 733-Elishs Brisco Y. The State of
Texas; appeal from Hays. Opinion
by White, j.
Held, / That an indictment for theft
OF horse, which, under our statute
(P.,D 2400), means an unaltered hor.e
or stallion, will not be sustained by
proof of mare or geldiDg or rice Uersa
(31 Tex. 57I ;.swindel v. The 8 ate.
32 Tex 102; PiRg v. The State, 43
Tex, 106; Kuse v. The State, / Tex
J A R.. 295; Banks v. The S'ste. %
Tex, CAT; Tex. G. A. r., 44s.) Ths
statute discriminating between the an
imsls. (2S Tex, 647; Whar. Am. Or.
Law; Rosen. Cr. ES.; Q East. P G,
616; Leach, 1873; / II Dndy G. G., "a;
Arch, Or. Pl. and Pr. 800 and N;2
Russ. on Cr. L., 1888; Turley v. The
State, 3 Humph., 324
2. That in case Of an indictment for
theft OF 3 gelding, q charge Of the
court instructing the jury that ''proof
that the animal was czstTAted 90 As 70
present the appearance of . gelding, 90
as 70 be taken, accepted and believed
to he gelding, though 10 fact the cas-
tra.ion was not complete, would be
sufficient proof Of the allegations that
the animal was = gelding," was error
in that II usurped the province Of the
jary By depriving them Of the right
determine whether, under the evi-
dence, the animal was tn fact . geld
ing as alleged sr not.
Reversed and rsmanded.
No. 6S6-John Adams The Srate Of
TexSs; appeal from Erath. Opinion
by WiDkler. J.
Held, That Il 10 not error for the
court 70 refuse . charge NOT applicable
70 the facts proven on the trail Of
csuse- Affirmed.
No. e93-Frank cady v. The siase Of
Texas appeal from Coryell. opip-
icn By White. J.
Hid, 1. That Il is the duty of fhe
court IN lts charge y inform the jur,
Of the nature end shssscssr of the sls-