Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-01-06

select, but is a right 10 reject Jurors.
u excludes from the Jury those whom
the accused objects to until he exhausls
his peremplory challenges. The right.
therefore, OF challenge does bot neces-
sariiy imply the right of selection, but
merely Of exclusion, and It enables the
prisoner TO say who shall not, hut not
who shall, try him The defendant In
this case exhausted his peremp' DRY
challenges In striking the names from
the list furnished him Among the
namea remaining on the list as chosen
lufymen was that OF one r. When
called TO the box + was found to be alb
sent, and the defendant insisted that
ne be brought in because he had been
chosen and the defendant's challenges
had been exhausted. Explanatory of
the bill OF exceptions, the trial
Judge certified that the ali.
sence Of said Juror was caused by sick
ness and that ne ordered another Juror
called to complete the panel, who was
accepted by the state, whereupon he
notified the defendant that II he
was not satisfied he would be accorded
the right of challenge, and another
juror would be substituted. The de-
PENDANT and his counsel refusing to re-
spOnd, the panel was completed with
the new juror Held, that under the
circumstances the juror +. not having
been impaneled aud sworn, aud no
objection tosaid juror being interp0sed.
II IS not apparent that the rights of the
defendant were prejudiced The rule
would be otherwise bad the said Juror
e. been impaneled aud sworn.
=. A party may, in certain cases,
show by his cOntemporaueous state.
ments that he was, az the part ocular
Time, not acting Illegally. Under
this rule the trial court
erred in refusing to permit
/ the defendant 20 prove that prior to
his taking possession OF and marking
and branding the alleged stolen ami
NAL, he informed the witness ID. OF
the circumstances of the purchase Of
the animal, and that he asked aud
followed the advice o. ID. In taking
and branding the animal. While not
admissible rs res gestai, these declara-
lions tended to show a taking upon a
claim of right, and an open assertion
Of right 3 One rule OF practices has
been correctly stated as follows:
when the possession OF recently
stolen properly is relied upon as incul.
| patory of the accused, his explanation
Thereon is admis IDLE I'm his behalf,
| provided IL was given on the first oc-
easion Tor any explanation by him. Ii
/ Is not material even that the first
| occasion did not present itself
until three or four weeks after
he had parted with the possession -
! Another rule unon the subject which
! obtains, is as follows 80 be admiss-
ible, the party must be in possession
/ OF the property, or the explanation
/ must be made when arrested for the
| theft, or when charged or informed
that he Is suspected of the theft.n And
another rule must be borne in mind,
which is, that the explanation must be
made when the party Is first directly
or circumstantially called upon to eX-
plain" Evidence coming properly
within this rule was, on the trial Of
this cause, enormously excluded. Re
versed and remanded
Webb vs.. the State, from Rusk coun-
| ty.- o. Objection that an indictment
is detective because IL charges i1intly
that two parties committed the OfIense,
is tenable, the rule being that when
more than one join in the commission
of an oifense, all, or any number OF
them. may be jointly indicted for il.
or each may be separately indicted
! ~ The proof showed the keeping of a
table on which was played the game
known as fifteen-ball pool, the table
being a billiard or pool table. This
game was usually played on that table
with the understanding that the loser
was 70 pay for the drinks or cigars for
! all the players, obtained at the defend
ants bar. Money also was bet on the
game. Held, that such proof was am
al ff.a fol
! ing gaming table fer the purpose OF
gaming. had the indictmentsoo CHARGED
the otlenee, but is insufficient to sus-
tain n conviction under an Indictment
charging the exhibition Of bank for
! gaming purposes To constitute q
"bank" within the purview Of the
statute, there must be fund of money
offered and ready TO be staked on All
bets Others may make against the
banker, on the games which he keeps
or exhibits. This element is the dis-
lnguishlng feature between a gaming
bank and gaming table, and Is, per-
haps, the only real difference between
them. Reversed and remanded.
Shaw w. the State, from BexRr
county.-It follows proper cOnstruc-
ton Of articles $50, SOB and 00I Of the
Code of Of Criminal Procedure, that
when criminal cause less than capital
is called for trial, and before IL proceeds
further, the defendant by himself or
counsel, must plead whether or not he
is guilty; and that it is only when the
defendant or his counsel refuses thus
TO plead, that the court is authorized to
enter a plea of not guilty for him.
Without plea there Is and can be no
issue for the jury to try or the court TO
determine.
l. The motions for new trial and IN
arrest of Judgment In this case, sup
ported by allidayiis, which were not
even attempted to be controversial, al
lege that the defendant was not offered
the privilege Of pleading, and never
did plead TO the Indictment, and
moved 70 have judgment entirely cor
rected where II alleged that a plea was
entered by the defendant. Held, that
the motion gholId have haefs etIefafr,ed