The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-07-06

nblertl0n a motion had been, " year pre-
yinus tu the final trial, mndn Tor u Change
of ypuuo. which had been refused ny
the court. A Juror whO had been
cmpnuclpd. was excused by the court.
Held that the court should have permitted
the declarations ni the accused 70 have gone
i'm evidence cOntradCtinB or tending to con
tradict those introduced by the state that
the defendant falling 10 renew his motion or
application for change of yenu, cannot in
sist now on the error assigned IN refusing
to change the vCnu ut previous term
that the court cannot excuse Il juror alter
being en- panelcd In n felony case. (See IL
q. App Gls). A charge, as In this case
which excludes negligent homicide and
granddaughter, and makes the homicide
murder unless justified or excused, IS error
Reversed and remanded. Wilson, j.
Tx parte Cox, Ryan and Sittcrle. APP
picaton for discharge from custody OF sher
riff BeXar county.
The applicants were indicted in ls1G in De
witt county for the murder OF DR.. BraZwell
The district Judge of his own motion chang
ed the venue Of the case to Bexar county II
the June term, 1881, of the BeXar county
district court defendants moved TO strike
the case from the docket on the grounds
of the unconstitutionality of the act per
hitting the district judge Of his own mo
ton to change the venue. OF cause
That the defendants had never
been arraigned, or called upon &c
plead nor had any plea ever been entered
| Tor them in the district court Of Dewitt
county before change Of venue. On the
last ground the case was stricken from the
docket, and sent back to Dewitt county
When reached and called for trial there the
district Judge declined to take cognizance
of the case and ordered the case stricken
from the docket, and the papers returned
TO BeXar county district court. Since the
latter order was made neither OF the
courts have assumed or will assume juris-
diction, ana both Judges have been applied
to and refused to grant writs OF habeas cor
pus prayed Tor by defendant. Held, that
the case properly belongs to
the jurisdiction OF the Bexar county
district court, that the act OF
August 2lst, 1876 authorizing change OF
of venue is constitutional; 10 Ut. App, 20i.
The order changing the venue cannot be
attacked in the new tribunal by plea 10 the
jurisdiction or otherwise, though the proper
practice would be to arraign the defendants
in the court, having original jurisdiction
and have permitted failure to do this, will
not Gust the court of jurisdiction
to which the venue has been changed. 1t
is ordered that the district court of Bexar
county take jurisdiction of this, cause. and
proceed as tie law directs. White, p, j.
Fannie Peterson VS.. State; from Brazos
county. The Indictment charges that the
defendant on the 18th of April, 1881, in
Rrazos county. did, with malice afore-
Thought, kill Siddie Acco, a Mexican, by
emitting her with a knife. Upon this in
dictment defendant was convicted of an as
sauIt with intent to murder, and sentenced
to five years in the penitentiary, Held,
that as we have in the case OF Dwyer VS.:
for murder, it must follow that as an as
sault with intent to murder is included in
the ofIense charged it is sufficient to sup
mort the conviction, The court erred in its
rharge that The offense. if any, would not
he reduced to an aggravated assault if the
defendant committed the assault with
knife. which was deadly weapon with in
tent to kill. The intent to kill may have
evisted without malice. and malice is as es-
g. ntiol in tho offensc ofan assault to COM
mil as in n,u,d der itself, the error was no
do,ht an oversight accidental mistake, in
charge, Reversed and
remanded. Wilson. /,
Jno Mccoy VS.. State.from Dallas county.
Conviction Of theft of a calf; three years
confinement in the penitentiary. An ex-
amination of the evidence in connection
with the charge in this case does not to our
minds nresent o sufficient excuse or iustif-
cation Tor ms TO invoke the province of the
iurv and SET aside their verdict. Finding
no error in the charge the Judgment is az
tirmed Hurt i.
Gaorge Waller VS.. State: from Dallas
county, The appellant was convicted of
unIawfully carrying pistol and his fine
assessed at SOS. The point is made by his
counsel in t6is court that the evidence adj
ducad On the trial does not show the carry
inc Of the nistol TO have been within two
years newt before the presentation of the
indictment. Held. that however well TAX
en- the noint NAV be, the record shows af-
firmot;yeiv thar what nurnorted to be a
of facts was not filed within the
fen DAYS allowed by the court to do so, we
are moi authorized to look to this purport-
ed statement in aid of the objection. The
indictment being GOOD and no error ap-
naaring The ind9ment is affirmed. Hurt, /.
Casinoyn VS.. State: from Atascosa county.
Tho trnth of nm application fora continu-
once ms we'll MS thp merits of the grounds
ser Firth therein. and its sullicieucy, is adj
dressed 10 fine same discretion of The court
called TO pass upon the same, and is not
granted as matter of right although il
NAV meet ali the requirements of the law.
Bnt shonld an application for continuance
he oyerrI,led and The defepdent convicted,
ii il appears upon the trial that the evi.
denca dftbe witness named in The applica-
ION was of a material character. and that
he facts set forth are probably true, new
trial shouId be granted. Reversed and re-
Wilson, /.
Iinback VS.. Stale: from Guadaloupt
county. When the case was called for
Iriai t3e dsfendant presented 10 the cour;
nm annlication for continuance for want OF
ON rec witnesses. by whom he
eynected 10 proye that the animal he
Il CHARGED with stealing was at the time
~ ,1ro,7ort,. or. ifnot. he fully believed II
a. 'Diiicefco was shown and otherwise
Inc annlieation conforms TO the law. Ap.
refused. conviction and five Years
In he nenitentiarv. Held. there being
ide,ca In he case tending 10 snpport The
isfense il was error 10 refuse the applica-
Hon Reversed and remanded. Wilson. /.
Harry Il Rrothers VS.. Radney: from
Travis county, An architects plans and