The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-01-05

w tuo tfldl. Inc COuIt 6ft6Q IN
harging the jury that if they believed
>ck did then and there, as
harged in the Indictment, live together
nd have carnal intercourse with each
ther, or did then and there have habit
lal carnal intercourse with each other,
Without living together, the said Ada
inc Blackjack being then and there |
married TO another man other than Ed. |
Saunders, you will find each guilty of !
adultery; otherwise, you WILL" Held: |
this left the jury no other discretion
than to find them guilty, for which the
Judgment is reversed and the cause re-
manded.
billiard VS.. the State, from Van Zandt
county. Opinion by White, Il. Il. There
is evidently clerical omission in the
charging portion of the information. If
this be so, it is sufficient to charge the
offence. The charge was an aggravated
assault, and committed with knife, ga
deadly weapon.n There is not the
slightest proof in the record that the
knife used was deadly weapon, and
the evidence is, therefore, insufficient
to support the verdict and judgment.
Reversed and remanded.
White Executor VS.. Smith, from Gregg
county. Opinion by Wilson, j. Mo
ton to dismiss the appeal because no
appeal bond is given. Appellant APP
peals in the capacity of executor for the
benefit of the estate he represents. He
is an executor of said estate without
bond by the terms of the will by which
he was appointed. Following the decis-
ion in Butler VS.. Davis, (52 Texas, 49,
the court holds that an Independent eX-
ecutor who appeals from judgment as
such for the benefit of the estate he re-
presents, is not required TO execute an
appeal bond. Motion overruled.
Johnson VS.. the State, from Hunt
county; opinion by Wilson, j. 1t is
uncertain from the language OF the in
formation whether the charge against
defendant is made by the county attor-
ney or by the complainant who made
the oath in writing on which the in
formation is based. The prosecuting
officer who presents the Information
shall make the charge, and it must
clearly appear from the language of the
| information that he does so. IL is I'M
necessary to state in the information
that it is founded upon a complaint in
writing under oath, or to make any
mention whatever of the oath. Re-
yersed and remanded.
Long vs.. the State, from Hunt
county. Opinion by White, p. j. The
0nuS is upon defendant TO show tho eX-
ercise of diligence in support of an ap
| pliCatiOn for continuance. &C. G. p,
Arts. 49, 1885, where a defendant is re
| lying alone upon the service Of a sub
p9na, then his application for cOntin
uance in order to be good in point of dill
igence must ailirmatively show that the
witness desired was in attendance on
the day set for taking up the criminal
docket, and thereby excuse his failure
TO resort to an attachment. 1t was err
ror for the court to permit the prosecut-
ing officer to read as evidence to the
Jury the affidavit upon which the infor-
nation was based. Reversed and re-
mauded.
Lindsey OF al vs.. the State, from Hop
kins county; opinion by White, p. j.
A writ of scire facias must recite the
presentment of an indictment, the issu-
ance of capias, the arrest of defend
ant, the execution of the recogniZauce.
the conditions of the same, the breach
OF the conditions, and the entry OF the
Judgment nisi. A judgment nsi must
show that the forfeiture was taken as
required by law, and must state that the
same Will be made final unless good
cause be shown at the next term of the
court why the defendant did not appear,
The Sureties on bail bond are released
from liability by a second arrest and
eali OF their principal on the same in
dictment. Reversed and remanded.
Tynes VS.. the State, from Kaufman
county; opinion by White, y. /. When
the statutory word is "knowinglyr the
use of the word "unlawfullyh is not
SUFFICIENT III prosecution under article
ol3, L. &. In prosecution under article
ol3, L. g., the threatening letter, which
constitutes lhe graVamen of the Oflense
| should be set forth in haec verba OF
verbatim. Reversed aud dismissed.
McAiee VS.. the State, from Navarro
county; opinion by Hurt, j. Conviction
Tor THEFT of COW, the property of II
HALEY. HALEY was Il very importan
witness for the State, upon whose evi
dence the State mainly relied. Deien
uant tried to impeach him by proyiul
that he had once harbored certain par
ties charged with horse THEFT. This wa,
refused. Held correct The court cor
rectly charged, in substance, that If de
iendant purchased the animal from w.
as alleged, although w. had stolen tn,
same, they could not convict. But, IL
alter the animal was stolen by W., de
| PENDANT, with knowledge that IL wa,
stolen, purchased IL from him, and afte
the purchase IL escaped and went int,
the possession of the owner, ana deien
dant iraudulently took it from the pos
session of the owner, knowing ut tn,
time That II had been stolen by W., an,
that 1t was his property, the jury Shout,
lind defendant guilty. Affirmed.
| Roberts vs. the State, IRON Kaufman
county; opinion by Hurt, |. Articl
ooi, Penal Code, Is not repealed by TIA
act of the Eighteenth Legislatures, nm
proved February 8, 1884. The element
OF the olfense charged in Article 6S
consist in breaking, pulling down an,
:nJuring the fence of another withou
his consent. To complete the oflens
charged by the more recent act, the par
~ must wantonly or with intent to in
Jure the owner, and wiliully cut, iniur
or destroy fence, or part thereof, tn
property of another. The latest act
therefore, contains additional element
constituting the Oilense. Affirmed
ri Bennett VS.. the State; from Fall
county, Opinion by Hurt, /. ConviC
+ tion tor the theft OF a watch. There
put one question presented by the rec
, ord, That ~, does the evidence show
, voluntary return of the watch within
reasonable time and before any pros,
, cution was commencedf We are of In
= opinion that IL does and, therefore, tl
/ verdict IL contrary to and against th
evidence and the charge of the cour
, and new trial should have been gran
, ed. Reversed and remanded.
Harris VS.. the State; from Cook
, county. Opinion by Wilson, /. ID,
[ PENDANT was indicted for the theft ,
SSbO In money, and upon the trial va
! convicted. The evidence clearly shove
0 theft from the person ~ defined b
/ Arts. IA aud Ti5, +. g. The detendaI
D asked the court to charge the Jury IN,
= II the evidence showed that the none
r was privattly stolen from the person
/ the victim, they should not lind defen,
X ant guilty i'm this ease, which the cou
0 refused. Held: Error. Under an i
!, dictment charging theft one cannot
!, convicted therefor upon proof shown
o theft from the person. Reversed al
a remanded,
ell Nabe McAfeo vs. tho State from N
4 varro county. Opinion by Wilson,
:, Where there Is evidence tending to q
q tabhsh the defence of abb, iho cou
J. should charge the law relating 10 IN
/, defence. Where tho court fails TO ,
n this, and the omission Is excerted 10 /