Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-06-23
COURT OF APPEALS.
SYNOPSIS Of the Decisions Rendered at
the Austin Sitting Of the
Court Of Appeals.
Made up From the Full and Official Re-
port of the Rulings and 0pin-
ions Rendered.
Compiled for the Gazette.

county. When the burglarious entry |
was made in the daytime, the indict-
ment need not allege the want OF con-
sent of the owner of the house or other
person. In charging burglar with
intent to commit theft Indictment
may, in single count, allege not only
an entry with such intent, but also
theft after entry. When intent only is
relied on 1t is not essential to designate
the particular property intended to be
stolen and when specific articles are
unnecessarily designated, conviction
may be had, though the proof shows
that the accused knew nothing about
such articles, provided it clearly APP
pears that he entered with intent TO
commit theft. Nor will there
be variance between the
allegation and the proof IL the evil
dence going beyond the allegation
of the intent only shows that he actu-
ally stole the specific articles unneces-
sarily designated in the Indictment.
But If the indictment designates
specific articles as those stolen, the
| proof must correspond with the allega-
ton. The intention to commit an
offense is presumed whenever the
means used is such as would ordinarily
result In the commission of the for
hidden act. See art. so, p. G. Never
theless, it has often been held
improper to give the article in charge
to the Jury, inasmuch rs the presump-
ton of innocence outweighs that of
guilt arising merely from the means
used, and it ia incumbent on the state
by legal evidence to overcome the
presumption of innocence aud estab-
lish the guilt of accused beyond a
reasonable doubt. In charging upon
the weight of the evidence and
instructing the jury that the law pre-.
sumed fact, to.wit: the defendants
intent, which they could legally find
from the evidence alone, and which
could not be supplied by presumption,
the court erred. Reversed and re-
manded.
Kramer VS.. the State, from Cooke
county. The exhibition Of faro-bank
is not an ofIense against the law of
this state, unless done for the purpose
of gaming. Therefore an appearance
bond which describes the offense as
exhibiting q faro-oank is fatally de-
fective. Reversed and dismissed.
J lLlhuby NS' ihC lObutS,
from Wise county. Indictment for
theft of horse alleged that the ami
I NAL was the property of one H., but
was stolen from the possession of one
X. Allegations in the Indictment
negatived the consent of fl. to the
taking of the horse, but failed
TO negative the consent Of X. Held,
that the indictment is fatally defective
by reason of the omission to negative
| the consent OF the person from whose
possession the animal was taken. Re
versed and dismissed.
Strong vs. the State, from Coleman
: county. The defense moved to sci
aside the indictment because the re-
cord of the court did not show that il
was ever presented by the grand jury
of the county. Ia opposition the state
: was allowed to prove by the clerk that
9 the records of the court were destroyt
and that the destroyed record did con
tain the proper entry of the presenta'
l ton OF the indictment. The motion
was overruled. Held, error. The
l motion was well taken as the record
: was necessity imposed upon the state
and this could be legally
!. done in no other way than
I as prescribed by Rev. Stats.
l art. 1476, ct seq. To accomplish the
D substitution of a lost or destroyed
= record or filed paper, an order Of sub
l stitution is an absolute nee sssity Ap
d pallant being on trial for embezzle
g ment OF funds intrusted to him fol
payment to the state treasurer, thu
y prosecution, in order to prove non
:. payment to the treasurer, introduced
p clerk of the treasurer, whose duties
I. qualified him to testify of what the
treasurer's books did not show, and h,
testified that the books did not show
payment OF the money to the treasure
by the defendant. Held, that thi
y evidence was correctly admitted, bu
held further, that this negative proc
y did not suffice to countervail the pre-
!, sumption of innocence, and it was in
= cumbent on the prosecution to intro
y duce the best evidence, viz: the stat
y treasurer in proof Of the non-paymen
$ OF the money 10 him by the defendant
l. 1t was in proof for the state that tn
u defendant, prior to the prosecution
. told the prosecuting witness that h
q did send the money to the treasure
~ and had his RECEIPT for the same. n
II receipt was produced or accounted 70
u the defense. Held, that this failur
Is added no probative force to the crimi
~ native evidence. Reversed and re
b. manded
'e Harwood vs. the State, from Johnso
D. county. There being no indictmen
oe or information in the record in thi
y, case, there is no lawful foundation
"a for the Judgment Of conviction, an
~ II cannot therefore be permitte
III 70 stand. 1t appears that afte
the conviction was had the indie
ment was accidentally destroyed.
he may yet be supplied, either by q SCI
n ond indictment by the grand jury, q
by substitution In the mode prescribe
by law. Is Tex. N. app. 25S. r.,
~, versed and remanded,
ks Wright vs. the State, from Fall
county. II is the imperative duty {
the court to charge the law of circun