Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-02-04
COURT Of APPEALS.
SJnopses Of Decisions Rendered at the
Present Galveston Sitting Of the
Court Of Appeals,
A Number of Gases Reverted and Re m and
ed-Finding In Some Long
Continued Cases.
Oorrespondenoe Of the Gazette.

Correspondence Of the Gazette.
GALVESTON, TEX, Feb. 1.-P. D.
Stockholm VS.. the State; appeal from
Orange county. The appellant and one
Partridge were jointly indicted, and at s
former term, severance being granted,
appellant was convicted and Partridge &C.
quilted. The motion for a new trial in
appellants case WAS supported by the
stiidsYit Of Partridge, and was granted.
Upon this trial the defense offered in evil
dence this supporting affidavit of
Partridge, il being shown that he
was dead. 1t was not error in the
court to reject this evidence. Several
witnesses having testified for the defense
in eHect that the reputation of the state s
witness, George White, for truth and
Verscity, was bad. the following charge
given by the couru vase rror; "When
the general reputation OF q witness
for truth and verscity ia the community
In whoa ho lives has been attacked, the
inquiry must be confined to HE general
reputation and not what 9 particular in
diyidusl or few individuals may believe
concerning lin, and the investigation is
for ruth and veracity and should not ex
tend n his general moral character: and
the jlry is authorized to refuse
10 ceedit and believe any witness
whose reputation has been so
attacked, or you may credit and believe
lin Us you see fl: and proper, ar d believe
70 ne proper to DO so, just as though his
reputation had rot been SO attacked, for,
~. { al ~
ex2lu I've judges Ct the credibility of
each sud all of the witnesses who have
testified before you in the case" R.
veFsed sd remanded. Opinion by
Hurt, J.
w. Z Wills and james Boyd Va. the
Ststo; appel from Jones county. Where
defendants plead IN bar to prosecu-
ton former conviction the burden
OF proof to establish the special plea is
on the defendants. It WAS error for the
court to refuse to give the special in
struction requested by the defendant,
Willis, which is as follows: "Shouid
you believe from the evidence that the
defendant, W. E. Willie, simply stayed or
went home, if Boyd's house was his
home, and was requested to assist in
branding said cattle without : previous
charged you will acquit him" Reversed
and remsnded. Opinion by White, P. j.
Isaac Gray VS.. the State; appeal from
Brsz0s county. Appellant was charged,
tried and convicted in the lower court for
the theft OF money over the value OF $50, !
the property OF one Otto Olohsm. De- |
fepdSnJ offered to introduce as d witness |
in mis- behalf his mother, Nancy Gray, to |
10
objected because said witness was indict- |
ed in the District court and IVES being |
prosecuted for receiving and concerning |
the ssme money stolen by defendant, and
Tor which he was on trial, knowing it TO
have been stolen. The court sustained
The objections and excluded the witness. !
This waserror,a as the Statute providingthaT /
persons charged as principals, accom-
oices, or accessories whether in the same
Indictments or different indictments can.
not be introduced as witnesses for one
another" G. G. z. Art. 731 does not
apply. Receiving stolen property know
ng IL to be stolen IS separate and dis
,inct offense from theft, and no convic-
lion for the one can be had under an in
1ictment charging the other, also the
witness could not be an accessory in the
crime on account OF the fact that she was
ieiendsnt's mother. Reversed and re-
nsnded. Opinion by White, P.J
]. G. Cresswell W. the State; appeal
rom McCulIoch county. Before an
lounciog ready tor trial appellant made
! motion for continuance, the purpose
If Which was to prove by the absent wit
lesses that one Russell owned and
claimed the mare, for tee theft Of which
rom one Rosser ne vas on trial, and had
old her to the co-deiendant, Jonn Cres5-
veil. On the trial appellant proved thst
here were two gray mares resembling
ach others brands IN the same "lold-
ng" brand and running on the same
snge together, and the holding brand /
vas the appellants and Russell's. Evil
Iently the defense was that the mare
vas taken by mistake; that
when defendant told one White the
mare was his and asked White to look
fteriheT, he, appellant, was alluding to
nd speaking of the Russell and not the
sosser mare, and that in truth and in
act, he had never intended to assert 8
lain Of neIship in but the Russell
mare. His defense being mistake Of
act, the court should have submitted
net issue to the jury. In support of his
efense when the evidence which he ad-
uCed at the trial is considered in connec-
ion with his application for a continu-
nee the court should have granted his
notion for new trial. Reversed and re-
handed. Opinion by White, P, ].