The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-06-15

An lnspoctlon Of the record discl0sss tlat
h0 prlncipal Ia called "TOny," but thai lie
IoeS not Sign the bond by That name, nnd
here Is nothing 10 show that lac u the party
signing the bond as principal party defend.
ait, and again, the Judgment lllsl d9es nov
state that the same will he made hnal' 49,
yprsed and remanded. Per curtain
Glass W.. state from Colorado county.
The Indictment was for theft of a mare and
took Its place as No. 1873 on the court
docket. liy motion the defendant aVereu
that one X. was separately indicted ipr tle
same uflense, his case being NUMBERED 1871,
aud asked that r. be first tried, which the
court refused. II was held, in Nichols vs.
State, Ct. App. $40, that as general RUE
cases should be tried III their order
on the docket but the court was clothed
with discretionary power to postpone
temporarily q trial for good cause shown,
the exercise which will not be revised eX-
cept in case OF abuse. No such abuse IS APP
parent in this case. Affirmed. Fer Gu
riam.
Pogue VS.. State; from Franklin county.
When cirCumstantial evidence IS relied upon
bv the state, it must be such as 10 eXcluue,
to a moral certainty, every hiypothesls Dut
that OF the guilt OF the accused OF the oHehse
charged or as stated by Starkle, "ln order
TO Justify the inference of legal guilt rom
cirCumstantial evidence, the existence OIL
the inculpatory facts must be absolutely
incOmpatible with the innocence OF the ac-
cused, and incapable of explanation upon
any other reasonable hypothesis than tha1
of his guilt The evidence i'll tins case IS
not of that conclusive character winch VIII
exclude to moral certainty, the conclu,
sion of the innocence of the defendant ana
again. there being evidence to show Il strug-
Gle at or about where the body OF the de-
ceased was found, and evidence OF the use
by deceased of angry and threatening ue-
claratinns against some one near the place
where his body was found, and on the night
of the tragedy the court should nave
charged on the lSw Of seli-deiense. Re-
versed and remanded. Wilson, J.
Poston VS.. state; from Trinity county
The guilt of one charged as an accessory to
an assault with an intent to murder by ly-
ing in concealment 10 prevent the arrest OF
his principal, is dependent upon the gum
of his principal, and the actual guilt OF such
PRINCIPAL becomes an issue in the trlal OF
the accessory and must be shown. And
hence the charge of the court Oh the trial
OF the accessory should have submitted 10
the jury the question OF doubt OF the pflh-
cipal's guilt, which must WIN equal Ger
taintv, have been established before The &C,
cessory could be convicted. Reversed and
Hurt, j.
Prather VS.. State; from Bosque county.
1t is essential to the validity OF prosecu-
ton for violation OF the local option law
that the election and all steps
taken by the commissioners court be
in pursuance Of the act governing the
same. The act requires that the
order for election snail be based
anon the petition of fifty citizens
and a showing that the petition was
signed by 'C' and "many others is not
such petition, and does not confer upon
the commissioners court any power to act
in the matter, and again, in any view, the
defendant was entitled if he could, to prove
that the liquor which he was charged Win
selling, did not come within the lnhlpltea
class. Reversed and remanded. Wilson, j.
Johnson ct al. VS.. State; from Denton
county. Art. 1857 Rev. SITS. provides That
all suits in which final judgment shall
not have been rendered by default as herein
before provided shall be called for
trial in the order in which they
stand, unless otherwise ordered by
COURT In this case there was no order by
the court, and after new trial, ana par
tisl progression with the regular case OF Tue
docket, the case was again called, ana no
appearance, Judgment nisi entered on
which Judgment final was subsequently
rendered. Held, that the rule as laid down
in the article quoted Q2S7 Il. 81 appLes as
well to criminal eases, and hence the Judg-
ment nisi was void. Reversed and remand
ed. Hurt,j.
While this court cannot, under any rule
aid down in ii Tex, 463, there
oeing no st .tute recognizing the
act that Bolton is, located IN Bel
county, take judicial knowledge OF such
act. The evidence of itself is sufficient TO
establish the venue, though nowhere d.
.scIiy testified to. 1t is not essential that
he Venue be established by positive testi-
nony, but is sufficient if from the facts IN
evidence the jury may reasonably cohcluue
hat the ohense was committed in the couh-
y alleged. The doctrine OF reasonable
ioubt does not apply to the merely Juris-
lictional fact OF venue. Affirmed. Will
,on, ]. T.,
Hart VS.. State; from Wheeler county. In
he absence of statement OF facts, tnlS
,ourt can only look 10 the sutiicicncy OF the
Indictment and the correctness OF the
harge In this case 10 error Is apparent
md the Judgment is affirmed. Inc CON
'iction was for murder in the seconu de-
,ree, with term of thirty years III Inc
,enitentiary awarded. Affirmed. Ter :
uram. ~.
King Kendall IS. State; from Burnett
ounty. The indictment was Tor assault TO
ape, and the conviction for aggravated as
ault and battery. While the charge is not
zee from objection, it vas not objected TO
,or charges asked. Wherefore TINS court
annot notice such error. The evluehce,
1 trne is sufficient to sustain the verdict /
md its truth was an inquiry for the jury; |
rot the court. Affirmed. Per curlam.
Donoho vs.. State; from McMullen coun-
v. If il appears that it is necessary to
lue administration of practice, the court
hall admit evidence at any time during !
rial of the cause before the CONCLUSION OF
.reument, the evidence rendered IN TINS
ase was material and should have been
Omitted when offered before the com
nencement of argument, and tnat defend
Ints counsel, before rendering the witness,
lad announced that no evidence would be
,ffered by him, was no sufficient excuse Tor
Is exclusion. Reversed and remanded.
Hurt, ]. -.
CLARK vs.. State; from Wilson county. !
The affidavit and information charged Tue
APPELLANT with the unlawful sale OF WHISKY
N election day. The affidavit and lnIormh-
ion are both sufficient to charge the offense, |
nd the evidence ample to sustain the con-
iction. Wherefore the court did not err |
a oyerruling the motion for a new trlal, |
,ased upon the suiiiciency OF the evidence
Affirmed. Per curtain.
ynopsis of Opinions of the Commission OF
Appeals.
Carson VS.. Kelley; from Ellis county |
Where adeed is absolute on its face, with
Usual warranty Of title, and without an ex-
,ress reservation Of vendors lien, the con-
ract of sale Of land is an executed contract
liabilities a the vencee differ in executory |
nd executed contracts, thus; in the former
l. would be relieved by showing defect Of
Tile, unless proved by vendor that such /
yas known at the sale and such title taken /
5 he had. In the latter, the yendee
hould show that the title failed in whole I
n in part; that there was dan
er Of eviction, and such circum-
lance as would prima iacie rePel presuhlf y I
ion t,at he knew and took risk OF the de
81. Defense then, Of invalid title. should
n NJ ignorance thereof at the time Of pur- I
hase BIZ way OF answer. This was Dol
-, 80 t,, rneut when exceptions I