Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 672
viii, 704 p. ; 22 cm.View a full description of this book.
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67I2 INDEX.
CRIMINAL PROCEDURE-Continued.
court at the time, and must ask what additional instructions he may
desire, and, unless he does so in the court below, such charge will not
be revised. 1looring v. The State, 85.
See facts held sufficient to authorize a conviction for aggravated assault.
Id.
2. The use of any other oath than that prescribed in Art. 563, Code
of Criminal Procedure, in criminal cases, is cause for reversal on appeal.
Mforgan v. The State, 224.
3. Under the Code (Paschal's Digest, Article 2344), the willful killing
of a hog, when done with intent to injure the owner, is punishable
by fine not less than three times the amount of injury done to the
owner, and not exceeding ten times the amount of such injury.
Held, That the amount of injury done the owner, being an element in
the punishment, must be distinctly alleged, and an allegation of the
value of the animals killed is not sufficient. Thomas v. The State,
235.
4. A charge to the jury which assumes that no evidence of an alibi
can avail the defendant (when the evidence of the State alone would
be sufficient to convict), unless it produces conviction on the minds of
the jury that defendant was not present at the commission of the offense,
but elsewhere, is error. Walker v. The State, 360.
5. If the evidence of an alibi produces upon the minds of the jury a
reasonable doubt concerning the truth of the facts constituting the
guilt of the defendant, affirmed in the indictment, it would be sufficient
to require an acquittal. Such a doubt might arise in their minds
from the evidence tending to prove the alibi, and if so, that would be
sufficient to render the evidence available to rebut the affirmative evidence
for the State, without their minds ever having arrived at a conviction,
to tlre degree of a moral certainly, as to the truth of the alibi.
Id.
' 6. A recitation in the judgment entry in a criminal cause, that the
jury was "sworn well and truly to try the case," is not construed to
mean that the jury was sworn in that form, but as equivalent to saying
that the jury was sworn ; the words " to try the case," are construed to
indicate nothing more than the case in which the jury was sworn, and
not the form of the oath. Anderson v. The State, 389.
7. PRACTICE. It is proper to submit to the jury the plea of former
conviction with the plea of not guilty, with instructions to first find
upon the plea of former conviction, and proceed no further if the evidence
sustains it. But if the jury fail to make a response to the issue
submitted of former conviction, and find against the defendant on his
plea of not guilty, it is error for which the case will be reversed, though
not complained of in the court below, if it be apparent from an inspec
tion of the record. Davis v. The State, 494.
8. The admissibility of witnesses who have violated the rule or who
have not been placed under the rule, is within the sound discretion of
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28531/m1/680/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .