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: 450
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450 SMITH v. THE STATE. [Term of
Opinion of the Court.
That has long since been prohibited by a statute in this
"All vouchers, views, essoigns, and also trials by wager of
"battle, and wager of law, shall stand repealed." (Paschal's
Digest, Article 1468.)
There is thus no authority found 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.
The fact of such a proposition being made indicates an
opinion of a necessity for additional aid to the evidence already
adduced, to relieve the case from the doubt and uncertainty in
which it was involved by the conflicting evidence.
The ground of the motion for a new trial was, that the verdict
of the jury is contrary to the law and evidence, as prescribed
in the Code. (Paschal's Digest, Article 3137.)
The whole trial, as exhibited in the record here, except the
charge of the judge, presents the appearance of a strongly eontested
case of the trial of the right of property, as between
Houston and Smith, the true ownership of the property being
left extremely doubtful by the evidence, rather than a trial
between the State of Texas and John Smith on a charge of
felonious theft, in which the fraudulent intent is the most important
fact to be ascertained and fastened on Smith to a moral
We think there was a deficiency of evidence tending to
show, beyond a reasonable doubt, that the taking of the hogs
by Smith was fraudulent, so as to make it theft, and that the
court erred in not granting a new trial on that ground.
Reversed and remanded.
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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/m1/458/: accessed August 20, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .