The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-06-28
rHBCoURTs.
a., sails of the Decislons Of the Court of
Appeals.

al
,,ss. ten years in the peniteRtiary. On
~ rial OF the cause in the court below,
tbs state introduced the declarations of the
deceased that at the time OF the rencontre
Ss wss unarmed. The defendant proposed
.a0s;ntroduce contradictory declarations Of
,Sa deceased which were excluded upon
ss%arton. A motion had been, year pre-
IONS TO the final trial, made for a change
" venue, which had been refused by
tss court. A Juror who had been
asmnaneled, was excused by the court.
Had that the court should have permitted
ths declarations of the accused to have gone
in evidence contradicting or tending to con-
tradict those introduced by the state that
Tho defendant failing to renew his motion or
snplication for change Of venu, cannot in
s,sst now on the error assigned, in refusing
10 change the venu at previous term !;
that the court cannot excuse a Juror after
being empaneled in felony case. (See 10
a. App 1918. A charge, as in this case.
which excludes negligent homicide and
manslsughter, and makes the homicide
murder unless justified or excused, is error
Reversed and remanded. Wilson, j.
Elk parte Cox, Ryan and Sitterle. APP
plication for discharge from custody oil sher-
riti Bexar county.
The applicants were indicted in lS76in De-
witt county for the murder OF DR. Brazwell
The district Judge of his own motion clfang-
ed the venue of the case to Bexar county. In
the June term, 1881. of the Beyar county
district court defendants moved to strike
the case from the docket on the grounds
of the unconstitutionality of the act per-
hitting the district judge of his own mo-
tion to change the venue. Of cause.
That the defendants had never
been arraigned, or called upon 10
plead nor had any plea ever been entered
for them in the district court Of Dewitt
county before change OF venue. On the
last ground the case was stricken from the
docket, and sent back to Dewitt county.
When reached and called for trial there the
district judge declined to take cognizance
of the case and ordered the case stricken
from the docket. and the papers returned
TO Bexar county district court. Since the
latter order was made neither of the
courts have assumed or will assume juris-
diction, and both judges have been applied
to and refused to grant writs of habeas cor.
pus prayed Tor by defendant. Held, that
the case properly belongs TO
the jurisdiction OF the Bexar county
district court, that the act OF
August list, 1876, authorizing change OF
ofvenue is constitutional; Is CT. App, 2H.
The order changing the venue cannot be
attacked in the new tribunal by plea to the
jurisdiction or otherwise, though the proper
practice would be to arraign the defendants
in the court, having original jurisdiction
and have permitted failure to do this, will
not GUST the court OF jurisdiction
to which the venue has been changed. 1t
is ordered that the district court OF Bexar
county take jurisdiction Of this cause and
proceed as the law directs. White, p j,
Fannie Peterson VS.. State; from Brazos
county. The indictment charges that the
defendant on the l4th of April, 1881, in
Bra.os county, did, with malice afore-
thought, kill Siddie Acco, a Mexican, by
cutting her with knife. Upon this In.
dictment defendant was convicted of an as.
sault with intent to murder, and sentenced
to five years in the penitentisry, Held,
that as We have in the case of Dryer vs..
State held indictment III above form good
for murder, it must follow that as an as
sault with intent to murder is inciudedt in
the offenss charged, it is sufficient to sup
port the conviction. The court erred In IT.
charge that the offense, If any, would moi
be reduced to an aggravated assault IL the
defendant committed the assault with
knife which was deadly weapon with In
tent to kill. The intent to kill may have
existed without malice, and malice sas es
sential in the offense Oft assault to com
nit as in murder itself, the error was NJ
doubt an oversight, accidental mistake, IL
charge. Reversed ano
remanded Wilson, J.
Jno. Mccoy VS.. State;from Dallas county
Convection OF THEFT OF u calf three year:
confinement in the penitehtiary. An ex
animation of the evidence in connection
with the charge in this case does not TO GU
minds present sufficient excuse or Justin
cation for us to invoke the province OF tn
Jury and set aside their verdict. Findinl
no error in the charge the Judgment Is al
frmed. Hurt, ].
George Waller VS.. State; from Dallai
county. The appellant was convicted o
unlawfnlly carrying pistol and his NM
assessed at S25. The point is made by nj
counsel In this court that the evidence ad
duced on the trial does not show the carry
ing of the pistol to have been within. wv
years next before the presentation OF TN
indictment. Held, that however wen tax
en the point may be, theVss8rd !, shows 40 50 al
statement of facts was not, led within tn
ten days allowed by the CT n tn do so, W
are not authorized to look 20 this purpor'
ed statement in aid of the objection. In
indictment being good and no error az
pearing, the judgment is affirmed. Hurt,
Casanova VS.. State; from Atascosa count,
The truth OF an application for u continu
ance, as well as the merits OF the ground
set forth therein, and its sutiiciency, is ad
dressed to the same discretion OF the cour
called TO pass upon tho same, and Is M
granted as a matter of right although
may meet all the requirements OF the law
But should an application for contlnuanc
be overruled and the defendent convicted
fit appears upon the trial that the evl
dence Of the witness named in the applies
ton was OF u material character, and tina
the facts set forth are probably true, ne'
trial should be granted. Reversed and II
mandei. WILSON,.
Linback vs.. State; from Guadaloup
county. When the case was called 10
trial the defendant presented TO the cour
an application for continuance for want {
testimony oftiree witnesses, by whom h
expected TO prove that the animal b
Is charged with stealing was at. the Tim
his property, or, ifnot, he fully believed
so. Diligence was shown and otherwis
the application conforms to the law. AZ
plicativn refused, conviction and i've year
In the penitentiury. Held, there bein
evidence In the case tending 10 support th
defense II was error 10 refuse the apple,
ton. Reversed and remanded. Wilson,
Harry & Brothers vs.. Radney frot
Travis county. An architects plans al
specifications are parts OF the contract b
tween the contractor and sub.contractt
only In so tar rs they pertain directly to III
part OF the work contracted Tor by the SUI