The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-02-25
COURT DECISIONS.
synopsis of Opinions OF tho Court of An.
poais, Galveston Term, 1888.


poals, Galveston Term 1888,
Cone VS., the State; from Harris county.
This Is an appeal from Judgment of con-
yiction for rape There are no exceptions
in the record to the indictment. and it IL
sufficient And rs there were 40 eScep
tons taken to the action of the court in
refusing the motion Tor continuance, 1t will
not he noticed. Were the evidence against
appellant wholly circumstantlal the spe.
clal instruction asked, to.wit. "rhe evil
dence for the state mus, exclude every other
hypothesis but that OF the prisoners guilt,
and unless II is SO conclusive, YOU will find
him not guilty" would I've applicable, but
where the evidence is positive it is not.
Affirmed. Wilson, ].
Thomas vs.. the state; from Harris
county, The evidence in this case was
wholly circumstantial. Held, where the
evidence is purely circumstantial, tho
charge of the court must expound TO the
Jury the nature and conolusiveness of that
character OF evidence necessary to warrant
a conviction" (l2 Court OF Appeals, 657),
The courts attention being called TO this
omission in the charge in the motion for
new trial, IL should have been granted. Re.
versed and remanded, White, p.i.
Weeks vs.. the State; from Galveston
county. Defendant was charged with burg.
larry, by breaking and entering housewife
intent to commit THEFT, ana was convicted
| OF an attempt To commit burg.
larry. The indictment, tlelol thu
entrance by force only, Held, under these
facts the charge OF tho court should have
been ccnhned to an attempt by force. The
charge reads; "lf you believe from the evil
dence that the house was occupied
and that defendant, Ms charged in the ndict.
ment, did endeavor, by actually attempting
to enter the same etc. Held no matter
what the evidence was, the indictment hay.
ing chosen force, the charge should have been
confined thereto, and unless the proof car.
ries the case far enough to indicate the man.
ner it Is insufficient Reversed and 70.
mandcd. Hurt, !.
Marshall vs.. the State from Fort Bend
county. This is an appeal from u conyic.
ton OF aggravated assault upon an iniorma.
ton reading thus; Lewis Marshall did
on or about the 10Th day of February lSS2
n said county Of Fort Bend and state of
Texas, make an aggravated assault upon
Thomas Tolllver, etc" Held, this inlor.
nation is insufficient to support u conyc
ton Tor aggravated assault, but will sup.
| port ore Tor simple assault, (see - CT, Ann
! 0N), Reversed and remanded. Hurt L.
Cox Va. the State; from Brown county.
In this case, u conviction for perjury, while
the Indictment Is not in accord with I'M.
proved precedent, yet 1t is substantially
sufficient and contains the necessary ale.
cations of such facts as constitute tho
crime; (i2 Tex, IL : Ct. App. 375, c..
App, llo) The evidence how.
ever, is insufficient to support
The conviction. OF the three witnesses nut
upon the stand, but one OF them tcstihes as
to the ialsity of the oath taken by defend
ant. The other two witnesses rather sus.
tain the truthMlneSs oftne oath than its
hlsity. The court failed to instruct the
Jury to acQuit because the failure of the ev.
deuce 10 corroborate the testimony of the
single witness as to the ialsity OF the oath,
| (Gabrielskv VI, the State; : Tex. Law Re.
rviow). Reversed and remandcd, viii.
son, !.
Woodbridge vs.. tho State; from
Fayettc county. The question whether
continuance shall or not be
granted Is q matter contided TO the discre.
ton Of the Judge, and is no longer q matter
OF right. And the evidence adduced upon
the trial is considered in passing upon the
abuse or non'abuse of this subject, as 10
whether the testimony desired Is true, and
II true, Is u material Aud II must both
appear to be true and material to warrant a
reversal. (0Ct. App, 90 A verdict read.
ing, 1--WE, the Jury, find the defendant
guilty Of murder in the fist degree" doesn
support a Judgment Of conviction for mur.
der in The first degree. Reversed and 70.
manded White, p. J.; Hurt, J., dissenting
Green W. Carlton; fom Colorado county.