The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-01-23

Y
son. From the record he appears TO have
been an accomplish and the court below
should have treated him so. An accomplish
must be corroborated. This was not done.
Opinion by Hurt. p. j.
HILL SESSIONS. from Falls; conviction
for conspiracy to commit theft OF
horse--Revcrscd.
We pretermit any expression of opinion
as to whether Or not the oifense of CON
spiracy us defined in article 953, is COM
mitted by parties entering into positive
agreement to commit theft generally This
conviction was obtained upon the testi-
nony OF one Ferguson, VINO was an ac-
complete, and so recognized by the trial
Judge. The State. over appellants objec-
ton introduced in evidence the acts and
declarations Of co-conspirator, Adkins.
proving that Adkins was found IN possess
sion Of stolen horse, and other acts after
the completion of the oilensc. Such evil
dcncc Is not admissible conspiracy can
not be established by the acts and declara-
tons of a co-conspirator.
Opinion by Hurt, +. j.
WASHINGTON HARDY, from Victoria;
conviction fer rape upon a girl under 10
years Of age, death penalty assessed-Af-
firmcd.
1t appears from the facts that the girl
was living with her grandmother In Hous-
ton, where appellant lived; that OH or about
March T. 1886. he induced the girl 20 leave
her grandmother and go with him to Vic
toria county, at which place he claimed the
| girl was his daughter He slept with the
| girl and had carnal intercourse with her a
great many times. At the time of such in
tcrcourse in Victoria county the girl was a
| few months over 10 years OF age. Upon
| the trial appellant attempted to establish
common law marriage by swearing that he
| and the girl had agreed to live together as
| man and wife; and upon such testimony
| REQUESTED an instruction in reference to
| common law marriages There was no err
rcr in the courts refusal to give such
| charge. because the girl was under IL years
Of age. and under the laws OF this State
could not marry in any form. with or with
out a license The state proved beyond
| question that the prosecutrx was not the
| appellants wife.
| Opinion by Davidson. ].
DAN MUSE. from Waller county: convic-
| tion for murder in the first degree; life
| sontonce-Affirmed.
The statement of facts in this case was
not filed until the twelfth day after the
| adjournment of the term of court. APP
| pellants attorney and the district attorney
| filed affidavits concerning diligence used.
| etc. An inspection of these atfidavlts do
| not disclose proper diligence ON the part
of appellants counsel to secure the state
| merit Of facts in time The Indictment and
| the charge of the court are correct.
Opinion by Henderson. j.,
T. j. WILSON. from Erath; conviction for
murder, ten years in the penitentary--
| Reversed.
The court did not err in admitting testi-
| b,J
| viously owned saloon in which the de-
| ceased was then doing business, and per-
mtted his minor son to stay in said saloon.
| The theory of the defense was to the effect
| that defendant had gone to deceased 9
saloon for the purpose merely Of getting his
son away from the saloon. II appears that
defendants son was a minor, and defendant
| was opposed TO his being in the saloon. In
contravention Of this theory. the State
| proved that a short time before the homi
eide defendant had pursued his son to a
butcher shop. adjoining the saloon, aud
walked UP and down the street in front
OF said saloon and butcher shop, using
abusive language towards certain persons,
whom he accused of roDOing him and now
| having his son in the saloon running him
Under this state of case there was no error
in admitting the testimony. On the trial
the State asked Witness Penninger, on
cross examination, among others, the fol-
lowing question Did you not tell Frey
in that conversation that you had been with
the defendant all day and that you knew
the difficulty was going to come off. and
that you left to keep from seeing it, An
swer: Il had no such conversation with
Frey" The State afterwards introduced
Frey, who testified that Penninger said to
him that he had been with the defendant
that evening, and that he knew the thing
was going to come off, and there was GO
ing TO be trouble and that he left to keep
| nai nj n Anh llDn rtAt nnt saGl
to all of this testimony upon the ground
that IT was irrelevant. immaterial and was
an attempt to elicit from Penninger his
opinion as to whether or not the difficulty
was going to come off. and such conclusion
was collateral and Irrelevant. and the State
having asked the Witness Penninger all
about the matters testified to by Frey, and
Penninger having denied such statements
the State was bound by his answer and
could not impeach him by showing that he
had made false statements about such mat
tcrs of opinion. By reference TO the record
it is seen that Penninger is defendant
most imuortant witness: by him appellant
proved that Just prior to the difficulty "h'
went into Tho saloon of the deceased
through the back door. following the de-
ceased. ard that tile deceaaed procured from
l him his knife, and said that he intended Il
go out there and call that fellow a white
livered - - After the homicid.
knife was found fother than that nset
by the dcfendantl, which penningor iden
titled Ms his knife. We think the fact tina
the State was permitted to contradict thi
witness upon an immaterial matter. tended
to prejudice defendants right before thu
iury.
Opinion by Henderson ].
, WILL LOWERY. from Rockwall; convic
: ton for CARRYING a pistol on and abou
his perscp--Appoal dismissed.
The recoerigance recltes that he
? charged with carrying ION or about his
person pistol" This rocites the offens
as havins been charged in the alternative
The recognizence Is defective.
= Oplnion BY Hurt, =. j.
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