*1 58 the burden of the proof, whereas properly places charge given
given. in not, and facts evidence or rather to it was to the the applicable did show which facts were not legal facts to responsibility, evidence, which are to be in order to show required proven but that makes a minor amenable to law. See discretion which the Wusnig Texas, 651, State, State, 33 v. 24 v. Carr Texas Crim. 562. App., defendant, must first The law be requires non-age proven by done, then the burden on the State to prove and' this us that the the discretion. This facts brings appellant’s proposition is, not sustain do not show that discretion at the time of the sufficient to under alleged offense the offense. nature and of the act In illegality constituting order to we believe it is incumbent further go show this State case, there should not be than was done in this evidence only and character of of intelli showing history degree be fence but there should tend possessed by pertinently show knew offense was wrong that he theft ing him to This character punishment. criminal subject with the evidence to show fraudulent tending proof, conjunction would be sufficient. taking, and the out,
For the errors reversed pointed and remanded. Reversed Nalley The State. v. No. 3851. Decided Murder—Insufficiency Evidence—Carrying Distance. Assault assault with intent to murder tidal for showed that prosecutor or two" followed the for a block the defendant his use the not undertake he would did present it, him or not shoot at him or apart, seventy yards parties to assault evidence was sufficient intent it be conceded sustain conviction for even to that prosecutor. carrying defendant distance McLennan. beloAVbefore Court of Tried District Hon. Sam R. Scott. murder; Avith intent from conviction assault penalty, in the penitentiary. five years imprisonment the case. Hamilton, We submit Jennings proof & a threat and perhaps aggra fails establish anything Avholly manner so as to threatening frighten in using vated assault State, 519; Flournoy Texas Crim. v. v. Nalley. Lee State, v. Texas Crim. 244; Courtney App., State, 25 Texas Crim. Nalley 505; State, 475; State, Davis v. 15 Texas Crim. Wood App., App., 30 Texas 27 Texas Crim. Watts Crim. App., App., *2 McCord, Assistant for the
ON MOTION FOE REHEARING.
February 27, 1907. Presiding Judge. DAVIDSON, a former of this term day On state this case was affirmed because stenographic considered, first, ment of facts sent with the record could not be up second, because it ivas not signed by stenographer; approved therefore, court, third, court, and it was not filed in the trial by the case as ivas treated one without the evidence before this being court. A filed, motion for has been and a reconsideration which mis facts, is a statement of asked, accompanying proper the clerk in by a sufficient statement being explained sending up of facts. He certifies that it arose from his oversight sending up of the which had instead copy original, properly approved We, therefore, filed. will review the case with the evidence be now fore us. as we unnecessary, record, view this to consider any question of the insufficiency evidence. The conviction was
for assault to five alloted in the appellant peni- There is "a lot of tentiary. quite testimony permitted encumber troubles, the statement of facts reference to family in which uncle, and his assaulted appellant party, were prominent, out of what the uncle states was mistreatment growing of appellant’s and a transfer of by some appellant’s land, perhaps homestead, as call it, to the uncle brother of appellant, whom it seems had transferred the appellant previously property. This transfer seems to have been the immediate cause of the trouble. difficulty On the occasion of house appellant’s a conversation uncle, appellant occurred between Nalley. Appellant that he was to Hill see remarked his brother going County Necher re-transfer of the from Necher to regard property himself. remarked, the assaulted party, are to have Nalley, going it transferred to is not you, that deed I had go. it me.” remarked, Necher to transfer “Did you, you will of a bitch. I kill and Necher God damn old son before to- and ran in the house. The witness’ morrow night,” lying house. This witness thus the table testified: “He appellant’s Ime. never discovered him until I pursued got me, ‘You street. He called to God damn of Webster old the corner as well stop. you.’ As bitch, you just son of a course, man,- a sensible I on. He kept moving as kept matter of me. I went Mr. Katcliif’s I remem- through premises. hollering he had a there on his and I went premises, bered through back, and missed the went out on the climbed pistol, house to Mr. -for fence, telephoned and went Janes’ place police, arrested This witness came and while Halley.” says he was and he being pursued by appellant, appellant pistol, hand; it never carried thought right him as well he could at the distance. fiftjr steps guess as to how close was to him asked the direct Being “I he saw with the do not know. pistol, at the time replied: he ivas about think I I think I was about yards. block, and he had turned corner a little. half way just not be exact about that.” He further stated he says appellant kill him; that he did not enough. five-shooter for short ivas a 45-caliber asked cartridges. Being *3 man, will kill a he "I how far a 45-caliber answered: them short cartridges not with kill a man more suppose- them. or with I do not know thirty steps than anything at that.” it. He further testified that just guessing ap- about did not This witness was asked if shoot. pellant appellant snapped answered, him. He he did I did not hear it.” He pistol tried to shoot him he further stated did not know. “Q. he said he was to kill Yes, The A. sir. only thing you? Q. Q. effort to kill A. He said I you? Made no had better stop. The he said he only thing testify Q. That is what he said. Made ? A. no effort to kill you? not to me.” He did took enough A. own behalf. of his and testified his Some statements some- vary Avhat as to materially beginning difficulty from the testi- Halley. of the witness V. A. He corroborates the mony State’s wit- the effect that did not shoot ness to (appellant) attempt house, he went in the shoot; and followed his uncle if he view, for a block or two with could catch to make he had him return the deed obtained from Hecher Halley, the brother This is substance the case. of what Hpon theory ap- convicted, of assault under this we pellant testimony, The are at loss State’s evidence was that conjecture. Y. and followed A. for a Halley block or two that he Avouldkill him. He did not under- he did him; use the not shoot at not present it he did pistol. They apart. yards aside,
The former affirmance set granted, of sufficient for want justify is reversed and the Reversed and remanded. HEHDERSOH, Judge. to the result-—if it agree be conceded appellant got carrying distance as he fol- prosecutor, Beard v. The State. lowed him with the pistol; there is no evidence that he same presented or that he made prosecutor, any demonstration with if to shoot.
Ed Beard
No. 3491. Decided Gaming—Private Occupied by Family. Residence gaming person occupying for trial showed occurred, formerly the room which the of cards with his wife lived separated, daughters occasionally from whom he was visited visited Texas, age him in him and and the son between 25 and also stayed frequently Held, in his room occurred. family, this did not constitute a County Court Knox. Tried below before Hon. W. M. Moore. from a conviction of a fine gaming; penalty, case. for appellant. Coombs, Milam, J. Jas. E. Stephens Charles H Green, Roco
ipp Texas, 75 W. S. McCord, Assistant for the State. BBOOKS, Judge. conviction was gaming, This fine im *4 was Appellant running and back saddlery shop, posed a room where ate. His son appellant slept was shop (who thirty frequently stayed was between age) in Missouri, room. from whom Appellant him this for twenty years. Appellant had some unmar had been separated who visited him and living daughters ried At the time offense his daughters in said room. slept been there for months; had several have there, nor were They offense. were with their mother there since been lived in said room had since 1887. Appel Appellant Missouri. of the time at portion one meal the hotel taking lant when his son was with he did not take his years, for several for his dinner. Appellant son pay gen his hotel son while his son question, room was at the there. home ate at erally kitchen, as a room dining and bed by appellant used room the above stated facts come within the insists that Appellant room. statute; the place where the the gaming exception residence occupied by family,” a “private occurred card 379, 381, all character 28, punishing articles 1891, p. Act of any place, 28, to S. W. Rep., support cites Hipp