The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-01-28
COURT DECISIONS.
Syuopsis OF Opinions OF the Court OF Ap-
peals. Galveston Term, 1888,

bfoNu Vs. tlc otalt, iFotn JNalle county,
The form Of an indictment for theft pre-.
scribed by the act of ISL entitled "An act
to prescribe the forms of indictment in GER
tain cases, charges no fscts, acts, or
omissions constituting the otIense of diet,
and is therefore unconstitutional az CT.
App, 500 In the case that form is fol-
lowed in the indictment. A motion to
quash was made by appellants counsel,
but overruled by the court, and appellant
was convicted. This was error in the court
for which the Judgment must be referred,
and there being no valid indictment, the
prosecution is dismissed. Reversed and
dismissed. White d. j.
Warren VS.. the State; rom kaufman
county. The record N this case fats at.
hrmatiyely to show that either appelant,or
his attorneys for him, plead either guilty or
not guilty, The rule which requires a plea
TO the indictment is well founded, botn in
reason and in law; without plea there can
be no issue OF any kind whatever tor the
jury TO pass upon, and without any issue
they cannot legally find verdict valid in
law upon which q Judgment can be entered.
therc ~, therefore, in the case at bar no
valid Judgment for which it mast be re-
Yersed and the cause remauded Reversed
and remanded. White, p. !.
Daniels VS., the State from Wood county.
Appellant appeals lrOm n conviction of as
sault with intent to murder one Bill Jones.
The evidence supporting the convection is
but upon two theories, as pre-
sented, appellant was either guilty or limo
cent Of assault with intent to murder. Such
being the case, therefore, the court did not
err ID refusing to charge upon manslaughter
q fgl Ih., g.
new trial made by appellant ON the ground
of newly discovered evidence was properly
overruled, as the affidavit of appellant to
the motion was wholly insufficient, and
iailsd to show due and proper diligence.
Affirmed. Hurt, j.
Foster VS.. Holmes, from Fayette county.
On appeal from the justices 10 the county
court appellee made the oath in forma pau
peris as follows: Comes who, be.
ing sworn, upOn oath deposes and says that
he desires to appeal from the Judgment of
the justice court, to the county court and
that he IS unable to pay costs, ana that he
IS not able to give an appeal bond AS re-
CURED by law. Held, this oath in forma
paupers is not in Compliance with the stat.
ute and therefore neither this court nor he
county court had jurisdiction TO try the APP
peal, and II is therefore dismissed. Appeal
dismissed. Wilson, j.
Mirellervst State, from Cameron cOHn-
ty. Every convicted defendant has right
appeal, yet he cannot be considered con-
victed until final Judgment has been rem.
dered against HIM, and when the record
fails to show any proper final Judgment in
the trial court, the appeal will here be dis
missed Il CT. App. 2Sl) In G. G. Z. Art
l9l, the provisions OF a valid judgment in
felony cases are set out, among which is,
that the defendant is adjudged guilty ofthe
Oitense us found by the jury In this case
The judgment is wanting in this provision
the appeal must therefore be dismissed for
want OF u final Judgment. Appeal dis
missed. White, p ].
Somerhill vs.. Hancock; from Bowie
county, The county court had jurisdiction
OF the case;arucies lltl-G!, Revised Statutes,
must be construed IN connection with the
constitution from which we determine that
the legislative Intent was to give county
courts concurrent jurisdiction over 81 GO
exclusive" OF interest. The constitution
concerning the jurisdiction, it would take
an express and clear provision of law To
change It, The petition must be he'd
sufficient, value received" expires sed IN
the note is u sufficient ayerment of Cousid.
Grafton; On Texas, ~; 10 Texas Al Han
cock having testified TO lacts WITHIN his own
knowledge independent of any transaction
with deceased, II was not IN violation of
article 22lS, Revised Statutes. (Sec Texas
Law Review, Vol. /, No. 3, p. 40. Rep Re-
hearing refused, Wilson, ].
Carroll VS.. the State; from Webb county.
ms Is an appeal from conviction for
keeping II disorderly house upon an inior.
nation which charges that at the time said
appellant did then and there unlaw.
fully keep disorderly house for the pur.
pose OF public prostitution" aud las com.
mon resort for prostitutes and vagabonds,
and that they are in every way connected
with and concerned in keeping said disor.
derby house. etc. Held, this information
is sufficient and cannot be said to be in
the alternative as the conjunCtive coniunc.
ton is used, but beyond this fact it was
not necessary 10 prove that il was "A com.
mon resort OF vagabonds If the other aver.
ments were proven. such was the case,
aud the judgment is affirmed, Hurt, |.
Hardl, vs.. the State; from Dewitt county.
This is an appeal from conviction for the
THEFT OF mare and a sentence of five years
in the penitentiary. Pending the appeal,
the appellant escaped, and after being at
large some time was re'arreSted and re-
turned toto custody. At no time during
his freedom did he voluntarily return into
the custody OF the officer, The proper aili.
davit of escape has been made and Is on file
IN this court, whereupon the assistant at.
torney' general moves TO dismiss the appeal.
Held, the motion being sustained by the
record 1t is sustained and the appeal is dis.
missed. Appeal dismissed. White, /.
Erain X PEBBLES VS.. the State; from Polk
county. Comes the assistant attorney.
general and moves the court TO dismiss the
appeal because appellants have failed to