Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-07-13
COURT or APPEALS.
compiled for the Gazette.


Compiled for the Gazette.
Mitch Saunders VIZ. the State, from
Limestone county. This was muir
der conviction in the first degree, with
a lifetime in the peuitentisry assess ed.
The judgment recites in substance that
defendant persisted in pleading guilty,
after being warned by the court of the
consequence of such plea. The statute
provides that the plea Of guilty shall
not be received unless it plainly APP
pears that defendant is sane aud is I'M
influenced by any consideration Of
fear or 10y any persuasion or delusve
hope of pardon prompting his confess
sion of guilt. Held, that the recital in
the judgment does not comply with
the statute. The court charged that
defendants plea was of guilt TO the
highest degree charged, and that the
penalty must be assessed at either
death or penitentiary for life. Held,
error. The statute reads II the jury
find any person guilty of murder, they
shall also find of what degree and II
any person pleads guilty Of murder, a
Jury shall be summoned TO find of
" nav utk tt VI ibhlhNl
and also to fix his punishment Z.
c., art. COZ Reversed and remanded.
Johnson VS.. the State, from Hous-
ton county. In the absence of proof
| tending to raise the issue OF murder in
the second degree, the court did not err
on emitting to charge the jury uron
| that issue. When, 20 far as IL is cor
rect, the special charge requested IL
embodied in the general charge, the
special charge is properly refused
The evidence, though circums.antial
| is sufficient to support this, Il capita
conviction for murder. Affirmed
Mcmillan VS. the State, from John
son county. II the Indictment be for
selling liquors in violation of local
option, it IL not essential that II
should be alleged that the sale was
with the purpose OF evading the law.
1t has been held, (sec l. ct. App. 1922
that the petition for prohibition
signed by the requisite number OF
the qualified voters of the particular
locality Is essential to establish the
fact that the commissioners court
was legally invested with jurisdiction
to order the election; and that it is
not sufficient to establish the fact tn at
such petition was presented and
acted upon that the order of the court
recites the fact-the, petition itself or
proof thereof, must be adduced on
the trial independent Of the order.
That the election was held in accord
ance with law is a fact which must be
alleged and proved in order to author
ize conviction for the violation OF the
local-option law. The petition for To-
cal op ion being lost, the testimony OF
the county clerk, its proper custodian,
that he had made diligent search for
IL in his Office was a sufficient predi'
cate to admit secondary evidence OF
its contents. But such contents are
not proved by the evidence OF said
clerk that he Ibid not remember its
contents or the names or the number
, of the signers" or by that OF the
county judge that he had some faint
recollection about the petition being
before the court, but remember moth
ing about it's contents Held, INSULT
) cient. Reversed and remanded.
Stall worth VS.. the State, from Falls
county. In trial for violating the
local.option law, the state must show
, primarily to sustain the jurisdiction
|, of the missioners' court to ordei
the election: That a petition wa:
fl led in said court praying for an cleo
; ton to determine the question OF pro
,, hibition within the proposed limits
and it must be shown that such peti
ton was signed by the requisite mum
Der of persons who were qualified
: voters within the proposed limits
. 1t must be shown that the com
missioners court ordered the election
to be held, aud within the prescribed
Z time. g. The order declaring thu
! result and prohibiting sales Is thu
: next proof TO he addnced
J Except as to Jurisdictiona
: facts, this order will be suflicien
e prima fAcia to establish every fact re
s cited by il. ~ Cp. App. 402 !
i 1t must next he shown that the or
:, der d, claring the result, etc, was pub
. lished four successive weeks in thu
county newspaper having the laiges
g circulation, or by posting the order In
: three public places in counties having
e no newspaper. 8. The evidence
must show that the law has been vic
/; lated. The question Of proving TIN
d contents Of the petition 10y secondar.
J. evidence in this case Is the same, an
= is disposed of the same as in No
J. Millan's case supra-the circum
b stances of the two cases being tn