Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-11-20
COURT Of APPEALS.
DECISIONS RENDERED AT TG-
TYLER SITTING.
Hon. John P. White. Presiding Judgo-J.
NJ. Hurt and w. l.. Davidson. Ns,o-
ciate Judses-E. Z. Smith. ClsrA

Tom, alias Dock. Brothertou is. fra
State; from Wichita. Murder 81. '.. ~.
degree with the death penalty assessed
When q special venire has been exhausted
and Jury has not been selected. the COR.
snail order the sheriff 10 summon any nun.
Der of persons it may deem advisable ..-
the formation OF the jury. - Aru Nga'..
ersby VS.. State. And in such case g de-.
PENDANT is not entitled to service OF Q ..s- u
talesmen summoned. 10 App. GJ1. IAN.
4s6 .. Bills of exception wA.rL 60 a.
manifest the error complained of can I'd.
be considered. 3. Counsel shall hays 4:
least one day to prepare Tor tria. vna. -
pointed to defend capital case. b.. his Is
a matter that can be waived. :. Where
special venIre men have not been summoned
after the case is called for triai sl
attachment can not issue 10 compel tLe..
attendance ). The evidence unn..siaa b.y
shows that appellant deliberately mGrjerei
his sleeping wife, and there benz be- eerlr
he must pay the penalty of his crime. ii.
tirmed. Davidson, j.
J. Z. Larol VS.. the State; from Kaufman
Wilfully obstructing public road !.
Where several offenses are embraced in tie
same general definition, and are punishable
in the same manner, they are not distinct
offenses and may be charged cCuIun,t!ye.y
in the same court, or they may be CHARGED
in the same Indictment in different coac,s
TIA App. g. VIII. Grim. Pro. 1889. >. Tie
court erred in excluding the order Of the
commissioners court, as the road alleged 10
have been INSTRUCTED is contended 10 BE- The
original road, and the said order showed
that the original road had been changed
and this though the order was SuJs5.
uuently rescinded. 3. The court erred u
refusing to let appellant testify tina, lie
told the party who opened the road At the
time that the road had been opened withol.
an order of court. t. The road as origin
ally travelled was some distance from ap-
pellant's fence, and the road obstructed 3
not the original road, but is q road laid out
without an order of court, and without aa-
| thority OF law. During the past thirty
wears there has been no fixed locality OF tie
! road, but it has migrated all these years
| and has been in many different places. Inc
| evidence does not show this road was VII
| fully INSTRUCTED Reversed and remaldtL
| Davidson, j.
John HAYS and Charles Trent VS. me
| State; from Dallas. Burglary !. Where
two parties are Jointly charged with IN Of
| Tense, and the verdict and judgment IS also
| Joint and separate the conviction Canho'
stand. [26 App, So; s App, 3gS. : lle
court charged the jury that If they oe!le'si,
1
| them committed the burglary they slola
| find them guilty. Held: Error. because u
| authorizes conviction of both on proof O;
| the guilt of either. 3. The unquestloleI
| proof showed appellant Hays to be uAlei
sixteen years of age and the verdict HAa
| Judgment are erroneous in not ascer'ailA5
| that fact. T. The evidence tends TO sho"
that Hays purchased the goods, al !ea'.
| Hays so testified, and the court erred ihtly'
submitting this issue. The assistant alIvli
| ney-general confesses error. Reversed anu
remanded. Davidson, j.
HIM. Clark VS.. the State; from Jones.
| Cattle theft. l. Proof by one witness 'AA'
he saw steer Of the description OF the D.
legged stolen animal in the Indian Nalol,
and by another witness that he saw see.
| of the same description in the pOSscSslOa y.
appellant in Jones county, IS not s1il ..5r
to show recent possession OF stOITn ptoI
erty. The facts or circumstances whlcn az a..
to be used as the means of arriving AZ ' Nc
principal fact sought, must actua.t, ~ =.
proved, and its place can not be supple1 ~ ".
presumption. The state must Prov .is,
presume-beyond reasonable douoL . ,ra:
the steer as seen in the Indian Nation Wa
the same one sold in Jones county 2y o.
pellant. 2. The alleged stolen ANNA. -
branded WADE" The appellan; cam -
he took the animal believing 1t Deloh5eTr 1s
a boy whose given name was Wade !Hs
court erred in overruling a motion iot Oh.
continuance based on the ground OF tn1 3od
sence of this boy. Reversed and reI'I4'''4
Hurt, ]. r,.-,rae.
Texas Trunk Railway vs.. Sam Pa 5ti..sS.;
from Kaufman. 1. A case may be ann . .5st
by an agreement of both parties " $3.50
effect. Affirmed. Per curtain.
w. A. O'Neal vs.. Commerce NaLl'-- N
Bank; from Hunt. Motion to aulrm ne ~
certificate. l. The motion shows a,E,ar,
fecting of the appeal, and an a1ahdo ~ ,bs
of same as well as the Jurisdiction VI nm
court Affirmed On certificate. Per c-i'-'
E. R. & NJ. R. Flewellen vs.. l.. j. MI
from Rains. /. This cause hayil5 20 nj
tried in the district court Of Rams 49, 80
this court can entertain no lur!s 5- pa
Dismissed for want of jurisdiction
curtain.