The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-05-25
ooUar DECISIONS
synopsia Of Opinions Of Court Of Appears
Austin Terun, 1889.

s. d. stone W.. the Siatri rom pI"""
county. In coroboration Of states wiz
ness who had testified to certain tracks
found about the corn.crb which could be
easily distinguished from the others pc
cause IL was full of track prints" defendant
olfsred TO prove by this witness that he saw
the tracks the day after the alleged thei''
and ms to what kind Of shoes he wore prior
70 the time and aferward. This evidence
beinc objected to was excluded He'd, TINS
EXCLUSION was error, the evidence being per.
mitted and called for by the states evidence
already adduced. Reversed and remarked
White, pj'
p. W. Eldridge VS.. the State; from Brown
county. Where it was agreed by the
corntv attorney and the attorney for the
onr,llapt that evidence OF party absent
winch had been taken before an examining
cou1t should he used, ard it was deyeloreN
thst 10 such evidence was in existence, in
order to avail OF it the appellant should
have shown that the fraud was not Only
practiced upon him, but that he relied on
them. and that the fraud could not have
been ayered by the use OF ordinary dill
pepce. The unauthorized withdrawal OF Il
m aterial witness after the commencement
of trial has always been held ground Cl sur
nrise sufficient 10 base an Application 1"r
nos tponemeut or continuance, but lne con-
lin uauce of a case after the Ilai mas begun,
on account OF the whholaWal q 4 may "a "a
witness. is largely in the discretion o! ihe
court. Artificial trickery and irauI Oh
ptosecuting officers whereby ucIshuau'
has been induced to 20 to trial TO MS INJURY
have been held good grounds Tor reversal
aed for a new trial. Reversed ana re-
manded. Waite, p. j.. r.. r,.,tr,
c.. NJ. Davidson vs.. tine State; rom h'atH
county. There is but little difference be-
tween swindling aud that character ol theiy
provided Tor III article III, L. Z. Deieu"au,
represented himself as agent OF stVerai
periodicals and obtained many suoscIlp-
lions from different parties, win Tue money
and signing himself Davis, agent. lesIi-
monv WAS offered of several witnesses TO
Droye that the same party had gwen ttlelh
similar receipts and received money rom
ihem on the same pretence, signing hlihSeH
in the same manaer. Objection 70 rs III
PRODUCTION was overruled. Held, the oojeC
ton was very properly oVerruIeH tne ~ ~,
and Intent Of defendant as well as 10 prove
identity Affirmed. White pi
Jam q Merritt, VS.. the state; from COM
mauche county. On reversal of former in
4 rs case, it was held that in tue trial OF
man Tor adultery, tie testimony OIL ms par
amour as witness is mat OF an accom- ag,, lor
or par,ic ps criminis wide I. &, o55h ana
will not support his conviction unless cor
FEDERATED by evidence tending to CONNECT
him with the otiense. 90 Ct. %pP.s, 4V-
In The determine ion OF lhe
only necessary question at pre-
ent, 1t is found, by collpdri
ison of this and the former statement OF
facts, that the chief difference IS, rhot the
corroborative evidence now, instead oi Ne
ing stronger than before, tends rather TO
strengthen the appel mt's case loulslde TIE
evidence of the accomplish as almost rs
strong circumstances are furnished "44lhsI
one Mr.. SadOerry, another brother-lA'laW
and a certain Mr.. Frost, u married man, IS
also brought within the range OF compel
tive suspicion us to the paternity OF the
alleged offspring of qdulterous injer,
course. The prosecuttix had "hocdi
corn oonce during the, the summer MEN
corn was waist high, and they were alone
in The field, and no one was near. Re-
versed and remanded. White, p. j.
w. II. II. Harvey vs.the State; from Cory
ell county. There being no plea OF r.
cord showing the issue in this case, the
Judgment is reversed and the cause re-
handed. White, p. J.
Dick Saddler vs. the state; from Brown
county. The charge was an assault with
intent to rape. The evidence shows
that the person alleged to have been
assaulted, was widow living alone with
her son: and on a bright moonlight night,
while sleeping in her arbOr, she found The
defendant lifting up her clothes lie de-
parted gradually upon the widows ORDER
ING him three times 10 leave, mutlCIlng
something" as he walked off. The de end
ant knew the sun was away from ~ me,
and the widow rec JgniZe1 HIM as Del i
4, n, - f,,Hl itut,rnRpr pOn1mgf
YiSpeshaps sufficient for the conviction OF
an aggravated assault, there was no attempt
at forcewhateyer may have been the purpose.
When rape is intended by force, the latter
must be such as to reasonably overcome re-
sistance, considering the relative strength
of both parties, and other circumstances.
pc. 529.) An assault with the intent to
commit any other oflense is constituted by
existence OF facts v hich bring the o1ense
within the definition OF an assault, coup.ed
with an intention conlmlt suCn olhtr Oh
tense. Qb., 500 The subject was
delicate one tor the trial Judge;
INT. as he refused a new trial on insufficient
eyftience to support verdict, ihat tue
case may not be precedent, the iuigmelt
and the case remanded for new tflAl'
Winkler, ].
Ionl sanford 70. tic State 'rgm Gregg
county. The defendant Is indicted Aith an
intept TO rape one Zaua Bean, who is al
legged to be a female girl. The charge thst
$50 constitute an assault to commit in this
case. the purpose and intent must have
been TO have carual knDgledge % Ziaa
Bean by force. lf'his intent wa to try TO
accomplish his purpose by coarse, Nui-
gar familiarity, and the same pro-
duced shame and disgust; but fOrre, to
have carnal knowledge, was not used or in
tended the oifensc would be au aggravated
assault aud battery was substantially cor
rect. Yet there was error ~ rclnsiog a
new trial on the fourth ground, to- wit
ssBecause the verdict was contrary 10 the
evidence. there being no testimony elected
upon the trial Of the cause, ten ling TO
show that any force was used upon the part
of this defendeut, in attempting 10 commit
the crime with which he Is charged" Re-
versed aud remauded. Ninkler, ].
III. s. Reeves vs.. toe State. Tie law has
undergone an alteration since the decision
in Childs vs. the State. a pr0yiso is con-
tanned m the act Of March 4, 1851, TO the
effect that parties gaming on tables upon
which a tax IL levied, are not exempted
from prosecution. Those using table for
purposes which conflict and violate the
psna laws, are not freed from punishment
because tax is laid upon mat table.
should anything Of value be bet on
a table though The impJsct tax
has been teid, the players are amenable 10
prosecution. AGiuDet. Ninkier j.
J. W. Rsfiif ". toe stat; from oan -lOa
county Tie defendant assigned a. a
GROUND. ID a motion for a i.cF trial, tls
Ovsrrullng Of his motion Tor coulnuanc-.
This c0at deems 10 only necessarF % A4y
thai thsre j. 10 conflict b. ktcn tne
erid.siue II tire state and Tire lac e1pi cied
% Be proved 81 absent .iites-es, snitb
render he trufh 81 tbe PROPOSE iacta M
probable R-Tersel aud a neE trial
aEarled. Hurt.
g. ID. siOne W the STATE. from Brswn
county. An iniorInati1n charg ls o. that
3. 10 cfOne IN the county Of BrJEn aud
state % Teas, on the frsi DAY ''i fsoruarF,