The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-01-05
THE HERALD: DALLAS, TEXAS, MONDAY, JANUARY 5. 1876

showed that he had horses on tho
range, and in branding season he was
branding them, when a colt was found
among them which he claimed openly,
and branded same with his brand.
There was no evidence OF any attempt
to defraud the owner beyond the fact of
branding the animal. Reversed and re-
Eanded.
Elk parte, Tom Cabney and Green
Hammons, from Palo Pinto county;
opinion by White, p. ]. Appellants
were charged witch murder. On applica-
ton to the district court bail was re-
fused. A careful examination of the
record warrants the court in granting
bail. No evidence as to the ability Of
the parties to give bail appears III the
record, and therefore, the court has no
guide to go by The court then fixes
the bail at $4,000 for each appellant, and
the sheriff is directed to release the
parties, or either of them, from custody
when they execute a bond in said sums,
with good and lawful sureties, condi-
toned as the law requires. Reversed
and remanded.
Jetton VS.. the State; from Ellis county,
Opinion by White, p. j. In support OF
motion for new trial, because court
erred in overriding motion for contin-
uance, the affidavit of each of the absent
witnesses, for whom the continuance is
| fought, is appended; each of the wit
nesses swears he had been served with
subpoena and had never before failed to
appear in this case, and gives reasons
for his failure to appear this time, and
sets forth the facts to which he would
testify if present. No diligence appears
TO be wanting on the part of appellant.
The evidence desired was material, and
from the record we cannot say that the
evidence desired was not probably true,
and the motion should have been
granted. Reversed and remanded.
| Mcmahon VS.. the State, from Hill
county. Opinion by White, p. /. Con
viction for arson. The evidence in the
record is not as strong against appellant
as it is against other parties who had
equal opportunity to have committed
the offence charged to have been com
m tied by appellant. 1t certainly does
not establish appellants guilt with that
degree of moral certainty as would ex-
clude every reasonable hypothesis of his
innocence, and though he may be guilty,
it is not believed it would be safe to let
this conviction stand upon the record
disclosed by the record. Reversed and
remanded.
Thompson ct al. VS.. the State, from
Van Xandt county. Opinion by White,
p. j. one OF the requisites of scre
facias is that it state the offence with
which the principal is charged. In this
case the scire facias denominates the of
fence as "unlawfully using an estray."
This is not the offence for which de
PENDANT was to appear, and such as is
denounced by Art. III, p. c., the words
used in said article, "without comply.
ing with the laws regulating estrays,'
being essential to description of the
statutory offence. As one of the sure.
ties was not served with the writ Of
scire facias no fiscal judgment could be
rendered, and for this and other errors
mentioned the judgment is reversed
and the cause remanded.
Coleman VS.. the State; from BurlesoI
county. Appellant was convicted of al
assault with intent to murder, and hi.
punishment assessed at two years anC
a halt in the penitentiary. The indict
ment, charge OF the court and evidence
are all sufficient to sustain the con
viction. While the evidence excluded
was admissible to impeach the witness
intended to be impeached, yet its exclu
sion is not materially erroneous, becaus
the same facts desired to be proved b,
the excluded evidence were proved b,
other witnesses who testified on tn
trial. Affirmed.