The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-05-05
TmE COUNTS.
synopsis OF Opinions OF Court OF A.
peaIs, April Term, 1881.

synopsis Of Opinions Of Court OF Ap,
peaIs, april Term. 1881.
Ellis o. al. Va. the state +; appeal from VIII
son. 1. In .%offenses classed as misdemean'
os sheriGs, under the laws, have
authority to take appearance or bail
bonds either In term time or In vaca'
ton. 2~.:Judgment Disi against the surety
alone, while tho aeri facias recites a judg'
ment against both principal and surety !, a
fatal variance. 8. 1t is error to correct a
Judgment nisi where tho defendant has not
been served with notice Of the motion to cor
rect. Reversed and remanded. Wink
Ter, j.
Shipp vs.. the state; appeal from Blanco.
Appellant was tried and convicted for theft
ofcattle. Motion for new trial was made
principally on the ground that one OF the
Jurors in the case, prior to the trial, had
made use of language tending to show he
was prejudiced against the defendant and
was not an impartial juror, which facts were
not known TO defendant till after the trial. The
language of the juror was to the effect that
the defendant had done enough, outside of
the offense for which he was indicted, and
that he observed to be sent to the penitenti-
ary." Held, That under these circumstances
a new trial should have been granted. Re
versed and remanded. Winkler, j.
Troy vs.. the state; a ppeal from Atascosa,
Q) A properly framed special plea OF
aulrefois acquit should be allowed to &c. to
the jury with the plea of not guilty, under
proper instructions from the court. ~
Appellant, prosected under act OF March
25th, 1879, entitled, An act 10 protect the
wool growing interests of the state, asked the
following charge: "If the jury believe from
the evidence that the sheep of defendant did
not have the scab they will find him not
guilty. If the jury believe from the evidence
that the defenant did not wilfuily,
violate the law in keeping his
sheep IN the limits prescribed
by the inspection, you will find him not gull
w." Held, that ii was a natural inquiry
whether defendants flock of sheep had scab
or not, and whether, this being the case, he
had wilfully and knowingly failed of his
duty in the premises, and that it was error to
refuse to instruct the jury in substance as re-
quested. Reversed and remanded. Wink
Ter, j.
Foy vs. the state; appeal from Caldwell.
l. The venue of the offense was not prov.
on as alleged in the information. Clark's
Criminal Laws of Texas. page 1914 s, and
notes.
2. The record does not show that defend
ant pleaded to the information, nor that he
refused to plead, and a plea was entered for
him. Clark's Criminal Law, page 458 and
note. Reversed and r%emanded, White p. j.
Perez vs. the state; appeal from Will
son. Il For mutilation of sD information
or an ind the practice is to substitute
under article 434 &C P. e In cases of
misdemeanor the law contemplates and
that the information be based upon
the complaint and the complaint is a funda>
mental part of the information. Without a
complaint upon which to base it a motion to
quash, or exceptions to the information,
would be good in law. Any inherent defect
in tho complaint might be reached by a
motion to quash or exceptions to the infor-
e )Infamy, occasioned by conviction
of a felony, renders q party incompetent to
testify under our statute; @. @. P. 73O. Not
only so, "but it is said that his affidavit
be read to support 0 criminal change"
Wharton's Criminal Evidence (s edition.,
section 1854, Long VS. state, Galveston term,
1881. 1t is the judgment of conviction, and
that alone, which is the legal conclusive
evidence of the party's guilt for the purpose
of rendering him incompetent to testify. l
Greanleaf Evidence, section 375; Cooper VS.
state, 7 Texas court, of appeals, 1874. u
A motion in arrest of judgment must be
accompanied by the judgement, or an
authenticated copy of the same. Reversed
and remanded. White, p. j.