The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-06-23
THE COURTS.
syllabus of the Decisions of the Court
OF Appeals

syllabus Of tue DECISIONS OF tne SOurs
OF Appeals.
AIKEN VS.. state; from Milan county.
Even the first application for continuance is
now no longer matter of right, but is ad-
dressed to the sound dscrt ton Of the court,
and il overrued will, on motion In arrest Of
judgment be considered by the court IN con-
nec,iol with other evidence Ia the case. la
passing upon the refusal Of a continuance
asked because of absent witness, this court
will consider the evidence adduced to deters
mine the malerality and probable truth OF
the desired evidence. Admissions Of other
parties to witness that they were the
guilty agents, are admissible rs hearssy
testimony. Fight OF the accused and other
attendant circumstances, are legitimate mat,
tiers for the consideration of the jury in con-
nection with other inculpatory evidence
While it is true that malice is an essential
ingredient Of murder, the principle is ele-
meutary that this specific malevoence to-
ward the person killed may be embraced in
such utter disregard for life as shows n man
to be an enemy to all mankind, rs when he
resolves to kill the next man be meets, and
does kill him, or shoots into a crowd wan
tonly, not knowing whom he may kill. Tbs
rule is laid down III Backs commentary,
200; 2 Whar., criminal law, Is ed sec.
1851; % Tex, 80; CT, App. 2O4. Affirmed.
White, P.J.
Wm. Smith VS. the state; from Robertson
county. When, in addition to the failure OF
the record to disclose That plea to tie in
dictment was entered by the defendant, or
that if mot guilty" by the court for him,
itappears from an inspection of the records
that the evidence was insufficient 10 sustain
the verdict, tho conviction will be set aside
for the latter as well rs the first cause. Rs
yersed and remanded White, P. j..
+, w. Robertson VS. the state; from Will
Hanson county. The court charged the
jury "if you can reasonably account
Tor, or explain the facts and circum,
stances in evidence before you 10 this
case IN any way consistent with the defend
ants innocence, without resorting to un>
ress Enable doubis aud theories, then you
should do 60 aud acquit. But if you csp
not sccouut for nor explain the facts aud
circumstances detailed before you in this
case upon any reasonable ground con-
sistently with defendants innocence, then
fyou cannot do this you should convict
H,ld, obnoxious to the provisions of Art.
III q Q. r. as liable unuer the peculiar
features and meagrene.s Of tho testimony to
mislead the jury. Reversed and remsnded.
Winkler j.
GeraIn VS. the state; from Medina county.
Indictment for embezzlenent described the
money embezzled rs zone hundred and
hfy-tive dollars, then and there of the
Val of one hundred and fifty five dollars,
current money of the United States of
Ansrica" Held, that these amounts in the
Indictment rendered it necessary for the
state to prove these descriptive avermeats i. 4,
the character of the money as being currenl
money of the United States of America to
the extent at least of $50 10 value
in order to support conviction for
felony. After an appeal has been
perfected, the trial court has no Jurisdiction
or power to enter another order in the case
and an attempted correction of the record in
the court below, made subsequent to the
perfection OF the appeal, cannot be consider
ed by this cou t The evidence does not
support the verdic! or judgment. Reversed
ana remsnded. Wlnkler, j.
Spruill vs. tho state; from Lampasas coun>
~. A witness was properly not allowed to
testify that one Senlerfeit had claimed 10
him the authority to control tho brand in
which the COW alleged to have been stolen
was branded. Instruction involving the no
cessity of proving the want Of consent of the
person having actual possession of the stolen
animal should have been given on request.
Reversed and remsnded. Winkler, j.
Childress vs. the state; from Milan coun-
w. A rule applicable in trial for theft il
that the property must bs found 10 posses :
sion of the defendant before his explanation
Is admissible in his own behalf. He cannot
prove bis explanations at the time of arrest
ten days afser he bad disposed of the prop
ertv, nor can he BIO permitted to fabricate
evidence for himself by his own declara.
tlons. Alarmed. Winkler, j.
Jack Post vs the state; from Young coun-
ty. Where proposed juror has answered
on examination that he has formed an opin-
ion, but had never heard witnesses detail the
facts, aud that the opinion thus f,rmed
would not influence him in finding
a verdict, and the examination closed
here, the court properly held him qualified
Juror Obj clion to the state ment OF wiz,
ness 10 lay predicate for Introduction
OF written evidence of an sbsen, witness
before examining court that no had re-
ceived letter from the absent witness, post
marked at Pine B uf Ark, written by the
witness and stating that he was praclicins
medicine there, should have been tssen n,
the time, and comes too late after verdict.
Proof that tho witness lives beyond the iuris-
diction Of tho court, can be made by the
ssme means as any other fact, and no formal
oath 10 limlne Is ecessary. The court did
not err In permitting the state to show by
cross examination of a defense witness that
The defendant had told him that ''he got
dec sseds corn and cotton" II being in eyi.
dencs that the deceaseds corn, cotton.
household goods and wagon were found In
possession Of defendant. The admission of
evidence which Is immateral and IN no wise
pertinent to any issue in the case, 10 irregu.
lar, but not cause for reversal unless cslcu,
lated to prejudice the rights OF the defense.
Adirmed-Hurt, j. Note-The death
penalty was assessed in this case. Rep.
Mellon Post vs...the state from Young
county Conspiracy between the defendant
and HE brother having been properly estab-.
lishea, the pecuuiarv condition aud acts and
declarations Of the latter before the consum :
nation OF the conspirscy, was admissible
against the defendant. The evidence show
Ing direct connection of the defendant
with bill Of sale CT property of deceased,
found In possession Of his co.cons pirstor,
tho introduction of tho bill Of sale was
authorized. The state relied upon proof, that
the defendant had hauled the property as an
inculpstory fact and tho defendant Z fIsred TO
prove by q witness that his cosconspira,or
had said that no hired defendant 10 haul II.
III this statement had hmm tnada hx ,ha NJ,