Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1895-05-08
IN THE HIGHER COURTS

CRIMINAL NEUTRALITY-SUSPICIOUS.
Henry Atkinson vs.. Stlte-Appeal
from Houston; Assault with Intent to
commit robbery The lndiatm ant In
this case charges that he "dld make an
assault upon one $. ID, Knox, ana ny
putting him In fear OF life and bodily
injury, did attempt 10 fraudulently
take from the person" II
rs urged that II should have charged
that the assault was made with intent.
60 rob, and that the use OF the word
attempt docs not convey the same
meaning. and the Indictment is there
fore bad The. word attempt IS de
fined as IAN net or cndeaVur, an act
tending toward the accomplishment OF
a purpusu which exceeds a mere intent
or design, but falls short OF an cNecu-
ton OF IT," Eng, and Am, Enc. OF Law,
vol 1. q3g. bishop says; 1t seems
impossible to doubt that the only dis
unctlon between an Intent ana an at
tempt to DO u thing Is that the former
implics the purpose only, while the
latter Implies both the purpose ana
the actual effort 10 carry that pur-
pose into execution. Since therefore.
the word attempt embraces the full
meaning OF intent, with something
moro, 1t Is not impossible that the
courts may hereafter hold IT to be
an admissible substitute in an indict-
mcnt." In this case, the allegation OF
attempt embraces intent, and the in
dictment is good.
Tho state put In evidence CONVEX
sation between defeudent and the sher-
IN and the court excluded conversa-
ton between defendant and Or, Nann.
This was correct, the latter CONVERSE
tlou being no part OF the former. The
declaration OF Perry, one OF the par
ties engaged In the assault, was rem
dered admissible against defendant by
olher evidence, showing conspiracy
between defendant Perry and another
to commit the robbery, There was no
error In falling to charge upon cir
cumstantial evidence. Affirmed. Opin-
ion by Henderson, j.
Marcus Ross vs.. State-Appoal from
l Houston: This Is a companion case to
! that OF Atkinson, supra, and the opin-
/ ion Is decisive OF questions raised. AZ
f,mod. opinion by Henderson. j.
sam Runnels vs. state--Appeal from
/ Travis. Assault TO rob. The same OBJ
| section In raised to the indictment in
| this case as that presented in AtlSin-
! sons case, supra. The word attempt"
/ Is used Instead OF intent" The In
dictment is sufficient. No other ques-
lions presented, and thp facts are
not In the record. Affirmed. opinion by
Davision, j.
sam Williams w. state-Appeal from
| Hamilton: Theft OF "a banana" The
/ plea OF former jeopardy showed upon
it's face that the former indictment
was so fatally defective that 1t could
not be the basis OF a prosecution, and
a Judgment thereon would have been
u nullity. After plea and tho admis-
sion OF part Of the evidence, II was
found that the Indictment did not Mega
tive the want OF consent and It was
dismissed The plea was properly
stricken out. Evidence IN support "
the plea was properly excluded. Al
armed. opinion by Davidson. j,
Henry steele VS., State-Appeal from
Bosque; burglary. Continuance was
properly refused. II was the second
application and set forth that the
evidence OF the absent witness could
not be procured from any other source.
On the trial two witnesses testified 10
the same facts expected 10 he proved
by the absent witness. Tho charge OF
circumstnntlal evidence was correct.
and there was no error In refusing the
one requested. The Indictment IS good
and the facts sufficient. Affirmed.
opinion by Hurt +. j.
Joe Phillips va, stnte--Appeal from,
Brown; Carrying a pistol. There Is
nothing In the record 70 show tina,
the plea OF not guilty was entered in
serves 10 the exclusion of the testimony
J eepuons to the charge and no reg ~