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

lapse Of six months between the date
of the loss Of the alleged stolen proper
" and its discovery In the possession
Of the accused. This conviction rest
Ing solely upon presumption from
possessioni and that possession not
recent 10 Is not supported by the evil
dence Reversed aud remanded.
Saunders vs.. the State, from Rusk
county Is a rule OF practice that
radical, fundamental error occurring
in the charge Of the court ia q misde-
meanor case, is reversible error, even
though such charge was not excepted
to on the trial. Charge Of the court
in an adultery case wss as follows; "If
you believe that Ed. Saunders and
A. B., the defendants in this case, in
the county of Rusk and state OF Texas,
at any time within two years before
the fling of the Indictment In this
case, did then and there, ms
charged in the indictment in this
case, live together and have carnal in
terc0urse with each other, or did then
aud there have habitual intercourse
with each other without living
together, the said A. b. being
then and there lawfully
married to another man
ders. you will find them each guilty of
adultery, otherwise you will y Held,
error, because under such charge the
jury We're left no alternative but to
convict which by their verdict they
did a special charge requested being
primarily upon the weight of evidence
and announcing an erroneous princi
pie of law, was properly refused. Re-
versed and remanded.
Wright VS. the State, from Gonzales
county.--First autrefois acquit Is availa
BILE only in cases where the transaction
Is the same, and the two indictments
are susceptible OF and must be sus-
tanned by the same proof Autrefois
convict only requires that the tTansac-
ton or the facts constituting /. be
the same. (2), When the evil
denceshows that the theft Of cattle OF
two different owners was peTpetIated
in single transaction, the conviction
OF the accused of the theft of the cattle
of one Of the said owners will, upon the
doctrine of autrefois convict, operate TO
bar presentation for the theft OF the
cattle OF the other owner But, being
charged in another indictment only
with the theft OF cattle OF one owner,
and tried upon that indictment and
acquitted. the plea of autrefois acquit
is not available in a presentation upon
an indictment charging the theft Of
the cattle Of another owner, notwith-
standing the transaction be the same,
and the evidence identical, for while
such evidence might have been INSULT
cient in the first instance, It might
well be all-sufiicient in the last.
q Motion for new trial, supported
by aflidavits, alleges misconduct of a
jury as follows: First, one of the jurors
was permitted TO separate from the
jury and go, unaccompanied by an Of
ticer, TO the suburbs of the town, after
his bed-clothing, aud was for some
time beyond the view OF the
jury and the officers. Second, whilst
the jury had the case un.
der advisement, and We're being
kept in the courtroom for the night,
the officer IN charge OF the jury per.
mitted the officers of the town council
to enter the courtroom where the
jury was, and permitted one W., fore
man Of the jury, who was a member of
the council, to attend and participate
in the transaction of business before
the council in the presence of the Jury.
Third, whilst the jury had the case
under advisement, sleeping in the
courtroom, one b., who was neither g
juror nor an officer OF the court, was
permitted TO sleep with one OF the
jurors. Held, that under articles 6S7,
$50 and $50 of the Code of Grim. Prac.
conviction had under such circum.
stances cannot stand. Reversed and
remanded.
McAfee vs.. the state, from Navarro
county.-Failure OF the trial court TO
instruct the jury as to the law control
ling the defens8Ofalibi, when evidence
has been addueed tending to support
such defense, is not necessarily revisa-
bic error, unless, as in this case, the
charge, because Of such omission, was
excepted TO at the time IL was given.
In such case this court has no option,
and judgment of correction will be
reversed and the case remanded. Re-
versed andremanded.
!, McAGee w. the State, from NavRr-
70 county. trial court properly re.
fused TO permit defendant in Il theft
case to lmpeach a states witness by
proving that said witness had harbored
horse-thieves.
>. One of the defenses relied upon
was the purchase of the alleged stolen
animal under bill Of sale. In sub.
stance. the court charged that if the
jury believed the defendant did so
purchase the animal, he should be ac-
quilted, Notwithstanding he may have
known that the animal was stolen by
his vendor. Ia addition, the court in.
structed the jury, ia substance, that il
they believed the animal was stolen
by the defendants vendor, and that
the defendant purchased IL with such
knowledge and took possession OF It,
and the said animal afterwards es-
capped from his custody, and that the
defendant, on or about the date
alleged in the indictment, took
the animal fraudulently from the pos.
session OF its owner, knowing az that
time, and al the time that ne made
the purchase, that the said animal was
stolen by his vendor, he was guilty Of
the theft OF the animal. Held, that
the two charges are not only consist
ant, but they announce correct legal
propositions Affirmed.