The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-05-29
THE COURTS.
COURT OF APPEALS.

Wilson, j.
There is only circumstantial evil
dence CT theft in this case and the
omission of the trial judge to instruct
the jury in relation to the rules gov
erning in such cases is error for which
the judgment is reversed and case re-
manded.
JOHN ALLEN VS.. THE STATE, from
jeff Davis county. Opinion by Will
son, j.
1t was permissible to show that the
iurat to the complaint was, in fact
made on May 2, 1887, instead of April
2, 1887, because this Was mere cleri-
cal error. The information in this
case is in the usual form and not de-
fective. 1t alleges that defendant
owed $500 State taxes and $3.50
county taxes. The verdict is for $3.50.
The record does not show that $15U
of this verdict were not for county
taxes due. Yet there is no evidence
that county tax had been levied. In
the absence OF such evidence the ver-
dict to that amount could not be sus-
tanned. On account of the uncer-
tainty the judgment is reversed and
the case remanded.
J. r. BOYD VS.. THE STATE, from Co.
: manche county. Opinion by White,
P. J.
This is conviction under Art.
495b Penal Code, the defendant hay
ing been charged with preventing, un-
lawfully, ETC., one Conoway from
moving and rebuilding a fence,
the property OF said Como
way. 1t appears that defendant
and Conoway owned adjoining tracts Of
land, the division line OF which was in
dispute; and defendant refus I'd to per-
nit Conoway to move and reset the
fence until the line had been estab-
lished by competent surveyor. This
is the gist of the matter. The evil
dence shows that Conoway's right to
the line claimed was at least doubtful.
Held: If instead OF civil criminal
tribunal is to pass on case like this,
then the rule applicable to certain
cases of theft applies, that If the title
of the prosecutor be brought into
doubt the court will direct an acquit-
tal-(15 App. 81; II App. 177.) The
evidence is insufficient to warrant a
conviction. Reversed and remanded.
CHAs. MAHLE VS.. THE STATE, from JEFF
ferson county. Opinion by White,
P.J.
Defendant was convicted under Art.
767, P. c., because some mares which
had gotten into defendants pasture
among some mares and a stallion Of
his own were turned out by him into
the road. And he sent the owner
word about all this. Held: The word
"willful," as used in article 767 means
with evil intent, legal malice and with
out reasonable grounds to believe the
act was lawful-(14 App. 200; 16 App.
173.) The evidence as given above
does not support the conviction and
the cause is reversed and remanded.
A. M. GATLIN VS.. THE STATE, from
Coleman county. Opinion by White,
P.
The principal witness testifies that
he saw ~. P. Lynn" playing at game
of cards. DEFENDANTS name is not
mentioned in the trial and there is not
particle of evidence to sustain the
conviction. Reversed and remanded.
JOHN CRUMEs VS.. THE STATE, from
Collin county. Opinion by Will
son, j..
In an indictment for assault with
intent to rob, it is not necessary to
describe which defendant intended to
take, nor is it essential to aver that
defendant intended to deprive the
owner of the value OF it. The indict-
ment is not subject to the exceptions
taken thereto. (13 App. Co.. The
court properly admitted the opinions
of witnesses as to the correspondence
of tracks near the place of robbery
with shoes worn by defendant and
also shoes worn by his companion.
The hair found on the fence was prop
erly shown by the opinion OF witnesses
to be of defendants horse, which he
was riding the night OF the attempted
robbery. The admissibility of such
evidence is no longer an open ques-
ton. (28 App. 1882 What James
Crumes said when he delivered the
pistol to the officer was hearsay and
not part of the res gest@, but James
Crumes might have been made wit
ness to testify to the fact, if he could
have done so, that defendant did not
have the pistol on the night in ques-
ton. James Crumes was not put on
the stand and it was proper for the
district attorney to show that Crumes
was in attendance upon the trial, and
also to comment upon the fact that
he was not called on the stand by de-
PENDANT. There is no error in the
charge, the conviction is free from
error and affirmed.
FRED WEITzEL VS.. THE STATE, from
Goliad county. Opinion by White
p. i.
The name OF the owner OF the stoler
property as written in the indictment
was "Fraude." He spelled his name
however, "Freude." There was exper
testimony to show that the forme
word was pronounced "Frowdy," ant
/