The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-06-01

charges ''now here in the afi-
dayit which is herewith filed
and shows to the court" etc. Held,
under Court of Appeals that the infor-
nation is insufficient, in, that "shows to
the court" is not direct allegation that
the defendant committed the offense.
Again it appears that the ''afidavit" not
the ''information'' "shows TO the court"
Reversed and dismlssed.-Willson, j.
Case VS.. state; appeal from Bexar
county.-The defendant was charged
with theft of CTS property from the pos
session of said G. The evidence shows
session of p. and not G.. Though the
charge was in l Court of Appeals, $50,
taking from the possession of the
owner, and evidence showed a taking
from the possession of his servant
and held to be a taking from the owner,
there is no such privity shown In this
case. There is nothing to show that p.
W as holding for g., the owner, but for
one S. The statute makes the allegation
| of possession q necessary descriptive in
| gredient of the offence of theft. SUBJ
stantial proof is necessary. Reversed
and remanded.-Wilson,J J.
| Newt Pender VS.. state appeal from
Lamar county.-The record failed to show
an order permitting the fling of state
ment of facts after the adjournment of
| court, statement so filed cannot be con-
sidered. The facts charged against the
service of the Indictment on defendant
are not authenticated, and beyond that
the charges are found correct. Affirmed.
Per curtain.
Bowden VS.. state; appeal from Hood
| county.-Error in changing the venue is
not available by plea to the jurisdiction
| of the court to which the case has been
transferred. Exceptions must be taken
in the tribunal by which the change was
ordered. rs CT. App. IL Again the "or-
der of the judge granting or refusing
change OF venue shall not be reversed
upon appeal unless the facts upon which
the same was based are presented in
bill of exceptions, prepared, signed,
approved and filed at the term
of the court at which said order was
closes no other points Of moment. At
firmed.-White, P.J. LNote.-This is
branch of the Meyers case. The convic-
ton was for murder in the first degree,
| with life term assessed.-Rep.]
Luchanock VS.. the state; appeal from
Robertson county.-The conviction was
| for a misdemeanor, and. the penalty as
sessed at fine Of S1OO. The facts failed
to show satisfactorily that the defendant
was under arrest at the time of his con-
| fessiOn, but if so, it shows also that he
| was fully warned by the officers that 1t
might be used against him. There being
nothing else in the record to consider, the
| judgment is affirmed.--Per curtain.
Rice VS.. the state; appeal from Falls
| cOunty.-The statute expressly provides
that an Information charging an offense
cannot be made until "after'' an oath has
been made by some credible person
charging the defendant with an ofense.
In this case the information appears to
have been filed october Z, 1881. The atm
ia of until nPfnhpr "a 1891
seventeen days later. Because the infor-
nation was presented without an aff-
davit to support it, the judgment Is re-
Versed and Information dismissed.-Wil-
son, J..
johnson VS.. state; appeal from Parker
county.-Indictment charges
'did then and there fraudulently steal
and carry away from the owner, III. B.,
one certain gold watch of the value OF
S37. 80, the corporal personal property of |
said III. B., without his consent and with |
intent to deprive him of the value of the |
same, and to appropriate the same to his |
use, etc." Held, sufficient. The charge |
was full: there was neither statement of |
facts nor bills of ex, options brought up. |
Judgment affirmed.-Per curtain.
Carr VS.. state; appeal from Denton |
county.-There was "a submission OF this |
case on behalf of the state. Butthe record |
shows neither statement OF facts nor bills |
this court can only look to the sufficiency |
of the Indictment and for fundamental |
errors. The first is found sufficient, and, |
with reference to the latter, there are |
none found. Afirmed.-Per curtain.
Pettyrew VS.. state; appeal from Bell
county.-Thett OF horse was the charge,
and the evidence showed that few days
after the theft the defendant had the |
animal at his fathers house In another |
county. Otherwise he was proved |
to be an imbecile, fool, and to |
have no more mind than child |
of ten years. The showing of the mere |
possession of the stolen animal and on the |
other hand imbecIlity will not sustain a |
verdict of conviction. The evidence does |
not support the verdict. Reversed and |
remanded.-Wilson,J j.
TrauX VS.. the state; appeal from Or /
ange county.-It is true that the finding |
of one in possession of personal property |
recently stolen is circumstance to be |
considered in determining a case. 1t Is /
not enough OF itself to support verdict |
of conviction, and the only evidence in
this case is, that the properly, after theft |
was found in possession of defendant. |
Reversed and remanded.-WIlson, j.
Berry VS.. the state appeal from john
son county. The Indictment for OBJ
structing public road described it as tn
- road Ieading from c., in j. county, |
ty, to Fit. W., in r. county, by way OF |
G. j., in j. county," and there is no varI-
ance in the proof. The character of a
road as public road may be established /
by evidence of long. continued use as
such, and by an order of the county |
court assigning hands to work on 1t AS |
such. Affirmed.-WhIte, p. j.
Dow VS.. state; appeal from Bell county. !
Under an ordinary indictment for theft |
conviction for theft may be had upon |
proof that the taking. though with the |
owners consent, was obtained by false /
preteXt, or with intent o deprive the |
owner and appropriate the property; but |
the false preteXt and intent to appropri- |
ate must be shown. and the intent must |
have existed at the time of the taking.
The evidence is not sufficient to show |
false pretext or criminal intent at the |
taking. Reversed and remanded.-White,l
P.J.
Randle VS.. state; appeal from Robertson |
county Adultery may be committed in |
two ways: living together and carnal |
intercourse, and, second, habitual carnal |
intercourse without a living together. |
The obligations upon which the action is |
founded and the proof must correspond,
and when a particular fact or circum-
stance constituting the crime is alleged, |
the conviction, if at all, must be had upon
proof of the existence of that particular
fact. The information charging a "living
together and carnal intercourse" a |
charge that proof of "habitual carnal |
knowledge without proof of an actual |
living together" was error. Reversed |
and remanded.-White, p. j.
Howard VS.. state; appeal from Denton |
county.-The indictment in this case |
charged the burglary of the store |
house Of T.. G.. Young, and |
the theft therefrom of thirty dollars. |
The main objection urged to the convic-
ton is that the court erred in admitting
the written confession ofthe defendant to |
one o., justice of the peace, on the morn
ing of his arrest. The record however
the defendant was duly warned. The ev-
idence is otherwise ample to sustain the
verdict. Affirmed.
Geo. Williams VS.. state From McLen-
an county-The information and COM
plant were both filed and presented in
court, June 8, 1881, and both charged that
the offense was committed on June 8,
1881. 1t is indispensable to the sufficien-
cy of an information that 1t charge the
otfense at some time anterior TO its
filing. The judgment is reversed and
the information is dismissed-Wilson j.
Commissioners OF Appeals.
,Heatherly VS.. Dutton; appeal from Nc
Lehman county.-In a suit upon a con-
tract the facts constituting the cause of
action must be set forth, and distinctly,
and il not proved as laid, the foundation
of the action fails and the plaintiff cannot
recover. IA Tex. 418.1 The petition al
legged the agreement to be that the work
was to be performed for reasonable value,
and the answer set up that it was to be
e A. 4 +