The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-10-30

perjury,-Reversed and remanaed.
The perjury was assigned on testimony
given by defendant In case wherein he
II conviction in said cause was introduced
against him, without a charge limiting
he effect of same.
Opinion by Davidson. J.
LEE SHELBY. from Milan: conviction fnr
theft OF cow--Reversed and remanded.
This case rests solely on the QussEon
whether or not the evidence 10 sufficient
to sustain tho conviction. and we think
that II is not.
Opinion by Hurt, p. j.
ANDREW REPToE. from Angelina; con-
viction for murder in the second degree
Reversed and remanded.
The indictment charged murder in tho
frst degree. but the charge IN
frst degree was dismissed and trial had on
charge OF second degree. There was mo-
ton In arrest OF Judgment on the ground
that the indictment was defective. hecause
1t charged that the killing was with ex
press malice aforethougnt Held That an
indictment good for murder in the hrst
degree Is good for murder In the eAtond
degree. The evidence raises the issue Of
and failure 10 charge "a n,
on Is error The court failed to coff,ctly
charge on the law OF self defense az de-
manded by the testimony In this CASE The
court also charged on the weight OF the
evidence.
opinion by Henderson. ].
MATTHEWS EFT AL, from Nacogdochcs-,
Reversed and remanded.
Appellants A. T.. Mathews, w. II. Huver,
p. c. Mcmillan, 70. Il. Hall, r. II. Coa~n-
head and j. NJ. Codenhead were each con
yicted under Joint Indictment with know
ingly cutting timber on land not their own
Held: That the court erred IN not permit
ting the defendants, llaver and Mathews.
to testify that they each believed that the
land from which the timber was cut be-
lcnged TO them and that they and each OF
them acted In good faith in cutting the
said timber The court also In his charge
shifted the burden Of proof from the State
to the defendants, showing the claim OF the
prosecutor to the land, which was incor-
rect and said charge was also on the
weight OF the testimony.
Opinion by Henderson, J.
J. l.. CALDWELL, from Bexar; conviction
for theft OF over S50--Reversed and re-
manded.
Because the evidence Is insufficient the
cause is reversed and remanded.
Opinion by Davidson, j.
THOMAS J. SHIELDS, from Bosque: cail.
viction for violation Of the local option
law-Affrmed
Appellant contends that the local option
law was void, because the order authoriz.
ing said election did not contain the ex-
captions in favor OF the sale OF liquor Tor
medicinal and sacramental purposes. Held
That tho exception is no part OF the qucs-
ticn 10 be voted upon. but follows as a
matter OF law Appellant also contends
that the court acted enormously In charg-
ing the jury in effect that local option
had gone into effect in Bosque county from
the date of the order putting II into effect,
and insists that the court should have
given charge asked by him TO the effect
that the jury should acquit unless they
found that the Ave notices required by
the stature bad been issued and posted as
the law directs, conteuding that he ad-
duced proof tending to show that said no.
tces had not been posted, and 1t was there
Of this we md no error. the statute making
such order prlma facic evidence that oil
the provisions OF the lew were complied
with; therefore the burden OF proof rested
uron the accused to establish that they
were not posted. and VIC do not think there
was testimony tending to show thai such
notices were not issued and posted. The
law only requires that notices be posted
Ia five diffc rent places In the county and
NOT In filrh voting precinct,
Opinion by Henderson, J.
FRANK FORESTER, from Bsll: convic-
tlon for rape aud punishment fixed At
life in the ponstenti1ry--Afllimtd
The court did not err In permitting wit
nesses, en- cross-examination. to testify
70 specific acts OF bad conduct on the part
OF defendant, while such testimony would
not have been admissible on direct ex-
animation. The lnjp-ed female being under
the age of 10 years the fact that she may
have consented Is absolutely immaterial,
Opinion by Henderson, J.
JOE EWING. from Limestone; conviction
for murder in the second degree ard
glwa twenty-five years In penitentiary--
Affirmed.
There was~nothing In the evidence 10
herce not error to refuse such charge. The
court submitted the defense OF Insanity
fully In the charge and the jury having
foucd against dFfeldant, We are not pre-
rared to say that they did wrong Finding
no error m the record. the judgment is
affirmed.
opinion by Hurt, P. J.
MUCKLERoY EFT AL. from Nacoydoches;
Alcck Muclsleroy. George Menefee and
w. A. Lylss wgre convicted under a
Joint indictment With taking fish from
the Angelina river by means o. ex-
plosiyee--Affirmed.
There Is but one bill OF exception in the
record, and that is the action o, the court,
aftfr the jury had been out some time
and having failed to agree on a verdict;
the court admonished the jury in effect
that II was tteIr duty TO agree upon .
verdict, II practicable; that difference
OF Judgment conEcitntlously adhered to is
the only excuse for falling to agree TO
verdict. and this the jury was not expected
TO relinquish. The remarks OF the court
e.. he m