The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-07-04
COURT OF APPEALS.

COURT OF APPEALS.
Following are the opinions delivered by
the court of criminal appeals Saturday:
| Tom little VS.. The State, conviction
for cattle theft from Dallas county. Re.
versed and remanded.
| % Defendant on the trial below,
lproyed an alibi by the testimony of three
| or Tour witnesses. The court refused to
charge with reference to alibi testimony,
though a special charge on the issue was
prepared and presented to it by defendant.
me Iallure TO charge on the issue of abb
was error.
2) The trial court charged the Jury
that if the defendant was, at the time
the alleged theft was committed, keen
ing Watch so as to prevent the interrupt
tion OF those engaged in the theft. they
should convict him as a principal. There
rs no testimony in the record tending 70
snow that defendant was engaged in keen
ing watch, and the charge was not called
Tor in this case.
20 The charge of the court on princi-
Pals' II 1t is not, closely trenches upon a
charge upon the weight of the testimony.
NC {io app 363; Il App, 1851 Opinion
ID. II. Daud alias Dan Jones vs.. The
otate, CONVECTION for forgery. from Hill
county. Reversed and remanded Hurt
r. J., dissenting. -"' =
Ihe instrument alleged TO have heen
forged purported to be the act of +,
thompson, section foreman on section 4
Oh the Texas Central railway. 1t was
rot intended to bind THOMPSON. but to
oDIlgate the railway company and mr.
ported to be the act of said railway
company by its agent. The Indictment
does not inform us what said company
was. We can not assume that it was a
corporation, merely because it has a
name applicable to corporation. When
tne forgery purports to be the act of a
corporation, it should be so alleged. The
Indictment is therefore fatally defective
and the case must be reversed. Major
lty opinion by Henderson, j.
Hurt, L. j., dissents, holding that in
as much as the act alleged was an offense
whether committed against q corporation
or individual or stock company, it was
not necessary to allege the company to
be corporation.
Dan Names VS.. The State: Conviction
for manslaughter; from Falls county.
Reversed and remanded.
% The charge of the court relating to
mutual combat, was not demanded by any
evidence in the record. 1t should not
have been given.
" Two VCniremen We're challenged by
the defense because neither We're free
holders in the State, or householders in
the county, one of theSpe Seniremen
occupied Il room in his fathers house
but had no right thereto except through
his fathers permission. Swearingen, the
other venireman, was clerk, his employ
er furnishing him a room at his house.
n Mt ot
objection to these two men on the ground
noted above was well taken and should
have been sustained. Neither was Il
householder.
(3) Defendant exhausted his peremp-
tory challenges and was compelled to
accept one Foster as a juror. Foster is
shown to have been unfavOrable to de-
PENDANTS side of the case. Now, whether
Foster should or should not have been
rejected for cause he was evidently such
a man as would call loudly for per-
emptory challenge. Defendants peremp-
tory challenge to Foster should have been
sustained. For, as noted above, he was
enormously compelled to use two of these
challenges against the yeniremen who
were not hOuseholders. Had the court
not made this erroneous ruling, defendant
would have had two peremptOry chal-
lenges left and thus could have rejected
the unfavorable juror Foster. The case
must be reversed. Opinion by Hurt, L.
].
f. l.. Carder VS.. The State: Convic-
ton from Clay county. Reversed and re-
manded.
% The alleged forged instrument as
set out in the Indictment was an agree
ment to become member of The State
Business Mems Association and pro-
vision to pay $40 for one years member
shin. The aereemeit was to become
bindinr upon being signed by all the first
class merchants of Henrietta. lex. 1t
was alleged that this false instrument
would. if true, created pecunlary obi
CATION. :, :
On the face of the instrument, it is
clear that no one was required to pay
the so subscription until all of the hrst
class merchants of Henrietta should have
signed the instrument. The Indictment
should. by appropriate inuendOes. have
avered such facts as completed the m
strument and made it create legal liabi-
lily against those signing it, 1t is possible
that. by appropriate avernments, an in
strument 81 this character might be
made the subject of forgery, hut such
averments We're not set out in this case.
60 App, so; 26 App, 17G; - App,
5G7)
(2) From the record it appears, thai.
by the use of this instrument. in con-
nection with certain representations. de-
PENDANT obtained money in sums of so
from certain parties in Henrietta. 1t APP
pears to us. that the transaction was more
in the nature of obtaining money under
false pretenSeS than forgery.
ca The beneficiary. rs shown in said
instrument. is The State Business Mems
association. What this was. wha-ho~ n
co-partnership, joint stock COMPANY.