Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-06-16

two days after service OF q copy Of the
Indictment at the request of defendant
re. G. P. arts. 504, sos and $50 Re-
versed and remsnded. White, Presiding
Judge.
Howard vs.. The State, Llsno. Held:
That the evidence as presented in the
record does not, in our opinion, sustain
the conviction. 1. Is sufficient to estab-
lish thst the defendant took q horse be-
longing to B.gley, as charged in the in
dictment, but 1t does not establish that
such taking was with fraudulent intent
on the part OF the defendant; as we view
the eyldence IL rebuts the allegation Of
fraudulent intent Reversed and re-
m,nded. Wilson, Judge.
Gentry VS.. The State, Falls. Evidence
wds adduced on the trial tending tc show
inst st the same time and place thst the
defendant took the horses mentioned in
the indie: mept, he toCka horse, tho prop
eFty of one Morgan. In the charge to
| the Jury the court failed TO instruct them
as u the purpose Of such testimony, and
that they could not convictstor theft of
any other horse than that one mentioned
In the Indictment. No exception was
made TO this charge st the time, nor Sas
s special charge asket. Held: That
| 1t was error to omit the in
struction to the jury, and had such error
been excepted 10 at the trisl the coLvic-
ton would have to be set aside. But 1t
has never been held that such omission
was fundamental error, which Ia nece5-
sarly fatal to Inc conviction. Where
such error Is for the first time called to
tina attention Of the trial court oy Sm0-
tiCn for new tric!, this court will not re-
verse because Il it, unless /: appears
from the whole evidence that defendants
rights may have been injured in conse-
quence Ct it. That the conviction IS
amply sustained by the eyideUcs, there
csn be no DOUBT. Affirmed. Wilson,
judge.
Rather vs. the State, SaelbY. Corvic-
tisn for murder Ia the first degree with
desth penalty, Tor murder Of his wife. A
motion On arrest of judgment was msde.
l. Because fnolng and return OF the
Indictment By the grand jury into the
open court was not entered on the min
u,es Of the court. Had: That this otjec-
ton, If sustained by the record, which
it is not, could only be made available By
exception taken IN Itntns to the
Indictment. 2. Because The
conviction OF & higher grade than mur-
der in second degree. Held: That the
Indictment is good for murder in first
degree. 8. 1t does not appear from the
minutes of the court that q special venire
was ever ordered as drawn to try this
case. Held; That this ground il sus-
tanned by the record, could not be made
available in motion on arrest CT judg
ment after trial. We sre of opinion sp-
pellant has had q fair and impartial trial,
and one free from reversible error, VS.
are slso Of opinion that the punishment
is one he has nerited by the crime he Is
proven to have committed. Affirmed.
White, presiding judge.
Sin Jones VS.. Ine State; Burnet. Theft
of a geldirg. Held: That the word
used Ia the indictment "appriate" is not
an Engli>h word, and as spelt
is not idem sonans with appro-
pirate. An indictment for theft
must charge explicitly all thst is essential
to constitute the offense and cannot be
aided by intenducnts. Ia this case the
objection IL raised by motion TO quash.
In the case In 43 Texas where the word
passion wss subj sct to decision then the
motion was maze 10 arrest 81 judgment.
Tbs court erred in everything the motion
to qussh. Reversed aad dismissed.
White, Presiding Judge.