The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1883-03-01
THE HIGHER COURTS.
GALVESTON TERN 1851
Synopsis OF Opinions of the Court of
Appeals.
REPORTED BY Ed. j. HAMN IN

Synopsis OF Opinions of the Court o
Appeals.
REPORTED BY Ed. j. HAMMER
PARTIES desiring Information upon matter
concerning The higher courts will receive sucl
by Wr1ling our court reporter 1T Galveston
Cone VS.. the state; appeal from
Harris county.-This is an appea
from a Judgment OF conviction fo
rape. There are 10 exceptions in tn,
record to the indictment, and it i:
sufficient. Now, as there were no ex
ceptionS taken to the action of tn,
court i'll refusing the motion for con
tinuance, it Will not be noticed. Were
the evidence against appellant wholly
circumStantial, the special instruction
asked, to wit: ''Fhe evidence for the
state must exclude every other hypo
thesis but that OF the prisoners guilt
aud unless 1t Is 50 conclusive, you will
find him not guilty" would be apple
able, but where tle evidence is posi-.
tive it is not. ADMINISTRATION, j.
Thomas VS.. the state appeal from
Harris cOunty.-The evidence in this
case was wholly circumStantial
Held, When the exculpatory evil
dence is purely circumstantlal the
charge of the court must expound to
the jury the nature and conclusive
ness OF the character of evidence neo-
esSary to warrant conviction. II
CT. App. 657. The courts attention
being called to this omission in the
charge on the motion for new trial, it
should have been granted. Reversed
and rtmanded.-White, p. j.
Weeks VS.. the state; appeal from
Galveston county.-Defendant was
charged with burglary by breaking
and entering a house with intent to
commit theft, and was convicted
of an attempt to commit bur-
glary. The indictment alleged the
entrance by force only. Held, Under
these facts the charge of the court
should have been confined to an at
tempt by force. The charge reads :
If you believe from the evidence
that the house was occupied = and
that defendant as charged in the in-
dlctment did endeavor by actually at
tempting to enter same" etc. Held,
No matter what the evidence WAS the
Indictment having chosen force the
charge should have been confined
the case far enough to Indicate the
manner it is insufficient. Reversed
and remauded.-Hurt, }.
Marshall VS.. the state: from Fort
Bend cOuuty.-This is an appeal from
d conviction for aggravated assault
upon al information reading thus:
= Lewis Marshall lid, ON or about
the 18th day of February, 1889. Ia said
county of Fort Bend vs.. state OF
Texas, make an aggravated assault
upon Thomas TolliveT," etc. Held.
FMS information Is Insufficient to
support conviction for an aggravat-
I'll assault but will support one for
simple assault. See II 1t. App. 5U6. !
reversed and remduded.-Hurt j.
Cox VS.. state; appeal from Brown
county.-ln this case, a conviction Tor
perjury, while the indictment is not
in accord with approved precedents
yet IL IS substantially sufficient and
contains the necessary allegations OF
such Facts rs constitute the crime.
(42 Tex. 1877 ct. app. 375; 8
Ct. APP. 49, The evidence,
however, is sufficient to support
the conviction. OF the three wit
nesses put upon the stand but one OF
them testified as To the falSity of the
oath taken by defendant. The other
two witnesses rather sustain the
truthfulne s. of the oath than its
talsity. The court failed to instruct
the jury to acquit because the failure
of the evidence to corroborate the
testimony of the single witness as to
the talSity Of the oath. Gabrielsky
vs.. the state OF Texas, law reviews.
Reversed and remanded.-WillSOn, j.
Woodbridge VS.. the state; from Fay
cite county.-The question whether
Il continuance shall or not be granted
in matter cOnfided to the discretion
of the judge, and Is no longer a mat
ter of right; and the evidence adj
duced upon the trial is considered in
passing upon an abuse Or non-abuSe
of this subject, and as to whether the
testimony derived Is true, and If true.
is it materially And it must both ap-
pear to be true and material to war
rant Il reversal. - CT. APP. 1872. y
verdict reading: 1--WE, the jury, lind
the defendant guilty OF murder in
the FIST degree" does not support a
Judgment OF conviction for murder
IN the first degree reversed and re-
manded.-White, 2. j.; Hurt, j.. dis
Senting.
Green VS.. Carlton; from Colorado
county w here a suit is brought and
an attachment levied, the fact that
the defendant replevied the goods
would not prevent him, upon Il proper
plea and evidence supporting such,
from recovering in the same suit in
reconvention. Revised statutes, ar
ticle $50; 9 Texas, 4O6; AZ Texas, 70,
and others.
Appellant, in his answer, having
admitted fully the appelIee's cause OF
action, there was upon that matter
no issue. and as appellants plea of re-
convention was the only issue, and
having the affirmative OF
that issue he was entitled to open
and conclude. Reversed and re-
manded.-WilSon, j.