The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-05-18

n NFftfilfNt NtiNfNh wv 49,
rpdflted IA represent the state an1
,e defendants counsel, nOlle proseqni |
ne 10 he entered for him. that lac ihith'
lilly testified on the preliminary exainita
Iun the Justice Of tile peace assuring lilll
Il Indemnity, that the other defendant was
ON his evidence; that he tesll'
led Ia the best of his ability before the
,rnnd Jury, and that he thought ms retcn. |
ion was MS u witness when he was brought |
nto court 10 answer the indictment against
he other defendant. To this plea the dis
riot attorneys demurrer was sustained.
Held, that despite the great weight OF au-
.horilits requiring the Int po-
,ition Of executive clemency, the
making solemn compac, through
her officers, with her citizens, tie contact
should be enforced in the courts in exact
with its terms, the party hay
ing kept his agreement so lar as lie was
able Vide Tex. Ct, Appls., 1871, Reversed
and remanded. Hurt, j.
II. $. Reeves vs.. the State from William
son county. Since the decision of the case
of Chlds VS.. the State, the legislature mas
materially changed the law. An act passed
March 4, 1881, contains proviso, which
provides that parties gaming on tables
upon which tax is levied are not exempted
from prosecutiOr. The fact that a tax is
levied upon II table does not exempt from
punishment those who use tie table for
purposes which come in conflict with, and
IN violation of, The penal laws. II the table
fees, or money, or anything OF value be
bet on II table, no withstandlng tax may
be imposed, which the party has paid, the
players are liable to prosecution. Affirmed
WinklCr,
Dick Saddler VS.. the State from Brown
county. The evidence in the case was sub
slahtially, that the plaintiff (the only wit
ness in the easel was sleeping in an arbor
when she Gwoke aud todnd appellant rails
ing her clothes. She ordered him TO leave
three times, when he walked OH muttering
employed. Held, it may be considered
that such conduct was highly imp oper
and. perhaps, sufficient to subject him to
punishment for aggravated assault and bat
Terry, but the testimony fails to show any
attempt to use force in the accomplishment
OF his purpose, ard where there Is no such
force as might reasonably be srificient 10
overcome resistance, taking into consldera-
ZION the relative strength of the parties and
other circumstances of the case, the evil
dence is insufficient to convict for an assault
with ipvent to rape. Reversed and re-
manded, Winkler, j.
Tom Sanford VS.. the State from Gregg
county. This case involves the principles
enunciated in the case of Saddler VS.. the
State. Supra. On the trial below, the
court charged as follows: ITO constitute
an assault to commit rape in this case, the
purpose and intent must have been to have
carnal knowledge n II by force. If
hls intent was to try to accomplish his pur.
pose by coarse. vulgar familiarity, and the
same produces shame and disgust, but force
to have clrnal Knowledge was not used nor
intended, the offence would be an aggra-
waited assault" Held: This is substan-
TALLY correct charge, applicable to the
facts testified to on the trial. The error in
the case was on the insufficiency of the
evidence. Reversed and remanded. Wink
Ter, j.
]. w. Katlih' VS.. the State; from San
Saba county. Where the motion Cor a con-
tinuance contains such averments as to
facts expected to be proved, between which
and the states evidence tbeIe is not that
conflict which would render the truth OF
the facts proposed to be proven i'm probable,
the motion should be granted, and refusal
to do so is sufficient error to cause reversal
of the judgment. Reversed and remanded.
Hurt, j.
S. d. Stone VS.. the State; from Brown
county. The charging part of the infolma-
ton on which de 'endant was convicted in
the court below is as follows: That s. D.
Stone, in the county of Brown and sta,e of
Texas, on the LIST day OF February, 1880,
did then ard there steal one iron kettle,
8 - 81 same being valued at $500, con-
trary to law and against the peace and dig
nifty of the state" Held, this information
is worthless 1t fails to give the name Of
the owner of the Kettle, without which
there can be no proof of taking without
tie permission of the owner thereof. Re-
versed and remarded. Hurt, j.
w. II. II. Henry VS.. the State; from
Coryell county. The appellant was con-
V cted Of assault with intent to murder one
X. II. Berdwell, tried and convicted and
sentenced to two years confinement in the
state penitentary. From the record it
does not appear that there was any plea
showing the issue in the case, and without
the record affirmatively shows that plea of
guilty or not guilty was entered there can
be no issue, and if the result of tlial is q
conviction, it is nullity. Reversed and
remanded. White, y. J.
James Merritt VS.. the State; appeal from
Comanche county. In the trial of a man
for adultery the testimony of his paramour
as witness is that of an accompllce, or
particeps criminis, and will not support
this conviction unless corroborated by evil
dence tending to convict him with the Of
Tense. Reversed and remanded. White,
p. !. u,
kins county. On the call of this case ia the
court below, defendant offered a written
plea in bar duly sworn to, stating that de-
PENDANT a I'd another had been arraigned at
a previous date before a justice, charged
with the theft OF the same property that he
was charged with then. That by an ar
duly entered into between the
states attorney, his attorney and the jus
tice of tie peace trying the cause, he was
aud agreed with that if he would
tell all he knew about the theft, honestly
and iruthfullv, that they would release him
ana he would be liberated forever against
any charge for the theft. Relying on this
agreement he told all he knew before the
public and before the grand jury. lie was
then tried and convicted. On presenting
this plea ia bar the judge trying the
cause overruled il on demurrer ofthe district
lttorrey. Held, We are aware of the great
weight of authorities is TO The effect that
The plea cannot be interposed, but that the
defendant must look to executive clemency.
This is not correct in principle. IL the
state, through her officers, makes a solemn
compact with her citizens, this contract
should be enforced in her court in exact
compliance with its terms. Upon what
principle Of Justice is this defendant driven
rom the court TO his excellency, the COVER
nor. for an enforcement Of the compact
We are OF the opinion that common hon
.sty and public justice demand that VIXEN
,uch contract is made and the party faiib-
ully complies as far as is within his power.
hat the court In which the breach is At
emptcd should interfere, and prevent the
preach BIZ enforcing the contract and not
rive the party out Of the court to seek re-
ief elsewhere. Reversed and rcmGnded.
Hart, ].
Block Hardeman VS.. the State: from
county. To constitute then
here must be a fraudulent taking. In this
,se defendant did hot take u animal
lor did the party TO wfOm defendant sold
{. Tie steer was running on the 1a1ee 81
be time. aud not being taken either
ruudule itly or otherwise, there was no
hen. Reversed and Iema ided. Burf.
William yo1uson ". The Sia,e; irOm
1olemPn county. Defendant was indicted
or the thoft 81 an esiffY maze. On Toe call
# tie case deiendsit moved for q