The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-03-06

pear. Appellant moves to r,dnsthtc. md
produces the certificates Of the county
clerk and the county attorney TO the ct-
fest that a proper rccognigauce In the
terms OF the law was taken, and that
by clerical omission In entering the re-
coEniaancc on the minutes of the court
tho clerk failed ia insert the court be
fore which appellant was bound To ap-
pear, We are asked to consider the re-
coguigdnoe as perfected on the certificates
of the clerk and county attorney. This
we can not do After the rccoEnizuucc
Is taken, IT Ia the duty OF the clerk 10
enter the Same ON the minutes The
minutes should be read and counsel for
app liant should he present at the read
Ing, and SEQ Lat the same has been ru-
tered corr city. and If not. have tho
corrections made. If he * moi present
AZ tho rcadirg he should AT least insnect
the minutes of the court aud sec that
tho rrcngniznncp Is entered correctly. 1t
appears that he has failed to do this;
aud for thls court now to rcrmtt tho
! record to be amended In the manner
now attempted would bo to put pre-
MUM upon negligence.
opinion 10y henderson, j.
a NADER from Parker; motion for
rohcartng--,)vr
| This IL companion ease 60 uill Thomp-
SON W. state above. The records are
In precisely the same condition. ON the
authority OF the Thompson case this mo-
| ton Is ovcrrulcd
opinion by Hurt, p. j.
JOHN WILKINS, from Johnson. convic-
zion for murder IN III" hrn. degree
| death ponnlty-Afnrmed.
| Thr stat having announced rendy for
trial, appellant moved for continuance
for tho testimony of ono Dean This
motion was ovcrruled, The testimony OF
| Dean n the "a HftiYutlo "a 81
material but In passing upon the action
! of the court IN overriding the motion
| FOR u new trial based on this matter.
| We look 10 the fact as TO whether the
| testimony vas probably true After caro-
| fully examining the Hatoment of facts.
we are of opinion that II Dean had been
present and had testified to the facts
set out In the application. no Juror
| would have believed him, The testimony
renders 1t absolutely certain that his
| testimony Is not probably true. Hence
there was no error IN refusing TO con-
| tinue the cause. After TIE Stnio had
Introduced its evidence nni rested, Mt
| tachmonts for NJ. NJ. Wright and \. II,
| Wright were returned. showing that said
witnesses were IN bed sick, and could
| not attend the trial. Counsel for appel
lnnt made an additional application Ia
continue tho case for thcse Witnesses.
This WIS refused and appellant excepted.
! The evidence of these witnesses was pro-
cured and med, and they contradict
most cmph1tically the fact that they knew
anything ABOUT inc matters pInpuHfu 10
be proven by them and IT i' evident
they would not have sworn TO the facts
set out In The application for n continn-
ance Tho State proved by two witnesses,
confessions made by appellant. to wh!cn
/ defendant excepted. There ~ no ground
of exception IN the bin; hence IT VIII
not bc considered Appellant proposed
to prove some facts which remotely point
To the theory that perhaps some one elst
killed the deceased Tho facts proposed
to be proved wfro too remote, and
Ia. A.afstf gtsH haH
The courts charge In reference 10 muir,
der was correct. The charge of the court
in reference 10 appellants attempt to
escape from tho sheriff WAS u matter
favorable TO appellant The evidence Ia
this case though clrcumstuntial, estab'
fishes tho guilt Of the accused. pointing
circumstance show that though In tn,
preparation Of robbery, the killing was
n deliberate assassination; but be tbs
as 4 may it Mns murder In the perpe,
tration OF robbery, and hence murder
in the first degree. The judgment Ii
| affirmed.
opinion by Davidson. j,
J. NJ. THOMPSON, from Harris: convic
ton for robbery inrmod
APP liant claimed severance, nn(
asked that his co-defendant he FIRST PLACED
upon trial. 1T was shown that his co
defendant was too sick at the time t'
be- tried, and 1t is evident that the effec
OF the s. Verance would nave brrn u
continue the caar as TO both defendants
There was no error in tho court refuslnl
to grant a severance. Appellant qu"s
lions tho validity Of the indictment OF
the ground that there Is no allegation
that the appellant cnrfied AWAY the prop
crty. II II not necessary ihpt the In
dictment should 80 allege. Defendant
also objected that the indictment wa
defective In that II does not sufbcientl
describe the property alleged TO have beer
taken. The lanhragc In the indictmen
is as follows: 'fi2s2,22 IN money OF IN
value of tl2S2 22, ana 800 In money o
tho value of 500" The term none!
has been construed under the staiut
maNlng the misapplication OF publi
money an onense; and II is held tina
money means the legal tender metallic
United States." We hold that as TO rob
bery. the term money means the sam
| thing. and the Indictment Is sufficient
| Tho testimony OF Kindred. that he saw
! two men in the vicinity Of the robbery
and that they had II roll OF money. !
, ! TOO remote and was properly excluded
The court permitted the State TO ahoy
! thai Whntiey inquired OF the express
agent when the money 10 pay the guard
, would arrive. This testimony was ad
, | Missile The record abundantly show
! | n, conspiracy between WhBtley Grain an
| Thomson to perpetrate the robbery. am
| what oithfr did or said In pursuanc
: | thereof and nrior TO iis consummation
was admissible against either OF tn
| others
Opinion by Henderson, ].
/,