Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-11-28
Car Men STRIFE.
COURf OF APPEALS.
DECISIONS RENDERED AT THE
TYLER SESSION.
Hon. John P. White, Presiding Judse-J.
III. Hurt and w. L. Davidson, Assoc
ciate Judges-E p. Smith, Clerk
AARON Jenkins Es. the State: from Smith.


ciate Judses-E p. Smith, Clerk
Aaron Jenkins vs.. the State; from Smith
| Aggravated assault. /. The act of 1899.
| permitting defendants to testify in their
| own behalf, does not change the rule as to
| accessories and accomplices. On the con-
| trary, it is expressly provided by said act
that when there are two or more persons
| jointly charged or indicted and severance
IS had, the privilege Of testifying shall be
extended only TO the person on trial" The
same rule applies if they are separately
charged or indicted for the same oTense.
3 a pistol is not per Sc deadly weapon.
Proof that the pistol with which the alleged
assault was committed was a large five
shooter, and that the assaulted party when
struck staggered and seemed dazed and the
blood flowed from the wound, is not Suff-
cient to show the deadly character of the
pistol as alleged Reversed and reInanded.
White, =. j.
Sam Frank vs. the State; from Smith.
Theft /. Appellant went to one Vickers
and told him he had purchased certain eggs
III the possession of Nickers from the father
OF the latter, paying 10 cents per dozen.
Nickers replied that he did not believe the
statement of appellant The latter then
said that he had purchased the eggs from
dozen. Vickers, after some hesitation, de-
ivered the eggs to appellant. NickerS tes-
titled that he did not know whether to be-
Heve the statement Of appellant or not, and
the father of NlckerS testified that he never
sold the eggs to appellant at any price.
Held: The evidence does not support
conviction for theft. The facts show a case
of swiudling. Reversed and remanded.
Davidson, ..
John Lasher VS.. the State; from Webb.
Forgery. l. The court did not err in ex-
GLIDING the record books TO show the ces-
sion by the state Of Texas to the United
States of the land whereon the ofense was
committed. There shows no notice of their
production given. Certified copies OF the
record would have been admissi BILE in eVi-
dence. 2. The evidence was that the of
Tense was committed in Fort MclnthSh, a
military post occupied by United States
troops. While there was no legal evidence
to show this fact, this court holds that it
can take judicial notice of the fact that Fort
Mcintosh is military post ceded to the
United States government u Am. and
Eng Euc. law IA Al N. Y. 397; 3 Heiskell
(Tenn.): a Ala 232; II Tex. 10S; 10 Tex.
433; 20 Tex. 476; % App. 3Iol. We conclude
that the district court Of Webb county had
no jurisdiction 10 try the case. Reversed
and dismissed. White, p. J.
irony Witbers VS.. the State; from KaUf-
man. Theft l. Whore it is developed on
the trial that certain evidence on which
continuance is asked and refused is not
probably true, the overruling of the motion
for continuance, as well as the motion for
new trial. based thereon, is correct and :,
proper. > The court did not err in eXcus-
iRg jurors who answered or their vOlr dire
SHAT the fact that the appellant was Z
woman and mother would influence them
in finding a verdict. The state is entitled
l.. e l, L. r1,s.r 4
fendant 1t is as much the right of the
state to exclude from the jury person who
mas a bias in favor of defendant as ii is for
the defendant TO exclude one who is preju-
diced against him. IS APP. sos; 3 App
534 Affirmed. Davidson, }.
Arthur Thompson VS.. the State; from
Caldwell. Assault TO murder l. a state
ment of facts not approved by the court
cannot be considered. ,. In the absence Of
a statement of facts it will be presumed
that everything was proved necessary to
be proved. ,. Bills of exception manifest
no reversible error in the absence of q
statement of facts. Affirmed Per curiam.
John Williford vs.. the State; from Fay
cite. Theft of cattle. /. The special plea
of former conviction was passed on by the
jury, under appropriate Instructions. and
found TO be untrue, and the finding IS sup
ported by the evidence. :. No bills of eX-
ception reserved to any ruling of the court.
The charge is correct and evidence sufi-
Gent. Affirmed. Per curiam.
Tom Jones VS.. the State; from Smith.
Swiudlug. l. The Indictment is good and
not subject TO criticism INDUCED in motion
in arrest of judgment 9. The charge is
sufficient and there was no error il refus-
ing special charges asked. Affirmed. Per
curtain.
Sam Brockin vs.. the State; from Har-
din. Burglary. l. The court did not err
in overriding the molten for new trial.
The Juror was not incompetent and not
prejudiced. 2. The facts are sufficient to
support the conviction, and the jury having
decided adversely to appellant, we find no
error. Affirmed. Per curtain.
Iige Simpson vs.. the State; from Harri-
son. Murder In second degree. l. The
charge is correct. The questions were prop
erIv submitted to the jury and they found
homicide This was a question of fact and
was settled by the jury. Affirmed. Per
curtain.
John Williford VS.. the State; from Fayette.
Theft cattle l. There are 20 bills of ex-
ception N the record. The charge is not
subject TO criticism of the motion for new
trial The charge on reasonable doubt IS
Substantially in the language OF the statute.
> Requested charges were properly re-
fused. AS far as correct they were en-
bodied in the main charge. Affirmed. Per
curtain.
o. Paget ct al rs. ]. ]. Wilson; from
Navarro. Proceeding by appellant TO COM
pei appellee as clerk TO make out transcript
and forward the record TO this court. l.
Wilson in his answer shows that his reason
for not making up and forwarding trans
cript was that in his Judgment the sureties
offered on the appeal bond were not good
ard solvent. Held: The showing Is suffi-
Gent. Compliments will pay all costs.
Oyerruled. Per curtain. 4
Jim Davis VS.. the State; from Smith
Carrying pistol. l. There is no stateAenti
of facts in the record and no bills of eXcep-
ton. There is no error apparent of record.
Affirmed. Per curiam.
Seatsn Moody VS.. the State; from Rusk. !
Assault to murder. On motion to dismisS
/. There is no sentence contained in thai