Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-10-30
COURT OF APPEALS.
DECISIONS RENDERED AT THE
TYLER SITTING.
P. j.; j. II. Hurt and W. L. Davidson,
Associate JudGes-E. p. Smith, Clerk.


Associate Judres-E. P. Smith, Clerk.
T. L. Hunter VS.. the State; from Harris.
Murder in second degree with fifty years
Imprisonment. l. An Indictment which
alleges that the murder was committed
upon malice aforethought" or express
malice necessarily charges an unlawful
killing. f2O APP, 255; % App, 244; Is
App, 146.l 2. Baker had served as Juror
in the district court during the April term,
1891, for six days. This cause was tried in
June following. Appellant tried to chal.
lenge said juror because of his previous
service as juror during the April term.
The objection was overruled, appellant tss
fused to peremptorily challenge him. apSale
was taken as juror, appellant exhatsting
subsequently his peremptory challenges.
Held: Subdivision Of article 30l0 of the
Revised Statutes does not apply in criminal
causes and trials. BY act of the Legislature
in 1S16 the grounds for challenge and ofdis-
qualification of jurors applied alike 70 civil
and criminal cases. Acts 1S76,p. 1888,
sec. l-26. But under the revision of the
laws of this state in 1879, the legislature il
its discretion and wisdom saw propeEeb
change this rule, and separate these Gases
of disqualification. By refereace, tn &
civil statutes and the criminal procedure. It
Will be seen that each of the disqualified
tons of jurors are distinctly and clearly
enumerated. 4. s., art. 30l0-30l2; C. c. p,
arts. 63l-636. These statutes are not com.
plements of each other and not so sin-
tended to be regarded by the legiSfa-
ture. The legislature had authority Nfdep
our constitution to provide similar Of NJ
ferent qualifications for jurors in ci1 and
criminal cases. The Dunn case r. App.
6OOl may enunciate an anta9onistic doc
trine, but it was obiter dicta in that case
The juror was not disqualified by reason of
having served six consecutive days two
months previously. g 1t was not error
for the court to permit physician to tes-
tify that the pistol shots caused the death
of deceased, and not the operation per-
formed on him. [l3 App. $50: IA App,
$50. g. The charge correctly defines the
law in the case. No reversible error. AT
tirmed. Davidson, j.
John NJ. Young VS.. the State; from Con-
zales. Horse theft. L. In alleging the
name of any person necessary to be stated
in an indictment, our statutes prescribe
that it shall be sufficient, where person is
known by two or three names, to state
either name. The owner of the alleged
stolen animal being known as Jesus Garcia,
Jesus Boscus, and Jesus Garcia BoScus, the
allegation in the indictment that the animal
stolen was the property of Jesus Garcia,
was sufficient, and there was no variance
in the allegata and probate III showing that
he was variously known by the names
above stated. 2. The principal inculpatory
evidence against appellant was that of an
accomplish, who testified that the animal
was stolen Sur day night, and the other
witnesses corroborated the accomplice that
il was stolen on Sunday night. The owner
of the alleged stolen animal testified that
the last time he saw his horse was on Mon
day morning when he fed him. and that two
Mexicans were present on Monday morning
when he fed his horse. Other evidence
tends to show that appellant did not steal
the horse on Sunday night, and that he was
not and could not have been the party who
stole the horse afterwards. Held: Under
the circumstances new trial should be
granted to secure the newly discovered tes-
timony Of the two MeXicanS, disclosed for
the frst time by Garcia's testimony. Re-
versed and remanded. White, p. j.
John A. Rahm vs. the State; from Bexar
Perjury. !. There was no error in over
ruling the motion to quash the indictment.
The motion alleging change in the indict-
ment was sworn to, but no evidence intro
duced to support same. 1t is also shown
that there was evidence by the state going
strongly to show that the allegations of the
motion were untrue. 1t was the execution
of the instrument and not the instrument
quiry. The Indictment is good. 2.
First, second, third and fifth bills of excep-
ton are uncertain and indefinite, and can
not be considered. Bills of exception to ex-
cluded testimony should show what the an
swerS would have been as well as its ma
teriality. 3. The instrument which appel
liant denied that he signed before the grand
jury was prepared by Oscar Bergstrom, an
attorney, and the state proved by him over
objections that appellant signed the inStru-
ment. Held: The evidence was admissible.
The rule of privileged communication as be-
tween attorney and client does not obtain.
4. Remarks of prosecuting counsel which
are improper must be shown under all the
circumstances as calculated to prejudice
the rights of the accused. [2S App, sos.
1t seems that a conviction will not be set
aside for this cause unless the defendant
requested and was refused an instruction
directing the jury to disregard unauthorized
statements of counsel tor the state. f19
App, 536, 6lS; Will, c. c. P, section 1921.
5. The charge of the court was fair ano cor
rect. Affirmed. White, P. j.
Nora Summers vs.. the State; from John
son. Burglary. 1. The charge fairly and
fully presents the law as applicable to the
evidence shown in the record. 2. The evil
dence fully supports the conviction. There
are no bills Of exception reversed. Affirmed.
Per curtain.
John Hunter vs.. the State; from Ander-
son. On rehearing. l. A recognizance
which recites the offense as "unlawfully
playing at cards in public place" describes
no offense against the law Motion over
ruled. Per curiam.
John Hunter vs.. the State; from Ander-
son. On rehearing. /. This is compan-
ion case to Hunter VS.. State above, and for
same reasons the motion is refused. Over
ruled. Per curiam.
Phil. Ware vs.. the State; from Hender-
son On rehearing. l. A recognizancc
which describes the offense charged as sun
lawfully carrying pistol" recites no
offense, and is fatally defective. Over
ruled. Per curtain.
Duncan Brinkley VS.. the State; from
Young. On rehearing. l. In contempla-
ton of law, appellant had escaped. There
is no conflict between the ruling III this case
and Loyd's case. ne App, 1871 Over
ruled. Per curtain.
Andy Hays VS.. the State; from Young.
On reheariN4 l. This is companion case
to Brinkfe}vs. the State above, and for
same phsQH the motion herein is not well
taken q eruled. Per curtain.
ply.