The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-12-06
syllabus of the Decisions OF the Conrt of
Appeals.

Henson 4 Cumming vs.. Flanagan from
Rusk county. Without reference to the
merits of the exceptions, general or special,
of the defendant to the plaintiffs plead
ings, it is held that the petition discloses
transaction in futures" and such are
neither more nor less than gambling ven
lures, and cannot constitute the basis of a
civil action. The court did not err in dis
missing the plaintiffs petition. Affirmed
White presiding justice.
ii. G.. Smith VS.. the State from Grayson
county. In a prosecution for the theft OF
mule, the court properly charged that if, at
the time the defendant obtained possession
of the animal by consent of the owner he
intended to steal it and took ii for that pur-
pose, and in pursuance of evil intention,
did afterwards appropriate its value, he
was guilty of theft. And likewise the
court properly charged that if witness
bought the animal from defendant, know
ing it to be stolen, his testimony must he
overruled in order to convict. Affirmed.
Per curiam.
c. Il. Sowell ct al VS., State; from Kauf-
man county, The complaint in this case
was for assault and battery with intent TO
kill, and the appearance bond described
the ohense as an assault and battery "
In answer to sci IA, appellants a'sailcd the
bond as insufficient in law; but held, upon
the authority of Hotchkiss VS.. State, 30th
Texas, l62, that the bond was sufficient to
bind principal and sureties, and the court
did not err in sustaining it. Affirmed.
White, presiding justice.
CARROLL VS.. State; from Demmitt county.
FOR conviction in this case the State re-
lied upon the uncorroborated testimony of
one s., who testified before the examining
court, when his evidence was reduced To-
writing, TIE defense on trial was an abb.
to prove which the defense asked for con.
tnuance TO obtain witnesses, bringing his
application within the rule 'of diligence.
In view OF the contradictory and suspicious
character of the evidence of S. and his con-
tessed suppression Of the facts to which he
testified. until guaranteed immunity from
prosecution, the conviction cannot stand.
A new trial should have been awarded. Re.
versed and remanded. White, presiding
justice,
Sandy Thompson vs.. State, from Wash
ington county. The rule has been an
nounced, and is inhexble that statement
of facts Fixed after the adjournment of
court without an order Of court conforming
to the statute cannot be entertained by this
court. II, i'll the absence of statement of
laots, the charge of the court upon tho law
OF the otlense laid, is found abstractly cor
rect, this court will not interfere with q
Judgment ofconnection. Affirmed. White,
presiding justice.
Tx parte John Doland, from Grayson
county, The city of Denison is fully au.
tnorlzed TO maintain prosecutions for viola.
tons OF its ordinances in its corporate
name, and not charge such oflense in the
name OF the State, In this case the relator.
, having been prosecuted and fined in the
Recorders Court, sued out writ of habeas
corpus before the County Judge,
which, upon motion of the County
Attorney, was dismissed, and the relator re-.
manded to the custody Of the Marshal until
the fine was paid, Held, contra REALTORS
position, that the County Judge did have
Jurisdiction to entertain and act upon the
motion. Appellant fails to show on appeal
that he is Illegally restrained OF his liberty,
Affirmed. White, presiding Justice.
HUSTLED vs. State. From Dallas county.
The conviction was for the oflense of swind.
ling. The indictment charged, aud the eyi.
dence showed, that the defendant delivered
achcck for s2j to one T., drawn on II. NJ.
H., signed by himself, and bearing the en-.
dorsement OF Q, on the back,
which endorsement was not made
edge and consent or BY any o ns ob smGwl
to make 1t, which defendant well knew, and
obtained the money thereon. Held that
the otlense. was not swindling, but uttcring
z forged instrument knowing II TO be
forged. The gist Of an offcnse consists In
the acts done or omitted, Us defined by the
statute, and the principles of former jeop.
ardy apply whether or not the acts or omis.
sons be the same co nomine. Conviction
OF swindling under an indictment for utter.
ing o forged instrument constitutes a bar Il
prosecution for the last oilense, and hcnc,
lakes The case out Of the operation of IN,
INV defining another otfense. Reversed anJ
dismissed. Hurt, Judge. w
SsnAous Of the Decisions Of tho suprem,
"a Court
8 L., mason \. 70 Ward; nom Red River county