The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-08
THE HIGHER COURTS.
CoURT on ArpEALs.

COURT OF APPEALS.
w. Il. Warnervs. the State from john
son County. Conviction of aggravated
assault and battery, for which punish
ment of SIS fine was assessed. The
record brought up on this appeal con-
tains neither statement of facts nor
bill Of exceptions, and in their absence,
the information being in all respects
sufficient, no error appearing, the iudg-
ment is affirmed.
Bob Byers VS.. the State, from Fort
Bend county. Conviction of the theft
OF mare. Penalty assessed at five
years in the penitentiary, There BEING
no statement of facts in the record the
sole question presented arises upon the
following state of facts: Defendant had
been tried at previous term, which re-.
suited In hung jury. Upon this trial
he simply erased tho former term and
inserted the term of the trial, changing
the file mark and gave tho Identical
charge given at the former trial, TO the
jury onlthis trial. Held: Not error; az
hrmed.
Henry Roach VS.. Il. w. House, from
Kinney county. This is motion to
affirm on certificate, which said motion
must be and is overruled, and the GER
tlicate dismissed for want of iurisdic-
ton in this court to hear and determine
the cause, for the reason that the iudg-
mont rendered in the court below is less
than SlO0. Certificate dismissed.
G. p. Robertson vs.. the State, from
Rosque county. Conviction for refus-
ing TO work on the public roads, Tor
which a fine of SIS was assessed. The
information and charge of the court be.
ing ID all respects good ana sufficient
and no error appearing In tho conyic-
ton, the judgment is affirmed.
J. I, Dargan VS.. Pullman Palace Gar
Company, nom Dallas county. On re-
hearing This cause was decided at this
term in a written opinion in which all
the questions raised and insisted on in
the motion for rehearing were deter.
Named. The motion simply calls in
question the correctness Of our former
decision, but we see no reason to doubt
tho correctness of that decision. Motion
overruled.
Frank Forrest VS.. the State, from
Bosque County, (No. SAD; Wilson, /.
Defendant was convicted upon an in
dictmont which charged that he per-
mitted game with dice to be PLAYED in
a house undor his control, tho said
house being public place, commonly
rosorted to for the purpose of gaming.
There Is no evidence TO show that the
place whore tho playing occurred was
public, except that which proved that
the one game with dice, which defend.
ant was convicted OF permitting, was
played there. Two Witnesses testified to
being present when this game was
played, but this. was the only game they
over saw played in the house. This evil
HtmpA "a wholly f1fQtt MI mint % Nng.
the allegation that tho house was one
commonly resorted to for the purpose of
gaming IL devolved upon the State TO
prove the allegations as the publicity of
the place, and until this was proved no
offence was shown 10 have been COM
mitted. Reversed and remanded.
Frank FOssett VS.. the State; from
Bosque county, (No. 3ii0) Wilson, 4.
Tho indictment in this case Ia in all re-
speots the same as in tho above case,
except that the otlense is alleged to have
been committed on a different day. In
addition TO the plea of not guilty, de-
PENDANT. pleaded specially in this case
that he had been convicted OF the iden-
tical offence in cause 3lil. The evidence
in this case shows but one PLAYING at
| which money was bet, bon NO house, and
therefore fails to prove that the point
was one commonly resorted 10 for the
purpose of gaming. The evidence also
fully sustained the plea Of former con-
viotion. Reversed and remanded.
| N. McRay va. the State, from Boil
county. Wilson, !. The indictment
charges defendant, Jointly with another,
with wllfully and wantonly shooting
and killing mare and q muie,the prop
ertY of one f. The indictment charges,
and defendant was convicted of tho of
tense denounced by Art. ESQ, 2. @. Tho
evidence shows conclusively that the
animals were shot I'm an enclosure of
cleared and cultivated land which, at
the time, was in charge of defendant,
This otiense Is that denounced by Art.
$50, 7. G. Held; Under an indictment
charging the ofIense defined i'm Art.
$50, the defendant cannot be legally
convicted when the evidence shows
That, II guilty OF any Oilense, 1t was that
defined by Art GS5. payne vs. State,
II Ct, App. iW Reversed and re-
manded.
Clinton Boyd VS. the State; from Rob
ertson county. Hurt, j. Conviction for
the thoit OF hog, tho property of j. l..
SAMSON. Tho evidence shows that de
lendant took tho hog openly In tho day
iime, and IN the presence Of witnesses,
under claim of property, from his own
hog rancho, upon which,he had % large
drove of hogs at tho time. Un6er such
state Of case There being not the slight
est circumstance tending TO show that
defendant knew that the hog was the
property OF SAMSON when taken, the
defendant should have been acquitted.
Reversed and remanded.