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: 445
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1875.] SMITH V. THE STATE. 445
Opinion of the Court.
developed on the trial-concerning which defendant had no opportunity
to cross-examine them as witnesses, upon which defendant or his counsel
had not been heard, and of which the judge had no information.
APPEAL from Gonzalez. Tried below before the Hon. John
Indictment for hog-stealing. The evidence seems, from an
examination of the record, to have been about equally divided
in regard to the true ownership of the hogs, there being quite
as much evidence to establish ownership in Smith, the defendant,
as in Houston, the alleged owner. During the progress
of the trial, on the suggestion of the District Attorney, the
jury was taken in charge of an officer to "see and examine the
" sow as part of the testimony in the cause." On the return
of the jury into the court-room, none of them appear to have
been examined as to what they saw during their absence.
Verdict guilty, and punishment assessed at one year in the
Davidson & Atkinson, for appellant.
Geo. Clark, Attorney-General, for the State.
ROBERTS, C. J. In this case, John Smith was tried for and
convicted of theft of a sow and six pigs, alleged to be the
property of Robert A. Houston. There was first a mistrial,
because the jury could not agree, and by agreement, another trial
was had at the same term, at which the jury found the defendant
guilty, and assessed his punishment to confinement at hard
labor in the penitentiary for one year. The indictment is in
good form, and the charge of the court was an excellent exposition
of the law applicable to the facts of the case, of which
neither party complains. The evidence as to whether the hogs
belonged to Houston, or to Smith, is conflicting, being, so far
as we can judge, very well balanced. Each party makes by
the evidence a good case of ownership of the hogs, not by the
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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/m1/453/: accessed December 14, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .