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

| state, IrOul NllIim, hiPPS 'S' 'O'~'
from Jack; Williams VS.. State. from
Milan; Hunter VS.. State, from Falls.
OPINIONS.
Following are the opinions delivered by
the court of criminal appeals yesterday:
Slomon Rogers VS.. The State, convic-
ton for rape, from Navarro county;
affirmed.
| IN Defendants bills of exception are
defective in that they either do not Show
that the Objectionable evidence was ad-
mitted, or they fail to show that the re-
iected evidence would have been beneficial
to defendant.
| (2) 1t is contended that the evidence
does not justify the verdict. The testi-
mony amply supports the conviction. If
true, as disclosed by the evidence, the de-
PENDANT, negro, went into the residence
of Mrs. Maynard, white woman, at =
O'Clock in the morning, and, with pistol in
| hand. and by violence and threats, accom-
plished his purpose. The matters of de-
Tense We're all fairly submitted to the
jury and solved by them adversely to
appellant. AS presented to us by the
record we do not feel authorized to dis
turb the conviction. Opinion by David
son, j.
Jesse Barton VS.. The State, conviction
for assault with intent to murder, from
Navarro county; affirmed.
| % Defendants afiidavits in support
of his motion for a new trial does not
show that his case was injured by the
fact that he was defended on the trial
below by an attorney appointed by the
court. He seems to have been as well de-
Tended as could have been done under the
circumstances attending his case.
| (2) Affidavits of two jurors show that
they resOrted to chance to determine the
penalty which should be assessed against
defendant in this case. The penalty thus
arrived at was Imprisonment for three
years and 10 months. The verdict as
sessed the penalty at Imprisonment fol
four years.
/. The agreement of the jurors to abide
the result of the drawing is shown, there
fore, not to have been adhered to but
was entirely disregarded and set al
naught. There is no improperly in the
; breach of such an agreement.
; C3) The evidence justities the verdic
and is not substantially contradicted ever
, by the testimony of appellant himself
Opinion by Davidson, j.
| ". y. w llllaIllS VS.. lHe SdIc, cOuNlc
ton for swindling, from Milan county
reversed and remanded.
% Appellant went to Milan county fOI
the purpose of buying stock for ont
Gray, who resided in McLennan county
Gray had directed appellant to pay for tn,
4 stock with drafts on him (Gray) This
was done, and the drafts were not pai(
when presented.
The undisputed evidence shows that ap
o1, don l,n
g sion and with the promise that they would
d be honored when presented; that he hat
l, clear right to so believe, because tn
! bank and Gray had each told him so; tina
> he bought the hogs for Gray and not TO
= himself and this was known to the par
q ties selling them; that Gray accepted TIL
Il hogs, thus ratifying the trade; and tina
appellant obtained no benefit from tn
II transaction.
Under this record we think that the evi
@ dence rebuts any fraudulent intent, ant
II We are unwilling to affirm the judgmen
l. on the statement of facts before us
V Opinion by Davidson, j.
d John Waters VS.. The State, conviction
h for adultery, from Milan county; reverse,
10 and remanded.
n a. The only question in this case i
l. whether there is variance between
S alleged intercourse is charged, as writer
s in the information and the proof. TN,
Y information contains the name Edit
: Cocks" The proof shows the name tC
V have been "Edie Cox" AS to the sur
e names, though not spelled alike, they ar
n idem sOnans; but the given names are no
V idem sonans, and we cannot take judicia
# cognizance of the fact that they are tn
e same in original derivation. The judg
A | mont 10 rnVarcn1 and tha a.
d Opinion by Henderson, j.
n NJ. V. Phipps VS.. The State, conviction
IS for murder in the second degree, from
n Jack county; reversed and remanded.
n ~ This conviction was for the KILN,
', of Mark Luttrall, and is the same trans
n action for which Tom Phips was tried an,
lie convicted and his case reversed and re-
manded at the present term of this court
s The charge of the trial court make
d the right of self-defense to depend upo,
am actual attack made by deceased Of
detandant, when the evidence indicate
IF not an actual attack but rather q prena
1t ration for such attack.
is " The evidence tends to show that dc
1t ceased was preparing to make an unlaW
al Iul attack on Tom Phipps when killed
S, II IS a well recognized principle of lay
h That defendant, under the circumstances
e. would have the same right TO act in do
n tense of his son that he would have f
IS act in his own defense. The charge q
n me court omits to inform the jury on thi
& branch of the case. y" 'ni
al 90 Nowhere in the charge is the iur,
y told atfirmatively that, if Tom Phipns
j. kiiIed deceased and the defendant
19 aid no act or uttered no WORD
r killing, then he would not ' he
Highest of all in Leavening Pc,