The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-04-25
OPINIONS HANDED DOWN BY THE
COURT OF APPEALS
SATURDAY.
A FORGERY CASE FROM HAYS
COUNTY.
Opinion in Murder CAGE from the Same
County That Lawyers Will Find In
teresting. A Poker Game From
Waco Settled.


Geo. Hooker VS.. the State, appeal from
Hays county in a conviction for forgery.
~ The purport clause in the indict-
ment does not allege that the act purported
to be that of fictitious person, but simply
that the name "Clay Rollins" represented
a fictitious person. 1t was but discrip-
tive of the person whose name was forged,
and was not an averment that the in
strument purported to be that of a ficti-
tous or unreal person.
(2) The use of the name of fictitious
person may constitute forgery. (32 Or.
Rep, "A; 20 S. w., 47S; 70 N. W., 571;
! S. W., $50; 129 Mass, $40; SO La,
Ann. 1897
81 The failure of the court to charge
that each fact or circumstance relied on
by the State, as constituting link in the
chain of circumstances, must itself be
proved beyond a reasonable doubt, is as
signed as error.
This charge would be correct in proper
case.
Here, however, the circumstantial evil
dence relied on did not constitute chain.
1t was a cable. One or more of the
strands may break but the cable itself
will not part. Cnhompson on trials, sec.
2512 and note 81
The charge on circumstantial evidence
as given was sufficient when applied to
the evidence in this case.
(4 The forged instrument purports to
have been executed in Bexar county,
but was passed in Hays county. This
was sufficient on the question of venue.
Code Grim. Proc, Art. 206.)
The judgement is affirmed. Opinion by
Davidson, ].
Arthur Hill VS.. the State, appeal from
Karnes county.
The recognizance binds appellant to
"abide the judgment of the court of ap-
peals." 1t is fatally defective under the
statute.
The appeal is dismissed Opinion by
Davidson, j.
II. w. Timon VS.. the State, conviction
for aggregated assault, from Bee county.
Q The plea of former jeopardy was
properly stricken out. The former indict-
ment, after appellant was placed on trial
Hereunder, was dismissed because fatally
defective. 1t could not form the basis
of & valid judgment. (Wilson's Grim.
Proc, sec. 1922
~ The Indictment charges two grounds
of aggravation in separate counts. The
prosecution could not be required to elect
upon which count it could seek a convic-
ton. (Will, Grim. Proc, Sec 2004.)
(3) Grossly insulting words may miti-
gate the punishment of the offense ac-
tually committed but cannot justify or
reduce the offense. Therefore the court
did not err in refusing the special charge.
The judgment is affirmed. Opinion by
Davidson, j.
w. II. Wilson VS.. the State, conviction
for incest, from Baylor county.
% What purports to be the statement
of facts, as shown in the record, can not
be considered because it is not authenti-
Gated in any manner known to the law.
The entire authorization is as follows:
Examined, approved and ordered filed
as part of the records in this case. w.
r. McGill, judge Fiftieth district"
. 1t is not signed by the attorneys. There
is no certificate that the attorneys failed
to agree, nor that the facts contained in
the instrument were proved on the trial,
nor that said instrument has any connec-
ton with appellant's case. Or. S., Arts.
1877 and 1873; 80 Or. Rep, 40.
(2) In the absence of q statement of
facts, no question is presented by the rec
ord which can be considered The judg-
ment is affirmed. Opinion by David
son, j.
Polk Richards vs. the State, conviction
for murder in the second degree; from
Hays county.
There is some testimony tending to
show that appellant shot at on Juan Rios,
and killed the deceased Mrs. Anestacia
Tenoria.
Counsel for appellant requested the trial
court to charge the jury that they must
believe beyond a reasonable doubt that
the defendant did unlawfully kill deceased
with malice afOrethought against her in
dividually, and that malice afOrethought
nUoiDst Iuon Rios hnWnVnr mI1ph pDtpr-
tanned by the defendant, could not be
transferred to the deceased so as to render
the defendant guilty of the unlawful kill
ing of the deceased with malice afore-
thought.
The refusal of the court to give this
charge is the only question presented;
% 1t is conceded by counsel that the
requested charge is not correct when test
= ed by the rules of the common law. But
it is insisted that the statutes of this
State change the rule.
Article Al of the penal code is. the au-
thority relied on. This article provides
that, mo act done by accident is an
provided for, where there has been q
degree of carelessness or negligence which
the law regards as criminal" The eX-
cepted cases, which the law regards as
criminal, are found in chapter 10, penal
code. These provisions of the statute,
including article Al and all the PROVISIONS
of chapter 13, furnish no support for the
position of counsel for appellant. But
Art. 800, penal code, expressly settles the
question against the appellant 1t pro-
vides that: "When one, in the execution
of or in attempting to execute an act
made a felony by the penal law, shall
kill another, though without apparent in
tention to kill, the Offense does not come
within the definition of negligent homi-
eide"
If party, attempting to commit
felony, kills another without so intending,
of what offense is he guilty?
Art At, penal code, answers this ques-
ton. He is ruilty of and shall re
ceive the punishment fixed by law to the
offense actually committed.
When the appellant with his malice
aforethought discharged the gun, it was
not an accident within the meaning OF the
statute. We do not deem it necessary to
elaborate this proposition.
The requested charges were properly
refused. and the judgment is affirmed.
Opinion by Hurt, 2. j.
Charley Hariston vs.. the State, con-
viction for exhibiting, for the purpose OF
gaming, a gaming bank and table; from