The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-06-15


Robertson r5unty, which had been rented
to another. went into the yard OF the
farm. and m the sight OF and with the
knowledge OF the tenants, took two
troughs therefrom. claiming them as his
property. The taking was without the
consent of the tenant in possession.
Held: The evidence is entirely insult
fcIent TO support a judgment of convic
ton and therefore the case is reversed
and remanded.-Hurt,J J.
johnson VS.. state; appeal from Coleman
county defendant had in his posses
sion an estray mare, for the THEFT of
which he was tried and convicted. He
moved in the court below for a eOntinu-
anee on the ground that he had purchased
the mare from one II. The court found
that there was such a man who formerly
lived in the county, but had removed
therefrOm, and on evidence of recent
possession convicted defendant. Held:
The court erred in overruling the appli-
cation for a new trial, Al Texas, 26S, A
Texas. 6l6; l CT. App. SIS; 20 Texas, 209 ]
Reversed and emanded.-Hurt. j.
Juan Leal VS.. state; appeal from Bexar
county.-Defendant was charged with re-
ceiving embeZzled hides. The indict-
ment showed on its face legal acqm>i.
Iion by the party alleged to have embeZ-
Zled them, hence no conviction could be
udu TCCelNlDB lucuu Ny dublu6E party %
The majority of the court have held that
theft includes embezzlement but not rice
Uersa. No person can be legally con-
victed of receiving stolen goods unless
where the acquisition was in such manner
as to constitute theft. To receive prop
erty which has been embeZZled is no Of
fence against the law of this state. Re-
versed and dismissed Hurt, j.
Wade,vs state ; from Waller county
N no ch al
ed for cause had formed any conclusion
whatever in the case. Held, the mere
fact that he had heard the evidence in the
case on fOrmertrial dId not of itself dis
qualify him. There must be established
in his mind a conclusion as to the guilt
or innocence of the accused and this con-
clusion must be such as will influence him
in his verdict. 1t does not appear that
such was the condition of this jurors
mind, and we think him clearly qualified.
That the defendant had not exhausted
his peremptory challenge cannot, in the
least degree, effect the question il he had
a right to the juror. Rulings of the court
in organizing jury are not revlsable I'M
less they infringe the law or prejudice the
accused. Reversed and remanded.-Will-
son,J.
Joseph Franklin VS.. Henry Hurlbut ;
from Galveston Countrywide ga of the
supreme court requires that where a case
has been decided by the court at any of
Its branches and the fifteen days in which
the losing party may make Il motion for
rehearing expires, after the court
has adjourned at the branch OF
the court, some one of the
motion ordering it to be filed, or il can
not be considered. Motion for rehearing
Overruled.- Wilson, j.
O'Brien VS.. state; appeal from Cole
man cOunty.-Articles 1922 and 1927 do
not conflict but are susceptible of beng
construed in harmony with each other.
1t is competent for county Judge to as
certain whether the emergency had arisen
requiring him to act when by any reason
the jury commissioners had failed to be
appointed. In the absence OF contrary
presumed TO have arisen to sustain
the correctness of the court decision.
Affirmed.-Per curIam.
McCary VS.. the state; appeal from
BOsque county.-PermituDg cards to be
played in a house under ones control is
no otfense unless it be public house, OF
one in which the statute inhibits gaming.
RecOgnizance therefore, which recites
permitting cards to be played In house
under control" of defendant, defines nc
Otlense, and, on motion, the appeal will
be dismissed.-Per curium.
johnson VS.. the state; appeal from
Mitchell cOunty.-MOtiOn for re-hearing
in this case is Oyerruled, because, il
granted, the recOgniZance, as shown in
the exhibit, states no Otfense in stating
that the appellant was convicted for
excepting table for gaming" without
stating that it was used for gaming, and
If the motion were granted and GertiOrGri
awarded, the ease would then have to be
dismissed because of defective recogniZ
ance.-Per curlam.
Lem. Freeman v. state; from Graysor
county.-lt is not apparent from the rec
ord that the court, in refusing the APP
plicatiOn for a continuance, abused the
discretion with which it is clothed by
statute nor by the evidence adduceC
that the absent testimony, if admissible
was probably true. and these facts mus
appear to authorize an appellate court tC
interfere with such action of the cOuT
below. Affiirmed.-Per curiam
Winfree v. state from Brown county
In the prosecution for the unlawful
carrying of pistol, it was shown thai
the defendant was n citizen of the county
travelling to the county site. Held. tina
he is not entitled to immunity under the
statute, which eXempts travellers iron
punishment for carrying weapons. AT
firmed.-Per curIam.
Sanchez VS.. state appeal from Nuece.
cOunty.-The conviction in this case wa
for the theft of the money of G.. T6t
record fails absolutely to show Thu
grounds relied upon by the lie PENDANT TO
Il new trial. or those upon which his mo
ton in arrest of judgment was founded
When the misconduct of the Jurl
is relied upon, the affidavit mus
show with at least substantial certainty
the particular misconduct complained OF
Affirmed.-Per curiam.
Gomez VS.. state; appeal from Nuece
county.-The prosecution in this case wa
for the theft of horse aud the conviction
in which the trial resulted, is abundant,
sustained by the evidence as disclosed b.
the record. A motion for new trial i
properly overruled where 1t states con
illusions of law, and not matters or fact
The judgment is atfirmed.-Per curtain.