Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-03-10
COURT OF APPEALS.
Synopsis Of Decisions Rendered az
the Galveston Sitting OF the
Court OF Appeals
Made Up From the Full and Official Re.
port Of tue Rulings aud opin.
ions Rendered.

county, To prosecution under AN
indictment charging him with incest
with one Pauline Seitz, the defendant
pleaded In bar his scquittal in a trial
Tor the same offence, under an indict-
ment which charged that the offence
was committed with one Pauline Lei.z
Held, that the plea in bar was not
good; that Pauline Leitz and Pauline
Seitz are not idems sonans.
:. Venue OF an offence may be
proved by Circumstanttal evidence.
B.. Marriage of parent and step.
parent, when tue iucrstuous inter
course is charged 20 have transpired
hetween the st. p parent and the step.
child, may be proved by circumstantlal
evidence
4 II, in an incest case, The inceetu.
Gus Intercourse being charged to hav.
transpired be ween the step parent
and step child, there be evidence tend
ing to show 3 former marriage Of the
chlld's parent. IL devolves uLon the
state to prove that such former mar
riage was legally annuiled. In the ab.
sence OF evidence tending TO show such
former marriage, there Is no such bur
den OF proof imposed upon the state.
Affirmed.
Mesa VS.. the Htate, from Cameron
county. A married woman cannot be
seduced and unless an Indictment for
seduction alleges that Mt the time OF
the ofiense e injured female was un
married, 1t charges no ofiense against
the law. Reversed and dismissed.
Wilson Va the State, from Dewitt
county. l. In prosecution for carry.
ing away timber, the court charged the
jury rs follows: The word TIMBER
HI used in the statute, Is that sort of
wood which Is proper for building, or
for tools, utensils furniture carriages,
fences, ships and the like, usually said
Of fallen trees. hut sometimes OF those
standing lied, a proper definition
Of the term "umber,n as it il used in
the statute, and that to sustain a con.
viction for carrying away timber, II
must appear that the wood carried
away came within such definition,
2 Wood shown by the evidence 70
be good for fuel only, dies not come
within the statutory definition of the
word timber" Such the evidence In
this case showed the wood carried
away TO be, and it do not support the
conviction, Reversed and remauded.
Greene vs.. the State, from Burleson
county, 1t Is n common-law rule
that when confession or admission Is
introduced In evidence against party,
such party is entitled TO prove the
whole of what he said on the subject
a. the time OF making 1t But article
75l of the Code of Criminal Procedure
expands such common-law rule with
reference TO such evidence 50 40 not 10
restrict the explanatory act, dtclara
ton, conversation or writing to the
| time when the act, declaration, con.
versation or writing sought TO be ex'
| planned occurred, ald to extend IL so a:
To render such acts or statements nd
missable, IL necessary to full under
standing OF, or to explain the acts OF
| statements introduced in evidence by
the adverse party, although the sam,
may have TRANSFERRED at a different
| time, aud at a lime 80 remote even ~
to not be admissible rs res gestae. In
SO far as the rule announced In Shiv
ers case, CT. App, 450. conflicts with
this doctriue. that case is overruled.
. Obnoxious charges of the court
should be excepted when given
g. Prosecuting counsel should not bt
permitted 10 assert in argument TO the
jury tba' IL an absent party or parties
had been introduced as witnesses, the,
would have testified To certain facts
Reversed and remaDded.
SCHNEIDER VS.. the State, from Fayettt
county. The law vests in the tria
Judge nnder scertaln circumstances
| the dircretion to discharge the jury
even in felony case, without the con
sent OF the defendant, and the exer
else OF euch discretion will not be re-
vised by this court, and will not bs
held to constitute jeopardy except
where 1t is made clearly 10 appear that
such discretion has been abused. The
court should charge the law Of cir
cumstantial evidence, when the state
relies on such evidence alone. "Frans
| Mason" the name OF the owner OF thu
stolen property az alleged In the In
f., dictment and Frank Mozsch" the
name as aohwn by the evidence, ar,
not idems sonaDs and consequently
the ownership as alleged Ia not proved
| Reversed and remanded.
Thomas We. The Safe, from Fayett'
county. l. Failing to state the resi-
dences of the several absent witnesses
or that their residences were unknown
and that there was no reasonable Elk
pectation Of procuring the absent wilt
nesses by postponement OF the trla
TO future day Of the term, and to Sc
out the facts expected TO be proved by
them, an application for a continuance
lie defective in three particulars.
9. An application for continuance
to be sufficient must comply strictly
with the statute. Nothing will be pre-
sumed in It's aid, and, therefore, a gen
eral allegation that the absent wit
nessea will establish the innocence o
the accused will not meet the statutor,
requirements that the application shal
set forth the facts expected 10 b.
proved.
8 The action Of the court below IL
receiving incompetent evidence will
be revised by this court only when !
Is made 10 appear by proper bill Of OK
ception. that II WAS objected 10 whei
offered, or that the court Overruled
proper molten 10 Withdraw the same
1t IL the duty OF the accused 4
except 10 an unsatisfactory charg'