The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-06-20

guilty IF any offense. The evidence
tended to show that the above was the
true state of facts, and the jury should
have charged accordingly.
az The State was permitted, over de-
PENDANTS objection, after the evidence
had closed and the first argument had
been made for the State, to recall the
witness Phipps, for the purpose of laying
a predicate for his contradiction.
Conceding that the court was author
lied to introduce impeaching evidence at
this stage of the case, in our opinion, the
witness could not be impeached on the
character of his testimony. 1t was not
as to the statement of any fact, but mere
" related to Phipps' opinion that his
father killed deceased. Opinion by Hen
dersOn, j.
Nose Granger vs. The State: Convic-
ton for assault with intent to murder;
from Orange county. Affirmed.
% The court below did not err in per-
mittting proof that the shot found in the
blanks of the house of the prosecuting wit
ness were of the same size and character
as those found in shell taken from
the gun of defendant on the next da.
This evidence was circumstance leau-
ing to show defendants guilt.
VI line court ulu uOI CIR III Shul Slho
on the law of principals. The evidence
tended to show that the assault was made
by two or more persons acting together
in the prosecution of an unlawful de-
sign.
81 The fact that one of the jurors, Sc
! lected by defendant and agreed to by the
State. was left off the jury and that an
other juror was put in his place by mis-
take affords no ground for a new trial
! When defendant discovered the mistake
he should have requested the court to cor
rect it.
"a The court did not err in refusing
! to grant a continuance on account of
| the alleged newly discovered evidence of
| the witness Thomas. There is nothing
in the application to show that the evil
dence was "newly discovered" and no
diligence whatever to procure it is shown
Opinion by Henderson, j.
L. Abr VS.. State: Conviction for keep
ing disorderly house; from BeXar coun-
! ty. Affirmed.
i (1) 1t is contended that the evidence
/ does not Justify the verdict. 1t is not dis
puted that lewd women and prostitutes
visited appellants dance hall and danced
and drank there. The evidence is suffi-
| cient. Opinion by Davidson, j.
Bill Hunter VS.. The State: Conviction
| for murder in the first degree with life
| imprisonment assessed; from Falls coun-
[ ty. Reversed and remanded
O The court ordered special venire
of ninety men to try this case. The clerk
! subsequently drew the names of only
sixty persons and issued the writ for
, sixty. By this action valuable right
i of appellant was infringed and the court
! should have promptly sustained the, mo,
| ton to quash the venire and have ordered
! the drawing of a new venire in accordance
with the original order.
~ On the corpus deficit the court
charged as follows: "In prosecutions Tor
murder the State must establish clearly
| and satisfactorily two things: Inc
| criminal act and the defendants agency
in the commission of such act"
| In our opinion this charge was not SUI,
| fciently full on the subject. Under an
the evidence in this case it may well pc
/ doubted whether any murder was com
mitted. The evidence being thus DOUBT
full, it was of the utmost Importance 70
! defendant that the court should charge
fully on the necessity of proving the
| corpus deficit. Opinion by Henderson, d.