Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-01-23
COURT CT APPEALS.

SOD M Nt AaLo'
Martin Guert vs.. the State; appeal frcm
Red River county. Defendant was charged
in the bill of Indictment with the theft Of
cattle and also with the misdemeanor Of
wilIfully driving the cattle from their &C
customed range without the consent of
the owner. Verdict was as follows: "We
the Jury ind the defendant guilty as
charged in the bill Of Indictment and as
sess his punishment at fine OF 1925 l"
The trial court, upon the verdict, adjudg-
ed the defendant guilty of the felony, that
is, the theft Of cattle. The punishment
assessed being applicable to both the fell
onY and the misdemeenor charged, it was
impossible to determine therefrom wheth-
er the defendant WAS found guilty
of the felony or the misdemeanor.
The verdict should show with reaaon-
able certainty Of VIII ch offense, the felony
or the misdemesuor, the defendant was
found guilty. The verdict should not
have been received by the court, but hav-
ing been received, it should have been
set aside and q new trial granted the de-
PENDANT. The facts in the case having
presented the issue OF q voluntary return
of the alleged stolen cattle by the de-
PENDANT into the sexual possession OF she
owner within reasonable time, and be-
fore any prosecution had been commend
ed against the defendant for taking such
cattle, it was error in the court to refuse
to submit such issue to the jury. Re-
versed and remanded. Opinion by Will
son, j.
Eleck Jefferson w. the State; appeal
from Freestone. Prosecution in the
court below was upon an information for
| d misdemeanor, which information IVES
0ased upon an affidavit or complaint. A
motion in arrest Of Judgment attacked
| the sufficiency Of the complaint because
fine same did not commence with the
words, "Ia the name and by { he suthori-
ty Of the State Of reXas." Whilst 1t is
unQuestionsble that the words are incis-
pensable TO indictments and inforpatioDs
| but the statute prescribing the requisites
of complaint does not require the use
Of these words nor Is complaint re-
quired to set forth the offence with the
same particularly IS is an indictment or
information. II not appearing IN the
record that the defendant pleaded to the
charge in the Information or that Piles
was entered for him the judgment is re-
versed and cause remanded. Opinion by
| White, P. j.
! Exellne Titus vs.. Citizens National
Bank of Waco; appeal from McLennan
county. Appellant having obtained 8
Judgment against Susan E. Hogue, sued
out writ Of punishment against appel
lee to ascertain what moneys or eff cts II
had in its possession belonging 10 De-
fepdant Hogue liable to be applied to the
satisfaction Of appellants Judgment. In
answer to this writ the gsrnishee. among
other things, plesded thai the plaintiff;
| Judgment against Hogue was nullity
and void because based upon insufficient
allegations in the petition as to the resi-
dence of the defendant and upon .
service by publication which was IN
authorized snd unwsrrsnted by law. TIL,
conclusion of law Of the trial judge
"That the petition alleged that Defendsn
| Hogue was resident Of Texas only, ant
did not allege that she WAS 8 citizen o
Texas; aDd that the law in reference t
constructive service can only apply 4