The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-05-29

corrupted, friday. Inc trial
Judge held the two names to be idem
sonans\ and refused to submit the
issue as TO difference in sound to the
jury. In Bell v. State, % Tex. 575,
our supreme court held that the ques-
ton as to the name OF the party on
whom the injury was inflicted, should
as in plea OF misnomer by defendant
be submitted to the jury. Under this
authority the court erred in not sub
uniting the question of variance vel
non to the jury with explanations as
to the rules of the question of idem
sonans. Reversed and remanded.
LEE KEMP VS.. THE STATE, from Goliad
county. Opinion by Wilson, j.
In prosecution for assault with
intent to murder, the intent is an es-
sential issue, and the character, extent
and effect of an injury inflicted is an
important inquiry on such issue. For
if the injury inflicted was slight the
presumption would be that no killing
was intended, and vice versa. There
fore, the statements OF defendant in
this case, in motion for new trial,
in favor OF Guy Hall, convicted of
assault with intent to murder to the
effect that the injuries inflicted upon
the party assaulted, according to her
own state nent, were slight and did
not hurt much, we're material to the
tissue made by said motion, AID the
court correctly so charged in this
case. The court told the jury in this
case, that the evidence was wholly cir
cumstantial, explained the rules gov
erning in such cases and authorized
the jury to convict upon circumstan
tial evidence alone. Held, the case is
one of perjury, and a conviction fol
perjury cannot be had in this
State upon purely circumstantial
evidence which is not virtually direct
or positive. The amount of evidence
required is prescribed in Art. TAG, O
G. P. Even conceding that the evil
dence was not wholly circumstantial
the charge of the court was calculated
to prejudice defendant in view of the
character of evidence. Butwe are not
prepared to say that the evidence was
not wholly circumstantial. The only
witness who testified to the falsity Of
the statement made by defendant did
not state anything positive, but only
inferentially. She said that If she
made the statements imputed to her
| in defendants affidavit, she had nc
knowledge of having made them. This
does not exclude the idea that she
might possibly have made the state
ments. The evidence does not abso-
lutely exclude this last hypothesis,
and we are inclined to consider her
testimony as circumstantial only, and
such being its character the judge
should have instructed the jury that
they could not convict on it.
Reversed and remanded.
HILL ELEY VS.. THE STATE, from Jones
county. Opinion by Wilson, ].
This is a conviction for burglary OF
a crib, saddle having been stolen
therefrom. The court charged that
the allusion of witnesses to the theft
of gun should only he considered in
arriving at defendants intent in ref
erence to the saddle charged to have
been stolen, Held: There was moi
even an allusion by witnesses that 9
gun had been stolen, the only evidence
adduced in that respect was that de-
PENDANT was arrested on charge Of
theft of saddle and gun, nothing
| further was said about it. Upon this
evidence the court should have di
rected not to consider the arrest fol-
theft of gun for any purpose. On
another trial more and stronger in
culpatory evidence should be adduced
Reversed and remanded.