Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-01-09


Code Grim. Prac announce the
rules regulating the taking Of the
written testimony OF witnesses before
an examining court, and its subso.
quent disposition,
g. A defendant complying with GER
tain formallties may, on the cxamiu-
ing trial, take dispositions of witnesses,
but the state Is not permitted 10 take
dispositions OF witnesses in criminal
cases. See Chap. s, g. q. p, Arts. 157
| to 772l The defendant may, lake such
dispositions before justice OF the
| peace sitting as 3 magistrate, but
even then there must be present TO
| take them any two OF the following Of
ficers: the county judge, notary pub
| lie, clerk of the district court and clerk
the county court. [See G. G. p,
articles 759, 707, 770.l As to lis subse
| queut disposition, zee &. @. j. III.
The essential difference between the
| taking and returning of evidence on
an examining trial, and the taking of
| dispositions for defendant, Is obvious,
The former Is transmitted TO the clerk
for the use of the grand jury or proper
prosecuting attorney; the latter is de-
! livered TO the clerk for the use Of the
defendant on the final trial, il he de.
sires TO read It. The deposition il dis
tinct matter from, and has nothing TO
| do with, the testimony taken before
an examining court, and the rules and
formalities prescribed for the taking
are different.
A. The second word used in article
| IA OF the q. G.. p, being the word
deposition IL clear and manifest
mistake OF the revisers Of the code,
used by them inadvertently for the
| word "testimonyn or tine word "evi-
dence" See the context OF the said
article
5. Ailid0vlts showing that states
witness resides beyond the jurisdiction
| of this state Is sufficient predicate
to admit his written testimony, aiken
before an examining trial and
there subscribed TO by him. Such
| evidence so taken, and certified to 10y
the magistrate, is not deposition and
IL admissible for the state under proper
certificate OF the magistrate.
8. Everything should be stated in
an indictment which IL Is necessary TO
prove, but that which It IL not neces.
ssry TO prove need not be stated. 10
constitute the ofIense Of privately
stealing from the person, the THEFT
"must be committed without the
knowledge OF tho TO son from whom
IL Is taken, or 80 suddenly as not TO al
low time TO make resistance before the
property is taken away II being
necessary to prove one or the other OF
these modes, IL follows that, the
should aliege the necessary
constituent. Revered aud remanded.
G. and L. Conner Va the State, from
Sabine county,. The admission OF
alleged incompetent evidence is not an
error revisable by this court In the alb
sence Of bill OF exceptions showing
that IL was objected to when first of.
fered.
2. II is not error to refuse special
charge when the general charge upon
the subject-matter presents correctly
the law controlling II.
3. In a Join prosecution against
two defendants for murder, wherein
the inculpatory evidence against both
WAS purely circumstantial, the trial.
judge charged the jury as follows.
1.-THE evidence IN the case before you
being wholly circumstantial, in so fan
as il relates or il applicable to the case
Of the defendant, q. COnnor, it Is nee
essary," etc. Held, error with r. specl
10 the case OF K. Conner. because ii ex-
pressly limits the law oil circumstan.
! tisl evidence to the case of Q. Conner,
and authorizes the Jury TO infer that
the guilt OF T.. Common was not depend.
ent alone upon such character Of evil
dence, but was funp0rted in part al
least by direct evidence.
4 Failure of the trial-court to charge
the law OF clrcumstantial evidence
when such evidence alone Is relied
10 4, L. a.
not such error was excepted to at the
proper time, As 10 G. Conner, az
hrmed; as TO +. C0nuor, reversed aud
remanded.
Walker vs.. the State, from Harrison
county,. Oblectiod that states
witness was permitted 10 detail ON the
stand statements made to him by the
wife and daughter of the defendant
is obviated by the fact that at "A prevl-
Gus stage OF the trial the wife and
daughter had testified to the same
iacte.
2. A state's witness having denied
ON several previous occasions that he
knew who perpetrated the crime. be-
Ing called upon 10 explain the contra
diction, reclted, as part Of his explana.
ton the statements made to
him by his wife and
daughter, as 10 the defendants deolara.
lions to them. Held, competent for
the purpose OF explanation. and
further, that II, under the cireHrn-
stances of this case, IL was probable the
jury would consider 1t IN any other
light than as explanatory matter, il
was incumbent on the accused 10 re.
quest proper controlling charge.
3. When a witness denies or fails TO
remember that he on former occasions
made statements inconsistent with his
testimony on the trial, evidence that
he did make them Is admissible upon
the establishment Of 4 proper predi-
cate. But such rule cannot be in.
Voked IN 8 case where tho witness on
The eiand admits that hO made the
statements imputed TO him, and i'm.
peaehing testimony IL admissible.
4 The enforcement OF the rule 80.
, questering witnesses Is matter 80 far
committed. TO the discretion Of the
, trial codrt that it, Aeii will not be
D fsaa.a a q IL