The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1894-02-02
THE HIGHER COURTS
THE SYNOPSIS OF DECISIONS AS
HANDED DOWN.
Renderiuss of the state Courts OF
Last Resort In Causes Taken Up
on Appeal From the Lower
Judicial Tribunals.

Court OF Criminal Appeals-J. W Hurt.
W. l.. Davidson and Il. j. Simblns.
Judges; r. l.. henry, assistant attorney
general Sitting az Dallas
Dallas Texas February 1.-The following
DECISIONS were rendered by the court OF
criminal appeals yesterday;
Isom ellis, from Fails county conviction
Tor rape-htty years confinement in the
pem,eut.ary.
Appellant offered to prove that the gen
eral reputation OF the prosecurlX was,
taat she oiJ not have good sense. lais
was rejected; IN his there was no error
tor INSANITY can not be proved by general
reputation.
Appellant further offered to prove by a
witness tnat he haa known the prosecu-
tr!E well for a NUMBER OF years, ard knew
taat sue Was about half crazy. This was
offered Tor the purpose OF showing mat the
prgseCutriX was OF weak intellect. This
may be done by non-eNpert testimony; but
IN order to elicit such testimony the facts
and circumstances upon when the opln-
ion OF the witness is based must be stated
as a prerequisite to the opinion.
There was no error IN refusing TO charge
upon circumstaEtial evidence. The testl-
mony Ia the case being POSITIVE Affirmed.
Davidson, >.
Albert Dodson. from Llano county; con-
ylcton for horse theft After appellants
application for a continuance was over
ruled he requested time 20 prepare an
AFFIDAVIT Tor the purpose of having one
Perry, who vas sepaUte.y indicted Tor the
same transaction, urst placed upon rial
So that Defendant might obtain the tesI-
mony of Perry in his behalf, The reques,
was refused, because tae overriding OF
deLeadant's application for continuance
was equivalent t. announcement on the
merits This was error The defendant ha0
the right TO have Perry first tried, there
being no contention between the defend
ants as 10 whom should he first placed on
trial. We do not think the oyerruins OF
defendants application for continuance
Is equivalent TO an announcement on the
merits The statute docs not state at what
time the severance may be demanded, For
the reason indicated the judgment IS re-
varsed. Davidson, J.
Edward Swiuk from Dallas county; CON
vicyion for cattle theft. The indictmen;
This case does not negative the consent
Of the unknown owner, y motion IN ar
res. of judgment was made on this &C
count and was overruled. This was err
ror. Where the property is owned by one
party and possession is held by another,
che Indictment may so alege; but when the
p.eader SO AYERS, the Indictment must
negative the consent Of both. While it
is sufficient to alleEe ownership and pos
session IN the party having accua care,
control ami maUugemeut OF thc property.
Vet il the p.eGler elect 10 ul.eEe
ownership in the real owner and
possession lu the party SO holding the
property the Indictment must negative tine
consent Of both. While the indictment
may alege ownership in an unknown
owner, in order 10 sustain the indic,menL
the State ON the trial must prove the
grand jury could not and did not by the
use Of reasonable diligence ascertain the
name of the owner. In this case every
Witness testified, and the record evidence
proved that McG1ughy had estrayed the
animal. and this constituted him in law
for the purpose Of this prosecution, the
owner Of the cow. The record shows a Ia
tai variance between the averments OF
the indictment ana the evidence In this re-
spect judgment reversed and cause dis
missed. Davidson, J.