The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-01-05
THE HIGHER COURTS.
COURT OF APPEALS.

PENDANT to prove that prior to taking :
possession OF and markingiand branding !
the animal he informed witness d. of '
the circumstances concerning the pur-
chase of same. and asked and followed
the advice of D. in taking and branding
the animal. While these declarations
were not strictly res geste, stil they
tended to show tabing upon claim OF
right, and an open assertion of right.
Whom the possession OF recently stolen |
property is relied on as an inculpatory !
fact, the explanation thereofby the ac-
cused is admissible in his behalf " hen |
given on the first occasion for an eX-
PLANTATION by him. 1t is not material !
even the first occasion ,Gid not pre-
sent itsefuntil three or four weeks after
he had parted with the possession.
Reversed and remanded.
Wright VS.. the state, from Gonzales
county opinion by White, z. j. Antre
fois acuuit is only available in cases
where the transaction is7the same and
the two indictments are susceptible of
and must be sustained by the proof.
Antre fois convict only requires that
the transaction, or the facts constituting
it, be the same. 1t is alleged in the aili-
davt in support of the motion for new
trial; ]. That one OF the Jurors was
permitted toseparate from the jury and
60 unaccomp tined by an officer to the
suburbs of the town after his bed-clOth-
ing, and was for some time out of sight
OF the jury and the officer. 2 That
while the jury had the case under ad-
visement and were being kept in the
courtroom for the night, the officer in
charge of the jury permitted the officers
of the town council of Gonzales
to come in the COURTROOM
where the jury were and permitted
Green Dewitt, wHo was foremano OF the
jury, aud also a member Of the board of
the town council, to attend and partiei-
pate in the transaction Of business be-
fore the town council in the presence of
the jury. 3. While the jury had the
case under advisemenJ they slept in the
courtroom, and the officer in charge
permitted one John Barnett, who was
not a member of the jury or even an
officer of the court, to sleep all night in
said courtroom with one of the Jurors.
Held, the motion should have been
granted. Reversed and remanded.
Phillips VS.. the State; from Parker
county. Opinion by Wilson, !. Con
victi0n for the offence charged in Gen
eral Laws of the eighteenth legislature,
special session, page Go. The indict-
ment is sufficient. IL alleges that the
offence was committed in Parker
county, and the grass fired
was the grass in Thomas Smiths
pasture, inside OF his enclosure,
and that defendant set fire to said grass
unlawfully and wilfully with the intent
to destroy IL. 1t was not necessary 20
allege the ownership of the enclosure,
further than to allege that it was not
the property of defendant. Our statute
settles the question rs to allegation of
ownership whenever il is necessary that
such allegation should be made Code
OF Criminal Procedure, article 1861.
Proof OF possession merely is sufficient
proof of ownership, and this rule is APP
plicable to all off'enses whenever allega-
ton and pro OF Ownershipis required.
In cases like this, proof of ownership
may be made by parol. For the error
of the court in charging the law appl =
cable 10 accomplices, the Judgment is
reversed and the cause remanded. Re-
versed and remanded.
Harris VS.. the state. from Bowie coun-
ty; opinion by White, Z. j. Conviction
for theft OF COW. The evidence fails
conclusively to show that it belonged TO
the alleged owner. Defendants claim
to her WAS open and notorious, and
when possession of her was demanded
of defendant, lac refused same, claiming
ownership in himself. A careful in
spection of the record fails to convince
us that the evidence is sufficient to sus-
tain the verdict, but on the contrary;
wherefore the judgment is reversed and
the cause remanded.
Kerry vs.. the State, from Tarrant
county; opinion by White, p. j. The
charging part of the indictment reads:
"With force and arms did unlawfully
and iraudulently take, steal and
carry away from the person of one
Luke Brewer, two silver dollars,
current silver coin of the United
States of America, of the value Of 81
each then and there the cor
poreal personal property of said Luke
Brewer, from and out OF the possession
of said owner without his consent. with
the intent To deprive the owner of the
value thereof, aud appropriate it to the
use and benefit OF him" etc.
Held; This indictment is fatally de
tective to charge theft from the person.
Reversed and dismissed.
Moore vs.. the State: from Bosuue
county. Opinion by White, p. /. Con-
yiction for theft of property over tho
value Of $40. He was charged with the
theft of one coat, one pair OF pants, one
vest, two shirts aud one pair of draw.
ers. The prosecuting witness stated the
goods were worth sci, but in summing
up the price paid for each article sepa.
rate II only amounted to $40 80. Another
witness stated that the goods were
worth S23, but on summing up the value
Of each article he only made il amount
TO 1915. The evidence Is, therefore, in
sufficient. Reversed and rema I'D, d.
Webb va. the State; from Rusk county
Opinion by Wilson, |. The indictment
charges that defendant and one Martin,
"did unlawlully keep and exhibit /
bank for gaming purposes" 1t IL NJ
valid objection that IL charged defend
ant and MARITIME Jointly. Tho proc
showed that defendant kept tabl,
upon which was played the game o
ffteen-ball pool. The game was usual,
PLAYED with the understanding that tn
loser would pay for the drinks or cigar
for all the players, at defendants bar
The table was regular pool table
Money was bet on the game by the play
ers. IL was not the licensed game O
billiards that was played ON the table
Held, mad the Indictment charged tn
defendant with keeping and eXhibitinI
agamiug table for the purpose of gam
ing, the evidence would amply sustain
The conviction. As ii is, however,
oesnot. Reversed and remanded.
Bragg Ns. tho S ate; from Harri
county. Opinion by White, p. j. Their
In no testimony tendil & to establish tina
defendant was over IN Pr SEES ion Of tn
horse in Harris county, where IL was a
legged 10 have been stolen. a witness f.
the state testified that delendaI
brought horse 90 his house in Harri
county IA May, 1883, aud left him ther
two weeks. In December he saw Moor,
the alleged owner of the stolen hors,
leading horse by his house, but
could not say IL WIS the same horse
fendant brought 10 his house. Moor
says he lost the horse in April, 1883, an
he got him from W., in Waller count,
in December, 1883. w says he got III
horse from defendant In October, 1888
which Moore afterwards got from hlu
This was six months after the horse Wa
lost by Moore. Held: The proof Meth,
sustains the venue as laid In the indie
ment, nor makes out n case OF propert
recently stolen. The possession of stole
property 1--we months after the theft
not sufficiently recent TO raise the pr
sumption that the party In possession