The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-06-15
SYNOPSIS OF OPINIONS.
[RepOrted expressly for the Statesman
Court of Appeals.

Court OF Appeals.
Thomas ct al. VS.. state; appeal from
Tom Green county.--Where the judg-
ment nj Sd fails to recite that "the same
will be made final unless good cause be
shown at the next term of the court why
the defendant did not appear 1t Is IA
fatally defective. The bond required
the defendant to appear before term of
the court to be held on the ninth day of
May. The time OF court fixed by law
was the tenth Monday alter the first Mon
day in March, which was May IL. The
bond was void because no such term OF
court il described was authorized by law.
Reversed and Observation-Disclosures j.
Thomas ct al VS.. state: appeal from
Tom Green coUnty.-The Judgment ns So
in this case is fatally defective because
of the same omission as that noted in the
case of Thomas VS.. state, supra. But the
bond is not invalid in this case. 1t Is
taken by the examining court, obligating
the defendant to appear before the dis
trict court to answer the charge oil rob-
berry, and for that purpose is suihclent.
For the error Indicated the Judgment Is
reversed and cause remanded--W lllson,
Judge.
Rowland & Bro. VS.. state; appeal from
Smith county.-ReYised statutes, article
1865, fixed the state occupation tax for
selling liquor in quantities less than one
quart at S150 per annum which ap-
pellants paid, bat In 1881. before
their license expired, the legislature IN
creased the tax TO $500, and the
appellants refused to pay the difference,
and continued to sell. Question is, did
their previous license protect them from
the operation of the new law dnring the
pc. Tod of time covered by their Licensed
Held, that though the position of appel
liant is supported by authority, the weight
of authority is adverse, and the last stat
ute operated as a revocation of the license
obtained under the previous law. AT
firmed.-Wilson, j.
Rice VS.. the state; appeal from Falls
county.-This case was reversed ut pre-
Yious day of this present term because OF
the insutfciency of the information, and
the attorney general now moves for re-
hearing upon the ground of clerical error,
but the record shows that the prosecution,
from its inception, was conducted by Il
county attorney pro tenn, and that he filed
the information alter the adjournment OF
court. Under such state of facts the
motion must be denied. Motion over
ruled---Per curtain.
Caldwell VS.. the state; appeal from Col
Inns county.--Unless the record shows
objection to the admission of the dying
declarations of the deceased, this court
will not revise. Under the code, each
Juror in Il capital case shall be tested and
passed upon separately, and, If accepted.
the authorized oath shall be admins
tered. This was not done in this
case, but on the contrary, the jury
was empanneled and sworn in body.
Held, that primarily objection should
have been interpOsed, or the action OF
the court should have been attacked by
challenge to the array. Such objection is
not tenable in motion for new trial, or IN
arrest of Judgment. Atlirmed.---Hurt, }
iNoTE.---This is u conviction for nun der
in the first degree, with the death PEN
alty.---Rep.]
Scott VS.. State; appeal from Robertson
couDty.---The indictment I'm this case was
sufficient to charge the appellant of the
offense for which he was convicted, i. e.
arson, the burning of SIS gin house. The
motion for continuance was properly
overruled, as failing to comply with the
requirements OF the statute. The charge
is found sufficient, as being responsive TO
every issue raised in the case, and the
law requires no more. The jury, being
the proper judges of the evidence, passed
upon it, and being found sufficient, the
judgment is affirmed. curtain.
Griffin VS.. the state; appeal from BOsque
cOunty.--Indictment for aggravated as
sault upon the person of female, must
allege that the asSaulting party was an
adult male. Failing in this, the indict-
ment is insufficient. Reversed and re-
manded.--llurt, }.
Jim Jones VS.. state from Robertson
cOunty.-The property stolen was the pro-
perty of one NJ, but taken from the pos
session of j., who was holding the same
for the owner. In charging the intent
the Indictment charged il with the pur-
pose OF deprlying j. OF the possession.
This will not suffice. The intent must be
to deprive the owner of the value of the
property, and to 50 appropriate it. The
affidavit properly charges the otfense, and
hence the judgment is only reversed and
remanded that the states, attorney, if he
sees proper, may file another information.
Reversed and emanded.-W mite, p. j.
Taylor We. state /; from Clay county,
In the absence of such judgment as
finally finds the defendant guilty of some
offence, the appeal on motion Will be dis
missed. In this case the judgment is de-
fective in that it brings up no final Judg-
ment at all. Appeal dismissed.-Per Gu
ram.
Kimble VS.. state from Guadalupe coun-
ty.-Art. 722, Penal Code, defines rob-
berry. To constitute robbery the taking
must be either by assault or by violence
and putting in fear oflife or bodily harm.
II, as in this case, the indictment charges
assault and putting in fear OF life, only
it omits the necessary ingre dent of ''viO'
lence." When both grounds are relied
upon, the indictment should charge by
assault and by violence, and putting in
fear of life or bodily injury. Apparently,
the ground of "assault" is abandoned,
but whether or not the evidence does not
support conviction on the ground OF
assault. The allegation is that the de-
PENDANT "was Induced by reason of put
ting in fear" The indictment is not
sufficient. Reversed and remanded.-
Hurt, j.
Dreyfus VS.. the state; appeal from Dial.
las county.-The prosecution in this case
was for the forgery of an order in favor
of Mel, for hotel bill, the forged name
being that ofone T. A close examination
of the record shows that, in the charge Of
the court there was no error. The jury
is the proper judge of the weight and
credibility of the testimony, and unless
it be against the verdict their finding will
not be disturbed. Afflrmed.-Per curtain