The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-11-27
THE HIGH COURTS.
COURT OF APPEALS.


Joe Bennett VS.. The State, from De
Witt. Theft of cattle. l. The evil
dence fairly raised the issue of an alibi,
the omission OF the court to charge
upon that issue, being properly ex-
cepted to at the time, was reversible
error. 2. The evidence is circumstan-
tial, there being no direct evidence
that appellant took the stolen animal.
Such being the character OF evidence
an instruction to the jury appropriate
thereto should have been given. Fail
ure to do this was error. Reversed
and remanded. Wilson, ].
Alien Fleming vs. The State, from
Fannin. Theft of horse. /. The ap-
pellant giving different explanations
of his possession of the horse, the
charge of the court under these cir
cumstanCes, on explanation of the
possession of recently stolen prop erty,
was proper. 2. AS to testimony of the
absent witnesses, by whom it was ex-
pected to explain the circumstance of
appellant assuming name other than
his true name, it would not be COM
petent evidence. 1t would not be res
gest@ of the theft, but merely the self
serving declaration of appellant. 1t
could not be considered as probably
true in the light of the other evidence
B. There is nothing 10 the objection
that the indictment charges that the
animal stolen was a "gelding," and the
evidence shows that it was "horse."
Affirmed. Wilson, j.
Robert Wynne VS.. The State, from
Smith. Motion to dismiss appeal. 1.
The appellant being tried for assault
to murder and convicted for simple as
sault, it is sufficient for the recogni-
zance to state that appellant "was con.
victed of simple assault" without stat
ing in what court the conviction was
had. Motion overruled. Per curiam.
Lon Custard vs.. The State, from
Ellis. Motion to dismiss appeal. L.
Appellant was charged with gaming
within the city of Waxahachie on
Sunday. The recognizance recites
that appellant was charged with play
ing craps on Sunday. Held: The
recognizance does not recite offense
charged, nor any ofense against the
law. Appeal dismissed. Per curiam.
James Bryan vs.. The State, from
Van Zandt; motion to dismiss. l..
"Order of the court" means the same
as "leave OF the court" when used in
a recognizance. The recognizance is
sufficient. Motion overruled. Per
curiam.
Jim Garrison vs.. The State, from
Rusk motion to dismiss. l. A recog
nizance which recites that a defend
ant stands charged with carrying a
pistol, is fatally defective in that it re-
cites no offense. Appeal dismissed
Per curiam.
j. D. Steele vs.. Ralph Parish ct al,
from Hunt. l. There is no assign
mont of error, and the record does not
disclose any fundamental error. Al
firmed. Per curiam.
City of Sulphur Springs VS.. o. S.
Davis, from Hopkins. l The assign
ments of error are too general to be
considered. 2. No error is specifically
pointed out and the record does not
show fundamental error. Affirmed.
Per curiam.
SUPREME COURT.
Estate j. M. Lindley Va. w. F. Hen,
derson, from Navarro. Motion to dis
miss appeal. l. The appeal bond was
made out and blank left for the
amount to be inserted by the clerk
when he ascertained the proper
amount. This the clerk failed to do
until the time for perfecting the ap-
peal had expired. The motion will be
granted. Appeal dismissed. Per
curiam.r
Sampson Clitus vs.. ]. w. Landlord,
from Navarro. Motion to dismiss ap-
peal. l. A plea in forma pauperis,
which correctly describes tie judg- |
ment in all respects, save two days
difference in the date of its rendition,
will be held good. Motion refused. |
Per curiam.
A. H. Cooper vs. j. H. Lee, from
Harrison. Motion to give precedence.
L. The motion herein will not be con-
sidered as motion now, but will be
PAT sed upon in connection with the
case. Motion passed. Per curiam.
o. l.. Allen vs.. j. T. Whitaker, from
Smith. Motion to strike out assign
ments of error. L. In appeals to this
court assignments of error can be
made, though no motion for a new
trial was made or special instructions
asked. Motion refused. Per curiam.
L. s. Stringer vs.. Fannie Single
tary. Motion to dismiss appeal. l..
Locker" and "Lockett" are not
idem sonans. The appeal bond mis-
describes the judgment. Appeal dis
Per curiam.
Missouri Pacific railway vs. w.
Scott, from Tarrant Motion to re-
instate. l. On a former day of the
term the cause was dismissed because
no final judgment was shown by the
record. A motion to reinstate and
n