Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-12
COURT OF APPEALS.
DECISIONS RENDERED AT THE
AUSTIN SITTING.
The Findings-Hon. John =. White, Pre-
siding Judge; ii. vi. Hurt and W. l..
Davidson, Associate Judges-P.
Walton, Clerk.

! Dick HowelIs VS.. the State; from Falls.
| Wilfully failing as an Overseer 10 work
| public road. / The allegation in the in
| dictment that the offense was committed
| in Falls county is a sufficient allegation
! that the road which appellant failed 10
| work was in Falls county. But we think
| the Indictment alleges the road to be III
| Falls county 2. The evidence relied upon
| for conviction shows that from the field
| notes laying out the road it was impoSsi
| bic to lind 1t, and some OF the witnesses
| who lived near the road since 1850 testi-
| fled they did not know its true locality as
| same was so often changed. When the
owner OF land over which the road ran
| saw proper he would build q fence across
| the road, and thus throw it on adjoining
| land, unless it was also inclosed, when the
| road would be stopped altogether. Every
| body did this until the identity of the road
| was completely lost Appellant tried to
| find the true road and could not. Held:
| The evidence does not support the verdict
and Judgment. Reversed and remanded.
Davidson, j.
CLYDE Parks VS.. the State; from Bell
| Cattle theft. I. Where there are several
| counts in an Indictment and the court limits
| the jury in their finding to one of said
| counts only, it IS tantdmount to an election
| by the state to rely on that count alone.
| "A App, 1888; App, Cts. .. Appellant,
| boy eighteen years OF age, was employed by
| G. L. Mcclure TO help him drive herd of
| cattle from Coryel county to Temple, in
| Bell county. The father of appellant had
cattle running on the range along the route
and instructed appellant if he found any of
| MS cattle on the way to herd them and sell
! them in Temple. On the route appellant
! found two head OF cattle unmarked and I'M
| branded at the residence OF one Newman
and in the presence of the wife of said
| Newman openly put said cattle in the herd
and, driving them to Temple, after some
negotiations openly sold them. The wife
OF Newman (who claimed the cattle) en-
| tered no protest when she saw appellant
get the cattle. Held: We think there was
| no fraudulent taking shown. Every act of
| appellant was open, public and frank. Re-
yersed and remanded. Davidson, j.
Henry MCGEE vs. the State; from Harris.
Murder in first degree, with death penalty
| l. Dan Gains, witness for the state, was
shown by appellant to be an ex-convict,
whereupon the state produced pardon
which contained the following provision:
Subject to revocation by the governor Of
Texas whenever it shall be deemed by said
governor that he has violated any of the
criminal laws of this state The court
refused to exclude the testimony. Held:
The admission of the evidence was error.
Such conditional pardon did not restore to
the witness his competency as witness.
119 App, 635: "a App, 163. Reversed and
remanded Davidson, ].
Ed Jordan VS.. the State; from Clay.
l. It was reversible error for the county
attorney to refer to the fact that Florence
Hamilton, who was jointly indicted with
appellant. had failed to testify in the lattcr's
behalf. General Laws 1887, p. 81 She
could not testify for him nor in his behalf
as long as she was so indicted, nor until she
had paid, her fine and costs in case of her
conviction. re. c. P. Art 7337. Reversed
and remanded. Davidson, j.
Walter Nation vs. the State: from Ander-
SON. Forgery. /. The indictment in this
case concludes, against the peace and dig
nifty of the state using the character 80
in the place of the word and The in
dictment cannot be attacked on this ground.
T5S Ala. 364-5; 81 Me. 4s4; 90 Mass 401 80
Mass. So; II Miss. SIS; l6 App. 247 9.
Original papers sent up TO this court and
not certified to as such by the clerk of the
court below can not be considered in this
court. "a App. 314; 43 Tex. 3,2. 3. The
reopening of the case after argument had
begun and the introduction OF evidence by
both sides was q matter within the discre-
ton OF the court and his action will not be
revised Affirmed. Davidson, j.
Henry Brooks vs. the State; from Hop-
kins. Perjury. l. In substance the matter
assigned as perjury in the Indictment upon
which defendant has been convicted in this
case was that defendant in an investigation
before the grand jury testified or swore
that he did not at time and place men
toned say to S. Il. Downing and Howard
Tenpleton that or the night Of the 10Th of
February, 1891, he was present at the
breaking Of certain store house in the
town of Black Jack Grove, and participated
in said breaking and knew the circum-
stances attending said breaking. It is also
alleged that matter was 4 material inquiry
before the grand jury, and that defendant
did at the time and place make said state
| ments to Downing and Templeton, and that
his statement denying same under oath be-
fore the grand jury was wilfully and de-