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: 345
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1875.] AUSTIN v. THE STATE. 345
Statement of the case.
"receipt, by mistake or by fraud, was for a larger sum than was
"in fact paid, then the jury should allow only actual payments."
We perceive neither error in the admission of the evidence,
or the charge as quoted. The amendment of plaintiff was not
a plea of non e.st factum, it was not in the nature of one; it
was an acknowledgment of having signed the receipt, and a
statement of facts, which, if proven as evidence, could leave no
other impression on the mind of a listener, than that by fraud
or mistake, plaintiff, Muschke, had given defendant a receipt
for one hundred dollars more than was paid him. That a receipt
given for money or other property may be explained or contradicted
by parol evidence, will not be seriously denied, when,
as in this case, the pleadings authorize the introduction of proof;
this being so, the charge of the court was properly framed to
meet the real question at issue.
There was consequently no error in overruling the motion
for a new trial, the evidence sustaining the verdict.
The judgment is affirmed.
DICK AUSTIN v. THE STATE.
1. THEFT. Asportation is not necessary to be alleged or proved in order to
a conviction for theft.
2. INDICTMENT. It is not necessary to allege that the taking in theft was
" felonious ;" the word " fraudulently" is equivalent to " feloniously."
3. CONTINUANCE. On defendant complying with the statutory requirement
for the first continuance, it is error to'refuse the application.
APPEAL from Grimes. Tried below before the Hon. J. R.
At the June term, 1874, Dick Austin was indicted in
Grimes county, for theft from a house. In July following, he
was arrested. October 5th, the fall term commenced, when
the case was called. The indictment and exceptions thereto
are sufficiently shown in the opinion.
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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.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/353/: accessed January 23, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .