Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-24
THE HIGHER COURTS.
synopses of Decisions Rendered at the Present
Austin Sitting.

synopses Of Decisions Rendered at the Present
Austin Sitting.
Correspondence ofthe Gazette.
AUSTIN, Tex. May 22.-George Deaton vs.. the
State, from Val Verde county; opinion by Will
son, ]. There is only circumstancial evidence
of theft in this case, and the omission OF the
trial Judge to instruct the jury in relation to the
rules governing in such cases is error for which
the Judgment is reversed and case remanded-
John Allen VS.. the state, from Jen OaYls
county; opinion by Wilson, j.. 1t was per
missible to show that the iurat to the compialnt
was in fact NJ ade on May 2, 1887, instead OF April
2, 1887, because this was mere clerical error;
form and not defective. 1t alleges that deIen-
dant owed $500 state taxes and $50 county taxes.
show that $3.50 of this verdict not for county
taxes due, yet there is no evidence that county
taE had been levied. In the absence OF suen
evidence the verdict to that amount could not De
sustained. On account OF the uncertainty the
judgment is reversed and case renanded.
]. R Boyd VS.. the State, from Comanche
county; opinion by White, P. j, This IS con-
viction under Art, 495b, penal code, the defend
ant having been charged with preventing un,
lawfully, ETC., one Conowey from moving and
rebuilding fence, the property OF said Como
way. 1t appears that defendant and ConoWay
owned adjoining tracts OF land, the division hne
of which was in dispute. and defendant refused
to permit Oonoway to move and reset the fence
until the line had been established by q compe-
tent surveyor. This is the gist of the matter
The evidence SHOWS tnaL COnOWay IlBlL " JIG
line claimed was at least doubtful. Held: II
instead of civil criminal tribunal IS to pass
on case like this then the rule. applicable to
certain Of theft applies, that II the tltIe OF
the prosecutor be brought into doubt, the court
will direct an acquittal. 10 App. 81, II app
I'LL The evidence is insufficient to warrrnt a
conviction, Reversed and remRnded.
Chas. Maple vs.. the State, from JET Davis
county; opinion by W hite, 2. j. DefendantWaS
convicted under article 767 p. @. because some
mares which had gotten into Defendant pas
ture among some mares and q stallion OF his
own, were thrown out by him into The road, and
he sent the owner word about al! TINS: He'd:
The word ''wilful' as used in article 161 means
with evil intent, legal malice and without rea-
sonable ground TO believe that the act was law
full. IA App, 200; 1s App, 173. The evidence ;
and the cause is reversed and remanded.
R. NJ, Gatlin vs. the State. from Coleman
county; opinion by White, P. j. The principsI
witness testifes that he saw j. p. Lynn play
ing at q game of cards. Defendants name 10 not
mentioned in the trial. and there IS not particle
of evidence to sustain the conviction. Reversed
John Crumes ys.the State, from Collin county;
opinion by Wilson, j. In an Indictment for as
sault with intent to rob It Is not necessary 70 ae
take, nor Is it essential to aver that defendant
intended to deprive the owner OF the value OF II.
taken thereto. [I3 App, 65.l The court prop
erly admitted the opinions OF witnesses as 70 the
correspondence OF tracks near the place OF rod
tSFfY with shoes worn by defendAnt ana also
shoes worn by his companion. The hair found
on the fence was properly shown By the opinion
of witnesses to be OF defendant horse, which
he was riding the night OF the attempted
robbery. The admissibility Of such evidence a.
nc7onger an open question. = app, lsgJ
.r1izt James Crumes said when he delivered the
EEistol 70 the officer was heSrsay and not part OF
the res geste, but James Crumes might have
been made witness to testify to the fact If he
could have done so, that defendant did not have
the pistol on the night in question. James
Crunaes was not put on the stand, and it was
proper for the district attorney to show thai
Crumes was in attendance upon the trial, ana
alao the comment upon the fact that he wzs not
called on the stand By defendant. There is no
error in the charge; the conviction is free from
error and affirmed
Bred Weitzel VS.. the State, from Goliad eoun-
ty; opinion By White, P. J. The name Of the
owner Of the stolen property as written in the
Indictment, was s.FrEude.n He Epelt his
name however, .sFreude.'' There was expert
testimony to show that the former word East
pronounced "Frowdy, >, and the latter, FEay-s
dy" or, IL corrupted, Friday" The Tlal
Judge held the two names to be idem sonans and
refused to submit the issue as 10 difference in
sound to the Jury. In Bell vs.. State, rs Tex,
SIS. our supreme court held that the question as
to the name of the party on whom the injury was
inflicted, should, as in q plea Of misnOmer By
defendant. be submitted to the jury. Under
this authority the court erred in not subrnitIngl
the question Of variance. vel non, TO the Ssis,
with explanations As 70 the rules Of tie qus 1H0n
Of fdern sonsus. Reversed and Remainder
Lee Kemp vs.. the State, from Golizd county.
opinion bY Wilson. J. In . prosecution Tor