Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-12-23
THE HIGHER COURTS.
synopsss OF Decisions Rendered at the
tyler sitting.

SyuOpheb OF DeClsiOnB Rendered at tho
tyler sitting.
COURT OF APPBALs---TYLRR TERM, 1856.
j. Willlngham VS.. the State. appeal
from Erath county. The charge in this
case though objected TO, taken as a
whole, is full, fair and correct. There
was no such error In the court fellow as
tended 20 prejudice the rights of the de-
PENDANT, the record showing that he was
accorded fair and impartial trial. AT
frmed. Wilson, j.
Allen Rogers VS.. the State. From La
mar county. This was an appeal from
conviction OF burglary. The overruling
OF motion for continuance is cited by
counsel for defense az error. The con-
tinuance was properl, refused, because
that diligence was not shown which the
statute requires. The motion for new
trial was properly overrued as to contin-
uance, because the evidence was not
probably true In view OF other facts
proved. Affirmed, WiIlson,J.
D. S Clark VS.. the State, Appeal from
Erath county, This appeal Is from con-
vlction for theft OF a horse. Possession
of the alleged stolen horse recently after
the theft thereof Is the only inculpatory
circumstance Of defendants guilt Of auy
weight. This circumstance he explained
before called upon to do so. His ex-
PLANTATION was thst nc traded u mare and
colt to man named Haynes, who repre-
sented that he lived on Armstrong creek,
In Era,h county. While the defendant
did not prove by direct evidence the truth
of this explanation OF his possession of
the horse, he proved IL cifcumstantlally,
and almost conclusiyely, II his
witness testified truly. It was
proven by the state that defendant
did not get said horse from Haynes living
on Armstrong creek, there being but one
man OF that name living on said creek,
and he Ewore that defendant never got
the horse in question from him. When
defendant was called upon TO account for
his possession of the horse, he claimed
that he got him from man named
Haynes, but did not say II was the HAYNES
who lived on Armstrong creek. Defen-
dant also proved that Tn man he got the
horse from told another party he lived In
Mason county. 1t was also shown that
defendant did not attempt to conceal
his possession OF the horse, but
claimed him boldly upon all occa-
sions, and never accounted for
his possession IN any other way than that
he snapped with one Haynes We are OF
the opinion that defendants explanation
OF his possession of the horse IL reason.
able. natural and probable one, and re-
butted and destroyed the inculpatory
force of the circumstances Of his posses.
sion ot the stolen horse, and 1t devolved
upon the state to show the falsity OF such
explanation, otherwise the defendant
should have been acquitted. The evidence
does not show the ialsity Of defendants
explanation, the conviction Is uusupport-
ed by the evidence, and the cause viii be
reversed and remanded. Wilson, j.
Joe Hawkins vs. the State. Appeal
from Someryell county. Where the rec
ord falls TO show that notice OF appeal
was gwen and entered in the minutes OF
the court below, this court has no iurls-
diction. Appeal dismissed Wilson, j.
John May VS.. tho State. Appeal from
Lamar county. In u motion for new
trial on the ground OF newly discovered
testimony, which Is only cumulative,
there being other testimony of the same
Kind In The trial and the same was not
controyerted by the state, the motion
should be overruled. When the evidence
totally falls TO raise an Issue OF a lower
degree OF homicide than murder Ia the
first de-ree the court need not aud should
not charge upon any lower grade OF hom-
lcide. We find no error whatever In the
CONVICTION. Wilson, j.
w. X. Orman Va the State. Appeal
from McLennan county. Appellant was
convicted OF murder of the second degree
and sentenced TO the pententiary for
fourteen years for the killirg OF w. Il
Houston IN the city OF Waco IL was
shown that appellant went and consulted
his attorney as to what punishment he
should receive II he were TO Ill deceased
His attorney was placed ON the stand and
over objections OF appellant his evidence
was admitted Held, that in civil case
this testimony should have been ex cluded I,
the rule, however IN criminal cases is
different. Ia the Queen vs.. Cox, decided
December 20, 1854 60 Am. Crim. Rep /,
l4O), the following We're announced TO be
the correct rules, and IN which we con-
cur; /. To be privileged the communi.
cations must pass between the client and
his attorney in professional conf ence,
and In the legitimate course OF pro-
fessio"al employment OF tho attorney
2. II the communications are made by
the client Go the attorney before the com.
mission OF the crime, aud for the purpose
OF being guided or helped IN TIA con-
missioui they arc not privileged. 3.
Nor does the fact that the attorney
was wholly without blame, in any partlcu-
lar whatever affect the second rule. The
third rule Is In conflict with some decl.
sions, but Ia our opinion Is sustained BY
the weight OF authority. The evidence
Weo admissible. The Judge below sub.