The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-05-02

COURT Of CRIMINAL APPEALS
INTERESTING OPINIONS HANDED
DOWN SATURDAY BY THE
ABLE JUDGES.
SEDUCTION AND OTHER CRIMI-
NAL CASES DISPOSED OF.
Murder Case From Taylor County and
an Assault to Murder From Gray
son-All of Them Interesting
Reading for Lawyers.

III
for seduction; from Grayson county.
Cd The evidence against defendant
was circumstantial. The State was al
lowed to prove over defendants objection
that Addie Hardin, the party charged to
have been seduced, had committed sui
eide shortly after the alleged seduction.
1t would have been permissible to have
shown the fact that Addie Hardin was
dead. This would have accounted for
her absence and failure to testify on the
trial. But the manner of her death
was not material, and tended to prove
no fact pertinent to the charge, and was
of that character which would greatly
prejudice the rights of defendant before
the jury. The fact of suicide should not
have been admitted.
81 1t was not error to allow the State
to prove that defendant had previously
expressed an intention of having carnal
knowledge with Addie Hardin, without
marrying her. 1t was a circumstance
tending to show his guilt.
81 The charge of the court does not
define seduction. This was error. 90
App, 455)
The judgment is reversed and the cause
remanded Opinion by Henderson, j.
Tete Coleman VS.. The State, conviction
for murder in the rfist degree with life
sentence assessed; from Goliad county.
There is no statement of facts or bill
of exceptions in the record. The charge
is applicable to a state of case probable
under the Indictment, and there is moth
ing in the record requiring decision. The
judgment is affirmed. Opinion by Da-
wilson, j.
Collin Mckinney VS., The State, convic-
ton for assault with intent to murder;
from Grayson county.
a. In our opinion, defendants appli-
cation for a postponement on account
of the absence of the witnesses Wozigo
and Clifton fails to show that diligence
was used by him to procure their attend
ance; also, that the testimony expected
from them would have been material
~ The other absent witnesses were
present, in attendance on the court the
day before the trial. Defendant asked
for no attachments for said witnesses,
and, for aught we know, they might have
been procured during the progress of the
trial.
% The court did not err in refusing
to charge on aggravated assault. There
was no evidence to justify such charge
Indeed, we fail to discover upon what
facts the court predicated it's charge on
self defense. If there is any mitigating
circumstance in this case, we fail to see
it, and our only surprise is that the jury
did not intict the highest penalty known
to the law for this offense. The Judgment
is affirmed. Opinion by Henderson, ].
James +. Vance VS.. The State, conyic-
ton for theft of cattle; from Baylor
county.
The Indictment in this case was pre-.
sented in King county and was sent to
Baylor county on a change of venue.
The record shows that the grand Jury
which found thn I'M -,
was composed of only IL men. Defend
ant moves the court to dismiss the ap-
peal for this reason. In answer to this
motion, the attorney general moves that
that portion of the record which shows
the empanement of the grand jury be
eXpunged; or, in the alternative, that the
court hear certificates to show that the
grand jury was in fact composed of II
men.
a. The record does show that the
grand jury which presented the indict-
ment consisted of only II men. The
constitution requires that the grand jury
shall consist of II persons. Il Con-, art.
3, sec. 49, But the order of the court
empaneling the jury is not a necessary
part of the record; nor would this court
be authorized, on motion, if said order of
empanelment did not appear in the record,
to issue a certiorari to the court below
and 2569) (See also 10 App, 1881
But is it insisted that, however this
may be, it does affirmatively appear from
this record that only II men constituted
the grand jury; and that, if this court
could issue a certiorari, it could only do
soto the. trial court; and that another Ger.
titicate from that court would only YER
ify the record in this cause; and that by
no possibility can this court seek informa.
tion as to the jurisdictional fact, in the
county from which the venue was
changed.
If this question had been made in the
court below it would have been compe.
tent for that court to have supported its
jurisdiction by proper writs to the court
from which the case had been transferred
All matters which do not affect the sub
stance of the charge should be made be-
fore defendant applies for a change OF
venue &c. G. p, Art. 5S01 Al Tex So
IL App, 60: We do not wish to be un.
derstood as holding that a jurisdctional
question can not be raised for the first
time in this court. But we cite these au.
thorties to show that the proper prac
tice would have been to have raised this
question in the first instance in the court
in which the Indictment was found. II
not raised then, it should have beer
raised in the court to which the venue
had been changed.
In IllS case, lHt ItCOIu lldI IL
the essential parts of the record, does moi
show want of jurisdiction in either Of
the trial courts or in this court. We car
treat the unnecessary recital in the record
as having no higher efficacy than an aft
davit of the fact showing want of juris
diction. Such an affidavit could be re
butted, contradicted, or explained by
other aftidavits. (COn. Art. ., Sec. u; AZ
Tex, 12O.
(2) The affidavits on file in the cause
show beyond question that in fact a lega
grand jury of II men was empaneled; and
that the recital in the record to the con
trary is a mistake.
(3j There was evidence in this case
tending to show that the defendant owned
the property which he is accused of steal
ing: also that he claimed to own it wheI
first charged with the theft. The tria
court refused to charge specifically on the
issue of ownership, and this refusal was
duly excepted to. In our opinion the re
fusal of the court to give the charge OF
the issue of ownership was error. "
s. W., 159). The judgment is reversed
and the cause remanded. Opinion D!
Henderson, j.
Ely Easterwood VS., the State, convic
ton for murder in the second degree