Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-05-20
THE HIGHER COURTS.
synOpses of Decisions Rendered at the Present
Austin Sitting.

Correspondence OF the Gazette.
AUSTIN, TEX, May T.-John Hardy VS.. the
State; from Eastland county. Opinion by Will
son, j. The last or mislaid information in this
case was correctly substituted. OF the two com
plants in the record the one of January ID ha
no standing, because made long after present
ment of information. And there is no mat erial
variance between the complaint Of July, 1889,
and the information, both charge aggravated as
sault and battery in usual form. The conviction
is set aside however, on account of objections
BILE 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 calculated to injure the rights Of
defendant. They fragrant violation of the
rules of argument, new trial should have been
granted, and therefore the judgment is reversed
and remanded.
Frank Nance VS.. the State; from Burnet
county. Opinion by White, P. J.. The state
ment of facts show that no venue was proven,
and therefore the judgment is reversed and re-
manded.
zeke McCleskey vs.. the State; from Stevens
county. Opinion by White, P. ]. The infor-
nation charged defendant under Art $50 of the
penal code with the willful and wanton killing
OF dumb animal. The court charged the jury
on the law of both, Art. $50 and Art. 679. This
was error, article 679 is intended for the pro-
lection of the owner of animals and article $50
for the protection of the animals themselves. and
the charge must be confined to the offence
charged in the information or indictment alone.
The charge on circumstantial evidence is obnox-
ious as being on the weight OF evidence. The
statement of facts not showing the approval of
the trial Judge cannot be considered. In case
the facts on new trial should show that the
hog was killed wounded while inside of
cleared and cultivated land surrounded by in
sufficient fence a conviction could not be had
under Art. $50, P. c.. but would be one de-
nounced by Art. So. P. G. Reversed and re-
mSnded.
j. P. Lynn vs. the State; from Coleman coun-
ty. Opinion by Wilton, ]. This case, one of
gaming, was presented by indictment in the
district court, and was from there transferred to
and tried in the county court. Defendant
pleaded to the jurisdiction urging that the cause
is insuthciently designated in the order and GER
tifcate of transfer, referring to the as:
1.-The State of Texas VS.. -, No. 645, Held:
Substantial compliance with the statute is all
that is requested in transferring cases. l23 App.
42S. Arts. ABS and 437, G. G. P, provide mode
for transfer, and Art. AIS requires that the fact
of presentment shall be entered upon the min
utes noting the style and file number, but omit
ting 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 therefore held that the proceedings and GER
tifcate of transfer in this cause, giving the file
number was sufficient. The statement OF facts
cannot be considered, as it does not show ap-
proval of trial Judge. Affirmed.
7. G. Hurst VS.. the state; from Eastland
county. Opinion by Wilson, j. DEPENDENT,
upon trial for assault, objected to the charge of
the court to the effect that the use of any dam
gerous weapon, or the semblGnce thereof, in an
angry threatening manner, with intent to
alarm another. unucE CaIculateQ
to effect that object. comes within the meaning
Of an assault. Held: In the abstract this as
sertion is correct, but it was not warranted by
the facts in this case. 1t is clear that if defend
ant used the knife in attempted assault upon
McCarty, it was not with the intention of alarm
ing him. as the witnesses agree that defendent
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 defendent. should have been sub
mitted to the jury. Reversed and remanded.