The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-06-13
OPINIONS

OPINIONS.
Following are the opinions delivered by
the court of criminal appeals yesterday:
Antonio Ganasco VS.. The State: con-
viction for horse theft; appealed from Pre-
sidio county.
% The motion for a new trial on ac-
count of newly discovered evidence was
properly overruled. 1t was lot sworn to
either by appellant or his counsel.
~ The motion is defective in another
dence is not alleged to have been I'M
;. known to defendant at the time of the
trial.
90 The evidence, though conflicting,
was sufficient to warrant conviction. We
will not disturb the verdict. The judg-
ment is affirmed. Opinion by Davidson, ].
Jack johnson VS.. The State; conviction
for perjury; appealed from Hopkins
county.
O The Indictment sufficiently alleges
the materiality >of the statement assigned
as perjury.
% The evidence is not before us; hence,
we cannot say that the verdict was I'M
authorized by the testimony. The judg-
ment is affirmed. Opinion by Davidson, j.
John Mcdonald VS.. The State; convic-
tiOn for theft of property of the value Of
more than $50; appealed from Lamar
county.
O The charge of the court upon the
law of principles was correct and was
called for by the evidence.
~ The jury did not credit defendants
statement that he was only Il receiver of
stolen goods and that he was not present
at the theft. Under the other testimony
given at the trial it would have been sur
prising if the jury had believed the tes-
timony of defendant. The judgment is
affirmed. Opinion by Davidson, ].
Chris Weaver VS.. The State; conviction
for perjury; appealed from Hopkins
county.
% Perjury is assigned upon appellants
alleged false testimony before the grand
jury. The indictment shows that the
grand jury was at the time investigating
card playing in a certain house. This
house is not alleged to have been public
place or a place where Intoxicating liquors
were retailed.
Investigations Of grand juries should
only be directed to violations Of law. All
games payed with cards sin a house" are
not prohibited by law; and the indictment
fails to show that the grand jury was
investigating violation of law at the
time the alleged false testimony was
given. Hence it fails to show the ma
terialilty of the testimony assigned as
perjury. The judgment is reversed and
the cause remanded. Opinion by David
son, j.
Tom Phipps VS.. The State, conviction
for murder in the second degree; appeal
ed from Jack county.
Defendant and his father a tbn timn
of the homicide, were engaged in the
mercantile business in Jacksboro. Bad
blood had for some time existed between
them and deceased, Mark Luttrell. 1t
was shown on the trial that deceased re-
peatedly visited the store of defendant on
the day of the homicide and abused him
and his father, and threatened to beat
hell out of the old man." Deceased was
large and powerful man, weighing over
200 pounds. Defendant and his father
were small men. After the first or sec
Ond visit of deceased to their store on
the day of the homicide, they armed them
selves in anticipation of further trouble
with him. After this arming deceased re-
turned to the store and renewed his
threats and was killed by defendant. De-
PENDANT and his father swear that, at the
time of the shooting deceased had put his
hand in his pocket as if to draw pistol.
Other witnesses in the store did not see
this demonstration on the part of deceas-
ed.
~ The court erred in refusing to grant
the continuance requested on account of
the absence of the witness Linebarger.
Due diligence to secure his attendance is
shown in the application; and it is also
shown that his testimony would have
been material 1t would have cOrrObO-
rated the testimony that deceased was
making hostile demonstrations towards
defendant at the time of the homicide.
- % The court erred in allowing the
State to prove that deceased was in the
habit of making the movements relied on
by the defendant as constituting hostile
demonstrations. 1t is not shown that de-
PENDANT was aware of this habit: and the
question is what effect would the move
ments in question reasonably produce on
the mind of defendant.
81 The court erred in its charge on
the law of sef-defense. 1t makes the right
of self-defense to depend upon an actual
attack by deceased. We do not under
stand that the law would require defend
ant to wait until an actual attack was
made. The judgment is reversed and the
cause remanded Opinion by Davidson, ].
Bruno Garcia VS.. The State conviction
for cattle theft; appealed from Hidalgo
county. 49,, 81, o.
APPELLANT pleaded guilty to cattle theft.
The statute authorizing such pleas was
complied with in receiving the, plea. we
see no error in the record. and the Judg-
ment is affirmed. Opinion by Davidson. j.
Bruno Garcia vs. The State; from Hi
dalgo county. This case is similar to the
one reported above and is against the same
party. The Judgment is affirmed. Opin-
ion by Davidson, j.
Bruno Garcia VS.. The State, conviction
for cattle theft; from Hidalgo county, -,
of exceptions in the record. We see no
reason for reversing the judgment and it
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