Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-05-04


of the court was that 1t omitted to
charge on the law of manslaughter, Ia
The effect That the deceased having ap'
pIled the epithet of "cabron" (Which
means that the parry to which II Is
applied consents to the prostitution OF
his wife,, he was guilty of using insult
ing language towsrd lemale relative
whereunder the killing would be man
slaughter. No exception was takeT,
no corrective charge asked, ana com
plant was first made In motion Tor
new trial. Under these circumstances
the charge could only be revised II IN
Jury to defendants rights be apparent.
Whether IL was the deceased oranother
who applied the epithet is not sur
flciently apparent from the record to
enable the court to hold the omission
Injurious to defendant. Again the
evidence discloses that the alleged in
suit to the wife was not the moving
cause OF the homicide. This court
cannot, in the absence Of bill of ex.
ceptions, assume everything stated In
a motion for new trial to lie true, and
therefore cannot sustain the objection
that the verdict was translated to the
appellants In the absence of an af.
firmatiye showing that the defendant
was or was not present when the mo-
ton for new trial was heard, this court
presumes that he was present Waiver
of the right of the defendant to be
present on the hearing of such motion,
by counsel, binds the defendant, un-
less he shows in fact that he did not
authorize his counsel to do so. New
trial was properly refused wherein II
appears that the desired testimony
would not, if true, mitigate the homi-
eide. Evidence Is sufficient to support
the verdict. Affirmed. Hurt, j..
THE death penalty was issued in this
case-Rep
Thompson w. State, from Lee
county. To constitute theft there
must be, on the part of the person taxi
ing, an intent to deprive the owner of
the property of the value thereof and
to appropriate II to his own use. The
word at" refers to the property.
Where an indictment follows the stat
ute in substance 1t Is sufficient, and
that the indictment used the word
value in the place of the word ''it''
is not fatal objection to the indict.
ment. See the general rule laid down
in Art. APO, &. q. i. Statement OF
facts signed by the trial Judge after ad.
journment of court in default of an or
der entered allowing time will not be
considered by this court. Affirmed.
Wilson, j.
Smith w. State, appeal from Bowie
county. The conviction in this case
was for an assault with intent to muir
der, and the penalty affixed by the
verdict was term of two years in the
peniTentiary. In the absence of a
statement of facts this court cannot
inquire into the action OF the trial
court in refusing an application for
continuance, nor can IL examine into
the charge OF the court except 8s to
fundamental trror. No such error IL
disclosed by inspection, and the in
dictment being sufficient when tested
by. recognized rules, the judgment is
affirmed.
Chapman w. State, from Atascosa
county. Conviction was for betting at
monte and Icing misdcmeanor over
which county and justices court have
concurrent jurisdiction, this conviction
cannot stand unless the district court
was clothed with jurisdiction under
Sec. - Art. . Of the constitution. That
was the act of March 10, 1888, which
divests the county court of "a county of
jurisdiction over criminal cases, and
vests in the district court of said
county exclusive jurisdiction over
criminal cases there pending. The
act proceeds: And the district court
shall have and exercise all the civil and
criminal Jurisdiction heretofore vested
In said county court by the constitu-
ton and laws, and not diveste d by this
act. The italicized word mott might
be held to have been inserted by mis-
take, as 1t Is inconsistent with the
plain purpose and intent of the act.
Being competent for the Legislature to
divest the county court of its criminal
Jurisdiction, and vest the same in the
district court, and this having been
done, the plea TO the jurisdiction was
properly over-ruled. The act referred
to in no way affects the jurisdiction OF
tie justice of the peace of Atascosa
county. Affirmed Wilson, j.
Thompson Va. State, appeal from
Lee county. The conviction in this
case was for the theft of two head O.
cattle, the property of Elisha Davis
His punishment was assessed at two
years in the penitentiary. Such {
statement OF facts rs is brought up b,
the record appears to have been iileC
In the court below, subsequent to tn,
adjournment of the trial term OF court
No order, as required by the statute
allowing ten days in which to prepare
and HE such statement Is shown. TIN
paper purporting TO be statement o
facts cannot be considered for any pur
pose. Fundamental or injurious erro
Is not shown In the charge of tn
court and the indictment AYERS all e.
sential elements of the offence charged
Affirmed.
Btinkoetcr vs.. State, from Guuda
lupe county. Court charged: "If va
believe from the evidences that defend
ant obsiructed the road charged [
have been obstructed In G.. count,
: and that II was n public road and thu
In so doing an oflense was committed
the law piesumes that the act was IL
i tentlonally and williully done. apd th
/ burden is on defendant to prove ace
dent or innocent intent.p Again, 20
the trial Of criminal action whe,
a the facts have been proven which, COZ
: stitute the oflense, it devolves upo
the accused to establish the facts {
n circumstances which excuse or iustil
q the prohibited act or omission. Hell,
error. See former appeal OF this cas-
~ Texas court of appeals, 81. Reverse
Z and rcmanded. Wilson j..
Fentress ct al. vs. State, from Bex,
county. One Of the requisites of bu
bond Is that II state the time and pla,
|. and magistrate before whom the d
: iendant is to appear. As to time II