Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-11-24
COURT OF APPEALS.
synorsrs Of Decisions Rendered at the Pres
"
Cores rondence of the Gazette. =

SorreSf onCence OF the Gazette.
TYLER, TEX. Nov. 22.-Jessie Sharp
vs.. the State from Ellis. Theft Of cattle.
/. There were two counts III the III iict-
ment, one that the owner OF the steer
was unknown, ard the other that it was
property of j. f. Stout. The proof does
no I sustain the first count because there
is no evidence that the ownership of the
animal was unknown to the grand jury
and that the grand jury used reasonable
diligence to 0surtain the ownership
(2S App. $500 >. Neither DO we think
the evidence sustains the second count,
that the ownership was in j. f. Stout,
but TO our minds the evidence shows
ownership in one Edwards. 8. We
think the evidence also fails to show
appellants completely in the theft. The
mere presence of an accused at the time
and place of the commission of a felony,
if he takes no part or word in the crime
will not not duplicate him as q principal
offender, even though he makes no effort
TO prevent the Preparation of the
offense. Go App. 100; Is App. 637E
Reversed and remanded. Wilson. j.
Lucian LaRose ct al. VS.. the State:
from Ellis. App al from a judgment on
II lOEteILeu Dal LIE pOuu WIS
given in Il case of bisamy, and it de-
scribed the offeuse as follows: 'Luoian
LsRose stands lawfully charged by in
dictment filed in the district court of
Ellis county on the - day of - 1889
with ths offense of -- on the 9th day
of November, 1888, unlawfullv marry
ing Lille Prince. he the said Julian La
Rose then and there having wife liv-
ing He'll: Bigamy is an offense 20
nomine and expressly defined by our
statutes. and the bond not describing the
offense is fatally defective. The ID no
statement that he married Lille Prince
in this state. The Judgment is reversed
and the cause dismissed. White, J. j.
James Parks VS.. the State; from
Ellis. Aggravated assault and battery.
l. There being no evidence that the
pocket knife with hich the allege ed
offenss was committed was deadly
weapon, the evidence does not sustain
the conviction. Reversed and remandeu.
Wilson, }.
j. B. Peasants ct al. VS.. the State;
from Ellis. Judgment on forfeited
bail bond. l. 1t was not error to allow
the state TO dismiss the suit as to the
surety, Peasants, who had not been
served with citation and to render jud2-
ment against the principal and appel
liant. Where there are several defend
ants in suit and some of them are
served with process and others are not,
the plaintiff may discontinue as to those
not served and proceed against those
who have been served, and this principle
is applicable to this case as in other
civil cases. 2. No error was committed
in permitting the recognizauce aud the
,fIfrry, nj 70 l,nr in x-yda
Affirmed. Wilson, j.
John Mcpherson VS.. the State; from
Van Zandt. l. The assistant attorney
general confesses error in that counsel
for the state in his closing argument
common ted upon the failure of defend
ant to testify in his on behalf. This
was reversible error. Reversed aud re-
manded. Wilson, j.
j. r. Boisseau vs.. the State; from
Harrison. Carrying n pistol. |. The
evidence showed that appellant was car
rying his pistol from his residence to his
place of business for the purpose of
cleaning it. The court charged the jury
that" carrying pistol from the residence
TO the place of business for the purpose
of cleaning it does not render such car
rying lawful This charge was ex-
cepted to at the time, and We hold that
the charge given was erroneous and con-
stitutes reversible error. 81 App. 1853,
% App. 495, rs App. 43. 2. 1t was not
error 10 refuse to permit the defendant
to prove that shortly before he carried
the pistol his storehouse was broken into.
This transaction could throw no light on
the case under defendant theory of the
same. Reversed and remanded. White,
Z. j.
Motion TO dismiss. l. recogniZance in
case of using abusive language in the
presence and hearing OF another, etc.,
need not recite that the abusive Ian
guage was used ''In the presence and
hearing of another. Motion over
ruled. Per curtain.
c. r. Weathersby vs.. the State; from
Harrison. Carrying q pistol. l. The
indictment charges appellant with car
ryIng pistol into public assembly.
The recognizauce recites that he stands
charged with unlawfully carrying pis-
toll. Held: The rerognizance recites no
specific offense. Appeal dismissed. Per
curtain.
z. w. Woodson VS.. Texas Trunk Rail-
way; from Kaufman. Motion to file
transcript and brief. /. The motion
shows that the transcript in this case was
mailed III time to reach this court in
time for the assignment to which this
case belongs (third), but miscerried in
the mail and arrived one day too late for
filing on said assignment. Held: The
motion shows diligence was used TO file
the transcript. Motion granted. Per
curtain.
f. l.. Martin s. Co. VS.. T. L. Barn
we'll; from Upshur. Motion for rehear-
ing. Where party denies the justice of
an account under oath, under this de-
NAL he caunot prove payment. No
merit IN the motion. Overruled. Per
Gu riam.
E. A. Ballard vs.. s. A. Murphy; from
Kaufman. Appellee instituted this suit
In justice court to recover witness fees.
He got his Judgment. and appellant ap-
pealed to the county court. In that
court appellee fled trial amendment,
alleging that in the suit in which the wit
meas fees occurred the fees had been ad-
judged against appellant. and that said
judgment was dormant, and sought to
evsde the plea of Limitation and recover
.said fees in this suit under aud by virtue
"6f,tsaid judgment. Eeld: The trial
amendment set up q new cause of action,