The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-06-08

now Overruled.-Per curiam.
Gordon vs.. state appeal from Live Oak
county and Brown vs.. state; from Uvalde
eounty.-The conviction orGordon was
for murder in the second degree with fifty
years in the penitentiary assessed as pun
ishment; and that of Brown for bribery
OF a witness, with punishment affixed at
two years in tue penitentiary. But the
record in neither case discloses final
judgment upon verdict. In such case. as
heretofore held, tGis court has no option
but to dismiss the appeal. Appeals dis
mIssed.-Per curtain.
Despair VS.. state appeal from La Sale
c0unty.-The transcript of the record in
misdemeanOr cases are required TO bring
uN to this court proper recogniZance,
when appeal from conviction Is taken, or
10 show affirmatively that the defendant
is In custody. When such transcript does
not comply with this positive require
ment of law, motion to dismiss the APP
peal will be dismissed. Sucn being the
condition of the transcript in this case,
the appeal herein is dismisssed.-Pe
curIam.
Ratlif VS.. the state: appeal from San
Saba county.-The conviction in this case
was for the THEFT of horses, with a term
of five years awarded as punishment. The
defendants application for u continuance
for absent testimony was refused. 1t is
held that while il is true that the granting
of even a first continuance is committed
to the discretion of the trial court. yet if,
upon conviction, the application other
wise conforming TO the statute in showing
diligence, ETC., the absent evidence APP
pears, in connection with that adduced,
to be material TO the defense, aud that it
is probably true, the court below should
grant new trial. The record dscloses
such a state of facts, and because "a new
trial was refused the judgment is reversed
and the cause remanded.--Per curtain.
Bostick VS.. the state; appeal from
Colorado county.-The objection urged
in this case was that the general charge of
the court to the jury failed to instl uct
them fully as to the law upon the ques-
ton of reasonable doubt. But it appears
from the record that the defendant asked
of the court special charge upon the
subject which properly eXpounded the
law, which was given by the court. Held.
that the failure of the general charge to
cover the point was cured by the special
charge asked and given, and the objection
is not well taken. Affirmed.-Perc uriam.
Stone VS.. the state; appeal from Brown
county.--The charging part of the indict-
ment was that as. ID. Stone, in the county
of Brown, and state of Texas, on the first
day of February, A. ID. 1880, did then and
there steal an iron kettle, being about
ten gallon kettle with mole in the same
on side or bottom, same being valued at
81, contrary etc., Held, that the indict-
ment failing to set out the name of the
injured party, the judgment must be re-
Versed and the cause remanded.-Hurt,J j.
Stone VS.. state; appeal from Brown
cOunty.+FrOm a conviction for theft of a
pillow, wherein the punishment assessed
was by fine of 500 and two hours con-
tinement in the county Jail, the plaintiff
appeals, insistingupon error in the charge
OF the court, and that the punishment
affixed is cruel and unusual. Held, that
the property stolen, being under the
value of 500, the court did not err in
charging the prosecution barred in two
years, and that the punishment assessed
is not cruel and unusual. Atfirmed.-Per
curtain.
Ratliff VS.. state; appeal from San Saba
county--Where, as in this case, con-
tinuance has been refused, and the absent
evidence for which it WAS asked, cannot
be held, in the light of the evidence adj
duced, TO be improbable, and the appli-
cation otherwise conforms TO the rule, a
motion for new trial should prevail.
Reversed and remanded.-Hurt. j.
Denison and Pacific railway ct al. V.
Snyder ~ Slaven; appeal from Cooke
county.-It is disclosed by the record in
this case that the amount involved is less
than 800. Such being the case, the jndg-
ment below was conclusive, and the APP
peal must be dismissed for the want of
jurisdiction by this courL.-Per curiam.
Ray v. state; appeal from Kinney coun-
ty.-The money which is alleged to have
been stolen, it is disclosed was money
won on game of chance. Whatever
may have been the facts attending the
conviction, the escape of the defendant
from custody pending his appeal, under
previous rulings of this court, necessi-
tates dismissal of the appeal. Appeal
dismissed. Per curtain.
MOncallo VS. the state; appeal from
Nueces cOunty.-Use by the trial judge,
in the presence OF the jury, of any lam
guage which is calculated to convey to
the jury any impression as to what OpiD-
ion the court entertains of the guilt or
innocence of the defendant is well calcu-
lated to prejudice the defendant, and is
cause for reversal. Reversed and re.
manded.-Winkler, j.
Keppler ct al. VS.. the state; appeal from
Tom Green county.-The judgment in
this case was rendered against the appel
lants April 18th, and the appeal bond de-
scribes the judgment as having been rend.
cred on the 20th. The motion to dismiss
the appeal is based upon the ground that
While the judgment might have been de-
scribed without giving date, but that,
having set it out, it must appear correct.
Held, that the variance in the date con-
stitutes a mls-description of the judg-
ment. Appeal dissatisfaction curtain.
Burns q Jordan VS.. Baty: appeal from
Mitchell county.-Article 1894 of the re-
vised statutes provides, among other
things, that the citation in error shall
state the date of the filing of the petition
in error, the names of the parties accord
ing to such petition, the description OF
the judgment as therein given. The ci-
tatiOn in this case, it appears from an Iu-
spection of the record, is fatally defective
in not conforming to the article cited,
and the motion to dismiss the writ of
error must prevail. Writ of error dis
missed.--Per curtain.
Fudge VS.. state: appeal from Brown
cOunty.-The prosecution was for the I'M
lawful carrying of a pistol. In the alb
sence OF a statement of facts, of bills of
exception and of a charge of the court,
the court can examine only the indict-
ment, and in this case it is found suffi-
cient. Affirmed.-Per curtain.
''Big Annie" VS.. state; appeal from
Cooke county.-The prosecution and con-
viction was for keeping a dIsorderly
house, and, as the transcript shows, there
was no exception reserved to the charge
when it was given under our rules of
practice, this court cannot revise error
In the charge unless the same is brought
before the court upon bill. Affirmed
Per curtain.
Thompson VS.. state; appeal from Gray
son cOunty.-The defense relied upon
was directed to the jurisdiction of the
court to try one for theft of horse in the
Indian Territory, the evidence showing
that it was there taken by the defendant
and brought into Grayson county and
there recovered. Held, that the district
court OF Grayson county had jurisdiction
to try the case. Attirmed.-Per curtain,