The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-05-22
THE COURTS.
COURT OF APPEALS.

JOHN HARDY VS.. The STATE, from
Eastland county. Opinion by Will
son, j..
The lost or mislaid information in
this case was correctly substituted.
OF the two complaints in the record
the one OF January Ii, has no stand
ing because made long after present
ment If information, and there is no
material variance between he COM
plant of July, 1889, and the informa-
ton, both charge aggravated assault
and battery, in usual form. The con-
viction is set aside, however, on &C
count of objectional remarks of the
district attorney made to the jury and
duly preserved by bills of exception.
These remarks were outside of the
record, wholly unwarranted by the
facts, unprovoked and unjust, and cal
culated to injure the rights of defen-
dant. They are a fragrant violation of
the rules of argument. A new trial
should have been granted, and there
fore the judgment is reversed and re-
manded.
FRANK NANCE VS. The STATE, from
Burnett county. Opinion by White,
P. ].
The statement of facts shows that
no venue was proven, and therefore
the judgment is reversed and re-
manded.
ZEKE McCLEsKEY VS.. The STATE, from
Stephens county. Opinion by
White, P. j.
The information charged defendant,
under Art. $50 of the penal code, with
the wilful and wanton killing of a
dumb animal. The court charged the
Jury on the law of both Art. $50 and
679. This was error, as Art. 679 is in
tended for the protection of the owner
of animal Art. $50 for the protection
of the animals themselves, and the
charge must be confined to the offence
charged in the Information or indict.
ment alone. The charge on circum-
stan tial evidence is obnoxious as being
on the weight Of evidence. The state
ment of facts not showing the ap-
proval of the trial Judge cannot be
considered. In case the facts on a
new trial should show that the hog
was killed or wounded while inside of
cleared and cultivated land, surrounded
by insufficient fence, conviction
could not be had under Art. $685. P. G.
Reversed and remanded.
]. P. LYNN VS.. THE STATE, from Cole
man county. Opinion by Wilson, j.
This case, one of gaming,
was presented by Indictment
in the district court and was from
where transferred to and tried in the
county court. Defendant pleaded to
the jurisdiction urging that the cause
is insufficiently designated in the
order and certificate of transfer, refer
ring to the case as "The State OF Texas
Va. -, No. 645." Held. substantial
compliance with the statute is all that
required in transferring cases (23
App. 42S). Arts. 435 and 437 9. @.
p, provide mode for transfer, and
Art. 415 requires that "the fact of pre-
sentiment shall be entered upon the
minutes noting the style and file
number, but emitting the name Of
the defendant unless he is in custody
or under bond" The file number
upon the indictment in the district
court is evidently for the purpose Of
identifying the cause, and it is, there
fore, held that the proceedings and
certificate of transfer in this cause
giving the file number, was sufficient.
The statement of facts cannot be con-
sidered, as it does not show approval
of trial judge.
Affirmed.
TIC. HUNT VS.. The STATE, from
Eastland county. Opinion by Will
son, ].
Defendant, upon trial for assault,
objected to the charge of the court
to the effect that the use of any danger
GUS weapon or the semblance thereof
in an angry or threatening manner
with intent to alarm another and I'M
der circumstances calculated to affect
that object, comes within the meaning
OF an assault.
Held: In the abstract this in
struction is correct, but it was not
WARRANTED Dy tne lacCs III Chie o"eo' ~
is clear that if the defendant used the
knife in an attempted assault on Nc
Carly it was not with intention OF
alarming him, as the witnesses agree
that defendant drew his knife after
McCarty had turned his back on him
and was walking off. Nor was the act
calculated to alarm McCarty, because
he did not know of defendants act OF
drawing the knife. The charge should
not have been given. On the other
hand, special instruction No. 2, asked
by defendant, should have been sub
mitted to the jury.
DISTRICT COURT.
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