The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-11-22
COURT DECISIONS.
synopsis of the Decisions of the Court of
Appeals.

testimony. In this case, though it appears
that the witness was in the court room
during the progress of the trial, it appears
that he heard some of the evidence, Such
being the case, there was no improperly in
permitting him TO testify, but his presence
being in violation of law, both he, and the
officer having him in charge, should have
been subjected to punishment as for con-
tempt of court. The enforcement ofthe
"rule," and the latitude allowable to coun-
sci in argument are matters within the
sound discretion of the court and this
court will interfere only when abuse is APP
parent-and it is not apparent in this case.
Having agreed TO ana signed statement
OF facts which was approved, n defendant
cannot be heard to complain of its inaccura-
cies. But the venue not having been
proved the judgment is reversed. White,
presiding justice.
Duifin vs. the State, from Robertson
county. The rule, article 735, which with
the exception therein mentioned, renders
the husband or wife incompetent TO tcS-
tify against each other in criminal prosccu-
lions, is held to render them also incom-
petent against a joint offender with either.
If prosecution had been commenced
against the husband and afterwards mol
pros entered, the wife would be compe-
tent witness against the joint offender
whenever co-defendant is q competent
Witness his wife would be. But, however
incompetent evidence may be, unless OBJ
jeoted to when offered, objection after ver-
dict will not avail. The defendant has the
right to show the animus and bias Of wit
ness if he can, and its extent, and for re-
insing this privilege, the judgment is
reversed. White presiding justice.
j., p and D. w. Boyd VS.. the State; from
Delta county. An information is not eX-
ceptionable because based upon an affidavit
which had served the same purpose in
respect of q previous Information which had
been mol pressed. The insulliciency of an
information would not necessarily yitiate
the affidavit on which it is based but n
new trial should have been granted in this
case because the evidence is insufficient to
sustain q conviction. Reversed and re-
manded Winkler,
W. ii, Kennedy VS.. the State; from Delta
county. An indictment transferred from
the District Court to the County Court bore
an incorrect file mark, and the Court did
not err in permitting the State to Introduce
certified transcript of the proceedings of the
District Court to shew when il was fled
Nor was it error to permit the State to ask
witness if the olense was committed be-
fore the presentation of the Indictment. A
conviction for simple assault may be had
under an information for aggravated as
sault. Affirmed. Winkler, j.
Durley Tvs, sthc State; from Camp
county. Though the recognizance itself
does not show the date ii was entered into,
the transcript shows the days OF
the term of court, and recites that
the proceedings in the case were had in
open court during that time, and that the
recognizance was entered into in open
court. Held, that being otherwise unob-
lectlonable, the recognizance is sufficient.
Per Curiam.
Grant e Easton vs. Anderson; from
Robertson county. Minors, on reach
ing, majority, are qualified to sue
III their own names on note made to their
guardian though he was not dis.
charged and interposcd no objection. And
though four years have elapsed since the
execution of the note, il is not barred if
that time has not elapsed since the male
minor reached majority, and the female mi
nor married. Affirmed. Hurt. j.
N. q. Waugh ct ais VS.. the State from Lam
passes county. The certificate of the clerk
of the court below to the effect that the an
plication for continuance was lost and could
not be incorporated in the record, will not
supply the record so that this court
can consider the assignment of error.
The one partner having exclusive control
and management of the property stolen, il
was unnecessary to charge or prove the want
OF the consent of the other partner to the
taking. Affirmed White, presiding jus
tice,
Pullen vs. the State; from McMullcn
county, Application that fails to show
when the subpoena was issued and returned
mot found, when the attachment for the
witness was issued, or that IL was delivered |
to or sent in due course Of mail, postpaid |
etc, to the sheriff of the other county is |
fatally defective. An indictment for the |
illegal branding ola colt need not aver the |
generic of the speCies-whother equine or
bovine-"colt' pertains to both. affirmed. |
HINT, justice.
Garcia VS.. the State; from McMullcn |
county. Where the indictment is sufficient, |
rs in this case, to apprse the defendant of |
the identity of the animal he is charged |
with stealing, and the application |
for new trial is based ON the |
discovery of new evidence directed to that
point, the new trial is properly refused. |
The charge in this case was full and COM
plete upon all the questions raised. AZ |
iirmed. Per curiam.
Doc. Cooper vs. the State, from Camp
county Article $50 of the Code of Criminal
Procedure imperatively requires that the
rocognizance shall specify distinctly the
time or the term of the court at which the
defendant binds himself to appear aud
answer the complaint against him, and,
though complete in other respects If the
recognizance is defective in this motion
to dismiss must prevail. Appeal dismissed,
Per curtain.
Snow VS.. the State from Kaufman coun.
ty. An indictment for misdcmeanor being
transferred to the County Court, IL was
thence sent back because of the disqualf-
cation of the County Judge under G. c. F.,
Article 500. The District Judge being like.
wise disqualified, the case remained upon
the docket, as i appears by the record, UNI
tll one ID. signing himself Special District
Judge, rereterred II to the County Court,
another and qualified judge having been
elected in the meantime. The record fails
to show by what authority ID. acted rs Spe-
had original jurisdiction after the transfer
from the County Court; that the record
must set out the fact and proceedings of the
election or appointment of Special Judge,
Articles 100, Isl, G. c. r., prescribe the
means of selecting Special Judges, and the
record must show their appointment IN nc.
c0rdance Herewith Reversed and re-
mandcd. White, presiding Justice.
Lee George vs.. the State from Delta
county. The word "adultn us used In
Art. i06 of the Penal Code signifies n
person who has attained the fun axe of
twcnty-one years. The prosecution of n
male person under twcnty.onc years ofage
for aggravated assault under Art 400
Penal Code, may be maintained under sub.
division o of but not under subdivision s.