The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-01-28
ooNr DECISIONS.
Syllabus of tho Opinions of the Court of
Appeals.

That the persons summoned as grand Jur'
ors were not in fact, the persons selected
by the Jury Commissioners; (2) in case Of
grand Jurors summoned by order Of the
court, that the officer who summoned
them has acted corruptly IN summoning
any one or more of them, are the only two
grounds upon which challenge to the ar
ray of the Grand Jury can be made. Art
3Sl enumerates the causes for challenge &c
individual Grand Jurors. Such challenge
either to the array or to an individual Juror
must be made before the Grand Jury Is inn
paneled, and the right of a prisoner in jail
to be brought before the Grand Jury Is
dependent upon his request for the
privilege. Art. 522, G. G. p, enumerates the
only pleadings on the part of the defendant
Art. 523 names the only two grounds foI
motion to set aside Indictment Art. 52'
names the only two special pleas pcrmissl'
BILE, as referred TO in Clause 9, Art. 522,
Exceptions to the substance of an indict-
ment are named in Arises, and to the form
in Art $50. That the Judge in his PREDATORY
remarks to the jury told them the case was
on trial on change ofvenue, and then pro-
ceeded to char &C the law of the case, is not
an objection which can be sustained. That
the transcript from the county from which
the venue had been changed had not been
filed in g. county District Court, was
but an irregularity Mt most which could be
corrected at any time by direction of the
judge. The charge of the court in this case
is exceptionally clear and correct, but the
evidence insufficient to disclose express
malice and consequently does not support
u conviction of murder in the first degree.
Reversed and remanded. Winklcr, j.
nap,c vc fvnp fnnynlns
The indictment charged theft of hogs, the
property of one 4. After, charging SUM-
ciently on the general elements OF theft,
the court charged that the law prcscribes
no rule for the kind or amount of testimo
ny, other than that it must be sufficient to
fully satisfy the jury of the existence of
every fact necessary to constitute the guilt
of the defendant beyond reasonable
doubt. If they have such reasonable doubt
OF his guilt they will acquit him. Held, to
be a correct charge, and the evidence is
sufficient. Affirmed White. D. j.
Goode vs. state; from Falls county.
In this case it was urged as error that he
cont should have expounded the law of self
defence. But held, that the homicide for
which the defendant was being prosecuted,
presented no such phase, nor did the charge
as gwen, and assigned as error, embody the
charge as given was correct exposition of
the law of the case as made by the evidence
and the law requires no more. Affirmed
White, p. ].
Brown VS.. State; from Bsxar county. An
application for continuance is addressed
TO the sound discretion of the court, con
trolled by the proyiso, that, the application
being otherwise sufficient if upon convic-
ton the testimony for which continuance
was asked appears material to the defense
and competent, new trial should be
granted. No objection appears to have
been interposed to evidence complained of
IN this Court, and the record brings up no
bill of exceptions. The Judgment is at
iirmed. White, p.j.
McAmis VS., State; from Delta county.
In the absence of n statement of facts it is
impossible for this court to further revise a
a cause than to ascertain if the Indictment
be sufficient, and the charge of the court
embodies no fundamental errors OF law
The indictment in this case is sufficient, and
the charge correct so far rs can he ascer-
tanned IN the absence ola statement Of facts.
Again. the record brings up no assignment
OF errors. Affirmed. White, D. /.
John Davis VS.. State; from Colorado
comfy. An attempt to commit II bur
glary is an oliense defined by the code TO he
an cndeavor to commit the crime of bur
glary, carried beyond mere preparation, but
falling short of the ultimate design in any
part OF 1t. The punishment denounced is
confinement in the pcnitentiary not less
than TWO nor more than four years. The
means used in this case was shooting into
the house of Mary Gilmore The charge of
the court is sufficient and the evidence sus-
tains the conviction. Affirmed. White. u. /.
Hanks VS.. the State; from Anderson
county. Charge was that "in order TO con
stitute an assault on the part of II. with
the gun, there must not only be an intcn-
ton TO shoot but, besides the intention to
Shoot there must have been some net
done to carry the intention into execution,
besides taking the gun into his hands. The
degree of progress made in the execution of
the intention to shoot Il, is immaterial, and
II he attempted the execution by doing
some act carrying out his intention, and at
the same time had the ability to shoot b.,
II not prevented, II would be an assault
Held, not obnoxious rs a charge upon the
weight of evidence. The Indictment was
Tor assault to murder, and the conviction
for aggravated assault. Affirmed. Per
curiam,
James Austin VS. State; from Denton
county. The action Of the court below in
refusing nm application for continuance
Will not be revised by this court unless OBJ
lection is reGyed and presented by bill of
exception. Yhe evidence in this case was
not strictly circumstantial, and the court
having charged sufficiently ON the state
OF the case made by the evidence, did moi
err IN refusing to give charge asked, di.
rected exclusively to u question ot circum.
siantial evidence. Affirmed. Per curianl,
Cohea vs.. state; from Gonzales
county: Confessions of co-conspiratoy,
after the consummatiou of the olIensc.
made when the defendant was not present.
are not admissible to prove conspiracy.
Bat such evidence must be objected 10
when offered, and not IN the court for the
hrst time, The acts and declarations of
co'conspirator, are not admissible after tho
contamination of the oilense, but the co.
conspirator Is placed ON the stand
II ~ competent for him to testify
10 the conspiracy, though corrobo-
raVon Is necessary To conviction.
That THE defendant objected to the recall
oil witness alter argument Ind com.
menced, Is ground too vague to enlist tho
attention of this court. That The witness
recalled had been released from tho ruic
and had heard the comments of co,nsel
does not appear to have injured the defend.
ant. The indictment charging then og
property over the value of so, verdict oi
guilty Us charged, is sufficient, without
stating 'oi then of property over the value
OF $50 Affirmed. Hurt, /.
Knox vs.. state, from Gonzales county
The state having proved the recent nos.
session OF the animal stolen, by n witness
introduced by the prosecution, Il was per.
,ectly competent for the defense to provo