The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-02-02


bt6tefiy 0vef lie value M ~, verdict N
guilty aq charged, Il sufficient, Without
afaling "uf theft ~ property over tlie value
nf s2D" Affirmed. Hart, J.
Knox W. state, from Gonzales county,
The State having proved Tho recent pos.
session of tic animal stolen, by u witness
introduced Ivy the prosecution, " WIS per. |
lco1y competent for the defense 20 prove
by fhe same witness the delcndnnts ex. |
plnnntion Of ts possession. The court erred |
In refusing 10 allow the defendant time 70 |
prepare bills of exception. Above ana be-
You'd the errors indicated, the evidence III
this case does not support verdict oi con-
yiciion. Reversed and remnnded. Hurt, j.
Trash vs. State; from Washington county
The plea Of guilty Is not sufficient unless u
appears from the record that the defendant
was admonished by the: court as to the con-
sequences of such plea; that he wa, sane
and uninlluenced by any consideration oil
fear, or by any persuasion or delusive nope
OF pardon prompting him to confess MS
guilt Plea of guilty without these pre-
requisites is not legal. Reversed and re-
mandrd. Hurt, ].
Gardner VS.. State; from Tom Green coun-
ty. Failure to charge the law applicable to
the oiiense of manslaughter, when the evil
dence tends to establish such an oitense, is
error. And it is error to charge negatively
on any iseuc made by the evidence. Charge
that assumes an issue not made by the EVIL
dence is error. But in order to secure the
attention of this court, the defendant
should ask proper charge, or except to an
erroneous one when given. instruction OF
the Jury as to the law, or other ma
terial error, calcr'' | 10 injure the defend
ant, when called to the attention of the
tourt by being made ground for new
trial, is cause for removal. Evidence that
lust prior to the shooting, the defendant
10 aHt N -
ceased, but which were shown not to have
been communicated to the deceased, was
improperly admitted. Reversed and re-
manded. Hurt, j.
Holmes VS.. State from Atascosa county.
| Malice is q necessary ingredient OF murder
either of the first or second degree, and
| charge that fails to define malice is crrone-
Gus. This court is authorized to revise the
action of the court below, though proper
| charge was not requested by the defendant.
1t was competent tor the State to prove
that the deceased when killed was under
the influence of whiskey. The facts in this
case demanded charge on manslaughter
Rehearing granted. Hurt, j.
Williams, alias Gilmore. VS.. State; from
Washington county. Charge that posses
sion of property recently stolen is Il circum-
stance proper to be given in evidence to the
Jury, and from which the jury, ifthe posses
sion remain unexplained. may infer guilt
but it is not ofitself conclusive OF the fact
| is error. And So likewise is a charge to the
effect that if the horses when last seen were
in w county, the law would presume
| thew were stolen in that
county. Possession of property
recently stolen without explanation of that
possession is prima facie evidence of guilt,
and such as will not authorize this court to
reverse, but the defendant must have been
offered an opportunity TO explain: Because
of error in the charge the case is reversed
and remanded. Hurt j.
Pennington VS.. State; from Henderson
county. When it appears from the record 4,
as in this case, that there was no final
Judgment entered upon the verdict, and
none in the order refusing the motion for a
dismissed. See Code of Criminal Proceed
ure, Article 79l, for requisites of final
| Judgment, and Article 1872. for requisites of
sentence. Appeal dismissed. White, p. j..
Balinger VS.. state; from Cooke county.
1t is only after the witness whom 1t is
sought to impeach, by showing that he mad
| elsewhere made statements contradictory
of, and inconsistent with, his statements on
| the trial, has had his attention called to
| these statements, and the time and place
where made, and he has denied making
them that evidence to impeach can be re-
ceived. The dispositions of a witness who
has removed beyond the limits OF the State
|
tions in another case than that on trial
Counter atfidavits seeking to overthrow
the force of the affidavit of the County At
torney to the effect that the witness whose
| deposition was taken at the examining
| trial, had moved beyond the jurisdiction o!
that court, came TOO late. after trial. or
when first made in motion for new trial.
| Affirmed. White, p. j.
| Lawrence VS., State; from Rains comfy.
| That a charge embodyirg corrupt princi-
| pies of law, applicable to the case, was
| not filed before being requested" consti-
tutes no good reason for its rejection.
| After the court had refused 10 give
charge asked for the reason indicated, the
defendant asked that the rejected charge
be then filed as fact of the record ip the
case, to which the County Attorney OBJ
iccted, and the objection being overruled,
he excepted, and the court gave him a bill
OF exceptions. Held. that such proceeding
finds no warrant in law. The State has no
appeal from any proceedings in a criminal
case. Reversed and remanded White, p. j,
Umdenstock VS.. Mcclellan; from Harrison
county. Suit was brought to enjoin iudg-
ment rendered by n Justice of the Peace for
the sum of SAG and execution issued there
on The County Court dissolved the in
junction, and rendered judgment on injunc-
ton bond, against principal and suretles,
for amount of judgment in Justices Court
and 10 rer cent. damages. Held, that III
such proceeding the County Court had no
| iuri idiction, and the case as appealed 10
that court is dismissed. Reversed and dis
missed. White, p. j.
Hamilton VS.. State from Gonzales coun-
ty. To constitute burglary at night or IN
the daytime, the entry must be by force
and TO enter an open door at night when
the charge is entry by force would not con-
sttute the force required by the code. IL IN
efiecting the entry the slightest force is nee
essary, such as if a door be partially open,
and lie who enters, in order to do so pushed
to commit felony or theft, the force re-
quired by the code would be used
The charge in this case was entry
by fraud with intent to rape by force, and
the evidence showed that defendant re-
moved his shoes and entered at an open
door, it, indeed, it identified defendant.
Held, that the evidence does not support
the allegation Of entrance by force, MOI
does it support the allegation of intent
Reversed and remanded. Hurt. J.
Baker VS.. State; from Hunt County. The
indictment alleged the ownership OF the
animal alleged TO be stolen Ia
the estate Of A. deceased. but
was taken in A. as administrator In his
evidence the administrator claimed posses
I sion by virtue Of the inventory OF tie es'
tate. The defendant, claiming to nave Ia
ken up the animal under claim OF right
offered TO make proiert Of the record OF The
inventory. which being objected TO hy The
| State. was excluded. Held. error. Cumu
lative punishments were not in vogue prior
% the adoption OF the Revised Code. Noi
does the evidence in this case sustain The
conviction. Reversed and remanded.
Wsiie, p. j.
4 Lowe vs. State; from Ellis county. II
being in evidence that i. had complies
s.Et ms
ster,s towards estraying the cattle alleged
70 have been stolen. but having failed q
fully comply with the law a. LAID down d.
Jinks vs. Stste, 8 Ct. App. g., the indict.
ment, In alleging the possession W an IN
known owner, was suf1cient. freiiminai1