Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-01
COURT OF APPEALS,
DECISIONS RENDERED AT THE
PRESENT AUSTIN SITTING.
The Findinss-Hou. John p. White. Pre-
siding Judge; j. NJ. Hurt and WI.
Davidson. Associate Juagas-P.
Walton, Clerk.

| Thomas kiGley VS. the State from Llano.
| l. This was prosecution commenced in the
| county court uy information charging ap
| pellant with aggravated assault. preoiclted
| upon complaint charging him with assault
| with intent TO murder. Held: A complaint
| charging 4 felony cannot form the basis on
| information, and where on information
| charging misdemsanor IS predicated upon
| complaint alleging i felony, there is such
! variance exhibited as renders the whole
! proceeding void, ami the conviction with
! out warrant o. authority Of law. Because
| the information is without an authorized
| complaint TO support il. the conviction Is
| without legal basis. Reversed and dis
! missed. Davidson, J.
| f. l.. Henry VS.. the State; from Llano.
] Conviction for violating the local option
| law. Assistant Acknowledgement Harrison
| files Il confession Of error. which the
court compliments by adopting ii as their
| opinion, holding that under the local op-
! ton law prior to the ameudatorv act of
| 1887, II was necessary for the commits
SionerS' court 10 re pctitionsd before they
could order am election. and that an order
ordering an election IN the absence of
proof of the filing of legal petition was
iuadmSSible Is evidence. Being no proof
OF petition. it was error TO admit proof
of an order Of the court ordering the
election. Reversed and ramanded.
Davidson. J.
Gulf, Colorado and Santa F'e Railway Us.
A. Key: from Coleman. |. On former
day of the term this cause was remauded
because OF the excessive verdict. On
motion for rcheariEg OF which appellant
has been duly notified and makes no an
swer. appellee flies Il re1nittitur of that
portion OF the verdict held to be in excess
Of the value of the animal sued for. the
judgment will he affirmed for $50 SO
ordered. White, p. J.
w. j. Warder VS. State; from Nolan Tn
lawfully separating fence. /. Under 4
prosecution for violation of the act of
April Is, 1889, il is incumbent on the state to
prove the want Of consent Of the owner. or
joint owner OF the fence TO its removal, as
well as the failure of the party prosecuted
10 give the statutory notice before such re-
moval, and without this proof the evidence
will not support 4 Judgment of conviction.
,. The assistant attorney general, in his
able brief, confesSing error, which is
adopted by the court, says The complaint
and information state no offense, the COM
plant, in that il does not ailege that the re-
moving was without the consent Of the Joint
owner. and the information. in that il
neither alleges the want of consent. nor
want of notice. 1t is the want OF consent
and the failure 10 give notice that Is the
gravamcn of The ofe1se.' Reversed and
dismissed. DaElGSON. -
Andy White Is. the State: from Lamar.
Conviction for aggravated assault with
gun by using sane in am angry and threat
ening manner With intent 70 alarm w. +.
CASTOR. l. The evidence shows that the
alleged injured party was j deputy sheriff,
who, with others. went to the residence of
appellant at night 10 arrest him, having,
however, no warrant and no process OF any
kind for his arrest. When the parties
reached his house appellant was not AT
home and they socretri themselves about
the house and yard awaiting his coming.
When finally appellant came the party ac-
costed him. asking him his name. He asked
them who they were. and they replied
officers" He then commenced backing off,
elevating his gun and keeping same elevated
until he finally ran for his horse and
escaped. Held The evidence does not sup
port the verdict. in that no intention to
alarm anyone within the purvicw of the
statute is shown. Reversed and remanded.
Davidson. J.
Arch English VS.. the State: from Jones.
Horsetheft. /. For the three reasons and
under tie same circumstances as III the
Dixon English case, decided on 4 former
Gay of the term, the court erred in over
ruling the motion for u continuance. As
sistant Acknowledgement Harrison, with
characteristic candOr, confeSSeS error. Re
versed and remanded. White, p. }.
J. y. Kemp vs.. the State: from PalO
Pinto. Conviction for slander by ipputirg
a want OF chastity TO a female. /. the
complaint and information are both Suf-
ticient and set out Sufficiently the SANDER
Gus words. , The middle initial of Il name
is immaterial The information and COM
plant were filed al the same time, as shown
by the Endorsement on same. 3. The al
legations as to divers other WORDS etc,
was properly treated by the court as sur
plusage and besides it is not necessary to
prove all the words or language set out in
the information specifically. T. The ale
CATION that the slanderous words were
uttered in presence OF Gabriel and divers
other witnesses did not require proof that
other persons were present. IL App. 220.
Affirmed. Per curtain.
Fred Sprayberry VS. the State; from
Brown. Malicious mischief. /. The corpus
deficit was fully proved Independent of APP
pellant's confession. ,. The horse was shot
allover on one side with shot. Ii is evident
that somebody shot that horse, and that he
did not shoot himself. Appellant stated
twice that he shot the horse Affirmed
Per curiam.
J. W. Barker rs. the State; from Live
Oak. Creating disturbance az an election.
l. Plea of jeopardy properly stricken out.
Assault set up in the plea Is nor the same
offense as disturbing an election. ,. The
evidence is not sent up in the record. As
there are no exceptions to the action of the
court with reference 10 the persons com
planned of in the motion for new trial. the
matter complained of cannot De considered
here. Affirmed. Per curtain.
Steve Killmau VS.. the State; from Cole
man. Keeping and exhibiting gaming
table / No error in overriding motion 10
qUash indictment. Bad spelling does not
vitiate an indictment. The court did not
err in permitting Morris to testify as to
the facts constituting the offense. No
error. Affirmed. Per curtain.
jim jenkins IS. the State; from Llano.
Unlawfully carrying pistol. l. No state
ment of facts and no bills of exception re-
served. :. The record shows nothing
with reference to the danger. or who was
the dangerous person, or the occasion OF !
the great and imminent peril 10 defendant.
8 The opening sentence of the charge was
rather comprehensive but the court, -
subsequent portions thereof, aided by APP |
pellant's special instructions. presented !
the law in good form. Affirmed. Per |
curtain.
Henry Mckissick vs.. the State; from |
Limestone. ADULTERY / y bill of eHs1f
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