The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-06-01

Bates VS.. the state appeal from Travis
county. due course of the law of the
lard" requires in criminal cases of all
| grades, that upon the trial, the accused
must plead guilty or not guilty to the
charge against him, or failing or refusing
to plead, that plea of not guilty shall
be entered for him. There is no excep-
ton to this rule, and without plea there
IS not, nor can there be, an issue for the
| jury to try or the court determine. The
record fails to show compliance with
this rule. Reversed and remanded.-
White, p. J.
Salmon VS.. the state; appeal from
Montague county. - However correct
| they may have been as abstract princi-
Piles of law, an inspection of the original
| information which is brought up in the
record, disclOses the fact that it is not
amenable to the objections urged against
it. The statement of facts appears to
have been filed more than ten days after
the adjournment of court, and cannot be
considered Tor any purpose ON appeal.
Affirmed.-Per curiam.
johnson VS.. the state; appeal from
Kendall county.-The conviction in this
case was for murder in the first degree,
with a life sentence in the penitentiary
assessed as punishment. The affidavit
Of the sheriff holding the defendant in
custody pending his appeal, certifying
his escape from custody, this appeal,
under the statute must be dismissed.
| Appeal dismissed.-Per curiam.
Montgomery VS.. state; appeal from
Cooke county.-Where the evidence
upon which conviction has been Sc
cured, falls short of that conclusive
nature necessary to establish an intent
on the part of the defendant to commit
the otfense of which he has been con-
victed, it falls short of establishing a
necessary element of crime, and does not
sustain verdict Of conviction. The
facts and circumstances in evidence in
this case go far to deprive the transac.
ton of criminal intent. Reversed and
remanded.-Whlte, p. j.
Dick Saddler VS.. state; appeal from
Brown county.-The conviction was for
assault to rape by force, and was based
upon the unsupr orted testimony of the
female injured. When rape by force is
intended, the force must be such as
might reasonably be supposed sufficient
to overcome resistance taking into con-
sideration the relative strength of
the parties, and other parties.
An assault with intent to COM
NIT rape is constituted by the existence
of the facts which bring the offense
within the definition of an assault,
coupled with an intention to commit
rape. The evidence is insufficient to
show these facts, and a new trial should
have been awarded. Reversed and re-
manded.-Winkler, j.
Gardner VS.. the state; appeal from
vi
volved in this case is the proceedings in
the appointment of jury commissioners,
the appellant cOntending that their ap-
pointment in the county court at the
November term was unauthorized. Rev.
SITS. art. 3027 The same article pro-
vides that the rules applicable to the
district court apply to the county court,
and article 1922 of the revised statutes
provides that if commissioners are not
appointed at the proper time they may
be afterwards appointed. Affirmed. Per
curiam.
Isaacs VS.. the state; appeal from Ellis
county.-The convection in this case was
for murder in the second degree, with
/ five years in the penitentiary awarded.
The record fails to indicate, with any
probability, the truth of the matters set
was not error to override the motion.
The charge was full and sufficient, and
there were no bills of exception recorded.
Affirmed. Per curiam.
Hardeman VS.. the state; appeal from
Williamson county.-To constitute theft
the taking must be fraudulent. In this
case the defendant did not take the
animal, nor did q. W, to whom he sold
it. And had w. taken it, the taking
would not have been fraudulent, he hav-
/ received bill of sale. The animal was
running on the range all the time, and
was not taken fraudulently or otherwise.
Reversed and emanded.-Hurt, j.
| North Va. state; appeal from Tarrant
county.-In a prosecution for assault
/ to kill, the requested charge was in
effect that if W., the injured party, was
in the act of procuring a shotgun to en-
gage in a conflict with Con n. (brother
of defendant), before Con n. had done
any act showing an intent to injure W.,
then Con n had the right to shoot, and
was not bound to wait until W. made an
effort to shoot, and under such circum-
stances defendant had right to shoot.
Held, under the facts shown, the charge
4
fication that if by the acts of W. the life
of Con n. WAS endangered, and the dan
ger was imminent and pressing, the de-
| PENDANT had the right to shoot. Re-
versed and remanded. -Winkler, j.
| Williamson ct al VS.. state; appeal
| from Hays county.-One of the requi-
sites prescribed by statute with regard to
the sufficiency of a recognizance is that
the time and place when and where the
| defendant is bound to appear be stated,
and also the court before which he is
bound 10 appear. A rule on this sub
| iect, different TO that which was an
! nounced in Wilcox VS.. State, "a Texas,
| 544, has existed since the adoption of the
present CODE Reversed and dismissed. =
| White, p. ].
Payne VS.. state; appeal from Cooke
county.-After conviction, the defendant
| in this case filed a motion for new trial.
Before the motion was acted upon, the
defendant paid off the fine and costs as
sessed against him, and the prosecuting
attorney moved the curt to strike out the
motion for new trial because of such pay
ment. The court sustained the motion, to
which the defendant excepted and for
such action, as alleged error. prosecutes
this appeal Held that the court did not
err. Affirmed. -Winkler, ].
Mcclure VS.. state appeal from Atlas
cosa county.-That the indictment was
fatally defective because it omitted to
allege thai the pistol was 'unlawfully"
carried, is not tenable objection to it.
[See Pickett VS. state, 10 Court of APP
peals The evidence shows that the de-
PENDANT was not a traveller, within the
meaning OF the law And he was present
and did not object when the county at
torney agreed that the court should de-
liver verbal charge to the jury. AT
firmed.-Per curtain.
Kelly VS.. state; appeal from McLennan
county that charges az
gravated assault with premeditated in.
tent and by means calculated to infiicl
great bodily injury is sufficient to charge
the offense. That the means used (the fist
in this easel were calculated to infiici
such injury is abundantly shown in this
case. The facts in evidence are album
dainty sufficient TO sustain the conYic-
ti0n. Afirmed.-White. p. j.
Thomas VS.. state; appeal from Robert
son county.-This prosecution is based
upon an affidavit charging appellant will
! aggravated assault. The information