The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1878-04-18
NO. IS

SeCOQQ indictment WOulQ nave Dee1
sufficient to procure legal conviction
upon the first (Whart. Am. Or. L., Secs.
565 and sec; Thomas v. The State, 40
Texas, 36); but in this instance that
no evidence necessary to support the
case tried upon the information filed
on the first of March would or could
haye made out the offense charged
in the indictment of April 2S, no proof
necessary to sustain the first charge be-
ing permissible of acts done subse-
quent to the date of fling the first in
formation, March so, 1877, That the
two offenses are shown by the aver
ments of the special plea to be distinct,
and therefore it was not error in the
court to over-rHle the plea without sub
mittIng it to the jury. (Boggess v.
The State, 43 Texas, 347.)
8. The State was permitted to 60
behind the month of April, the
date of the offense charged, to prove
that appellant had rented the house
mentioned in the indictment and had
occupied it ever since. Held, that
it was not error to permit this, the OBJ
ject of the evidence being to show that
appellant was the keeper of said house.
Judgment affirmed.
No. 705-D. NJ. Cherry v. The State of
Texas; appeal from Lamar. Opinion
by Ector, P. J.
Appellant was tried and convicted in
the court of a justice of the peace, and
his punishment assessed at fine of less
than one hundred dollars. An appeal
was taken to the county court, result
ing in his being again convicted and
fined in an amount less than one hun
dred dollars. Held, That the Judgment
of the county court in such cases is
final, and that this court has no juris-
diction to hear and determine appeals
in such cases. (Const., art. 8, sec. 1G /;
acts Fifteenth Leg, p. IS, sec. 3.
Appeal dismissed.
April 6, 1878.
No. 721-W. T. Neayes, l. P. Gross
and John McAllister v. The State of
Texas; appeal from Montague. Opin-
ion by Ector, p. ].
Appellants Cross and McAllister and
one b. T. Newett were the sureties on
bail-bond of w. T. Neaves, who was
charged with misdemeanor punish
able by fine. When his case was
called for trial Neaves was absent, but
appeared by attorney. His bond was
forfeited and judgment nisi entered
against him and bis sureties. At the
succeeding term Cross and McAllister
appeared and answered that the judg-
ment should not be made final because
the forfeiture was illegal, Neayes
having appeared by attorney when his
case was called for trial. The court
overruled this plea and made the judg-
ment final, nOlle pros having been
first entered against: Newett. Held,
That defendant charged with an Of
fense punishable by fine alone, if he has
given bail, may appear by attorney
without being personally present when
his case is called for trial (P. D.,
3029), and that if his bail-bond should
be declared forfeited in such case his
sureties, when proceeded against by
Scire .tdcidS on such forfeited bail bond,
may show that defendant did so ap-
pear by attorney when his case was
called for trial in order to avoid the
forfeiture.
Reversed and remanded.
April 10, 1878.
No. 2S4-Samuel Horberger v. ThC
State Of Texas; appeal from Parker
Opinion by Ector, P. ].
Appellant was indicted for stealing
seven hundred rails, valued at fiye dol
lars per hundred, from a fence, tn,
property of one Spracklin. He wa
convicted of misdemeanor. Appel
liant contended that the act proven, !
any, was not theft but a trespass
the rails when taken being a part o
the realty, and therefore not the sub
d ject of theft. Held, That the old rul,
that the severance and asportation o
things annexed to the realty should b.
distinct and several acts does not OBJ
tain in this State. (Er Pdrte Willie
81 Tex, 1861 That by the act of seY
erance the thief converts the propert,
into a chattel, and If he then, or at an
other time, removes it with feloniou
intent he is guilty of larceny, whatev
er may be the dispatch employed in tn
removal. (See 2 Wharf. .Cr. L., 1853
5 Blackf., All; for doctrine in Ohio
Jackson v. The State, II Ohio State
104; see also 81 CAL, 671.)
Appellant moved in arrest of judg
ment, contending that the offens
proven being misdemeaDor, the dis
} trict court had no Jurisdiction. Held
That the grade of the offense charge,
IN the indictment determines the juris
diction. g sec. act of June 16, 1876.
Judgment affirmed.
J April 10, 1878.
No. 645-CharIes Williams Y. Tn
State of Texas; appeal from Parker
Opinion by Ector, p. J.
J 1. Held, That the declarations OF
defendant made at the time of doin
the act charged as an offense and ex
pressive of bis intent are admissible q
part of the res gesta, such declaration
so made being regarded as''verbal acts
indicating present purpose and inten
tion, and are admissible in proof lik
any other material facts. q Green
Ev.,S 103; Ward v. The State, Al Tex.
7 612; Davis v. The State and Gillian '
The State, Court of Appeals, lyle
Term, 1879
2. That the circumstances surround
iRg the doing of an act charged as al
ofTense, and constituting parts of tn
{ res geste may always be shown to th
: jury along with the principal fact, thel
admIssibility being determined by th
court, according to the degree of the
t relation to that fact and in the exercis
e of his sound discretion,
e 3. That the declarations Of defend
4 ant made subsequent TO the doing {
, the act charged as an ofense, not col
: stituting part of the act done but e,
planatory of a previous fact, are not at
= mIssible in evidence in his favor. Move
v. White, 10 Conn.,, $50; Scraggs v. Th
State, Sneed g. Marsh, 722.)
: 4. That the fact that the testimon
OF person who was jointly charge
e with a defendant, and tried at ii
D same time with defendant and acqui
: ted, is material to defendants case,
sufficient to warrant the granting Of
4; new trial Nyles v. The State,
/; Tex, 172; Huebner v. The State, Cou
: of Appeals, Galveston Term, 1878.
Reversed and remaDded.
3 April 10, 1878.
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