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: 444
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444 SMITH v. THE STATE. [Term of
children, without change or augmentation for deficiency in
We do not concur in the views of the court on the former
appeal (34 Texas, 617), in effect that the widow might abandon
the homestead on the death of the husband, and select a new
homestead from the entire estate.
Where the husband died without having a homestead, provision
was made for an allowance in place of it, but if there was
a homestead, the exemption was for that homestead, and not
for another to be selected out of the estate, and set apart to the
widow in lieu of it.
We are of opinion that the lands described as 0, P, and W,
and the fractional lot, formed no part of the homestead at the
death of Dr. Ragland, and that his widow has no right to make
it her homestead in whole or in part after his death.
The judgment of the District Court is, therefore, reversed
and case remanded.
Reversed and remanded.
JOHN SMITH v. THE STATE.
1. THEFT. A fraudulent taking of the property of another embraces the
idea that the taker knew that it was not his own, and also that it was
done to deprive the true owner of its value. Hence, a taking under a
claim of ownership when the evidence shows reason to believe the claim
well founded, will not authorize a conviction of theft.
2. THEFT-EVIDENCE. On the trial of one charged with theft of an animal,
the jury was permitted by the court to leave the court-room during the
trial, and inspect for themselves the animal alleged to have been stolen,
with a view of thus solving, in connection with the evidence detailed by
witnesses, the question of identity and ownership. No evidence was
detailed by any of them on their return into court as to what they discovered.
Held, 1st, That there is no authority in this State for such a
mode of enlightening the minds of the jury as to the material facts of a
case which they have to try. 2d, That a verdict upon facts thus ascer
tained would be a finding on facts known only to the jury-not publicly
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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/m1/452/: accessed June 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .