Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-01-31
THE HIGHER COURTS,
SYnOpses Of Decisions Rendered at the
Present Galveston Session Of the
Higher Courts.
mRnded-Important Rendsrings In
Long Continued Cases.
COURT OF APPEALS.
Correspondence of the Gazette.

ment attacked the sufficiency Of the in
dictment because the minutes of the courr
do not show that g foreman for the rgranC
jury which found the bill had ever beer
appointed by the court, nor do they show
that the said grand jury were evel
sworn. A mere formal objection, such
as this could not be aVaiIed Of by q mo
ton in arrest of judgment. It was error
in the trial ceurJ not to have submitted
the issue to the Jury, as to whether the ami.
NAL, alleged TO nave been stolen by the de-
fsndsnt, was bought by him, there having
been evidence to thst effect in the record
"If there is any evidence tending though
slightly to establish defence the defend
ant IS entitled TO a charge directly upon
that point no matter what view the court
may entertain Of the weight and value OF
the testimony" Scott vs.. State, 10 Ct.
App, UP. Reversed and remanded. Opin-
ion by Waite, P. j.
Chilis Banks vs.. the State; appeal
from Chambers county. An indictment
charging that the defendant ndid with
malice afOrerhought kill Martha Hender-
son by shooting her with pistol" will
support q conviction OF murder in the
list degree though it does not charge
that the defendant did "murder" the
deceased. It is sufficient il the acts, ele-
ments and intentions which compose the
offence are set forth in plain and intelli-
gi6le language and conclusions from the
acts and intentions need not be alleged.
Judgment affirmed. Hurt, j.
Henry Coward vs.. the State; appeal
from Edwards county. The evidence
shows the theft of two animals, while the
indictment only charges the theft of one,
but fails TO show which of the two was
the one named in the Indictment. 1t WAS
all important that It should have been
known which animal the prosecution Wss
claiming conviction for, so that the
court could explain to the Jury the only
purpose for which the evidence affecting
the other animal WAS admitted. This the
court failed to do, which failure is re-
versible error. The evidence also shows
unexplained possession OF. property re-
Gently stolen, and the jury were not in
structed upon the rules of law applicable
to such 8 character OF evidence, which
was error. II hereafter prosecuted for
the theft of one of the animals he should
plead the former Judgment in bar, he
might not be Sble to do so on account of
the uncertainty. This should be avoided
by selection on the part of the
prosecution of the animal for the
theft of which the conviction would be
claimed. Judgment reversed and re-
msnded. White, P. j.
James Boyd VS.. the State; appeal from
Jones county. Appellant and one Willis
were Jointly indicted for the theft of one
head OF cattle. They severed, each was
convicted, aud both cases were on appel.
The owner Of the stolen animal lived in
Taylor county. The COW was found in
the possession of the defendant twenty
miles from Arson, in Jones county, and
three months from the last time she was
seen by the owner on her accustomed
range in Taylor county. There is no
testimony, either positive or circumstan-
tial, tending to show that the defendants,
or any one with whom they might be
supposed to have been acting in concert,
were ever seen taking or in possession of
the cow in Taylor county. At most, this
makes the case one Of recent possession.
Recent possession is not positive eyid nee
OF thel.; it is zbut a Circumstance tend
ing to establish it. The law
presenting case of circumstantial evil
denCe should have been submitted to the
jury, because whilst under certain conf
ditions recent possession will support
NOAA'-Se4 &O4 bGS1Sg ~ III OOHbCCllOu
with such other conditions, only one of |
the circumstances from which the guilt isl
inferred. "To incUlpste & defendant as |
principal offender in the crime OF theft |
the state must show that he has some
connection with or completely in the take |
ing of the property. 1t does not suffice /
to prove that subsequently, TO the tAking4
and without completely therein, but with |
knowledge that the property had been |
stolen, ne aided the later to dispose of
it." TCohu vs.. State, 8 Ct. App. 173 Re-
yersed sud remanded. Opinion by
White, P. j.
W. E. Willis VS.. the State; appeal from
Jones county. This is a companion case
to that of Boyd VS.. the State, appellant
having been jointly indie ed with Boyd in
the theft OF COW. At the trial the stste
proved that other animals not belonging
to defendants were found in their possess
sion, and whose marks and brands had
been altered by defendants at the same
time and place, and in the same manner,
and under similar circumstances, as was
the case with the cow in controversy.
The scope, object and purpose OF the
admission of this testimony was not ex-
planned and limited by the charge OF the
court to the jury. Having admitted the
evidence it devolved upon the court in it's
charge to the jury to limit it to its legit-
imate purposes. Reversed and remanded.
Opinion by White, P. j.
T. L. DAmpier VS.. the State; appeal
from MilSm county. When q county con-
vict has worked on county farm q suffi-
cient number Of days to discharge the fine
and casts adjudged against him, at the
rate Of one dollar per day, he is entitled
to be discharged from further confne-
ment. This law is in no manner affected
by the act OF Msy 4, 1882, nor by the act
Of March l, 1887, as Article 1902 of the
Revised Statutes Of whichjthey are amend
story, relate exclusively to the hiring cut
Of county convicts, and have no appllca-
tion Whatever to the case of 8 convict
who has been required to work upon
county farm, or upon the public roads.
1t is ordered that the respondent, A. j.
Lewis, sheriff of Milan county, release
End discharge the applicant from further !
custody, and that said respondent pay the /!
costs of this proceeding. Opinion by ! !
Wilson,J.
Arthur Carr VS.. the State; appeal from :
Red River county. at the time of the :
commission OF the offense, the evidence =
shows that the defendant was over nine, 7
1ut under thirteen years of age. His !.
1onage being established, the burden =
Yev0ivod 11nn0 tho cfafa ~ or5o, - l.