The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-05-04
Court of Appeals.

w. S. Jones VS.. the state appeal from
Cooke county.-The appellant and his
wife had dispute early in the morning
over dough pan. He was in possession
of the same when his wife came in the
kitchen and attempted to get the pan !;
after struggle, she succeeded. The
jury were instructed that the husband
had the same right to repel an attack of
his wife as IL she were q man and that If
he only used necessary force they must ac-
quit him. The jury essentially determine
the weight of the evidence and credi-
bility of witnesses when, as here, the
conflict of testimony tends both to a con-
victiOn and exculpation, and they are
properly charged and this will not dis
turb the verdict in such case. Affirmed
WinkleT, j.
Thos. Payne VS.. the state; appeal from
Cooke county.-When a pecuniary fine
has been satisfied, a motion for a new
trial is correctly overruled. A convicted
party having made the election to die
charge the judgment, he cannot after
wards pursue the remedy of appeal.
When conflicting opinions are cited ON
opposite sides, this court will only select
such as may seem best, and will not
attempt recOnciling. DIsmissed.-WInk-
Ter. j.
Ex-parte, Frank Random application
for habeas corpus; appeal from Fort Bend
county lin hearing on habeas corpus,
when all accessible witnesses on both
sides were introduced, and the absent
ones accounted for, and no disposition
to postpone was evinced, the question to
be determined upon the whole evidence
adduced is, is it evident, that the appli-
cant is guilty of murder in the first
degree, and, therefore, not baIlable.
And the whole evidence must
be sufficient to satisfy the
court proof of the offense, as required, is
evident. In Scroggins VS.. the state, 6 CT.
Appeals, a different issue was presented.
There the court also holds, that the pris-
oner must prove that he is entitled to
bail, upon it appearing by the papers that
be Is in custody charged with a capital
offence. The principle there decided in
this connection. was the state or the ap-
plicant entitled to the opening of the
evidence. Reversed, and bail of one
thousand dollars ordered.-Winkler, j.
Jas. Wright VS.. the state.-The defend
ant was deprived of fair and impartial
trial, when one juror was forced upon
him who could not read and write the
English language, and so could not read
for himself the charge of the court, and
another person who was the brother to
one of the parties, and another person
who was an injured party and brother
in-law to another in the cases, involving
facts necessary to the conviction of the
defendant. The former juror was found,
upon examination, to have possessed a
fair knowledge of English. In the
Nolens case, 8 CT. App 419,
the court rather called public at
tention to the subject to invoke legisla-
ton than construed the words ere ad and
write" in the statute. This court has
held, on authority OF Lilies case "a Texas,
172], that "the right of q defendant,
charged with felony, to be tried by ju-
rors who understand the English lam
guage, is not an open question in this
state" The court notices the numerous
bills of exceptions, and 1t remarks rela.
tive to one, that where the failure to
charge upon the law of circumstantial
evidence is specifically mentioned as a
material point, If the conviction of the de-
fendant upon another trial should depend
alone upon circumstantial testimony, a
charge should be given upon such. Re-
versed and remanded.-Winkler, j.
Aus. Popinaux VS.. the state; appeal
from Denton county court.-The court
below erred in refusing new trial when
the prosecuting witness gets into en-
tangled contradictions, and when two
witnesses, whose credibility and the
weight of their testimony is to be judged
of by the jury, 1t is true; yet, who
testify strongly for the defence
as Of old, the defendants guilt
must reasonably appear. The early
of a disposition to make
reparation goes far to hide the intent to
defraud; and this is discussed fully in
the analogous case of Fay VS.. the COM
by Judge Anderson The
court reviews completely and severely
criticiZes the singular evidence, adding,
that, besider the reasons already given
for reversal, the judgment is nullity
because there is no plea for the defend
ant apparent of record. Reversed and
emanded.-WiHkler, j.
T. and P. Railroad VS.. NJ. NJ. Miller;
appeal from Dsllas.-The plaintiff need
not allege that the defendant is a ''corpo-
ration, duly incorporated" in Justices
court, as is required in similar proceed
Ings in district and county courts. But
il such allegation is made, it ne Hessitates
the denial being in writing and under
oath. IR. s. 1873, 1190; 81 Tex. 244.1 In
a suit against q railroad for killing stock,
the burden is on the defendant to show
that the road was legally fenced, since
the adoption of the revised statutes. [R.
s. 4245; 26 Tex. 6c4.] Afirmed.-White,
p. j.
Andrew Williamson ct al VS.. the state;
error from Hays county.@"A recogni-
zance conditioned that Andrew William
son makes his personal appearance at the
next term of the court, and there re-
main from day to day and from term to
term thereof, to answer and stand trial
upon an Indictment presented against
him at the present term of this court, for
the theft Of heller, and that he DO not
depart the court without leave" Held,
that such recognizanceisf fatally defective,
in not showing the time and place when
and where the defendant was bound to
appear, nor the court before which he
was to appear. &c. c. P, art. 267. sub.
the adoption four present codes. Wide
Bones VS.. the state, 90 Texas; CT. APP
pls, S26. Reversed and dismissed
White, r. j.