Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-02-05
Court of Ann.nls-

versed and remanded. Opinion by Stay
ton, j
Court of Appeals
Laurence Lott VS.. the state, appeal from
Wilson. This is a conviction for theft,
thelevidence that two mares, suiting the de-
scriptiou Of those alleged to belong to
the prosecutor, were running in the
range with the stock of Mrs Grain, With
in about two miles of defendants house /;
that knowing whose they were, the de-
PENDANT sold them to one Roberts. without
the consent OF the owner, and
with fraudulent intent. There
is no evidence that the defendant
ever had possession OF the animals.
Held, that under the definition of theft in
our code there must be Il taking of the
property. While it is not necessary to
show aspertation there must have been
possession of the property by the thief.
There can be no theft without trespass.
llardeman VS. State, II ch. app. 207; p.
c. art 72i, 72G; Bish criminal law, vol.
sec 709-S00 The evidence did not war
rant conviction for THEFT. Reversed and
remanded. Opinion by Hurt, j.
Joe Cohen vs.. the State, appeal from Gal
weston. Appel ant was indicied for embez.
element Oicerlain goods, the property Of j
Bernham and n Ridlick, partners under
the firm name of Jacob Bernham & CO.
Appellant was employed by the firm in
Galveston as drummer and the goods
were samples furnished him by the firm
These goods were selected aud packed in
trunks, defendant being present. Lullng
was the point to which they were 20 be
shipped by rail, at which point appellant
was TO leave the railroad and travel
through the country. When the goods were
packed, at the request of defendant
Rdiick went TO the depot in Galveston
and shipped the trunks to Luling, paying
the excess in night and receiving checks
which he delivered to defendant In Gal
weston. Defendant sold the samples to a
merchant at Laredo and never accounted
Held, that the defendant had possession
OF the goods in Galveston as agent of the
urn, and the facts authorized convic-
ton In Galveston county j. c. Art. $50 !;
Cole VS.. State lG CT. App. 4Gl.
IL is unnecessary to charge upon the
limitation within which an offense may be
prosecuted II there Is no issue or ques-
ton OF limitation raised by the evidence
Whilst the record shows that Ridlick, one
OF the firm, appeared and testified that he
mad not given his consent to the CONVEX
sion, no such want Of consent was shown
as to the other partner, Bernham. Held,
that until Bernham's non-consent was
proved the states case was not made out.
Reversed and remanded. Opinion by
White, T., j.
A. Stevens VS.. the State, appeal from
Milan. Where in an Indictment for muir
der alleges that the homicide was with
'malice aforethought," IL is unnecessary
to allege that 1t was "unlawful - If com
mitted with malice atorethought it was
necessarily unlawful.
The homicide occurred at dance
given to children at the house
OF Davis, The deceased was the son-in.
law OF Mrs. Davis. Defendant had
come TO the dance with Davis, who was
the head Of the family. on the trial
Mrs. Davis was allowed, over obi, ction.
to testify that she had not invited de-
fcndant to her house; that there was bad
feeling ON her part towards defendant
and to detail its cause Held, inadmis.
slble as being irrelevant and OF such n
character ~ to Improperly influence the
jury
Where the character of the defendant
's not put in issue by the evidence IL was
Improper for counsel for the state TO dis
cu~s his character in his argument To the
jury. Reversed and remanded. Opinion
by Wilson, y.
Geo. ii. Moore VS.. the State, appeal
from Grayson. The Indictment for
swiddliug alleges that defendant repre.
scented that he had certain large sums OF
money on deposit In the bank
IL was proved that he represented that he
mad $4,000 on deposit in said bank There
Is no material variance In the allegation
ana proof, Where an indictment as IN
this case processes to give the substance
OF the representations, ii Is not necessary
10 prove them with minute exactness hut
ohiy win that degree OF certainty which
VIII serve satisfactorily TO Identity The
REPRESENTATIONS proved with those alleged
me Indictment alleges the amount OBJ
tanned TO have been SlOG, while the evi.
dence shows that he obtained s,oa
Ihere Is no fatal variance; it was onlv
NECESSARY TO snow that the amount ob.
tanned was over $50 Bish. Grim Law
sec. 4eS b.
The bank had cashier two
book-keepers, teller and n cor.
responding clerk The cashier testi.
he'd that each OF these persons wsr,.
authorized TO aud did receive mnnsv
from the hands 81 depositors. and ths,
me corresponding clerk received Mi
money sent 10y mail or express by deposit.
orsi that the bank kept u deposit book
and on this book all deposits were an
Tered, or supposed TO be entered. An tho
regular business OF the bank; that de.
iendant had never deposited any money
70 the bank within his knowledre,
tnAt the books showed no deposit M IA
iendant, He could not state whether o.
nor me other employees ia the bank hsd |
received any money from defendant
hone 81 me other employees testified In
upon the state in this case 10 prnye n
syn'e inAnner either by the employees AZ I
To- = !, o s or by circumstances, the falsity /
y delendanps representation thar he ma
money ln said hank, beyond a reasona nv
(, a,'noI' and ne evidence given is not III. \
.ossnt ,or th's purpose Reversed and re.
nsnaed Opinion BY Wilson, J.
nuSs enumiey rs' ihe Stale, appeal from