The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-07-10

quired to explain whatever would
show bias on his part or inCapacity 10
testify accurately. Tho court should
have permitted the defense to intro
duce an Indictment charging the wit
ness with this same ofiense, and to
question him in regard thereto, so as
to show that he was testiiying under
circumstances that would compel him
to establish either his own
or defendants guilt. 1t reached both
motive and veracity. In order TO pre-
vent prejudiCing the case one way or
the other by argument on objections
to evidence, it was within the pwoer
of the court to remove the jury until
the decision upon the question. Re
versed and remanded.
Wright VS.. State, from Falls Coun-
ty. (No. 3525.) When the State relies
solely upon circumstantial evidence,
as is evident on the court TO give in
charge the law of such evidence
whether or not 1t was requested, in or
der to make one a criminal In theft, he
must be the taker, or he must DO pres
ent on any others,etc or keeping with
whom the property has actually been
taken, or If not present or keeping
watch, he must be doing something in
and of those who are present or doing
something in furtherance of the COM
mon design. Reversed and re-
manded.
Mitch Saunders vs. the State, from
Limestone County. This was a MUIR
der conviction in the first degree with
a life term in the penitentlary as
sessed. The Judgment recites III sub
stance that defendant persisted
In pleading guilty after be-
ing warned by the court
of tho consequences of such plea. The
statute provides that the plea OF guilty
shall not be rescinded unless 1t plainly
appears that defendant is sane and un-
influenced by any condition of fear
or by any persuasion or delusive hope
of pardon prompting his confession
of guilt. Held that the recital in tn o
judgment does not comply with the
statute. The court charged that defen-
dant's plea was OF guilt to the highest
degree; charged that the penalty must
be assessed at either death or peni-
Tertiary for lite. Held: Error. The
statute reads: "If the jury find an y
person guilty of murder, they shall
also find of what degree, and II any
person pleads guilty of murder, jury
shall be summoned to find OF what
degree OF murder he is guilty, and also
to fix his punishment" Penal code
article COZ. Reversed and remanded.
Johnson VS., the State; from Houston
County. In the absence of proof tend
ing to raise the issue OF murder in the
second degree the court did not err in
emitting to charge the jury upon that
issue. When, so far as il is correct,
the special charge requested is aban-
dOned in tho general charge, the spe-
cial charge is properly referred. The
evidence, though Circumstantial, is
sufficient to support this, capital
conviction for murder. Affirmed.
Mcmillan VS.. the State; from john
son County. II the indictment be for
"selling" liquors IN violation Of local
option, IL Is not essential that 1t should
be alleged that the sale was with the
purpose of ovading the law. 1t has
been held (Sec. l2 CT. App. 1927 that the
petition for prohibition signed by the
requisite number OF qualified voters Of
the particular locality, Is essential 70
establish the TACT that the Commission
ers' Court were legally invested with
jurisdiction 10 order the election, and
that II 10 NOT sufficient TO oalab,
lsh the fact that such petition
was presented and acted upon that
the order of court recltO5 tho fact, the
petition itself or proof thereof must be
adducod on tho trial independent Of
tho order. That the election was held
in accordance with law is fact which
must be alleged and proved in order
to authorize a conviction for the viola
ton Of the local option law. The petit
ton for local option being lost, the
ingifFtnnpvr "a fhn r1aVtF 40
proper custodian, that he had made
diligent search for Il in his Office, was
a sufficient predicate TO admit sec md
airy evidence of its contents. But
such contents are not proved by the
evidence of said clerk that he "did not
remember its contents or the names or
the number OF the siguers," or by that
OF tho county judge that he chad some
faint recollection about the petition
being before tho court, but remem-
Dor nothing about It's cOuteuts,n Held:
insufficient. Reversed and remanded.
StallWorth vs.. tho State, from Falls
County. In q trial for violating tho
local option law, tho State must strive
primarily to sustain the jurisdiction
OF tho Commissioner Court 20 order
tho election. First, that q petition
wa filed in said court praying for sn
election to determine the question of
prohibition within the proposed linn
its, and il must be shown that such
petition was 7igned by the requisite
number Of persons who were quail
lied voters within the proposed linn
Its. Second, il must 10 shown that
the Commissioners Court ordered
the election to be hold and within
the prescribed time. Third, the
order declaring the result and pro
hi biting sales 10 tho next proof 10 DO
adduoed, except as to jurisdiction.
Facts: This order will be sufficient
prima facie 10 establish every fact re-
cited by IL. az Court of Appeals, 1927
Fourth-lt must next be shown that
tho order declaring the result, etc., was
published four successive weeks in tho
county newspaper having the largest
or by posting the order In
three public places in counties having
no newspaper. Fitth-rho evidence
must show that the law has been vio-
lated. The question OF proving the
contents OF the petition by secondary
evidence in this case is the same, and
Is disposed Of the same as in McMil-
lan's case, subpwna-the circum-
stances of the two cases being the
same. The evidence was insufficient.
Reversed and remanded.