Banks v. State
Court of Appeals of Texas
Appeal from the District Court of Nueces. Tried below before the Hon. J C. Russell. The conviction was for theft of a gelding, and five years in the penitentiary the punishment assessed. As originally drawn, the indictment did not show on its face the court or term to which it was presented; and, pending a motion to quash, the court allowed the prosecuting attorney to amend it in this respect. The defence reserved exceptions.
1Opinion of the CourtClark, J.
If there be evidence tending to show that the taking was not with fraudulent intent, but only tortious, it is the duty of the court to submit that issue distinctly to the jury for its consideration ; and their finding against the prisoner upon such issue will not be disturbed, unless in the absence of testimony tending to support it. Upon the trial of this cause the defendant had the benefit of very explicit instructions upon this point, and we are not prepared to say that the jury did wrong in concluding that he was guilty of theft, or that such finding was without evidence to support it.…
2Cases cited1 opinion
- Poage v. StateTexas Supreme Court · 1875