Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-26
COURT OF APPEALS.
DECISIONS RENDERED AT THE
AUSTIN SITTING.
The Findings-Hon. John p. white, p. j.
j. d. Hurt and W. L. Davidson,
Associate Judges p.
Walton. Clerk.

man. Murder in the first degree with the
death penalty assessed. l. 1t has been
held that the arraignment should precede
the trial proper, but it Is also well settled
hat conviction will not be set aside on
appeal because the record shows an ar
raignment at an improper time. 8 App,
2O1-Will. Grim. Stats, Sec. 210S. 2. The
rule which confines the crosS-examination
of witness to questions propounded on
examination in chief, does not exist in
Texas 50 Tex, 240. 3. 1t does not take
an expert to testify as to the decomposition
OF dead body, or as to whether wounds
thereon appeared TO have peen inflicted by
4 shotgun or Winchester rife. a. It was
not error to permit the state to
prove that another dead body was
found several miles from that of
Roberts. it being shown that appel
lant was in company with both the muir
dered men just prior TO their decease. 8.
II was not error to permit the state to
prove the finding of the watch of deceased
In q well at Vernon. Appellant was per-
mitted after his arrest to water his horses
at the well, and had an opportunity to
throw the watch in the well. 6. 1t was
also proper 10 show that property of de-
ceased was found in a trunk claimed by
appellant 1t rendered to show the intent
in the killing and that it was robbery. Ap
pellant has had fair trial. and the evidence
supports the death penalty. Affirmed.
White, =. j.
George W. Lacey vs. the State: from
Burnett. Manslaughter. /. The only evil
dence tending TO support the motion for
change of venue, was set of resolutions
passed by a Masonic lodge, of which de-
ceased was member, eulogistic of his life
and character. 1t was shown that the res
olutions were not published by order of the
lodge, and that such resolutions were usu-
ally passed on the death OF member. No
witness testified that there existed COM
uinatiOn against appellant, or that he could
not get fair trial. The motion being con-
troverted the burden was for appellant to
show that he could not secure an impartial
trial in Burnett county. The states theory
WAS murder, while that Of appellant was
lnanslaughter. The jury found him guilty
Of the latter crime. and this shows that he
could secure fair trial in Burnett county.
The motion to change venue was properly
refused. =. There was no evidence TO justify
the charge of insanity. Affirmed. David
son ]. / agree to this opinion because the
resolutions were not embraced in the bill of
exceptions reserved to the action of the
court in overriding the motion to change
-euue. Hurst, j.
S. Martinez VS.. the State; from F'rio. On
rehearing. l. The contention of appellant
IS that the court did not charge malice
aforethought or implied malice afore-
thought. The court reviews the charge of
the lower court at length, and holds that
malice and malice aforethought are defined
therein, and also that express and implied
malice is also defined The notion is not
well taken. Overruled. Davidson, j.
Adaline Scroggin VS.. the State; from
Dallas. Manslaughter. l. A party who
was bound over by the trial court along
with appellant for the murder Of deceased,
but against whom the grand jury failed n
find true bill, was qualified witness To
testify in behalf of appellant, and the court
erred in excluding her testimony. Not be-
ing indicted she was qualified to testify.
Reversed and remanded. White, p J.
Charles Lyle vs. the State; from Mitch
ell On rthearing. ]. The facts show
that game of draw poker was played on
the table and that appellant was proprietor
of the room in which the game was played.
He YVES also the owner and proprietor Of
the table. The table was covered with
cloth and in the center was a small hole
where the players, when they held threeS,
fushes or full hands, would put one chip
for appellant, the proprietor. Held: The
table nwas not q gaming table within the
meaning of Art. 35S, P. c. The structure
Of the table does not affect the question.
II is the purpose for which it is used. ~
App, 80 Parties playing at this table
could not be indicted and convicted for
playing at gaming table. Reversed and
remanded. Hurt, j.
Mart Schultz vs.. the State; from Llano.
Horse theft !. Appellant took the horse
and rode twenty-one miles to the home of
his brother, when he turned the horse loose
10 go home. Appellant testifies that lie
only took the horse intending to ride him
home and 10 turn him loose to return to his
owner. Held: The jury should have been
instructed rs TO the distinction between
trespass and theft. al Tex, 20S; . App,
iO2; 10 app, 12S; IL App, 2S4. If appel
liant took the horse with the intention Of
keeping il temporarily, there was no theft.
> The court erred in charging on a volun-
'ary return of stolen property. This was
not in the case and was prejudicial to ap-
pelant. Reversed and remanded. White,
p. j.
Ex-parte Charles Hensley; from Potter
l. This is an appeal from the order of the
lower court denying bail on a charge of
murder. Without discussion of the facts
the court thinks appellant is entitled to
bail in the sum of 5000 Reversed with in
structious to admit to bail. Davidson, j.
Tom Morrow vs. the State; from Hill.
Horse theft. /. After careful and mature
elaboration of the facts the court thinks
the evidence insufficient TO support the
Judgment. Reversed ana remanded. White, |
+. j.
J. p. Wright VS.. the State: from Webb. |
Cattle theft l. Appellant failed to reserve |
bill OF exceptions to ruling out bill of sale |
and that question can not be considered |
here A bill of exceptions can not be re- |
served in statement of facts to the ruling |
out or exclusion of testimony, but same |
must be presented by bill of exceptions. |
ID App, 1874; y App, 81; Is App, 96 2.
There was conflict in evidence but this |
was settled by the jury. g. There was no |
demand at any time during the trial for an 4
election by the state as to counts in the in |
iictment. The verdict was treated as q |
lullity on the vicious count and no judg- |!
ment was entered on 1t The Judgment |
was entered on the first count which is a |
good one, charging theft. 4. The motion in |
arrest OF Judgment could not be made as |
prescribed No injury shown in this mat |
,er. Affirmed. Per curtain.
James Maxwell VS.. the State: from |
Stephens. Murder in second degree. /. In |
20 far as the exceptions were taken to the |
charge on the question OF n,anslaughter, !
they are not valid nor good. In this con- |
nection il may also be stated that the state'S
theory of the killing was murder, and the |
defendants was self-defense, and that based |
on the combined attack Of deceased and 4
Ford. Exceptions TO charge with refer |
ence to manslaughter were too general |
Evidence for the state shows at least muir.
der OF the second degree. Affirmed Per |
-uriam.
Rosenthal alias c. 7. Goose VS.. the State; |