Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-03
THE HIGHER COURTS.
synOpses of Decisions Rendered at the PEssass

synoDses of Decisions Rendered at the Prsssst
Anstin Sitting. Ssfss
Correspondence of the Gazette.
AUSTIN, TEX, May 31.-W. r Purcelly vs..
the State. from Fannin county, Opinion by Wiz
son j. Appeal from conviction un6er aEtss7sl "A
P. C. which reads: ''Ang perseR having
possession of personal property of another by
Yirt!e of a contract of hiring borrowing, q
other bailment, who shall without the conseDE
to his own use with intent to deprive the owner
of the value o: the same, shall be guilty of
theft. - etc. TO constitute the offense the fol-
lowing essential elements have to be averred:
l. Possession by defendent of the property by
virtue OF contract OF bailment; 2;
he ReienaenS must wvnouS eae , eonse o.
to his own use. g. Such conversion must be
with intent to deprive the owner of the value of
the same. An Intent to appropriate the prop
erty'' is not expressly made an element of the
offence, but the defective allegation of appro-
priation, the indictment reading appriate in
stead of appropriate, becomes immaterial, the
Indictment being otherwise sufficient. The evil
dence does not raise the issue of voluntary re-
turn of the stolen horse, and the court correctly
the jury. The court should have restricted the
consideration of theft of pistol and saddle to the
question of defendants intent regarding the,
horse, but no exceptions was reserved and no iITe
struction asked, and the error is not such
material one as to set aside the conviof 81.
RS App, 6l4;l Defendant is found guilty
dictment. The statute makes thu
offense theft, whereas the judgment recites II
defendant is guilty of the fraudulent conversi 81
of a horse, the judgment will be reformed here
to conform with the statute aud the conviction
is affirmed
Bud Masters vs. the State from Falls county:
opinion by Wilson, J. The evidence presents
the issue of self-defence. The court did not
charge upon ii of his own motion, nor on request
state to the effect that If defendant provoked the
difficulty he could not claim that he acted in
self defence. Held: This charge only presented
the phase of the case most unfavorable TO de-
PENDANT. A full charge on the law of self-de-
fence should have been given.
L. Buchanan VS.. the State, from Fannin
county; opinion by Wilson, j. This is con-
viction for aggravated assault and battery. The
means used by defendant in committing the Of
lenses were his hands and knees. Ordinarily
the use of the hands, fists olher members of
the body will not constitute an aggravated as
sault and battery: III App. 245.l Under the cir
cumstances of this case the use of fists and
knees were not calulated to inaict great bodily
harm, it is only simple assault and battery.
Reversed and remanded.
John Finlan vs.. the state, from Lampasas
county; opinion by Wilson, j.. An indictment
for burglary which charges breaking and entry
by means OF force is a good indictment for
either daytime or nighttime burglary. But the
evidence must show the actual force applied. In
this case the indictment is, good, the actual
force is shown, and it is immaterial therefore
whether the entry was made during the day or
night. The issue of alibi was presented by the
evidence, but no instruction was given on this
question. The omission is not fundamental,
however, and 1t not having been claimed as
error below, by either exception to the
charge, request for a change or in the
motion for new Trial is no cause
for reversal here. But the evidence is wholly
and does not exclude every y
other reasonable hypothesis except that by de-,
fendants guilt, and is therefore sufhcierfL6
warrant the conviction. Some of the stolek ar
tcles were after lapse Of two or three weeks /
traced to defendants possession, other articles
were found at camping place. The tn cory that
defendant got the articles from said cam ping
place Is as unreasonable as thst he burglarized
the house and carried some of the property to
the camping place and some TO another place
Reversed and remanded-
Jerry Lttlejohn vs.. the State, from Fannin |
county; opinio on by White, P. j. The evidence |
is wholly insufficient TO srrant conviction re- /
App. 1901. Reversed and remanded.