The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-02-02

appeal from Houston county. rest
mony of witnesses giving thelr
opinion as to the amount OF damage
resulting directly from the failure
TO perl'orm part Of contract as well as in
direct damages resulting theretrom, do not
come within the exception to the rule that
witnesses must state facts not draw con-
illusions or give opinions. In the charge OF
the court to the jury the court must spe-
officially give the rules of law by when,
under the issues and evidence, they shall
estimate the damage as n question, Re
versed and rcmanded. Bonner, q. j.
syllabus of the Opinions of the Court of
Appeals.
Kemp VS. State; from COryell county.
That the persons summoned as grand jur-
ors were not, in fact, the persons selected
by the Jury Commissioners; (2) in case OF
grand Jurors summoned by order of the
court that the officer who summoned
them has acted corruptly in summoning
any one or more of them, are the only two
grounds upon which challenge to the ar
ray of the Grand Jury can be made. Art.
3Sl enumerates the causes for challenge TO
individual Grand Jurors. such challenge
either to the array or to an individual juror,
must be made before the Grand Jury Is I'M
panelcd, and the right of a prisoner in jail
| 10 be brought before the Grand Jury is
dependent upon his request for the
privilege Art. 522, G. G. p, enumerates the
only pleadings on the part OF the defendant.
Art 523 names the only two grounds Tor
motion to set aside indictment. Art. 525
names the only two special pleas permlssl-
bile. as referred to in Clause ., Art. o.
Executions to the substance of an indict-
ment are name d in Art.52S, and to the form
in Art. go. That the judge in bis predatory
remarks to the jury told them the case was
on trial on change of venue, ana then pro-
cceded to cher :e The law OF the case, Is not
an objection which can be sustained. That
the transcript from the county from which
the venue had been changed hau not been
filed in G. county District Court, was
but an irregularity at most which could De
corrected at any time by direction OF the
Judge. The charge of the court in tins case
is exceptionally clear and correct, but the
evidence insufficient to disclose express
malice. and consequently does not support
n conviction of murder in the first degree.
Reversed and remanded. Winkler, ].
DAVIS VS.. State from Gonzales county.
The indictment charged theft of hogs, the
property of one 4. After charging sulfi-
GENTLY on the general elements oil theit,
the court charged that the law prescribes
no rule for the kind or amount of testimo-
v,
ully satisfy the jury of the existence OF
fevery fact necessary to constitute the guilt
of the defendant beyond reasonable
doubt. If they have such reasonable doubt
of his guilt they will acquit him. Held, to
be a correct charge, and the evidence is
sufficient. Affirmed. White. .p;,j.
Goode vs. State; from Falls county.
| In this case it was urged as error that t he
cout should have expounded the law of self
defence But held, that the homicide for
which the defendant was being prosecuted,
presented no such phase, nor did the charge
| as given, and assigned as error, embody the
the idea contained in the objection: Inc
charge as given was correct exposition oil
the law of the case as made by the evidence
and the law requires no more. Affirmed.
| White, p. ].
Brown vs. State; from Bcxar county. An
appli alton for a continuance is addressed
to the sound discretion of the court, con
trolled by the proviso, that, the application
being otherwise sufficient, II upon convlc-
ton the testimony for which continuance
was asked appears material TO the defense
and competent, a new trial should be
granted No objection appears to have
! been interposed to evidence complained oil
i'm this Court, and the record brings up nc
bill of exceptions. The judgment is at
firmed. White, p ].
McAmis VS.. State from Delta county
u
impossible for this court 20 further revise ?
n cause than TO ascertain if the Indictment
be sufficient, and the charge of the courl
embodics no fundamental errors oil law.
/. Tie indictment in this case is sufficient, ano
the charge correct so far AS can be ascer
tanned in the al sence ola statement of facts
Again, the record brings up no assignment
of errors Affirmed. White, p. ].
John Davis VS. State; from Colorado
comfy. An attempt TO commit bur
plary is an ofIense defined by the code to be
I an endeavor TO commit the crime OF bur
glary, carried beyond mere preparation, but
/ falling short of the ultimate design In any
part of il. The punishment denounced Il
confinement in the penitentiary not les
/ than two nor more than four years. The
means used in this case was shooting into
the house of Mary Gilmore. The charge ol
the court is sufficient aud the evidence sus-
tains the conviction. Affirmed. White. y. ].
Hanks VS.. the State; from Anderson
county. CHARGE was that lin oruer 70 con
stitute an assault on the part Of III. with
the gun. there must not only be an lnten-
tior ts shoot, but. besides the intention 20
Shoot. therr must have teen some act
done 10 carry the intention into execution,
l,csides taking the gun into his hands. The
degree of progress made in the execution q
the intention 20 shoot b. Is ministerial, and.
I IL he attempted the execution by CONG
the same time had the ability TO shoot b.,
b ii not prevented. Il would be an assault
& Held not obnoxious as a charge urQn the
weight IL evidence. The indictmM was
for assault 20 murder, and TIE COZ vet lou
for aggravated assault. Afhmef fo'
curtain.
James Austin vs.. State: from Denton
county The action 81 the court below IN
r..fusinc an application for q continuance,
viii not be revised bv this court unless OBJ
lection Il re- red aad I,restufed BY bill 81
,.rcerfion. be- cvidsiice IN tbs case was
nd .frifflv sirrf niefafliinl. AMI the co1ri
frrinr clsar.s4l suficieuily OF the sat
III the s,a.t male ~ tie crideilce. ID noi
en- in r,iisife 20 clre n charge asitd, o.
r.-fs-i s~i.it-iveir % q uue-fiun 81 crcur-
lfaf.fi.l c,5fslice. A1fmfd- fcr cufiain-
nhrn ~ Site. from eoii1alt.
rarufv. Confessions g cu-f liIsl'ir ~,
.l,.- .Ic rsn.rnI1lfi1n eii ice time
-....ie ahrn fI.o 81 cldarf uas % o. f-ilt.
,..I l,rf alirifs q % rrovt splrlr
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.,hlr 0t.-slI. ar.l M d. ~ cofr ior ~
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......r,fr ...r 81 TtlIs oIie1s-. I.l lthe az
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q tomrrtnf ~ BIN o. teriF
~ fe rorsrfracr. fh1lri crrg1o-
rrrrn i neIrfsnrr - ctlficiilr.
Tl.nt = he dtIeiil1ni 0fiecte p r. o.. y. =
~ wines after q guucri lal cuIn-
r.rrr.i T. nrolul to- raEue n uIIsi tlf
..tarfiln 81 tl.i. court I1rf Gle ultres.
~.Irrrf red been rtlrssed from - rue.
I'D hsl lItarl tit cinments II counscl,