The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-04-25

This is played with cards, and the dealer
mas no interest in the game except to
reserve small percentage of the money
bet, unless he takes hand therein. This
percentage is the same no matter what is
the result of the game. If the dealer
takes hand in the game he stands on
exactly the same footing as the other
players. No particular table is required
for the game. 1t may be played as well
upon the floor, bed, or any smooth sur
face, as upon table.
Under the evidence set out above, the
game is neither banking game, nor a
gaming table within the meaning of the
statute. 60 Or. Rep, lis; 81 App, 310)
The evidence does not sustain the con-
viction, and the judgment is reversed and
the cause remanded. Opinion by David
son, j.
G. Eilers VS.. The State, conviction for
embezzlement, from Lavaca county.
The amount claimed to have been taken
was $685.. One Pulliam, employed APP
pellant to collect about $4,000 worth of old
accounts. Appellant was to pay the eX-
penses of collection. Whether he was to
pay court costs or not, does not clearly
appear. Appellant paid out So or $50
in court costs incurred in collecting part of
the accounts.
We do not think that an embezzlement
is shown by the evidence. The testimony
fails to disclose any fraudulent intent or
conversion. If it be admitted that S3.42
of the 6.S5 paid the justice was Pulliam's,
and that appellant had agreed TO pay all
such costs, yet Pulliam had collected some
of the accounts, and had not accounted
to appellant for his collections; and it
would be but fair that appellant should
apply moneys coming into his hands from
the collections to the payment of the
amount due him by Pulliam. We do not
think that fraudulent intent is shown by
the evidence The Judgment is reversed
and the cause remanded. Opinion by
Davidson, j.
Tom Cline VS.. The State, conviction for
murder in the second degree, from Con
zales county.
Q) The bill of exceptions in this case
does not show what appellant expected to
show by the witnesses Lee and William
Munroe. The bill of exception must dis
close the relevancy and materiality of the
proposed testimony in order to recede the
proposed testimony, in order to receive
the attention of this court. GA App,
1859.
(2) To our minds, the evidence of the
occurrences on the night before the shoot
ing establishes conspiracy between Dan
Marshal and Tom Cline. The evidence
of this conspiracy renders pertinent the
acts and declarations of each of the CO.
oonspirators, pending said conspiracy,
and up to and including the consumma-
tion of the object of the same; and this,
in our opinion, rendered admissible the
evidence of Witness Moore as to what
Marshal Cline said to her on the even
ing before the shooting. Although no
names were called, yet there could be no
misunderstanding as to who Cline allud-
ed to in said conversation.
g. We find no error in the charge OF
the court.
The judgment is affirmed. Opinion by
j.
Jim Garner VS.. the State. Conviction
for manslaughter; from Red River coun-
ty.
% The whole charge of the trial court,
taken altogether, fully presented the is
sues in the case both for the State and
the defendant.
20 Garner killed deceased in a quarrel
which arose over a game of cards. De-
ceased made the first assault, whereupon
Garner retreated from the room. He re-
turned in q short time with Ratchet and
killed deceased. After the killing knife
was found in the hand of deceased
Garner claims that he should have been
allowed a new trial, because: O The