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

court fails to open his court on the irst dhy
| of his regular Term, the sheriff, II no special
Judge be- elected. shall adjourn the court
from day 10 day, for three days, ana II on
the morning OF the fourth day the regular
Judge fail 70 open court, the shcfiIl shaIl
adjourn the court TO the next regular term
After the morning Of the fourth day the
Judge has no authority to organize his Court
for that term, and all proceedings had un-
der such organization are absolutely NOid.
Reversed and dismissed. wilson, J.
Evans vs.. State; from Dallas county. over
defendants objection the court following,
The rule laid down in Sullivan ". state, 4
court of appeals, 80, admitted evidence OF
the oral testimony Of an absent witness
given previously in q habeds corpus.-pru
ceediug. Held, that the court erred, that
the oral testimony is admissible only whert
under the terms OF the statute IL would ot
admissible if reduced to writing. As to re-
written would be admissible, see Code o
Grim. Proc. 779. Upon this question The
case of Sullivan, referred to, is Overruled
Reversed and remanded. Wilson, ].
Seymour vs.. State; from Robertson
county. The evidence in this case in sub
stance showed that Seymour, who was .
former tenant on q certain farm i'll Robert
son county which had been rented to an
other, went into the yard OF the farm and
in the sight of and with the knowledge Of
the.tenantg, took two troughs theretrom
claiming them as his property. The tax
ing was without the consent Of the tenant
in possession. Held, the evidence is en-
tirel insufficient to support Judgment OF
conviction, and the case will be reversed
and rcmandcd. Hurt j.
Johnson VS.. State; from Coleman county
Defendant had in his possession an estray
mare, for the theft Of which be was tried
and convicted. He moved in the court be,
low for a continuance on the ground that
! he had purchased the mare from one IL
/ The court found that there was such aman,
who formerly lived in the county but
| had removed therefrom, and on
evidence only of recent possession convict
ed defendant. Held the court erred in
overruling the application for new trial.
IL Texas 49, i3 Texas, 2GS; IL Texas, GIG;
l ct. app. 57S; 2G Texas, 2O9. Reversed and
remanded. Hurt, j.
Juan Leah vs.. the State; from Bexar
county. Defendant was charged with re-
ceiying embezzled hides. The indictment
Oh its face showed legal inquisition by the
party alleged to have embezzled them;
| hence no conviction could be had Tor re-
ceiying them by another party. The ma
iority of the court have held that theft in
cluded EN- bezzlement, but not vice versa.
No person can legally be convicted OF re-
ceiving stolen goods unless when the ac-
QUESTION was in such manner as to consul
tute theft To receive property which has
been embezzled is no otfense against the
law of the state. Reversed and dismissed.
Hurt, j. m
Burns VS.. State; from Cooke county. The
court charged the jury that it was not nee
essary to prove that defendant aid live to-
gether with and have carnal intercourse
with Bessie P, las alleged in the intorma-
tom in order TO convict, but II defendant
had habitual carnal intercourse, ETC., HE'D,
erroneous. a conviction cannot be had Tor
acts or omissions until they have first been
charged as that would be punishment
without indictment or information. Re
yersed and renanded. Hurt, J.
Wade VS.. State; from Waller county. 1t
does not appear that the juror challenged
for cause had formed any conclusion what
ever. He said he had formed no opinion
that would influence him IN the case.
Held the mere fact that he had heard the
evidence in the case on prior trial
did not of itself disqualify him.
There must be established in his mind u
conclusion as to the guilt or innocence otthe
accused and this conclusion must be such
as will influence him in his verdict. IL does
not appear that such was the condition OF
the Jurors mind and we think him already
qualified. That the defendant had not eX-
hausted his peremptory challenges cannot
in the least degree effect the question If he
had right to the Juror. Rulings of the
court in organizing jury are not revisable
unless they infringe the law or prejudice
the accused, Reversed and remanded.
Wilson j,
Joseph Franklin VS.. Henry Hulbut; from
Galveston county. Rule ~ a, OF the SUI
premc court requires that where case has
been decided by the court at any OF its
branches and the fifteen days
in which the losing party
may make a motion for rehearing. expires
after the court has adjourned at that branch
of the court, some one of the judges OF the
court must sign the motion ordering 1t to
be filed or il cannot be considered. Motion
for rehearing overruled. Wilson, J.
O'Brien vs.. State; from Coleman county.
Articles 3022 and 3O27 do not conflict but
are susceptible Of being construed in har-
mony with each other. II is competent
for county judge to ascertain whether the
emergency had arisen requiring him to act
when, by any reason, tue jury commits
sioners Lad failed TO be appointed. Ia the
absence of q contrary showing some one oil
the causes will be presumed 10 have arisen
TO sustain the correctness Of the court de-
cision. Affirmed. Per curaim.
Hurlbut VS.. State; from Tarrant county.
One joint owner OF property must not be
permitted 10 so use IL or deal with 1t as TO
iniure the other Joint owner. We can see
no ground why the joint owner ola division
fence should be permitted To pull 1t doWnt TO
thc rrcirdicc Of tho other owner. The
Judge charged the law as follows: IF the
fence was owned jointly by Fleming and
Mason and the defendant, "a tenant OF Ma
son's), RULED IL down without the consent
Of Fleming he was guilty of the offence
charged" Held correct. The statute does
not exempt q person from It's requirements
be ,ause he is or may be joint owner, or
tenant Of joint. owEer. Approved. WI
T. j. Noryill ct al. VS. Callahan county
from Callahan county. This case was dis
missed at former day Of this court for
want Of prosecution, the appellants having
failed 10 file brief therein. A motion is
made (but resistedl TO reinstate. Under
oath the motion states that the briefs in the
case were prepared and forwarded in due
time 70 have reached the court at a proper
season. They did reach the court, but too
late. The motion is resisted and supported
by the affidavit Of the district clerk. stating
that no COPY of the brief had ever been
filed I'm the district court below. The APP
pellants do not deny this fact. Held, the
failure TO file a copy Of the brief 10 the
court below IL fatal 70 The hearing OF the
appeal, as 1t is specially required by the
rules and upon this ground the motion 20
reinstate is Overruled. Per cunam.
DickersOn vs.. State; from Colorado coun-
tv. From the record in this case II clearly
appears that the confession Of the defendant
was made % the sheriff after be was warned
Of the cOnsequeuces. That Circumstantial
evidence must exclude 20 a moral certainty
every reasonable hypothesis. save that Of
guilt: and that 4 the jury have reusgna-
be doubt Of guilt, the defendant should be
accorded the benefit thereof, was a charge
infused BY the court because
IL confession was before the jury, and
the general charge was full upon the ques-
ton vi doubt. He'd, correct. Affirmed Per
curiam. -
Gavlgr ". State. from Falls county. This /
yras a prosecution aud conviction Toy f-illng
10 work the r0ads. lt. appears that TIE .
sfsfepefIt Of facts was not fled until afier
the adiyurnrnent ofc0urt, and Tie record /