The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-24

llIhhuln 70 lnt noIh tThphH hnVpuHhu UNIV"
be-, made by tho animal ridden by the ns'
FHs.in 10 and from The place Of killing Tho
evidence beg wholly cr,umslanllnli every
fact and circumstance calculated ~ illumi-
nate the transaction should have been per
mited TO 90 TO, And be weighed by, tho Jury,
" y Reversed and remandod
T., j, Meyers W, the State, Appeal from
johnson, Opinion by Winkler j, This Is the
SECOND conviction of appellant for murder in
the lIrsl degree, anl The case hUa been before
court three limos 70 CT, App, no Ct App.
l. In those oascs will bo fouGd the hSloTy Of
the Gssa'rnntl0n md tbs law points generally
discussed, Much Of the law Of the case hat
been settled 30 tint there arG but low qu's'
tIona presented bythis appeal, md which ars
likely to NrfG on another trial, which hl0
necessary 70 DO considered N this opinions
/. As to tho crroV assigned upon tho ro'
fusgl of tho court ~ grant change IF venue,
IN tho motion and affidavit Of tho defendant
various grounds arc SGT out going 10 show
That u trial should not DO had In
the county Of johnson, whore the pro-
acutIon hud boon commenced, but In the
supporting Nllldayla oath Is made TO the tin-
gle legal ground that there oXist In johnson
county, where the case had been commenced
and was then pcndlng so great II prejudice
against tho defendant that ho could not
obtain II fair and impartial trinI, From mn
examination of the evidence "a set out in the
transcript, We onn not say that nj the time
thu application wns heard there existed 80
great u prejudice against the defendants rs to
prevent his obtaining u fair and impartial
trial. The judge In making nm Investigation
as TO the hNCt Of prejudice appears 10 have
pursued substantially tho practice which hid
generally obtained aud which has since been
formulated by nm amendment IN tho Code of
Criminal Procedure, (Alt, $3.50 which will
obtain In future. In matters of this charac-
tor tho court will be 10th 10 interfere with tho
ruling Of the Judge below unless IL be made
that tho ruling was an abuse Of discretion,
and tho rights Of the applicant had been pre-
JUDGED by his action in the premises, Nolan
Vs. State, 3 CT, Appl,, b0S; LabNle VS., State,
OF, Appl,, 257, and cases cited After dis
posing of points of evidence raised and the
charge the court in general, and error is
found, tho court say lii! shown by the re-
cord that after tho trial before the jury had
ended, so far ms tho evidence and tho charge OF
tho court Is concerned, and after tho
Jury had retired in charge Of the
case to consider their verdict |
and had been so IN charge of tho case from
tho 23d TO toe 25th ofthe month of July, 10, |
q bill of exception notes that the judge OF his |
own motion had the jury called into court
and asked iftrcy had agreed on verdict, to
which the foreman replied; No; they had
not, and two of the jury replied that there
was no probability of their agreeing, whero-
upon Mt the request of counsel for tho State
the court over objection Of the defendants |
counsel, gave tho jury tho following addition
al instructions: "You are further instructed |
in this case that if you find the defendant
guilty Of murder in tho first degree under tho |
facts and tho law, as before given you in
charge, then you will say by your verdict,
we the jury find the defendant guilty ofmur-
der in the first degree, and you will assess his
punishment Mt death by hanging, or at con-
fnement in the penitentiary for life, in your
discretion. Ifyou lind HIM not guilty, YOU
will simply cay so by your verdict" The
reasons operating on the mind OF the court MS
given in bis own language appendes to the
bill Of exception, "The jury Nas charged by
the court on the evening Of July %, 1879
July 20, 1879, the day when the
Revised Penal Code went into effect, the
court called 10 the jury and asked the ques
ton stated in tho bill of exceptions, ana
then charged them on the punishment of
murder in the irst-deSree MS provided in
said Psnal Code The court consideredsthe
now code rs having gone into effect on the
25th of july, 1879" The law in force wheh
the trial commenced was the law of the case
until it ended. Walker w. State: 7 CT. |
l IN. p,,linpt 10 n,nN,,,ll.l h,, |