Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-07-02
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
cnmnlled for tho aazette.

| MCGlnty vs., the 6thLei lrOm NOpeIV
son county. The indictment in this
case, under which the appellant was
tried, convicted and awarded a term
OF five years in the penitentiary,
charges sufficiently and afiirmatively
every element of the oflense OF rape.
The charge of the court applied per.
spicuously the law, applicable to
every phase of case suggested by the
evidence, and the evidence is so far
conclusive AS to rebut every shadow OF
! doubt as to tho preparation Of the
oifense by the defendant and none
other, where fore the Elections urged TO
the indictment, evidence and charge
are held untenable. Affirmed.
Mcmillan vs.. the State, from Hill
| county. This was felony conviction
| for the theft OF personal property, and
the penalty affixed by the jury was
term OF two years in the penitentiary.
| Statement OF facts, to be valid, must
appear, among other things, to have
been made up, signed, certified and
| filed during the term Of court at which
| the Judgment was rendered, or, II al
| lowed by the court, ten days after adj
journment; then, that II was 80 made
up, signed, certified and filed within
| the said ten days, but in the latter
case the transcript must bring up on
appeal, the order of the court granting
the said ten additional days. The
statement Of facts In this case was not
filed in time, and will not be consid-
cred for any purpose whatever. The
record presents no other question for
revision. The judgment Is affirmed.
Saunders vs.. The State, from Lime
stone county. Under an indictment
charging that the appellant did with
deadly weapon and with his express
malice aforethought kill and murder
one --, the appellant was convicted
of murder in the first degree and was
awarded life term in the peniten-
tiary rs punishment. A motion TO
dismiss the appeal Is filed on behalf OF
the appellant himself. This motion,
however, Is not signed by the appel
liant In prapria pensonae, as such mo-
ton must be to be considered but by
his counsel 1t Is therefore overruled,
and the case retains It's place on the
docket of this court for hearing on the
merits Motion to dismiss overruled
WitherspOon VS.. the STATE. from
Robertson county. The indictment
upon which this conviction was had
charged the appellant with the oifense
of swindling, as that offense is defined |
by article 700 of the Penal Code. 1t
charged aflirmatively the acquisition
of the property by means of false and
deceitful pretense or device or fraudu-
lent representation, with the intent 10
appropriate the same to his own use,
and, in doing 30, 1t charged sufficiently
the oflense. The evidence was ample
to establish the falsity OF the pre-
tenses and the fraudulent representa-.
tions, and the criminal intent with
which they were made. The charge
of the court applied the law correctly
to the facts as adduced on the trial
The judgment is affirmed.
Washington vs.. the State, rom
Bell county. A term of four years in
the penitentiary was assessed against
the appellant by the jury which tried
and convicted him upon an indict-
ment for assault with intent to MUIR
der. The test OF the efficiency OF the
evidence in a case Of this character is:
Would 1t be sufficient to support con-
viction for murder, had the injured
party died as result of the injury in
fllcted by the accused? The evidence
In this case Ia ample to answer that
question in the affirmative, and hence
IL ample to support this conviction.
The charge OF the court responds COR
rectly to every issue on the trial. AT
tirmed.
Boyce va. the State, from Burnet
county. -Four. cases,) The charging
part of the indictments in the several
cases Ia rs follows: The
said Boyce, on or about the first day
of April, A. ID. 1854, with force aud
arms, did then and there unlawfully
keep and exhibit, for the purpose OF
gaming, certain gaming bank,
against the peace and dignity of the
state.h This indictment Is held to
sufficiently charge the offense and
presents the one question for revision.
Affirmed,
Miller vs.. the State, from coun.
ty. II, In the first instance, an appli-
cation for continuance, being suffi-
cient in point OF disclosing due dill
gence, is refused, and the same is az
terward made ground tor new trial,
the testimony OF the absent witnesses,
az set out in the application for q con.
tinuauce, should be considered In
connection with the evidence adduced
on the trial, and II, when 50 consid-
cred the absent testimony is manifest
material to the defense OF the accused,
and appears probably true, the trial
court should award new trial. That
when the accused returned to point
where the witness saw him previously,
after an absence OF one or two hours,
his manner was. excited and uneasy,
was competent proof for the state, Re.
versed and remanded.