The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-01-15

contains threc ccunts--thc first and third
for forgery. and the seccad for attempting
10 pAss as true forged Instrument. The
Jery found the defendant guilty under the
seconc count Judgment was entered
against defendant for forgery, and not tor
Attt rapsins TO rssss as true forged instru-
E,snt; and the sentence following the tudg
mert is for forgery. This Judgment aud
sentence Is not responsive TO the verdict
a the jury. but was evidently occasioncd
by the carelessncss OF the court. The adj
ludieatlon and scntenoe was not merely the
emission OF some formal part OF the judy
fntrt and sentence. or some mistake In en-
tering the same. heree there is nothing for
this court 10 correct or reform as provided
In article eoi. c. C. T.. We have no evil
dcnce that the defendant was in fact adju-
Dictated guilty OF the offense OF which he
was found guilty, and that he WAS SEN
fenced for said offcnsc, and that tho CLERK
In entering UP the same made mistake
The record shows that the Judge committed
q radical error in adjudicating him gin. =
and in sentencing him for an offense OF
which he was not found guilty. In our
opinion. II Is as II no Judgment had ever
been pronounced against him for the OF.
fcuse OF which he was found guilty; and
such being the case. 1t is~as If no judgment
ard sentence had ever been passed upon
the appellant We hold that where there
is no sentence ir the record. or where the
sentence is for different offense than that
for which the defendant was convicted II is
as II he had never been sentenced. MS II It
VAS clerical error. The appeal is dis
missed
Opinion by Henderson, J. Davidson. j.,
disseDts. holding that the court should nm
der article 90i reform the Judgment and
sentence OF the lower court and affirm the
cause.
DOMINGO SALDANo, from Victoria; con-
yic.ion for horse theft-Affirrnod.
The record contains a statement of facts.
hu, no bill of exceptions. The charge OF
the court is applicable TO the evidence ad-
droed on the trial. We find no error.
Opinion by Davidson. ].
LEMON JACKSON. from Waller county;
conviction OF rape-Afhrmed.
The question relied upon is that the evil
dence for the State is not amply sufficient.
Appellant relied upon an alibi, and the
court by proper charge submitted this.
rs well as all other issues arising under
the evidence to the jury and they found
against him. We see no reason for dis
turhing their verdict.
Opinion by Davidson. j.
JOHN B1CE. from Grayson; conviction for
rape Reversed.
ON the trial tho State introduced one
Hanna, who testified that the prosecutrix
was his niece; that she was horn in April
or May. 1851; that he knew her age from
that he remembered she
Was born In that year, as Garfield was
shot during that year aud related other
circumstances. Defendant objected to this
testimony. because II was irrelevant and
was only the opinion OF the witness This
objection was properly oyerruled. Appel
liant offered to prove by the witness,
Meadows. that he knew the prosecutrlx
At the date of the alleged rape and judg-
ng from her appearance would say that
She was about the age OF II or ~ years
The State objected to this testimony. and
he court sustained the objection II II
Sas legitimate for the State TO prove the !
axe of the prosecutrlx by the witness
Hanna, he Judging from her appearance
when she was an infant. it was legitimate I
or the defendants witness to testify /
rs 10 her age NJ the time OF the commits
.lon OF the oiiense by her appearance. The !
Prosecuting witness testified that she was |
iregnart from the intercourse with APP
lellant Appellant offered to prove by the [
NAHcHS ElHhdu lHal on TWO occasions !
bout September, 1875, he saw the prose- /
;utry In the act of carnal Intercourse
Sith one Jim Ktnman. Appellant offered
bis testimony TO impesch the prosecutrix, /
Who testified that no person other than /
he defendant had had carnal knowledge
" her. to refute the facts in evidence tend
ne to show pregnancy on account of al /
eyed intercourse with defendant aud in !
Mitigation OF punishment. Upon obJec. /
ion nv tho Stnfa this too I'm ~
luded. BY the record II will be seen that |
: was an issue as to whether or not de- I
endant had over had carnal intercourse |
With the prosecutriS and some OF the !
',ate's testimony tending to show that
act. consisted in certain testimony re-
'arding her pregnancy. Hence II was very
Material 10 the defendant to show that
he had intercourse with other persons |
o that II she was pregnant II was on ac-
cunt of such other Intercourse. This tes-
imony should have been admitted. The
Indictment Is fatally defective because II
ccs not negative the fact that the injured
emale was the wife OF the appellant.
Opinion by Davidson, J.
Ohm II. FITZPATRICK. from Erath:
conviction for murder-Afdrmed
There Is nothing in appellants conten-
on that the order changing the venue
ON Tom Green county to Erath county
as not at regular term. The State in
SITS that the bills Of exceptions, numbered
ON 10 Z. should not be considered.
ecause they were approved on n separate
iece of paper by the judge, and said APP
royal flied nine days after the trial. The
pproval refers to each bill, and we think
sufflcient. The witness Brown was an
nwiling witness. and the court had
eht 10 permit States counsel to treat
i'm a. an unfrlcndly witness. and so
canine him. on the trial, defendant was