The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1878-04-18
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little demand, season being about over.
Synopsis OF the Decisions ofthe conrs
OF APpeals-Rendered AZ the Austin
Term, ISIS.
No. 641-Adam Thompson v. The Stase
OF Texas; appeal from Dallas. Onio.
ion by White, j.
Appellant was convicted in the couff
below of murder in the first degree
and his punishment assessed at death.
The first transcript being defective.
second transcript was sent up TO this
court in obedience to writ of osrfis.
rdTI awarded upon motion OF the As.
sistant Attorney General. In the first
transcript many papers were endorsed
as filed, which were not so endorsed IN
the second. In neither transcript did
the charge of the court to the iury
bear the clerks file mark. HID. That
no paper can be properly or Legitimate.
ly considered part of the record ia
criminal case unless duly filed by the
clerk OF the court below, as required
by law. (P. D., e514). That this is es-
pecially so with reference to the charge
OF the court IN cases of felony (Chas.
HayDie '. The State; and Parchman V.
The State, Ct of APP, Tyler term.
1870. That the charge of the court
below, in this case, cannot be properly
considered as a charge because NOT
filed; and that, since the statute ex.
pressly provides that the court shall
deliver to the jury, in all felony cases.
a written charge in which he shall dis
tinctly set forth the Jaw applicable 10
the case, the absence Of such charge
is error.
Reversed and remanded.
April IS, 1878.
No. 646--LouIs Butler v. The State OF
Texas; appeal from Parker. Opin-
ion by Ector, p. J.
Appellant, with one Emp. Fox, was
indicted for adultery, and convicted.
Said Fox was offered as witness for
the defense in the court below, and
his testimony excluded on the
ground that, haylng been Jointly
indicted with the defendant appel.
lanD, and convicted, he was therefore
incompetent as a witness in the case.
Held, That the witness Fox was not a
competent witness, the statute (P. D.,
1890 providing that persons charged
as principals, accomplices or acccsso-
ries, whether in the same or in differ
ent indictments, cannot be introduced
as witnesses for one another, but may
claim severance, and any one or more
acquitted may testify in behalf OF the
Others" Elledge v. The State, q
Tex 20; aleo Emp. Fox v. The State,
Court of Appeals, Tyler Term. 1877.
Judgment affirmed.
April 10. 1878.
No. 657-Bill King v. The State OF
Texas appeal from Collin. opini on
by White, j.
Appellant was indicted In the court
below for assault with intent to kill
and murder, the facts proven being as
follows: Appellant and one Bill Da-
Wis agreed to fight with knives. Hav.
ing procured them they proceeded 20 a
distant place together, and Bill Davis
having inflicted the first wound upon
the appellant, the latter fred upon him
with derringer pistol, wounding him
in the wrist. Davis then ran 9 short
distance and stopped, when appellant,
having reloaded his pistol, started to-
wards him and, Davis retreating, ap-
pellant fired at him again. DAVIS,
dropping his knife, picked up rock,
but at the approach of appellant. who
had reloaded, again retreated and was
fired on the third time by appellant. y
Held, That these facts establish a case
of mutual combat and agreement 10
fight made with that deliberate design.
which, in cases of homicide, is the ea
sential ingredient Of the crime OF muir
der a Black. CON-, 1913 and note:
Wharf. on Hon., s 1853 and note; Les
ter v. The State, Tex. @. A. r., 1872;
Perry V. The State, Al Tex. ,473), and in
such cases if the death of either party
ensue, IN order to reduce the offense
from murder to manslaughter, the cor
rect rule is that it must appear that the
contest was waged upon equGr
terms, and no undue advantage
sought or taken on either side,
side, for, otherwise, malice may be IN
ferred and the killing amount to muir
der. (24 CAL, 27.) That where one
party, having abandoned the fight, fees
and his antagonist pursues aud the
death OF the former ensues it Is muir
der. That in such cases it is not error
for the court to fail to charge the Jury
upon the law of aggravated assault.
Judgment affirmed.
April IS, 1878.
No. 715-T. Il. Hunt v. The State OF
Texas; Appeal from Lamar. Opin-
ion by Ector, p. j.
/. The record in this case fails to
disclose the fact that appellant pleaded
to the indictment in the court below.
or that, having failed or refused to do
80, plea OF not guilty was entered on
the minutes OF the court below. Held. +,
That the statutes (P. D., 2942 and
294O which provide that, IL defend
ant answers that he is not guilty, or
refuses to answer, IN either case the
plea of not guilty shall be entered on
the minutes OF the court, have been
held by this court to be mandatory.
and the plea must not only be so en-
tered, but affirmatively shown on the
record. STACY v. The State, CT. OF
Apps, Tyler Term, 1879
2. A paper purporting TO be the
charge OF the court, and incorporated
in the record, appears never to have
been filed by the clerk OF the court be-
low. Held, That the transcript should
show that every paper copied into the
record has been filed and the date OF
its filing, otherwise it will not Be re- :
garded as paper in the case by tins
court (Parchman v. The State, Hay
ME v. The State, and Krebs v. The
State, Ct. OF AppIs., Tyler Term, 1871
Reversed and remanded.