Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-02-29
COURT OF APPEALS.
DECISIONS RENDERED AT THE
GALVESTON TERM.
Criminal Appeals DecIded-Theft OF Horse,
Theft OF Steer, Riot. Murder, Embez-
zlement-PoInts on These Crimes
Special to the Gazette.

Special to the Gazette.
GALVESTON, TEX. Feb. 27.-Bill Barber
vs.. the StaUc, from Jones county; convic-
tior for theft of steer. Defendant asked
one Dougherty what he would give for
steers. DOugherty replied he would give
him what-they were worth. Shortly after
wards defendant put about 100 steers IN
Dougherty's pasture. These cattle had
other old brands on them. He got no cattle
branded like these from anyone else.
evidence sufficient to establish in defendant
recent possession. The evidence shows it
, was probable that Williams might have
put the steer in question in the said
bunch of defendants cattle sold
70 Dougherty before they were road
branded. The court erred in refusing
covered evidence Of witness
who swears he saw Williams put
a steer in Dougherty's pasture.
One Camp was allowed to testify that he
had conversation with defendant about
brand of cattle but not the brand charged to
have been stolen II should have been ex-
cluded for irrelevaGcy. Reversed and re-
manded. Opinion by Hurt, j. Bassett, Seay
s. Muse for appellant.
Colly Mcconnell vs.. the State; from
Montgomery county. Conviction for theft
Of horse. The court charged the jury on
the law of accomplice, and told them in the
charge that the witness, Attoway, was in
the atti ude Of an accompEce. If Attoway
Is TO be believed Hargroves was an accom-
pllce, aud the court IS satisfied that no hon
est jury would have convicted defendant
without the testimony of Hargrove5. The
court failed to charge the jury that an ac-
complete cannot be corroborated by another
accomplice. and the case IS reversed and re-
manded. Opinion by Huct, J. Ford q
McComb for appellant.
Harvey Blackwell vs.. the State; from
Waller county. Conviction of riot The
article under which this prosecution is
brought reads; If any persons unlawfully
assemble together, do, or attempt to do,
any illegal act, all those engaged in such
illegal act are guilty of riot" Art. 305
Of p c. reads: ''If any person by engaging
II a,riot shall disturb, ETC., he shall be pun
isned by fine, etc. Article 30S reads: "a
person engaged in any riot whereby an il
legal act IS committed, shall be deemed
guilty of riot" etc. Article
81 reads: "The Indictment must
state the illegal act which was the object of
the meeting or which they proceeded to do,
If the assembly was originally lawful. -
The information here charges Zone
Harvey Blackwell did then and there
unlawfully engage in riot with others,n
etc. The information states a legal con-
clusion. 1t should state after saying they
assembled forwhat purpose they assembled,
and then have set out the unlawful act
White, P. J. Reese & ThompkIns for APP
RELIANT
R. NJ. Felsenthal VS.. the State; from
BeXar county. Convicted for embezzle-
ment. The state was permitted to intro
luce and read in evidence a Judgment of
conviction and sentence in another case, IN
which defendant had been convicted for
burglary and given four years in the
penitentiary. Defendant had not put |
his character in evidence. The fact |
that defendant had made motion for a !
Jew trial for the absence of a witness by |
whom he proposed to prove his good char
Acter, did not authorize the Introduction of |
said judgment and sentence. Said motion |
does not appear TO have been in evidence |
before the jury. Reversed and remanded |
Opinion by White, p. j. A. Levy for APP |
pellant.
Bailey Jackson vs.. the State, from Whar-
ton county; conviction for murder and life |
sentence assessed. There being |
no statement Of facts incor-
porated in bill of exceptions reserved to
the refusal of the court to change the
venue the matter viii not be considered by
the court No error that the special ven
ire was issued to the sheriff, cor any con-
stable, etc" While it may have been an
irregulority to direct the writ to ANY con-
stablen in addition to the sheriff, this will
nst vacgte the writ The sheriff executed
the writ The refusal of the court to allow
defendant an attachment for absent |
veniremen and wait until they come in be-
fore passing on other jurors is not error of
reversible character unless it afirmatively
appear that injury has Injured to defendant |
on account Of failure to observe any of the !
regulations prescribed by the statute for
the organization of the jury. Such statute
is directory and not mandatory. No evil
dence that deceased was about 10 execute
any threats, hence not error TO refuse to
charge on threats. No error to refuse a
charge on manslaughter. Affirmed. Opin-
ion by Davidson, j.
John Todd Us. the State; from Fort Bend
county. Conviction for violating the sun
day law. The question is as to whether or
not FLORIDA water' is properly denomi-
mated drug or medicine that being the ar
ticle sold, Defendant kept a drug store.
Several ply sicians testified as TO whether |
or not the said article was drug, and de-
PENDANT testified that he had refused TO j.
sell many articles but considered this al
drug He dates the enforcement of the |
Sunday law in his town (Richmond) frDm
the ending Of the big revival inau ura4ed |
by the Rev. Sam Jones in Houston. The
evidence fails 10 support the conviction.
Reversed and remanded. Opinion by Dav-
idsOn, j.
Tom Kirby vs.. the State; from Waller
county. Conviction for the theft OF 4
horse. The evidence is positive that the
animals were taken in Waller county as
ei4AtfstN. ILG tcS u uGIeDQllL ana /
Munson both show they got the horses in
Waller county. Defendant claimed that
the horses were turned over to
him by the owner 10 be ,
taken and sold TO defeat certain mort
cages given on them by the owner. De- n
PENDANT proposed to introduce certain
from the alleged owner TO one
Norman in support of his theory. The
court refused to admit them. We find no |
error in this because it is not contradicted
that the horses were mortgaged; if any {
error it was harmless. The testimony as S
10 the brands and description of the horses
was admissible TO identify them Affirmed +
without written opinion. a. J. Harvey for Y
appellant S
p II. McManigle vs.. the State: from
Nueces county. Conviction for embezzle- ;,
nent and felony. The charge is sufficient :
No special instruction asked by defendant I