The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-06-08
broush. up tho judgment is affirmed. Fer

tnFlhHlt
Carr Va. State; from Denton county.
There was n submission Of this case on be.
half Of the state, but the record neither
shows statement of facts nor bill Of exCcp.
tions. Under such circumstances this court
can only look 10 the suiiiCienCy OF the In.
dctment, and for fundamental errors. The
| first is found sufficient and with reference
70 the latterthere are none found. Affirmed
| Per curtain.
Pettigrew VS.. State; from Bell county.
Theft OF horse was the charge, and the
evidence showed that a few days alter the
theft the defendant had the animal at his
fathers house, in another county. Other
wise, he was proved to be an imbecile, q
fool and TO have no more mind than child
of ten years. The showing Of mere pos
session of the stolen animal, and, on the
other hand, imbecility, will not support the
verdict OF conviction. The evidence does
not support the verdict. Reversed and re-
manded. Wilson, j.
Truax VS.. State from Orange county. 1t
is true that the finding of one in possession
of personal property recently stolen is a
circumstance to be considered in determin-
ing the case, but it is not enough of Itself
10 support a conviction and the only eN-
dence in this case is that the property, alteI
theft, was found in the possession OF de-
PENDANT. Reversed and remanded. Will
son,
Berry VS.. State; from Johnson county.
The Indictment for Obstructing a public
road described it as ''the road leading from
c., in J. county, to Ft. Wo., in Il. county,
by way of q. j., in j. county," and there is
no variance in the proof. The character of
a road, as Il public road, may be established
by evidence of long continued use as such,
and by an order Of the county court assign
ing hands to work on it as such. Affirmed
White, p
Shehan VS.. State; from Tarrant county.
The judgment in this case is reversed, and
| the cause remanded because the record fails
to show that the defendant below pleaded
| to the Indictment upon which he was tried
or that plea was entered for them after
they had declined or refused to plead.
Without this the judgment of conviction is
q nullity. Reversed and remanded. White,
p.j.
Lewis VS.. State; from Tarrant county.
The same objection to the judgment as in
the above case holds in this and upon the
authority above, it is reversed and re-
manded. White, p. j.
Dow VS.. State; from Bell county. Under
an ordinary Indictment for theft a cOnvic-
ton for theft may be laid upon proof that
| the taking, though with the owners con-
sent, was obtained by false preteXt, and IN
tent to appropriate must be shown and the
| intent must have existed at the time OF the
taking. The evidence is not sufficient to
the case is reversed and remanded. White,
Randle VS.. State; from Robertson county.
Adultery may be commiJIed in two ways;
living together and carnal intercourse,
and habitual carnal intercourse without
living together. The allegations upon
which the action is founded and the proof
must correspond, and when particular fact
or circumstance, constituting the crime is
alleged the conviction, if at all, must be had
upon proof of the existence of that particular
fact. The information charging living
together and carnal intercourse" charge
that proof, "of habitual carnal knowledge,
without proof of an actual living together"
was error. Reversed and remanded. White,
Howard VS.. State; from Denton county.
The indictment in this case, charging the
burglary of the storehouse OF L. G. Y, and
theft therefrom Of $50. The main objection
urged to the conviction is that the court
erred in admitting the written confession OF
the defendant to one o.. Justice OF the
peace. The record, however, shows that
the confession was made after the defendant
was duly warned. The evidence is other
wise ample to sustain the verdict. Affirm
ed Wilson, j.
Anderson rs. State; from Harris county.
The Indictment was for assault with intent
to murder The charge of the court is
mainly complained of on this appeal, but
beyond the fact that it appears unexcep-
tional it does not appear that the exception
was taken in the court below at the proper
time. Malice was properly defined by the
court in its charge and the evidence is not
against the verdict. Affirmed. Per curiam
Hardeman VS.. State; from Williamson
county 1t is not sufficient in criminal
prosecution that the evidence indicate a
a strong, probability of the guilt OF
the defendant, it must estab-
his guilt beyond mere sus-
picion or even strong probability.
The record suggests the probable ex-
istence of additional evidence, which, upon
another trial, will throw light upon the
question of guilt or innocence. Reversed
and remanded. VIII" p.i,
Williams vs. State; rom McLennan coun-
ty. The information and complaint were
both filed in court June 8, 1881, and both
charged that the offence was committed on
June s, 1881. 1t is impossible TO the suth-
cheney OF the information that 1t charge the
offence at the same time anterior 10 the
fling. The judgment is reversed and the
information dismis Wilson, j.
Paul VS.. State; from Mitchell county, The
appellant and five others were indicted for
cons piracy to rob. One OF the others was
tried and acquitted, and this appellant was
placed on trial on severance
and convicted. He rendered in evidence
the record OF the trial and acquittal of his
co-defendant, which was rejected. The ac-
auittal of one oftw charged with conspir-
acy must result in the acquittal OF the
other and the record Of the acquittal ofthe
one is admissible in evidence
upon the trial of the other. Green
Ev, sec. 81, and where sone OF
several defendants charged with conspiracy
has been acquitted, the record ofan acquit- |
tai is evidence for another defendant. (Wh.
Grim. Law (s2d) sec. 1911 The charge in
reference 10 conspiracy was erroneous IN
including the party acquitted, but should
and his remaining co-deiendant. Reversed |
and remanded. White, p. ].
Britton VS.. State; from Bowie county. |
The offense charged, was an assault with
intent 10 murder g. j. The main question
turns on the su1iciency OF the verdict, |
which reads as follows: I'VE, the jury, /
find the defendant guilty of an assault and |
attempt TO murder, and assess the punish
ment at two years in the state peniten- |
tiary" Held sufficient, the evidence be- /
ing sufficient, and the charge is not erro- /
neous. Affirmed. Per curtain.
Patterson VS.. State; from McLennan
county. Ii is only when it appears 10 the .
ted I'm an Incorporated town or city, and /
that there is a Justice in such town or city,
that be Is required to transfer TO s1ch jus
tice cases over which he has no jurisdiction.
The district Judge did not know judicially
that w. was incorporated that there
was a Justice OF the peace in said town, nor
was IL made to appear. 1he defendants
special pleas were properly oyerruled.
Paving at a game Of cards in a public
Mace. and betting az faro are two separate
ofienses. and a charge which authorizes con-
y'ction Of one upon an allotment for an
other, i errsr. Reversed and remanded.
Wilson.
Cooke Kingsbury, Morris and Caldwell
W. State: from McLenuan county; four
cases. the indictments In which charged,
ard the convictions we're iOr playing Al faro
III IRE city OF Waco The question which
arose in the case Of Patterson vs.. state,