Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-10-19
COURT OF. APPEALS.
DECISIONS RENDERED AT THE
PRESENT TYLER SITTING.
The Hon. John p. White, Presiding Judge.
}. NJ. Hurst and w. L. Davidson.
Associate Judges-E. P.
Smith, Clerk.

Charley Williamson VS.. the State: from
| Llano. Horse theft. On motion for re-
hearing. ]. The charge of the court on cir
| cumStantial evidence was defective, in that
1t did not lay down the rule by which the
| jury must be governed in weighing each
| fact or circumstance, and then grouping
| them together as 4 whole, determining
whether they were consistent with each
| other, as well as with the defendants guilt,
| and leading to a moral certainty that the
| defendant and no one else committed the
| offense. II App, ]: also ~ App. G23. >.
Where recent possession of stolen property
| is unexplained, the court should in effect
| charge the jury that to warrant d convic-
| ton, they must be satisfied that the possess
| sion was recent, personal, exclusive, timex
| planned and involved distinct and conscious
| assertion of property by defendant before
| they would be warranted in finding YER
dict of guilty. The court on this point
| charged as follows: ''Recent possession of
property alleged to be stolen is a circum-
stance to be considered by the jury in con-
nectiOn with the other evidence in the
| case This charge was defective, and
| should have complied with the rule above
| laid down. 3 The evidence showed tho
| theft of another horse about the same time
| as the horse in question, and that same was
recovered about the same time The court
| erred in failing in its charge to restrict this
| evidence to its legitimate purpose, instruct
ing the jury that it could not be considered,
save to show intent or to prove defendants
| guilt by circumstances, or to establish
! identity in developing res gestae. 2S APP,
| 315. Reversed and remanded. White, p. j.
| Wesley Callahan VS.. the State; from
! Limestone Murder in first degree with
| life penalty. l. The charge of the court,
whilst it properly defines express malice,
| fails and omits to define malice afore-
| thought Held: Malice aforethought is
an essential element of murder, and the
charge is fatally defective. q App, 200;
| IS App, 1877: - S. W. Rep, $50; Ii S.
W. Rep, 652.l Reversed and remanded.
| White, 2. ].
Daniel James ct al. VS.. the State; from
Dallas. Theft. l. The verdict was as fol-
lows: 1--WE, the jury. find the defendants
guilty as charged and assess their punish
ment at three years confinement in the
penitentiary. r. II. McLemore, foreman
| The Judgment followed the verdict, being
joint instead of separate. Held: \ YER
dict and Judgment against joint offenders
on a Joint trial, to be valid, must assess
separate penalty against each offender
III App, 1871 Reversed and remanded.
White. p. J.
Simon Linticum VS.. the State; from Ma
cogdocheS. Carrying pistol l. \ party
who has purchased a pistol and is carrying
same home cannot be convicted for unlaw-
fully carrying pistol. Reversed and re-
manded. White, p. j.
w. NJ. Whitconib and Sol Maier vs.. the
State: from Anderson. Permitting place
of business to be kept open for traffic on
Sunday. l. The charge in this case being
as above stated, it was error in the court
to charge on every phase of the statute.
Where there are several ways of violating
the same statute and the pleader has Sc;
lected one of these, he must rely ON that
selection, and the charge of the court must
conform thereto. 2 The evidence showed
that the place of business was open without
the knowledge or consent of either of de-
PENDANTS. Under these facts it was error
to refuse the following charge: ST defend
ants place of business was open without
their knowledge or consents, YOU cannot
convict but must acQuit." 3. To our
minds the meaning of the word open
used in our statute, when viewed from the
context of said statute means that the
house of appellants should have been closed
against all traffic, and it is immaterial
whether the door stood open, or was opened
for the ingress and egress Of parties aud
then closed behind them. The views herein
expressed do not conflict in any way with
the Flood case. 10 App, 5s4.] 1. The
verdict and Judgment are defective in that
they are joint and not separate in assessing
the penalty against appellants. Revers ed
and remanded. Davidson, j.
]. L. Burrows ct al. VS.. the State; from
Nacogdoches. /. A bail bond which de-
scribes the offense as "unlawfully CARRYING
on or about his person" pistol, is invalid
and will not support judgment of for
fixture based thereon. The use of the dis
junctive ''or'' instead OF the conductive
and" renders same invalid, describing
no offense against the law. Reversed and
dismissed. Davidson, j.
Jack Melton VS.. the State: from Shelby
aggravated assault l. An AK is not per Sc
q deadly weapon. The evidence shows that
appellant grabbed an ak and ran after the
prosecuting witness, who was fleeing, but
did not catch him or hit him with the ak
There was no evidence of the ak being 4
deadly weapon, and under the facts this
proof was indispensable. Reversed and re-
manded. Davidson. ].
NJ. D. Brown VS.. Lola Stivers: from
Wood. l. This suit was not brought for
the recovery of land. nor did it involve the
title to land, but it was brought for the
trespass committed on the land That
there was some contention as to the true
boundary line between the tract of land |
owned by the parties, does not constitute !
this q suit to try the title to any of said |
land. The location of the boundary line |
aplp- incident fnf he