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

dismissed.-Per curtain.
Sanford W.. the state; appeal from
Gregg county.-The court charged that to
constitute an assault with intent to rape,
in this case, the purpose and intent must
have been TO have carnal knowledge
by force. If the intent was TO accom-
plish the purpose by coarse, vulgar
familiarity with the female, and the same
produced shame AMI disgust, but force TO
have earnal knowledge was not used or
intended, the offense would be aggravated
assault and battery. Held, correct in
this case. But the evidence Is not sufi-
cieUt TO show assault to rape, wherefore
a new trial should have been awarded.
Reversed and remanded.-Winkler,J j.
Parker ". State ; appeal from Iarrant
county The conviction in this case was
for robbery. and the record brings up
fourteen bills of exception and like num-
Der of assignments. The proof, in the
production of which every latitude was
permitted the defendant, is ample, and
the record disclOses that the impeaching
witnesses complained of were placed
under the rule with the other witnesses.
Afiirmed.-Per curtain.
Burns VS.. the state; appeal from Falls
county.-The constituent elements of the
otfense of robbery are defined in article
143 of the penal code. Indictment which
follows substantially the common law
precedent of an Indictment for robbery
is held sufficient at common law. Wharf.
Prec. sec. 40; 2 Bish. Or. Proc. 1902.
That juror was deputy sheriff was not
cause for challenge, and the court did not
err in OVerruling the challenge. EXemp-
ton from service as juror, because the
juror is a civil officer, is personal prlvl-
iege which can only be asserted by the
officer. Applications for new trial based
upon newly discovered evidence Is ad-
dressed to the discretion of the trial
4 l. 4 . Nnn
event of the abuse OF such discretion.
ADMINISTRATIONS j.
Luera VS.. the state; appeal from Duval
county.-Charge of the court which in
structs in substance that when the facts
have been proved which constitute the
Offense, it then devolyes upon the de-
PENDANT to establish the facts or circum-
stances on which he relies to excuse or
justify the prohibited act, is error AS I'M
posing the burden of proof on the de-
PENDANT. Upon the question of the right
OF a party to seize personal property
which has been stolen, the court
charged the law as laid down in
G. G. z. 343, but under the facts in this
case erred in faIliag.to charge also In eX-
PLANTATION or qualification. lSee rule as
laid down in Z CT. App. 403 And again
the court erred in failing to charge upon
manslaughter, and in etusing requested
charge on self defence. Reversed and
remanded.-WillsOn, j.
CARA Il Lopes VS.. the state; appeal
from Cameron cOunty.-lt is special pro-
vision OF the revised statutes that If the
judge OF the district court fails to open
his court on the trial day of his regular
term. the sheriff. it no special judge be
elected, shall adjourn the court from day
TO day for three days, and if, on the morn
ing of the fourth day, the regular judge
fails to open court, the sheriff shall adj
jOurn the court to the next regular term.
Alter the morning of the fourth day the
judge has no authority to organize his
court for that term, and all proceedings
had under such organization are abso-
lutely void. Reversed and dismissed
Wilson, j.
Evans VS.. the state; appeal from Dallas
countyt.-Over defendants objections the
court, following the rule laid down in
Sullivan VS.. the state, Court OF Appeals,
319, admitted evidence OF the oral tesUimo-
ny of an absent witness given previously
in Il hGbeGS corpus proceeding. Held that
the court erreu, that the oral testimony
is admissible only where under the terms
OF the statute it would be admissible if
reduced to writing. As to restriction
under which the testimony, If written,
would be admissible, see Code of Grim.
Proc, 80, upon this question. The case
of Sullivan referred to is oyerruled. Re
SOrell VS.. state; appeal from Bosque
county.-W Where. as in this case, The
recogniZance not only fails to state any
Otfense against the laws of this state, but
fails as well to state that the defendant
has been convicted of any Otlense, under
such circumstances the motion of the as
sistant attorney general to dismiss the
appeal must prevail. Appeal dismissed.
Per curtain.
Smith VS.. state; appeal from Travis
county.-The conviction IN this case was
for theft of Il geldIug, ana the punish
ment was assessed at i've years IN the
penitentiary. The judgment was affirmed
ut previous day OF the present term. a
motion was filed for rehearing, pending
adjudication of which the attorney gem
eral moved to dismiss said motion. Atii-
davit of the escape of the defendant from
custody depriyes this court of further
Jurisdiction over the subject matter, ana
the motion. is denied.-Per curtain.
Hurlbut VS.. state; appeal from Tarrant
county.-Indictment was for pulling
down the fence of one F. without his con-
sent,:.and the proof was that it was the
joint property OF +. and Oae NJ,
and dividing fence between
them; that defendant was Il ten
ant of NJ, and one 5. was tenant
of f. Held, that the Indictment was suf-
ficient to charge the Offense and that
there was LO variance between it and the
proof. Affirmed.-Per curtain.
Boydston VS.. state; appeal from Denton
county.-The indictment in this case was
sufficient to charge the offense OF horse
theft; the evidence ample to sustain the
verdict and the charges correct. Where
it appears that the absent evidence for
which u continuance is asked is not prob
ably true, there is no error IN refusing the
continuance asked on account of such abb
Il Do. min
Murphy ct al. VS.. state; appeal from
Hill county.-An inspection OF the record
discloses that the principal is called
"Tony.o but that he does not sign the
bond by that name, and there is nothing
to show that he is the party signing the
bond as principal party defendant. And
again the judgment nj 81 does not state
that the same will be made final. Re-
versed and remanded.-Pe curtain.
Glass VS.. state; appeal from Colorado
county.-The indictment was for theft
of a mare and took its place as
No. 1928 on the court docket. BY
motion the defendant averred that one Il.
was separately indicted for the same Of
Tense, his case being numbered 1929, and
asked that r. be first tried, which the
court refused. 1t was held in Nichols VS..
the state [3 ct. App. 546] that, as general
rule, criminal causes should be tried in
their order on the docket, but the court
was clothed with discretionary power
to postpone, temporarily, trial for good
cause shown, the exercise of which will
not be revised except in case of abuse.
No such abuse is apparent in this case.
Affirmed.-Per curtain.
Pogue VS.. state; appeal from Franklin
county-When circumstancial evidence
is relied upon by the state Unjust be such
as to exclude to a moral certainty every
hypothesis but that of the guilt of the ac-
cused, of the Offense charged, or, as
stated by Starkle: ''In order to justify
the inference of legal guilt from clrcum-
stantial evidence, the existence of the
inculpatOry facts must be absolutely in
compatible with the innocence of the ac-
cused, and incapable of explanation
upon any other reasonable hypothesis
than that of his guilt" The evidence in
this case is not of that conclusive charac-
ter which will exclude to a moral Ger
tainty the conclusion of the innocence OF
the defendant. And again, there being
evidence to show a struggle at or about
where the body of the deceased was
found, and evidence of the use by de-
ceased of angry and threatening declar-
atoms towards some one near the place
where his body was found and on the
night of the tragedy, the court should
have charged on the law of self-defense.
Reversed and remanded.-Willson.J
PASTOR VS.. state; appeal from Trinity
county.-The guilt of one charged as an
accessory to an assault with intent to
murder, by lying in concealment to pre-
vent the arrest of his principal, is de-
pendent upon the guilt of his principal,
and the actual guilt of such principal be-
comes an issue in the trial of the Access
sorry aud must be shown, and hence the
charge of the court on trial of the access
sorry should have submitted to the jury
the question of doubt of the principals
guilt, which must with equal certainty